Volume 129 — Wisconsin Reports

of tbe circuit court for Sheboy-gan county: Michael RirwaN, Circuit Judge. The appellant, the Sheboygan Light, Power & Railway■ Company, is a corporation conducting its business in the city of Sheboygan under authority granted it by the city. It maintains the poles, wires, 'lamps, and station necessary for an electric lighting business. In June, 1902, it maintained a street light at the intersection of North Thirteenth street and Erie uvenue.

<p>Appeal from a judgment of tbe circuit court for La Crosse county: J. J. Eeuit, Circuit Judge.</p> <p>Tliis is an action by the lessor to recover the balance of unpaid rent from the lessees. It appears and is undisputed that July 11, 1902, the plaintiff leased to the defendants the premises described, with all the buildings and appurtenances thereon, for the term of two years from August 15, 1902' with the privilege of buying at the end of the- first year for $6,200. The defendants therein agreed to pay to the plaintiff $50 on the 15th day of each month in advance for and during the full term of the lease, with an agreement that, if the defendants failed to pay rent as specified or failed to fulfil any of the covenants therein contained, it should be lawful for the plaintiff to re-enter and take possession of said premises and hold and enjoy the same, without such re-entry working a forfeiture of rents to be paid and the covenants to be performed by the defendants for the full term of the lease. This action was commenced to recover $400, being eight instalments of rent — the first being that of February 15, 1903, and the last that of September 15, 1903, — with interest on each instalment from the day of its default until paid.</p> <p>The defendants by way of answer admitted the execution of the lease and the default in paying the rent due February 15, 1903, or at any time since, and by way of counterclaim for $500 damages alleged that at the time of making the lease the plaintiff represented to the defendants that the gristmill was in good condition and would do good work, and the defendants, relying upon such representations, made the lease, whereas, as a matter of fact, as the plaintiff then well knew, the elevator pit was improperly constructed and leaked, and became full of water and wet, and spoiled a large quantity of grain and injured and spoiled the flour made therefrom; that by reason of such defects the defendants could not use the mill, and so quit and surrendered possession thereof to the plaintiff, and that the plaintiff accepted such surrender of such premises. The plaintiff replied to the counterclaim by way of a general denial.</p> <p>A trial being bad, the jury at the close thereof returned a special verdict to the effect (1) that the elevator pit in the mill was so improperly constructed or out of repair that it would leak and fill with water to the extent that the elevator-cups would dip water and injure wheat therein; (2) that such defect in the elevator pit was not capable of being’ ascertained by a reasonably careful and prudent person by the exercise of ordinary care and diligence in inspecting the mill generally; (3) that the defendants in the operation of said mill could not, by using ordinary care and diligence, have-prevented the wheat in the elevator pit from becoming wet from water therein; (4) that when the lease in question was-made the president of the plaintiff corporation, with whom such contract was negotiated, knew that said elevator pit was-defective and in a dangerous condition, so that it would fill with water and injure the wheat therein; (5) that the defendants did sustain damage from wheat becoming wet in the elevator pit in the sum of $232.50 ; (6) that the defendants, when they paid their rent under the lease on August 14,, 1902, and the following months thereafter to February 15, 1903, did have knowledge of the defective condition of the elevator pit (answered by the court) ; (7) that the defendants did surrender to the plaintiff, and the plaintiff did take full and exclusive possession of, the leased premises, and accept such surrender, except as authorized by the lease;, (8) that the plaintiff did take such exclusive possession immediately; (9) that the use of the mill as a mill was materially lessened by reason of such condition, when operated with ordinary care and prudence.</p> <p>Thereupon the court by order denied the defendants’ motion for judgment upon the answers of the jury to questions 5 and 6 in said special verdict, and further ordered that the-answer of the jury to question 3 in the special verdict be changed from the negative to the affirmative, so that it found, in effect, that the defendants, in the operation of the mill,, could by using ordinary care and diligence bave prevented the wheat in the elevator pit from becoming wet from the-water therein; and further ordered that the answer to question 7 in the special verdict be changed from the affirmative-to the negative, so that it found, in effect, that the defendants, did not surrender to the plaintiff, and the plaintiff did not take full and exclusive possession of, the leased premises, and accept such surrender, except as authorized by the lease; and it was further ordered that upon the remaining questions,, to wit, 1, 2, 4, 8, and 9, of the special verdict, and the uncon-tradicted evidence, judgment be entered for the defendants,, dismissing- the action, with costs. Thereupon and on motion of the defendants judgment was entered dismissing the plaintiff’s complaint, with $34.90 costs. Erom that judgment the-plaintiff appeals.</p>

<p>Appeal from a judgment of the circuit court for Pierce -county: E. W. Helms, Circuit Judge.</p> <p>This action was brought to recover damages for breach of the following alleged contract:</p> <p>“Know all men by these presents: That we, the under■signed, whose names are hereto subscribed, all of the county of Pierce and state of Wisconsin, do hereby associate ourselves together as a co-operative association under the name of the Prescott Creamery Association, for the purpose of manufacturing our butter at actual cost. It is agreed that the place of business or creamery plant proposed to be erected -shall be located at or near Prescott, Wisconsin. It is further agreed in consideration of the mutual benefits herein agreed by and between the members of said association and whose names are hereto subscribed as parties of the first part, and Golden and Tobias as parties of the second part, as follows, to wit:</p> <p>“It is hereby agreed by and between the parties of the first part and the parties of the second part that the parties of the first part shall consist offnot less than thirty-three members, whose names shall be subscribed hereto, before this agreement shall become operative and take effect upon either party. The parties of the first part agree to furnish free of charge sufficient land for a. suitable location, and reasonably level, on which the creamery building shall be erected, and said first party shall also furnish free of charge on the creamery grounds aforesaid a' sufficient well of good, pure water. Said ground shall be furnished said second parties on or before the 1st day of April, 1904, so as not to delay the erection of said creamery.</p> <p>“And it is agreed that the parties of the second part shall build, equip, and complete for said parties of the first part on or before the 1st day of June, 1904, a creamery plant on said location aforesaid, as per plans and specifications and list of machinery and appliances hereto attached, for the consideration of thirty-three hundred dollars, which said sum of thirty-three hundred dollars the parties of the first part hereby covenant and agree to pay said parties of the second part, their heirs or assigns, with interest from June 1, 1904, at six per cent, per annum as follows, to wit: $1,100 January 1, 1905, $1,100 January 1, 1906, $1,100 January !, 1907.</p> <p>“It is further agreed that the parties of the first part shall appoint a president and secretary to act as said association’s representatives in looking after the erection of said creamery plant and whose duty it shall be to accept said creamery plant for said parties of the first part, upon notice in writing to them by said second parties of the completion of said plant, and should said representatives aforesaid fail to notify said parties of the second part in writing of the acceptance by them of said creamery plant as herein mentioned within six days after the second party gives them notice of the completion of said plant, the same shall stand accepted without any further act.”</p> <p>The complaint sets up the contract and alleges that defendants were copartners and failed to perform on their part, and refused to permit plaintiffs to perform, in consequence of which they sustained $1,225 damages. The answer specifically denies that defendants were partners, and alleges that at the time each defendant affixed his signature to the written agreement it was specially agreed that said agreement was not to become binding or effective for any purpose until the plaintiffs had obtained from the signers of such agreement a pledge in writing to furnish for the use of the creamery when erected the milk from 250 to 350 cows, and that the plaintiffs wholly failed to obtain such pledge, and that the defendants signed the instrument relying upon the agreement that such contract would not become effective or of any binding force until the plaintiffs had obtained such pledge, and that it was well understood between plaintiffs and defendants that such creamery could not be run so as to pay expenses with less than the number of cows specified. The answer contained other defenses not necessary to state.</p> <p>The case was tried by the court and a jury, and a special verdict returned to the effect that at the time the contract was signed and delivered to the plaintiffs by twenty-five of the defendants there was an agreement between them and the plaintiffs that such contract should not become binding upon such defendants until agreements were obtained from various individuals to furnish in the aggregate the product of at least between 250 and 350 cows to the proposed creamery. Motions were made by plaintiffs to set aside the answers to the questions and for judgment notwithstanding the verdict, and the defendants moved for judgment on the verdict. Plaintiffs’ motions were denied and defendants’ granted, and judgment entered in favor of the defendants and against the plaintiffs, dismissing the complaint, from which this appeal was taken.</p>

<p>ERROR to review a judgment of the circuit court for Keno-sha county: E. E. BELDEír, Circuit Judge.</p>

<p> Lien of subcontractor: Foreclosure: Personal judgment against owner: Service of notice of claim: Evidence: Return of officer: Building contract: Extras. </p> <p>t. In an action to foreclose a subcontractor's lien a personal judgment against tbe owner is erroneous in tbe absence of evidence showing bis personal liability to tbe plaintiff.</p> <p>2. Tbe fact that plaintiff’s attorney or some third person was unable to find in tbe county any agent of tbe owner to whom notice of tbe lien claim could be given in compliance with sec. 3315, Stats. 1898, does not show tbe plaintiff’s inability to find such an agent, especially where it appears that tbe owner bad an agent in tbe county and that plaintiff while doing tbe work as subcontractor bad bad continual dealings with said agent in bis capacity as such.</p> <p>3. Tbe notice of claim for a subcontractor’s lien is not process, and: a certificate or return signed by a deputy sheriff, to tbe effect that after diligent search in tbe county be was unable to find-tbe owner or any agent upon whom such notice could be served, has no evidentiary force.</p> <p>4. Under a building contract providing that tbe architect might direct alterations only by making a written agreement with the-contractor in advance, if no such agreement was made and there was no waiver by tbe contractor a subcontractor cannot recover from tbe contractor for extra work done without tbe consent or authority of tbe latter.</p>

<p>Appeal from a judgment of the circuit court for Wauke-sha county: James J. Dice, Circuit Judge.</p> <p>On April 16, 1901, the English Construction Company? then composed of John English and James Mair, made a contract with Lincoln county to build a county courthouse. The construction company, by this contract, agreed to do the work and to furnish the material for the construction of this building, except the heating, plumbing, and electric wiring, in accordance with the requirements of the plans and specifications prepared by Yan Ryn & De Gel!eke, which had been adopted by the county. As a consideration for the erection and completion of this building the county agreed to pay the construction company $60,606; payments to be made as the work progressed, on the certificates of the architects or the superintendent, at eighty-five per cent, of the estimated value; final payment of all sums due to be made when the building was. completed to the satisfaction of the architects and the committee representing the county. The building was to be inclosed and roofed before the expiration of the year 1901, and completed for occupancy by the county on or before September 1„ 1902; provided no delays in the construction of it were occasioned by strikes, epidemics, or quarantines. The following-was the stipulation as to the time of completion of the building:</p> <p>“It is further agreed, should the contractor fail to finish-the work at or before the time agreed upon, he shall pay to or-allow the said county, by way of liquidated damages, the sum of twenty-five ($25.00) dollars per diem for each and everyday thereafter the said work shall remain incomplete.”</p> <p>The plaintiff entered into a contract with the construction company, as a subcontractor for the ironwork, and agreed as follows:</p> <p>“Meeeilt,, Wis., May 27, 1901.</p> <p>"English Construction Co., Merrill, Wis.</p> <p>“Gentlemen: We hereby propose to furnish iron work for Lincoln county courthouse as per plans and specifications, put in place, for seven thousand three hundred sixty dollars ($7,360.00). You to set the castings in place, also the iron .gratings. Monthly estimates of 85 per cent, to be allowed ns on this job.</p> <p>“Tours truly,</p> <p>“ModeRN Steel StbuctüRal Co.</p> <p>“By J. L. Bickels, Bus. Mgr.</p> <p>"“We hereby accept the above proposition.</p> <p>“English Construction Co.</p> <p>“By John English.”</p> <p>'The specifications made provision for changes and alterations, and, as incidental to such variation from the original plans and specifications, for additions to and deductions from the cost; for the architects’ control and decision; and for the appointment of a superintendent by the county building committee. Among the duties imposed upon the superintendent were:</p> <p>“Giving on demand any certificate that the contractor may be entitled to, . .' . also determining the amount of damages which may have accrued from any cause, and particularly to decide upon the fitness of all material used and work done. The superintendent’s opinion, certificate, report, and decision on all matters to be binding and conclusive.”</p> <p>The specifications further provided that all contractors ■should comply with all things appearing therein, under whatever heading it might appear, if it affected the contractor’s work. The construction company entered upon the execution of the contracts in the month of dune, 1901, and soon thereafter demanded that plaintiff immediately furnish a portion of the iron for use in the construction of the building. This •the plaintiff failed to do, and did not actually deliver such iron until about December 1, 1901 — too late in the building -.season of that year to proceed with the construction of the building.</p> <p>On September 1, 1902, the county and the defendant, the '■construction company, made an agreement:</p> <p>“Amendatory of articles of agreement made under date of April 16,1901, between the same parties.</p> <p>“Witnesseth: That said party of the first part, for and in consideration of tbe increase in tbe consideration hereinafter provided for, does' hereby covenant, contract, and agree to complete all of tbe work not yet done as provided in tbe original contract, on tbe courthouse therein referred to, according to tbe plans, specifications, and drawings originally provided for the building of tbe said courthouse (which are declared to be a part of this agreement) made by Yan Ryn & De Gelleke, architects, with the exception of the cement work in the basement, and thé ornamental cresting on the deck of the roof, provided in such plans, specifications, and drawings. By ‘original plans, specifications, and drawings’ being meant those which were originally submitted by Yan Ryn & De Gel-leke, architects, but which were modified and cut down so as to come within the appropriation made by the county board, which original plans, specifications, and drawings are now on file and in the possession of the county clerk of Lincoln county, Wisconsin. With the exception of the change from the modified plans, specifications, and drawings, all of the terms of the •original contract hereby amended are to be considered in full force and binding, with the exception of such as are hereafter .specifically referred to. The time for the completion of the work under the said contract is hereby extended.to May 1, 1903. The consideration of said contract as hereby amended is- changed from the sum of $60,606 to $80,323, to be paid in "the same manner as provided in the original contract. It is further agreed and provided that from such consideration shall be deducted the salary of superintendent from September 1, 1902, to the time of the completion of the building, as hereby extended, at the rate of $45 per month.”</p> <p>The building was completed under these agreements; plaintiff furnished all the ironwork and did all the work required by its contract for the completion of the building as agreed, except a railing on the second-floor landing, which defendant supplied at a cost of $20.85. The plaintiff commenced this action to recover an alleged balance, amounting ■to $500.24, due it under its contract with the defendant.</p> <p>The defendant John English, appearing in the action as the member of the defendant company who had acquired all the rights and assumed the obligations of the company growing out of the transaction covered by tbis action, alleged the making of the various contracts for the construction of the courthouse, entrance upon the erection and execution of the woi’k, inability to complete it within the time limited by the original contract, its modification by the agreement of September 1, 1902, and the completion of the building under these agreements in 1903. He also alleged that the plaintiff’s omission to comply with its agreements to provide the iron for the building as required in the course of the construction of the building was the sole cause of the delay in completing it as agreed in the original contract, and of his inability to comply with it; that, as a result of such delay by the plaintiff, he was compelled to make the agreement of September 1, 1902, and that he had suffered damages through plaintiff’s failure to provide iron at the appropriate time in the course of the construction of the building, consisting of the following items r (1) For failure to furnish railing on second floor. (2) To amount paid Durner, subcontractor for the tile work, for loss of time and expense incurred through plaintiff’s delays in furnishing iron. (3) To the value of his own time from September 1, 1902, to the completion of the building in 1903. (4) To amount paid masons and carpenters for loss of time while waiting for iron. (5) To the superintendent’s salary, paid in lieu of the penalty provided by the original contract; and that said items amount in all to $3,893, which sum is now demanded by way of counterclaim in the action. The plaintiff denied liability as claimed in the counterclaim.</p> <p>The action was tried by the court, and it found that plaintiff had completed its contract, except that it omitted to furnish the railing on the second-floor landing; that there was due plaintiff as a balance on said contract the sum of $500.24, less $20.85 for failure to furnish the second-floor railing; and awarded judgment against defendant for the difference, namely, $419.35, with interest thereon from September 5, 1903, and amounting to $51.12; and for costs and disbursements, taxed at $52.69. Tbis is an appeal from such, judgment.</p>

<p>Appeal from an order of the circuit court for Dodge county: James J. Dick, Circuit Judge.</p> <p>This is an appeal from an order of the circuit.court for Dodge county in a proceeding to establish a drainage district under secs. 1379 — 11 to 1379 — 31, Stats. 1898, and acts, amendatory thereof and supplementary thereto. The petition was signed by a corporation known as the Rock River Valley Lumber Company and others. It alleges, in substance, that the proposed district extends from the northern line of Dodge county southerly through Horicon marsh, the city of Horicon, and beyond the village of Hustisford, a distance of approximately twenty-three miles; that the district embraces-about 35,000 acres of land and is traversed its entire length by the Rock river. It is further alleged that the Rock river is obstructed by dams, bridges, and other obstructions, and is insufficient to carry off the water which accumulates in-ponds and gives rise to vapors, and that the same is dangerous to public health; that the land embraced in the territory is swamp and composed of decayed vegetation, and by reason of insufficient drainage is wet, moist, and impassable except in dry seasons, and is unfit for cultivation; that if said district were formed and the lands properly drained they would be of great value and contribute to a large extent towards-paying the burden of taxation; that the bed of Rock river-through said district has become obstructed with refuse matter, débris, decayed vegetation, and other obstructions; that the flow ‘of the river with such obstructions is insufficient to-carry off the water, and that it overflows its banks, spreads upon adjoining lands, and settles into ponds, pools, and sink holes, where the water becomes stagnant and gives forth unhealthy vapors, and is dangerous to the public health. The-petition contains description of the lands embraced within the proposed territory, and alleges that the scheme necessitates-the purchasing or condemning of a dam on the Rock river at Hustisfotd and the rights of flowage, removal of other obstructions from the river above and below said dam, removal of other dams on the river, deepening and cutting new channels in said river wherever necessary, constructing lateral drains and ditches across the lands described, and altering and removing supports of two railroad bridges in the city of Horicon. The petition further alleges that the petitioners are and constitute the owners of one half and more in area of the lands described, and contains other allegations required by the statute, and prays for the organization of a drainage-district under the statute to be known as the Horicon Drainage District, embracing the lands described, and that three commissioners be appointed to execute the work, and for general relief.</p> <p>The owners of the lands affected by the proposed scheme appeared by their attorneys and filed remonstrances and made motion to dismiss the petition, and also interposed a demurrer. The remonstrances were to the effect that some of the petitioners were induced to sign by fraud, that the proposed drainage would be detrimental to public health and welfare, that the scheme as proposed involved the destruction •of a navigable lake and the cutting, changing, and shortening of a navigable river, that the scheme is impracticable and 'improbable if not impossible of successful accomplishment, and that the court had no power to authorize the work proposed. The state of Wisconsin also appeared and remon•strated on the alleged ground'that in 1858 a dam was built •on the Rock river and ever since has been maintained, and a .lake created, the land under which is-owned by. the state in 4rust for the people. The Chicago, Milwaukee & St. Paul Railway Company appeared and remonstrated on the ground that its rights and property in the lands in question are and have been devoted to a public use, and that the statute does not grant the right to condemn such property for another public use.</p> <p>The court declined tó dismiss the proceeding or sustain the ■demurrer to the petition, and a hearing was had and testimony taken, after which the court on the 9th of June, 1905, made its decision in writing ordering the appointment of •commissioners as provided by statute and formal findings and •order to carry out the decision. Afterwards on June 27, 1905, and in pursuance of this decision, an order was entered appointing three commissioners, and further ordering that all proceedings thereafter be had under ch. 419, Laws of 1905, from which order this appeal is taken.</p>

<p> Terms of court: Duration: Adjournments: Presumptions: Vacating judgment: New trial: Imposition of costs. </p> <p>1. Under see. 2572, Stats. 1898, a term of court does not come to an end upon an adjournment “subject to the order of the judge,” but continues until tlie final adjournment thereof without day or the commencement of a new term.</p> <p>2. An order, dated on the day of tide opening of a new term, recited that said day was an adjourned day of the previous term. After making the order the court adjourned sine die. Held, that it will be presumed that such adjournment took place prior to entering upon the business of the new term.</p> <p>3. It was not error not to impose costs upon setting aside a verdict and judgment for the reasons, among others, that the court committed errors upon the trial and that the verdict was perverse.</p>

<p> Deeds: Construction: Payment of taxes. </p> <p>Where a conveyance of lands contained a reservation of timber thereon with the right to remove it, and provided that the grantor should “pay all taxes upon the lands .• . . until it shall give a written release of said timber,” the grantor was bound to pay only such taxes as, prior to the giving of the release, had become liens upon the land by extension on the tax , roll and delivery of the warrant for collection.</p>

<p> Taxation: Board of review: Increase of assessment: Jurisdictional errors: Judicial review: Evidence: Logs and lumber. </p> <p>1. Judicial review of the action of a hoard of review in increasing an assessment extends only to the correction of jurisdictional errors, not mere errors .of judgment as to the preponderance of the evidence.</p> <p>2. Where the hoard of review had jurisdiction of the subject matter of increasing an assessment, and in making the increase acted upon evidence which, in any reasonable view thereof, justified its decision, it did not commit any jurisdictional error.</p> <p>2. In this case the decision of the hoard of review, in increasing the amount assessed to a corporation upon logs and lumber, is held to be warranted by evidence as to their value and showing that portions of the lumber, claimed to have been sold prior to May 1, remained in possession of the corporation as agent and were therefore assessable to it under sec. 1044, Stats. 1898.</p>

<p>Appeal from a judgment of the circuit court for Ashland ■county: John K. Paeish, Circuit Judge.</p> <p>Action to recover $874.50 appearing on the tax roll of the -city of Ashland for the year 1903, under the following circumstances: Upon the assessment roll in the spring of 1903-the following entry appears:</p> <p>“Assessment roll. Personal Property. For the year 1903. Value of Logs, Lumber, Ties, Poles and Posts, not manufacturers’ stock. Knight, Jno. IT., Agt. 31,800. Value of the same as Equalized by the Board of Review, 31,800. Total value of all Personal Property 31,800. Remarks. Reassessed in accordance with opinion of Supreme Court in case of State ex rel. Vilas v. Wharton, Gity Glerh</p> <p>As a result, the common council having levied a tax of' two and three-fourths per cent, upon all property in said city, the amount of $874.60 was carried out against John IT. Knight, agent, on the tax roll for that year. Knight died August 22, 1903, a resident of the city of Ashland. The property upon which this assessment and levy were attempted to be based was a part of the same property included in the tax roll for the year 1901, under the name of Vilas & Knight, the assessment of which was held invalid upon cer-tiorari. State ex rel. Vilas v. Wharton, 117 Wis. 558, 94 N. W. 359. All such property had been sold on or about May 1, 1901, and had been removed from Ashland that year and had not been in the possession of Knight as agent or otherwise since that time. Prior to May 1, 1901, it had been the property of William F. Vilas, not a resident of Ash-land, but resident at Madison, in this state, and at no time after April, 1903, had Knight been in any respect agent for or representative of William F. Vilas, in connection with lumbering business or lumber in Ashland; nor had he in his possession or under his control, as agent of Vilas, any personal property whatever upon the 1st day of May, 1903; nor on the same date did William F. Vilas own or have any personal property within Ashland. The court found that the assessment above quoted was an attempt to re-assess against John TL Knight, as agent, 2,650,000 feet of lumber constituting a portion of the 9,350,000 feet which had been assessed against Knight & Vilas in 1901, and was passed upon by the decision of this court above mentioned.</p> <p>A claim having been presented against the estate of Knight in the county court and disallowed, and appeal taken to the circuit court, findings were then made substantially to the foregoing effect, whereupon the court held the assessment not to be a legal assessment or re-assessment, and to have been without authority and void, and accordingly entered judgment dismissing the claim, from which the plaintiff appeals.</p>

<p> ■Champerty: 'Attorneys at laxo: Purchase of clients’ interest in lands in suit: Striking out defenses: Settlement: Ratification. </p> <p>1. A finding of tlie trial court that one who negotiated for and obtained from defendants a transfer of their interest in the lands in suit was at the time defendants’ attorney, is held to be sustained by the evidence.</p> <p>■? After action brought by the grantees in a tax deed to bar the original owners from any interest in the lands, a purchase by defendants’ attorney of his clients’ interest in the lands was champer-tous, and the court properly struck out defenses interposed by him for his own benefit, though in the name of the defendants, and held that defendants were in default.</p> <p>'3. Where in such case defendants’ attorney had, by arrangement with plaintiffs’ attorney, deposited money with the latter to redeem the lands and thus establish the title and interest which he had secured from his clients, no ratification by the plaintiffs of such arrangement would validate the champertous transfer.</p>

<p>Appeal from a judgment of tbe circuit coart for Bayfield •county: JoiiN K. Parish, Circuit Judge.</p> <p>Tbe plaintiff in this action presented its claim to tbe common council of tbe city of Washburn, defendant, for $5,300, claimed to be due for tbe year ending January 1, 1905. The claim was allowed at $852, and an appeal taken by plaintiff to tbe circuit court. The court directed that formal pleadings be made, which was done.</p> <p>Tbe complaint alleges, in effect, tbe corporate existence of tbe plaintiff, and that defendant is one of tbe duly organized •cities of tbe county of Bayfield, Wisconsin; that prior to tbe ■6th day of May, 1889, the town of Washburn contained tbe unincorporated village of Washburn with more than 1,000 inhabitants, and that tbe electors of said town at tbe annual meeting prior to tbe 6tb day of May, 1889, conferred upon tbe town and town board all powers relating to villages and conferred upon village boards by ch. 40, R. S. 1878; that on May 6, 1889, the town board of the town of Washburn duly-passed and published an ordinance for the construction of waterworks in said town for the purpose of obtaining a water supply, and with all the necessary machinery and attachments-to supply the town and its inhabitants with water suitable for fire and domestic purposes, and empowered Lewis & Maxcy, grantees in said ordinance, their representatives and assigns, to construct the same and occupy the streets of said village of' Washburn and town of Washburn in said county of Bayfield for such purposes, and agreed to and did rent hydrants from said grantees or their assigns-for a term of years, and agreed to pay an annual rent of $4,000 in semi-annual instalments-therefor, together with town and municipal taxes which might be assessed against the grantees or their assigns for the first ten years, the town reserving the right at the expiration of a term of years to purchase the works from said grantees or their assigns, together with extension rights and franchises; that the plaintiff duly succeeded to the rights of Lewis & Maxcy under said ordinance with said town of Washburn and constructed the works in the unincorporated village of Wash-burn; that in April, 1904, the inhabitants of the unincorporated village of Washburn voted to incorporate a city under the general laws of the state, and a 'charter was duly issued and tlie territory comprising the unincorporated village of Washburn became a city of the fourth class known as the city of Washburn, defendant in this action; that, ever since the organization of the city of Washburn, the plaintiff has continued to supply defendant with water under the terms of the ordinance, and that the amount due for supplying water under said ordinance to July 1, 1904, is $2,650, and to January 1, 1905, $2,650, which sum was due January 1, 1905, and that the city became indebted to the plaintiff for said sum;, that at all times since the incorporation of the city the officers thereof and the plaintiff -have assumed that the relations between them were governed by tbe terms of said ordinance, and that tbe city assumed all tbe rights and privileges of tbe town of Washburn and recognized and acquiesced in tbe rights of' tbe plaintiff thereunder, and that by reason of tbe actions of the city and its officers there has been a novation of tbe said ordinance, and that tbe city is estopped from denying tbe existence of tbe contract with tbe plaintiff.</p> <p>Tbe defendant answered, admitting the corporate existence-of tbe plaintiff and defendant, as well as tbe corporate existence of tbe town of Washburn, and that tbe town of Washburn contained tbe unincorporated village of Washburn, having more than 1,000 inhabitants, and that tbe electors conferred on tbe town board the.powers conferred on village boards; also admitting that tbe ordinance referred to in tbe complaint' was adopted and published, and that the plaintiff constructed its waterworks system wholly within tbe limits of tbe unincorporated village of Washburn, and has operated tbe same since October, 1889, and that tbe population of the city of Washburn is about 5,000 and that of tbe town of Washburn about 500, and that about fifty-five per cent, of tbe value of' tbe property in tbe old town of Washburn is now situate in tbe city of Washburn. Defendant further set up a counterclaim to tbe effect that on tbe 18th day of July, 1904, the-town of Washburn recovered a judgment for delinquent personal property tax against the plaintiff in tbe sum of $2,310, which has not been paid, and that fifty-five per cent, thereof' belonged to tbe defendant, and that plaintiff is indebted to the-defendant in tbe sum of $1,969.60 for taxes dire defendant for tbe year 1904, and that in 1904 tbe town of Washburn recovered a judgment against tbe plaintiff in tbe supreme court for tbe sum of $52, no part of which has been paid, fifty-five-per cent, of which belonged to defendant, and demanded judgment on said counterclaim against plaintiff for $4,331.60,. with interest and costs.</p> <p>Tbe case was tried by tbe court and a jury in May, 1905-'The court submitted to the jury the question of the reasonable rental value of the hydrants for the year 1904, and the jury found the same to be $4,940. The court found as follows:</p> <p>Findings of fact: That the number of hydrants used by defendant is as alleged in the complaint. That since the organization of the defendant as a city the plaintiff has continued to supply water to the city and the inhabitants thereof, under ■■the terms of the ordinance and contract, set forth in the complaint, and the same has been used by such city. That, at all times since the incorporation of said 'city, said city and the ■officers thereof and the plaintiff herein have treated and assumed that the relations between plaintiff and defendant were wholly governed by the terms of the ordinance, and that the •city succeeded to all the rights of the town under said ordinance, also all liabilities thereunder from and after the date ■of its incorporation. That said city has assumed all the rights and privileges of the town of Washburn under the ordinance set forth in the complaint. That the said city has recognized and acquiesced in all the rights of the plaintiff under the ordinance set forth in the complaint. That the plaintiff furnished water to the defendant under the terms of said ordinance for the months of May and June in the year 1904, and for the succeeding six months until January 1/1905. That the population of the city of Washburn at the time of its incorporation was 5,000, and that the population of the town of Washburn at the time of the incorporation of said city was •500. That the valuation of the property included in the city of Washburn is fifty-five per cent, of the value of the property in the old town of Washburn, and that the value of the property in the present town of Washburn is twenty-nine per cent, of the valuation of the property of the old town of Washburn. That there was assessed against and is now due the defendant from the plaintiff for taxes in the year of 1904, on its plant and franchise, the sum of $1,969.60. That the plaintiff’s waterworks system is wholly constructed within the city of Washburn, and that it is impossible for plaintiff to supply water to the town of Washburn. That the town of Washburn is mostly inhabited by farmers and' is sparsely populated, and includes five government townships.</p> <p>Conclusions of law: That the city of Washburn assumed the ordinance set forth in the complaint, and that the same is a valid contract subsisting between plaintiff and defendant,, from the time of the organization of the city of Washburn. That the defendant became indebted to the plaintiff by reason of the furnishing and supplying of ivater under the terms of said ordinance in the sum of $3,533.35. That there should be set off against said sum the taxes due the city of Washburn for the year 1904, to wit, $1,969.60. That plaintiff is entitled to recover from defendant the sum of $1,563.75, with costs.</p> <p>Counsel for defendant .excepted to the findings of fact and conclusions of law and to the order directing judgment. Judgment was entered in favor of the plaintiff for the sum of $1,563.75 damages, together with costs, from which this appeal is taken.</p>

<p> Bills and notes: Maturity caused by failure to pay interest: Subsequent transfer: Defenses: Duress: Fraud. </p> <p>1. A note providing expressly that delinquency in payment of any interest “shall cause the whole note to immediately become due and collectible,” becomes due in such case absolutely, not merely at the option of the holder, and one thereafter taking the note from the payee takes it subject to the equities between the original parties.</p> <p>2. The evidence in this case is held not to show that a note was executed under duress, but to be sufficient to take to the jury the question whether its execution was induced by false, and fraudulent representations.</p>

<p> Indians: Bale of timber from allotted lands: Assignment of proceeds.. </p> <p>The patent of lands allotted to an Indian pursuant to the treaty of' September 30, 1854, provided that he should not alienate them in any manner without the consent of the President. Rules approved by the President provided that the net proceeds of timber sold from such lands should be deposited in some national, bank subject to check of the Indian owner, countersigned by the United States Indian agent. A contract, made under said: rules, for the sale of timber from the allotted lands provided for-payment of tlie purchase price to the Indian agent in trust for the owner. Held that, although the Indian owner had by the act of Congress of February 8, 1887, become a citizen of the United States and emancipated from federal control, his power to dispose of the proceeds of the timber was still subject to the approval of the Indian agent, and hence that' an assignment thereof without such approval was invalid.</p>

<p>'Appeal from a judgment of the circuit court for Busk county: JoiiN 3L Paeish, Circuit Judge.</p> <p>Action for personal injuries.</p> <p>The claim in the complaint was this: September 2, 1904, plaintiff was an employee of defendant in the latter’s sawmill at Bruce, Wisconsin. The machinery on the main floor of such mill consisted in part of a slab saw which was attended by one person when the mill was operating. Beneath such saw and extending down to within about two feet of the ground floor there was a box construction for directing the'sawdust from such saw to a conveyor running horizontally, nearly, with such floor and about a foot above the same. Passing through the box several feet above such floor there was a shaft, equipped with a pulley, the upper part of which was some feet from the main floor and the lower part some four-feet from 'the ground floor. This pulley was the driver for the slab saw, power being transmitted thereto by a belt. To examine the pulley and belt, as was necessary from time to time, one was required to remove a piece of the box which was fitted for that purpose. In the main floor over where one would necessarily stand in removing the door, so called, of the box so as to expose to view the pulley and belt there was a hole of sufficient size to permit of pieces of wood dropping-through and striking whoever might be in their course. The hole was caused by wear. The work on such floor and the location of the person having charge of the slab saw were such that pieces of wood were quite likely to be pushed over the-brink of tbe bole. Tbis condition of things was well known to tbe defendant prior to tbe occurrence hereafter mentioned. Tbe plaintiff bad no knowledge thereof before such occurrence. On said 2d day of September, 1904, at about 4 o’clock in tbe morning while plaintiff, with due care, was performing bis duty to examine tbe pulley and belt, the door of tbe box having been removed for that purpose, and be was standing with bis right band resting against tbe box, with bis body somewhat bent over to tbe left, in tbe act of looking up into tbe box, be was struck on tbe right arm by a piece of wood which came through tbe bole aforesaid, loosening bis band from tbe box and causing him to fall forward and to make an involuntary ' movement of such band to catch himself, whereby such band or tbe arm was caught between tbe belt and pulley and carried down and around tbe latter, breaking bis shoulder and arm, causing him much pain, and permanently disabling him. He was thirty-one years of age when tbe injury was occasioned. He was in good health and capable of earning $2.50 a day. He has been damaged as a result of bis injuries in tbe sum of $25,000, besides necessary expenses for surgical and medical attendance of $100.</p> <p>All allegations as to negligence on tbe part of tbe defendant were put in issue by tbe answer. Also all allegations as to tbe manner in which plaintiff received bis injury and as to tbe amount of bis damages.</p> <p>During tbe impaneling of tbe jury plaintiff’s attorney claimed tbe right to interrogate each juror as to whether be was connected in any way with any accident or casualty company, saying that be understood defendant’s attorney represented such a company in tbe action. Exception to such remark was taken by defendant’s attorney, be at tbe same time asserting that be knew of no accident or casualty company being interested in tbe case and that be represented tbe defendant only. Plaintiff’s attorney persisted and requested to have defendant’s attorney sworn and examined on tbe subject. The request was refused, but tbe court interrogated each, juror at length as to whether he was connected with any such insurance company either as a stockholder or policy-holder or as an insurer of his employees or in any other manner. Defendant objected to the examination and duly saved exceptions in respect thereto. After the close of the evidence the court, coun-' sel on both sides, and a Mr. Prince, who was present, apparently associated with the attorney for defendant in some capacity other than that of an attorney, withdrew from the presence of the jury, and the judge then, against the protest of defendant’s counsel, required said Prince to submit to an examination under oath as to whether he represented any accident or casualty company interested in the cause. He testified that he was the adjuster for the Ocean Accident & Guaranty Corporation, and that he supposed the defendant company was paying the expenses of the litigation, but that he had no personal knowledge of the matter or as to whether the insurance company had a policy covering the accident in question; that his company sometimes attended to litigation of that sort where it was not directly interested because of having a policy covering the case.</p> <p>The proof offered to support the plaintiff’s claim was in substance this: There was a slab saw on the main mill floor, the sawdust from which was disposed of by passing down through a box underneath the saw to a conveyor near the ground floor. Through this box there was a shaft on which there was a pulley connected with the slab saw as alleged in the complaint. The business of plaintiff was to look after the machinery on the ground floor during the night shift. That required him, from time to time, to examine the condition of such pulley and belt. In doing so he was required to approach the box, step up on an eight-inch timber lying horizontally on the floor between two bridge-tree timbers standing .upright thereon some two or three feet apart and remove the door of the sawdust box, which door was about three feet long. That being clone, and the operative standing upright between the bridge trees and the mill being in operation, the situation was like this: The pulley was twenty-four inches in diameter. Its motion was outward from the upper side. The speed was about 600 revolutions per minute. The belt was about eight inches wide. The top of the operative’s head was about one foot above the top of the pulley. The outer rim of the pulley reached to within about fifteen inches of his body and to within about five inches of the outside of the box, and it filled the box from right to left except about three inches on each side. Some two weeks before the accident a new belt 'was put on because the old one did not run true. The new one was accustomed to run from side to side, somewhat, and to keep it in place a piece of wood was nailed in the box about seven feet from the bottom thereof on the right-hand side. A few moments.before the accident plaintiff finished repairing a belt by which power was transmitted to some machinery on the main floor. Having done so and cleaned up the dirt occasioned thereby he proceeded to look after the belt in the box. He stepped upon the eight-inch timber aforesaid and removed the outside of the box, setting it aside. He then placed his hand on the box at the top of the opening, somewhat to the right, and leaned to the left, turning his head upward sufficiently to enable him to look up into the box where the guide aforesaid was located. While he was in the act of so looking, a piece of wood about eight inches long and two inches square came from above, striking his arm and glancing off to and striking his face. Instantly thereupon his hand was released from the box and he fell forward, the motion of his arm being such that it or the hand was caught between the pulley and the belt and whirled around the former till it was released. As his hand and arm were so carried partly around the pulley his body with great force was jerked forward against the outside of the box, his face striking the left-hand edge thereof, and his arm was twisted and broken and so strained as to permanently destroy its usefulness. On occasions prior to tbe injury when he had opened the box and examined the belt and pulley he had not observed any hole in the floor above. There was such a hole, the same being where the person who tended the slab saw was required to stand. It was about ten inches square. When the stick of wood fell to the floor he looked •at it and so was able to tell about its size. He also looked up to see where it came from and observed the hole. He could not say just how his hand or arm was caught or released, but thought the hand came down on top of the pulley and went around to the place where it was released by the belt leaving the pulley. The hand was injured somewhat. It went in and out very quickly. He said:</p> <p>“I should judge that it [the hand] passed down and away from me up to where the belt left the pulley on the farther side. I don’t know for certain whether my hand went clear •around or not, or whether it slipped out before it got clear .around. I know there was a mark on the back of my hand where it was skinned.”</p> <p>As corroboration the person who operated the slab saw testified to there being a hole in the floor through which a piece •of wood might have fallen' and struck the plaintiff. He said the hole was caused by a wearing out of the floor; that it had been there some time; that he had to exercise care to avoid •stepping into it; that several times he had called attention thereto in order to have it fixed, and that he was accustomed to cover it with loose lumber or slabs. Plaintiff testified that he walked around some, outside of the mill, after he was injured; that after a while he met one of the employees, who took him into the engine room, where he soon became unconscious, and in that condition was taken home. He did not say to any one before being taken from the mill or thereafter, except as hereafter indicated, that he was injured while examining the belt in the box, until he' made such claim in the action. He testified that he never told any person connected with defendant bow lie was injured. 'He admitted having said to ■one of defendant’s officers that there was a belt off; that it took him quite a while to put it on because he had to lace it; that after he did that he walked into the engine room and then -out and around and just then got hurt.</p> <p>On behalf of defendant there was evidence to the effect that ■about three months after the accident plaintiff and his wife signed a written statement that the injury was caused while he was attempting to put on a belt; that his arm was caught thereby, throwing him to the floor, and that he could not tell just how it was done. They testified that a man visited them and discussed the question of their expenses and appeared to write down what they said in that regard; that they read the paper; that the man then laid it with others on the table .and asked them to sign, which they did, supposing they were signing the paper they had read; that they made no such statement to the man as the one contained in the paper in fact signed and produced upon the trial. There was testimony by the secretary and treasurer of the defendant that some two weeks after the accident plaintiff visited defendant’s office and there said he did not know how the accident occurred ; that he did not blame any one; that he fixed a belt, then went over by the box and was injured there. Mr. Stewart, the foreman of the mill, testified that before the plaintiff was taken from the mill he said he did not know how he was injured, and later at his home, when he was apparently in good condition to relate the facts, that he said he could not tell the first thing about the matter. The witness further testified that it was the spring after the injury before he knew of any claim that the injtoy occurred at the 'box under the slab saw; that he went into the basement of ■the mill after the accident and found no indication of there having been any disturbance there except that the belt was •off of the .big conveyor some thirty feet from the slab-saw box. 'The defendant’s bookkeeper, who was present when .the plaintiff made tbe statement to tbe president in tbe office,, corroborated it. Tbe person wbo bad tbe same work to do-as plaintiff on tbe day shift testified tbat wben be came on, after tbe accident, be found everything in order on tbe ground floor; tbat about a month after tbe accident plaintiff told him be did not know bow be got hurt; tbat tbe witness often took off tbe door of tbe box under tbe slab saw and examined tbe operation of tbe belt, looking up as plaintiff testified be did, but never observed any bole in tbe floor above.</p> <p>Plaintiff on rebuttal denied in detail tbe testimony off each of tbe witnesses as regards bis having said be did not. know bow bis injury occurred.</p> <p>At tbe close of tbe evidence tbe defendant moved tbe court for a verdict which was denied. Tbe court then sent tbe case to the jury for a special verdict on its own motion. There were exceptions to instructions given and refused,, which will be referred to, as far as. may be necessary, in tbe opinion. Tbe jurors found as facts, in substance:</p> <p>1. Plaintiff was injured while on duty in defendant’s mill, by contact with tbe machinery therein.</p> <p>2. Plaintiff was injured by negligence which was tbe proximate cause of such injury.</p> <p>3. Such injury was not produced by negligence of a co-employee.</p> <p>4. Defendant’s alleged negligence was tbe proximate cause of tbe injury.</p> <p>5. Tbe injury was not caused by concurrent negligence-of defendant and tbe fellow-servant of tbe plaintiff.</p> <p>6. Plaintiff was not guilty of any contributory negligence.</p> <p>1. Eight thousand dollars will be required to compensate plaintiff for bis injury.</p> <p>Such motions were made and exceptions saved to rulings-thereon as were necessary to preserve for consideration questions discussed in tbe opinion. Judgment was rendered in-plaintiff’s favor on tbe verdict, and defendant appealed.</p>

Pabish, Circuit Judge. Appeal by plaintiff from an order sustaining general demurrer of defendant Emma E. Wilkinson to each of the six separate causes of action in complaint.

Paeish, Circuit Judge. Appellant, together with other citizens and freeholders, presented a petition alleging all the facts required by ch. 21, Laws of 1905, for the organization of the town of Shana-golden, in Ashland county, whereupon the court, on motion ■of attorneys for respondent, dismissed said petition, on the ground that sec. 775d (sec. 1, ch. 21, Laws of 1905), under which said petition had been filed, is unconstitutional, from which order Nash, one of the…

0. SilveethobN, Circuit Judge. This action was brought to foreclose two real-estate mortgages given by defendants to plaintiff, one to secure an indebtedness of $900 according to the terms of four promissory notes specified in the first cause of action, and the other-to secure an indebtedness of $276 according to the terms of several promissory notes as specified in the second cause of' action.

<p> Drainage districts: Refusal to confirm report: Appealable order: Powers of commissioners: Destruction or impairment of navigable waters: Who may object. </p> <p>1. In proceedings for the organization of a drainage district the court, under sec. 1379 — 18, Stats. 1898, as amended hy eh. 43, Laws of 1901, refused to confirm the report of the commissioners and condemned the drainage system proposed hy them on the ground that it would impair the navigability of a river and destroy a lake, but refused to dismiss the proceedings, for the reason that it was not shown that there was no other way, not open to such objections, of effecting the drainage in question. Held, that the order was “a final order affecting a substantial right,” and therefore appealable under subd. 2, sec. 3069, Stats. 1898. Dodge and Winslow, JJ., dissent.</p> <p>2. Secs. 1379 — 11 to 1379 — 31, Stats. 1898, relating to the organization and powers of drainage districts, do not authorize the destruction of a navigable lake or the impairment of the navigability of a river.</p> <p>3. Remonstrants against the work proposed by the commissioners, under said statutes, may make the objection that such work will impair the navigability of a river or destroy a lake.</p>

<p> «Contracts: Reformation: Specific performance: Vendor and purchaser of land. </p> <p>1, A contract will not he reformed on the ground of mistake unless there was some definite agreement which by mutual mistake was omitted from or wrongfully stated in the written contract. 2. To be specifically enforced, a contract must be definite and certain in its terms, or capable of being made definite by the aid of legal presumptions or by evidence of contemporaneous facts and circumstances which is properly admissible.</p> <p>15. A contract to convey “forty-seven descriptions located in” certain sections in two certain towns, “and containing not less than 1,700 and no more than 2,000 acres,” — there being no agreement as to what particular tracts, out of fifty-seven descriptions considered by the parties, should be conveyed, — is too indefinite to-be specifically enforced.</p>

<p>Error to review a judgment of the municipal court of Milwaukee county: A. 0. Brazes, Judge.</p> <p>The accused, John S. Jolmson, was charged with the highest degree of criminal homicide. He was in due form found guilty by the jury of the crime of murder in the second degree, and was thereupon sentenced to be punished by confinement at hard labor in the state prison at Waupun, Wisconsin, for the period of fourteen years, suitable provision according fo law being made for solitary confinement. He was committed accordingly and was at the time of suing out the writ, and still is, serving his time. The facts of the case and the points suggested for consideration upon the review will be reserved for the opinion.</p>

<p>ProhibitioN to tbe civil service commissioners of tbe state. Absolute writ issued.</p> <p>Tbis is an original action in tbis court. It was brought by tbe relator, wbo bolds tbe office of commissioner of banking, upon leave granted bim by tbe court. It is alleged that tbe relator is tbe duly appointed and acting commissioner of banking under the authority of cb. 234, Laws of 1903, which, pursuant to tbe amendment of secs. 4 and 5, art. XI, of tbe constitution of tbe state, provides for tbe creation of banks and for tbe regulation and supervision of tbe banking business, and that bis deputy, tbe examiners, and tbe clerks of tbe banking department are in tbe possession and performing tbe duties of tbe respective offices and positions created and imposed by tbe provisions of tbe act. It is further alleged that tbe defendants are tbe civil service commissioners of tbis state, that they are exercising tbe powers and duties imposed on them by cb. 363, Laws of 1905, and that they have made demand upon tbe relator and all other persons now bolding offices and positions in tbe banking department, as incumbents ■of such offices and positions within tbe classified service of ibis state under its provisions, to comply with all tbe terms and conditions of the civil service law, and that they threaten to subject the examiners and clerks of the department to the examination prescribed by it as a requisite to entitle them to continue in the employ of the state, and that, in case of relator’s refusal, as an appointing officer under its terms, and the refusal of the employees of the state in this department, as employees» within the jurisdiction of its provisions, to comply with the provisions of this law, the commission threatens to. enforce as against the relator and such officers and employees of this department the penalties provided therein for failure to conform to them and to comply with the conditions imposed upon persons within the classified civil service of the state. It further alleges that this threatened enforcement of the civil service law as to this department would'prevent the enforcement of the regulations and the supervision of the banking measures of this state as prescribed by law, and cause great and irreparable injury to the public and the state. Relator therefore demands that the civil service commission be prohibited from enforcing the provisions of the law as regards himself, as commissioner of banking, and all other persons in the employ of the state in the state banking department.</p> <p>The defendants demurred to the relation and moved to quash it, upon the ground that it appears upon the face of the relation that the facts stated allege no grounds for the issuance of the writ of prohibition, that the facts stated show that defendants are vested with authority and power to carry out the provisions of ch. 363, Laws of 1905, and that the relator and all other officers and employees in the banking department of the state are subject to their jurisdiction, as persons holding offices and positions of trust or employment in the classified civil service of the state within the terms and provisions of this law.</p>

<p> Bastardy: Paternity of child: Intercourse with several men: Trial by court: Conviction contrary to evidence: Reversal. </p> <p>1. In a bastardy proceeding paternity cannot be established beyond reasonable doubt against tbe defendant if it appears that tbe prosecutrix bad intercourse with another man at a time consistent with the latter’s responsibility for the pregnancy. A clear preponderance of the evidence in this case is held to. establish such intercourse.</p> <p>2. A conviction by the court without a jury in a bastardy proceeding will be reversed if contrary to a clear and definite preponderance of the evidence.</p>

<p> Intoxicating liquors: Sale without license: Punishment on second conviction: Pleading: Evidence: Statute construed: “During any year.” </p> <p>1, Under a complaint charging sale of liquor without a license, hut not alleging a former conviction, evidence was not admissible to show such a conviction for the purpose of subjecting the accused to the heavier punishment imposed by statute in case of a second conviction during any year.</p> <p>2. The admission of such evidence, when offered by the state in making its case, cannot be justified on the ground that it tended to affect the credibility of the accused as a witness, he then not having testified; and his subsequent testimony, on cross-examination, as to such former conviction did not cure or waive the error.</p> <p>3. The words “during any year” in sec. 1550, Stats. 1898 (providing for the punishment in case of a second conviction of the same person during any year), mean during the ensuing period of 365 days after the date of the first conviction.</p>

<p> Taxation: Inheritances: Determining value: Powers of county court: Compelling corporation to produce books, etc. </p> <p>Ck. 44, Laws of 1903, imposing a tax upon inheritances and authorizing the county court, with or without the appointment of an appraiser, to ascertain and determine the value of the estate, and for that purpose to compel the attendance of witnesses, etc., does not empower the court to compel a corporation in which the decedent was a stockholder to produce its private hooks and papers in court to aid in determining the value of the stock so held.</p>

AotioN commended in this court against the state. The cause was first argued on December 18, 1905. They contended that ch. 44, Laws of 1903, is void as being in violation of sec. 1, art. YIII, Const., and argued at length the following propositions: (1) The right to take property by will, intestate laws, or gift is a natural right, guaranteed by the constitution, and not one either derived from or which can be taken away by the legislature.

<p> Contracts: Offer and acceptance: Authority of agent. </p> <p>1 Defendants’ buyer of raw furs gave plaintiff, a local dealer in-pelts, etc., a written memorandum, dated at Green Bay, January 16, stating that he would “take up, at his selection, goods from [the plaintiff], only this section goods, at the following prices up to sales in January or on or about February 1.” Prices for skins were specified, and the writing was signed by the buyer for the defendants. The term “selection,” as used in the fur trade in that locality, in connection with a sale of an entire, lot of furs to be gathered from a stated section, was found by the jury to mean ‘‘the right only to determine what furs are from such section.” On January 29 plaintiff wrote to defendants that he had got the goods completed and that defendants-should come and get them. Held, that the memorandum was a continuing -offer to take from the plaintiff, at the prices therein named, such goods as were therein described which he might acquire from that Section within the period mentioned, and that plaintiff’s letter was an acceptance of such offer, which thereupon ripened into a contract.</p> <p>2. The evidence (stated in the opinion) is held sufficient to sustain a finding of the jury that plaintiff was justified in .believing that defendants had given the buyer authority to contract for them for furs to he gathered and delivered in the future, and a further finding that the buyer had in fact such authority.</p>

0. SilvbetiioeN, Circuit Judge. This is an action to recover the balance due for certain logs sold by the plaintiff to the defendant. The action was commenced in county court, having jurisdiction of a justice of the peace, and there prosecuted to judgment. An appeal taken to the circuit court was determined upon the record returned from the county court.

<p>Appeal from an order of the circuit court for Dane county: E. Kay Stevens, Circuit Judge.</p> <p>This is an appeal from an order. The action -was commenced by the service of a summons. At the same time there was served an affidavit of plaintiffs’ attorney, a notice, under see. 4096, Stats. 1898, of examination of some of the defendants personally and as officers of the .defendant Madison Gras & Electric Company, and also a subpoena duces tecum requiring the production by the gas company of its books and the records pertaining to its organization, indebtedness, and cost of plant, and generally as to the costs and disbursements incident to the conduct of the business. It is averred that the action is instituted to enjoin the defendant from exacting from the plaintiff the city of Madison and all its customers,, for gas and electricity used by them, unreasonable and excessive rates; and to compel it to furnish such customers, in. the future,, gas and electricity, of good quality and at reasonable rates, without unjust discriminations. The relief sought is in no way to affect the rates at which gas and electricity-are to be furnished the city during the period of the existing-contract between it and the gas company.</p> <p>The facts presented show that the defendant is a corporation organized under the name of the Madison Gas & Electric Company (for brevity it will herein be referred to as the gas company) ; that it is the owner of the rights and privileges granted by the legislature of this state and the common council of the city of Madison to conduct the business of supplying gas and electricity to the city of Madison and its inhabitants; that it is the only company conducting such a business within the city, and is supplying the city and its inhabitants with these commodities at rates established by it; that no rates have been prescribed under its charter or otherwise-by the city or the state; and that it has placed gas pipes, posts, and electric poles and wires within and upon the public-streets of the city.</p> <p>The object of the examination of these parties is to enable-plaintiffs to frame their complaint, and to that end discovery is sought, among other 'things, as to what amount has been-actually paid in and invested by the gas company to acquire,, build, and maintain its present plant, the amounts, time of’ payment and when made, in detail; the amount of bonds issued by it, when and by whom purchased, with amounts actually paid by the purchasers, and the disposition of the-moneys received for bonds; the actual indebtedness of the company, when, for what, and how contracted; the disposition of moneys realized on loans; its annual operating expenses and annual gross receipts; its schedule of rates charged' for the commodities it supplies to its customers; and whether-it is a member or partner of any combination or trust, and full information of such condition and relation, if it exist.</p> <p>The defendant obtained an order to show cause wby ibn proceeding before the court commissioner for such examination should not be perpetually stayed and the action dismissed. The facts and circumstances alleged by the defendant for such relief were that the plaintiff the city of Madison had no interest in the action; that it has agreed to indemnify the individual plaintiffs (who are the real parties in interest and who are prosecuting the action) for their costs and expenses; and that the undisputed facts and circumstances, upon which plaintiffs rely, furnish no grounds in law for the equitable relief sought to be enforced.</p> <p>The motion was heard upon the affidavit, notice of examination, subpoena duces tecum, served and filed, and the papers and proceedings in the action. Upon a hearing the court entered an order denying the motion of defendants for a stay of any further proceedings for such examination of the parties and for dismissal of the action. This is an appeal from such order.</p> <p>The cause was first argued on March 26, 1906.</p> <p>They argued, among other things, that it affirmatively appears that the plaintiff city cannot maintain the action. It is getting its light under a contract which has about three years to run, and a court of equity will not anticipate that three years hence the gas company will exact an unreasonable contract from the city. An injunction against such a remotely possible and speculative injury is unheard of. 16 Am. & Eng. Ency. of Law (2d ed.) 361. The right of the city to maintain this action, if it exists at all, must rest alone upon the fact alleged in the affidavit that inhabitants of the city who are patrons of the company are being charged an excessive rate for lighting service. These facts can give the city no right to maintain the action except upon the theory that it is a proper municipal function to redress in the courts, at municipal expense, the individual wrongs of a certain class of citizens. This theory is condemned by authority as well as by reason. The city is not the real party in interest, because, by reason of the outstanding contract, it cannot, in its corporate entity, receive any benefit, direct or indirect. Sec. 2605, Stats. 1898; Gross v. Heckert, 120 "Wis. 314, 320. No statute, expressly or by implication, vests in the city the right to maintain such an action; nor is the city in any. sense the trustee of an express trust within the meaning of sec. 2607,'Stats. 1898. 22 Ency. PL & Pr. 169; Bobbins v. Deverill, 20 "Wis. 142; Boyd v. Mut. F. Asso. 116 "Wis. 155; Janesville v. Carpenter, 11 Wis. 288; State ex rel. Burnham v. Cornwall, 97 Wis. 565 ; Madison v. Mayers, 97 Wis. 399; 20 Am. & Eng. Ency. of Law (2d ed.) 1145; Park v. Modern Woodmen, 181 Ill. 214, 54 N. E. 932; People ex rel. Jackson v. Suburban B. Co. 178 Ill. 594, 49 L. R. A. 650, 656; New Haven v. N. II. & D. B. Co. 62 Conn. 252, 18 L. R. A. 256; Kinne v. Nexo Haven, 32 Conn. 210; Butler s App. (Pa.) 6 Atl. 708; Graxid Bapids v¡. Graxid Bapids II. Co. 66 Mich. 606, 33 N. W. 749 ; Coast Co. v. Spring Lake, 58 N. J. Eq. 586, 51 L. R. A. 657, 663. The city having no right itself to maintain the action, its agreement to indemnify the individual plaintiffs for their costs and expenses in doing so was against public policy and unlawful, and, the action being prosecuted under such unlawful agreement, the right to the examination should have been denied and the action dismissed. Miles v. Mut. B. F. L. Asso. 108 Wis. 421, 423; Baxdcer v. Bai’ker, 14 Wis. 131; Kelly v. Kelly, 86 Wis. 170; Andrews v. Thayer, 30 Wis. 228; 5 Am. & Eng. Ency. of Law (2d ed.) 818, 829; Allard v. Laxnirande, 29 Wis. 502; Harrington v. Long, 2 Myl. & EL 590. An actual interest is necessary to relieve the transaction from the taint of maintenance. Thallhimer v. Brincker-hoff, 3 Cow. 623, 647; Miles v. Mut. B. F. L. Asso. 108 Wis. 421, 433.</p> <p>They contended, inter alia, that tbe plaintiffs, the city as well as the individuals, all have an interest in the subject of the action and in obtaining the relief demanded, and may be joined as plaintiffs under sec. 2602, Stats. 1898, and they constitute the real parties in interest in whose name see. 2605 requires the action to be prosecuted. The city and individual plaintiffs are all consumers of gas and electricity furnished by the defendant corporation, which enjoys a monopoly of the business in the city; and the city is one of those who will be entitled to the benefits of the action if successful. 15 Ency. PI. & Pr. 584 — 587, 592, note, 594, 668; Gross v. Hechart, 120. Wis. 314, 320. The individual plaintiffs are resident taxpayers of the city, and as such may be joined with the city to procure reasonable rates for public lighting, although such joinder may not be necessary. Willard v. Gomstoch, 58 Wis. 565; Fowler v. Stiferior, 85 Wis. 411; Frederick v. Douglas Go. 96 Wis. 411; Nevil v. Clifford, 55 Wis. 161. To authorize joinder it is not necessary that all the plaintiffs should be affected alike, or as to the same rights; it is sufficient if they have a common right to prevent the mischief complained of. Barnes v. Racine, 4 Wis. 454; Williams v. Smith, 22 Wis. 594; Gatlin v. Wheeler, 49 Wis. 507; Pettibone v. Hamilton, 40 Wis. 402; Peck v. School Dist. 21 Wis. 516. Even if the city were not a consumer of gas and electricity furnished by defendants, it would still have sufficient interest in the matters in controversy to enable it to maintain this action, either as sole plaintiff or joined with individual consumers. Muncie Nat. Gas Go. v. Muncie, 160 Ind. 97, 66 N. E. 436; State ex rel. Bridgeton v. Bridgeton & M. T. Go. (N. J.) 45 L. E. A. 837, 841; Fla., O. '& P. R. Go. v. State ex rel. Tavares, 31 Ela. 482, 20 L. E. A. 419. The contract for public lighting, expiring October 1, 1908, does not deprive the city of its interest in the subject matter of the action. and in obtaining the relief demanded. The city bas tbe present right to be supplied with gas and electricity by defendants, (1) of good quality and sufficient quantity, (2) at the contract price until October 1, 1908, and (3) at reason.able rates after that date. Because the contract price is being accorded now does not prevent the action to secure the other measures of relief sought. ■ Had immediate reasonable rates for public lighting been sued for in addition to the other relief demanded, plaintiffs could have maintained the action for the latter though not entitled to the former; for it is familiar law that if the plaintiff is entitled to some relief, though not to all asked, he may maintain his action. Hawley v. Tesch, 12 Wis. 299; Stronach v. Btronach, 20 Wis. 129; Moritz v. Spliit, 55 Wis. 441; Tewksbury v. BchuLenberg, 41 Wis. 584; Plain-field v. Plainfield, 67 Wis. 526. All the cases cited by defendants are clearly distinguishable from this case. In neither of them was there any claim or even pretense that the city would receive in its corporate capacity any benefit, •or be relieved from any burden, by the relief demanded. All the benefits sought were to inure solely to private individuals, residents of the city. The undertaking of the city to pay the expense of the suit is not champertous, because the •common-law doctrine as to maintenance does not apply to persons who either have an interest in the litigation or who act in the bona fide belief that they have. Any interest whatever, whether great or small, certain or uncertain, immediate or remote, is sufficient to exempt such persons from the charge of maintenance. 5 Am. & Eng. Ency. of Law (2d ed.) 815-820; 6 Cyc. 865, 866; Davies v. Btowell, 78- Wis. 334; Gilbert-Arnold L. Go. v. O'Hare, 93 Wis. 194; Andrews v. Thayer, 30 Wis. 228; Chicago Gity B. Go. v. Gen. H. Go. 74 Ill. App. 465; Frost v. Paine, 12 Me. Ill; Industry v. Biarles, 65 Me. 167; Williams v. Fowle, 132 Mass. 385 ; Gall v. Calef, 13 Met. 362; Thallhimer v. Brinclcerhoff, 3 Cow. 623; Qilleland v. Failing, 5 Denio, 308; Lathrop v. Amherst Sanie^ 9 Met. 489; Wickham v. Conklin, 8 Johns. 220; Gowen v. Nowell, 1 Me. 292; Cooley v. Osborne, 50 Iowa, 526. Nor does it apply to parties to the suit. 5 Am. & Eng. Ency. ■of Law (2d ed.) 816-819; 6 Oyc. 851 and notes. It is sufficient if tbe party honestly believes that he has an interest in the question, although it may turn out that he has not. Findon v. Parker, 11 Mees. & "W. 675;. McCall’s Adm’r v. Capehart, 20 Ala. 521; Vaughan v. Marable, 64 Ala. 60; Gil-man v. Jones, 87 Ala. 691; Wickham v. Conklin, 8 Johns. .220.</p> <p>On April 17, 1906, the court directed a re-argument on the following questions:</p> <p>1. In the absence of limitations of rates by franchise or ■contract, must gas be furnished to consumers at reasonable rates ?</p> <p>2. Is it within judicial power to fix such rates for the future ?</p> <p>3. Is equity jurisdiction available for the purpose only of ■declaring an existing rate to be excessive ?</p> <p>4. If equity jurisdiction is so available, may it be properly invoked on behalf of consumers generally by the city which .■granted the franchise ?</p> <p>The cause was re-argued on May 14, 1906.</p> <p>They conceded that the authorities appear to hold that the business of supplying light to a municipality, under a grant of the right to use the streets for such purpose, is impressed with a public interest, and hence that the duty arises to furnish service at reasonable rates; yet a contrary view is taken in Paterson G. L. Co. v. Srady, 27 N. J. Law, 245; Comm. v. Lowell ■<7. L. Co. 12 Allen, 75. See, in connection with these cases, Evans v. Soston H. Co. 157 Mass. 37, 40; Olmsted v. Proprietors, 4Jt N. J. Law, 311, 333; Haugen v. Albina L. & W. Co. 21 Oreg. 411; Portland Nat. Gas & Oil Co. v. State ex rel. Keen, 135 Ind. 54, 34 N. E. 818. But in tbe absence-of express legislative authority a municipality has no power to fix or limit rates. Slate ex rel. Wis. Tel. Go. v. Sheboygan, 111 Wis. 23; Ashland v. Wheeler, 88 Wis. 601; Allen v.. Glausen, 114 Wis. 244; Lewisville Nat. Gas Go. v. Slate ex rel. Reynolds, 135 Ind. 49, 21 L. R. A. 734; St. Louis v. Bell Tel. Go. 96 Mo. 623, 2 L. R. A. 278; In re Pryor, 55-Kan. 724, 29 L. R. A. 398;' Wabasha B. Go. v. Wymore, 60-Neb. 199, 82 N. W. 626. No such legislative authority exists as to the city of Madison. It is not within judicial power to fix rates for the future. The circuit court, under the constitution, is purely a judicial court. It cannot exercise legislative powers. In re North Milwaukee, 93 Wis. 616. The-•fixing of rates is a legislative power. Interstate Gomm. Gomm. v. G., N. 0. & T. P. R. Co. 167 U. S. 479, 499. The limit of judicial power is to declare whether the particular rate challenged is unreasonable, not to establish a rate for the future. Reagan v. Farmers3 L. & T. Go. 154 U. S. 362, 397; Express Gases, 117 U. S. 1, 29; Pullman's P. G. Go. v. Mo. Pac. R. Go. 115 U. Sf 587, 598; So. Pac. Go. v. Goto. F. & I. Go. 101 Fed. 779, 785; Capital Oily Gas Go. v. Des-Moinep, 72 Fed. 818; People's G. L. & 0. Go. v. Hale, 94 Ill. App. 406; Nebraska Tel. Go. v. State ex rel. Yeiser, 55 Neb. 627, 76 N. W. 171; Panning v. Osborne, 76 Fed. 319,. 336; Sieenerson v. G. N. R. Go. 69 Minn. 353, 72 N. W.’ 713, 716; State ex rel. Board of T. v. S. G., 0. & W. R. Go. 46 Neb. 682, 31 L. R. A. 47. Equity jurisdiction is not available for the purpose only of declaring an existing rate-to be excessive. The machinery of a court of equity cannot be put in motion unless the relief obtainable in the action is-of substantial benefit to the complainants. Bilis v. Southwestern L. Co. 102 Wis. 409. No such benefit could result merely from a judicial declaration that an existing rate is-excessive. It would not be res adjudícala of anything in a suit brought a month later attacking the same rate as excessive. Wentworth v. Racine Oo. 99 Wis. 26, 31. A decree in general terms restraining the company from charging unreasonable rates or commanding it to furnish gas at reasonable rates would be idle and erroneous. So. Pac. Oo. v. Goto. F. & I. Oo. 101 Fed. 779, 785. The remedy at law is adequate. Lough v. Outerbridge, 143 N. Y. 271, 25 L. E. A. 674, 676; 4 Elliott, Eailroads, § 1564, and cases cited; Rice v. D., 7. & A. A. R. Go. 122 Mich. 667, 48 L. E. A. 84; Reagan v. Farmers’ L. & T. Oo. 154 U. S. 362, 397; So. Pac. Oo. v. Goto. F. & I. Oo. 101 Eed. 779, 786; Nebraslca Tel. Oo. v. State ex rel. Teiser, 55 Neb. 627, 76 N. W. 171, 173; Shepard v. Milwaukee O. L. Go. 6 Wis. 539; Graham v. 0., M. ■& St. P. R. Go. 53 Wis. 473. Equitable jurisdiction cannot be justified on the theory that a multiplicity of suits would be prevented. The rights and interests of consumers, as between themselves and the company, are several and independent. If excessive rates are being exacted of any, the wrong is to each consumer individually. Other consumers are in no sense necessary parties to any action which plaintiffs may bring to vindicate their alleged rights. Other consumers certainly could rightfully refuse to join in the litigation and would not be bound by the result. Linden L. Go. v. Milwaukee F. R. <& L. Oo. 107 Wis. 493, 508. Nor are several consumers entitled to join in an action in equity to have existing rates declared excessive. Linden L. Go. v. Milwaukee E. R. & L. Go., supra; Newcomb v. Norton, 18 Wis. 566; Barnes v. Beloit, 19 Wis. 93; Pier v. Fond du Lac Oo. 53 Wis. 421; Gilkey v. Merrill, 67 Wis. 459, 461. See Nairin v. Xy. N. Oo. (Ky.) 86 S. W. 676.</p> <p>They contended that, in the absence of limitation of rates by franchise or contract, gas must be furnished to consumers at reasonable rates. 14 Am. & Eng. Ency. of Law (2d ed.) 928; Lindsley, Rate Regulation, 36; Allnuti v. Inglis, 13 East, •527, 538, 540; Cincinnati, PI. & D. R. Co. v. Bowling Green, 57 Ohio St. 336, 345, 346, 49 N. E. 121, 123, 124; Munn v. Illinois, 94 U. S. 113; Root v. L. I. R. Co. 114 N. T. 300, 4 L. R. A. 331; McDuffee v. P. & R. R. Co.. 52 N. IT. ■430; Johnson v. P. & P. R. Co. 16 Ela. 623; Chicago, B. & Q. R. Co. v. Iowa, 94 U. S. 155; Dow v. Beidelman, 125 U. S. 680; Ruggles v. Illinois, 108 U. S. 526; Avinger v. S. C. R. Co. 29 S. O. 265. Tbe common-law rule that corporations engaged in so-called public callings must furnish their services and supplies at reasonable rates is recognized by this court in the following cases: Shepard v. Milwaukee Q. L. Co. 6 Wis. 539, 547; Streeter v. C., M. & St. P. R. Co. 44 Wis. 383 ;■ Att’y Gen. v. Railroad Cos. 35 Wis. 425, 588. It Is within judicial power to fix reasonable rates for the future. In this case the court is not called upon necessarily to go to the extent of fixing reasonable rates for the future, but may ■stop short of that and simply declare present rates unreasonable and enjoin their exaction for the future. But while this is so, the second question for re-argumént should be answered in the affirmative, both upon reason and authority. It is within judicial power to determine whether a given rate is reasonable, and if found to be unreasonable to enjoin its exaction or enforcement in the future; and this includes the power to establish the maximum of such rates for the future. Munn v. Illinois, 94 U. S. 113; Chicago, B. & Q. R. Co. v. Iowa, 94 TJ. S. 155; Chicago, M. & St. P. R. Co. v. Minnesota, 134 U. S. 418; San Diego L. & T. Co. v. National City, 174 U. S. 739; Spring Valley W. W. v. San Francisco, 82 Oal. 286; Reagan v. Farmers3 L. & T. Go. 154 U. S. 362; ■St. Louis & S. F. R. Co. v. Gill, 156 U. S. 649; Smyth v. Ames, 169 U: S. 466; Chicago & G. T. R. Co. v. Wellman, T43 U. S. 339; Peoria G. & B. Co. v. Peoria, 200 U. S. 48; ■Cincinnati, II. & D. R. Co. v. Bowling Green, 57 Ohio St. 336, 49 N. E. 121; New Memphis G. & L. Co. v. Memphis, 12 Eed. 952. Equitable jurisdiction is available for the purpose only of declaring an existing rate excessive. The power to declare an existing rate excessive is of the same nature as the power to declare an existing rate unreasonably low. In the exercise of each the main question is, What is a reasonable rate ? That being settled, the given rate is excessive if it exceeds that rate, and unreasonably low if it- falls below it. All the cases before cited agree that, if the given rate is unreasonably low, equity jurisdiction is available to have it so declared at the suit of the corporation; and there seems to be no just reason why the courts should not be equally open to the people for like redress where the given rate fixed by the company is excessive. Cincinnati, H. & D. B. Co. v. Bowling Creen, 57 Ohio St. 336, 49 U. E. 121, 123; Chicago, B. & Q. B. Co. v. Iowa, 94 U. S. 155; Bow n. Beidelman, 125 U. S. 680; Beagan v. Farmers’ L. & T. Co. 154 U. S. 362; Smyth v. Ames, 169 U. S. 466; New Memphis C. L. Co. v. Memphis, 72 Fed. 952; Att’y Gen. v. Bailroad Cos. 35 Wis. 425; Portland Nat. Gas & Oil Co. v. State ex rel. Keen, 135 Ind. 54, 34 IT. E. 818; Greenfield Gas Co. v. Trees, 165 Ind. 209, 75 E\ E. 2; Coy v. Indianapolis Gas Co. 146 Ind. 655, 46 U. E. 17; State ex rel. Snyder v. Portland Gas c& Oil Co. 153 Ind. 483, 53 1ST. E. 1089; Gibbs v. Con. Gas Co. 130 U. S. 396; Gas Light Co. v. Zanesville, 47 Ohio St. 35, 23 U. E. 60; Zanesville v. Gas Light Co. 47 Ohio St. 1, 23, U. E. 55; Tacoma H. Co. v. Tacoma L. & W. Co. 3 Wash. 316, 28 Pac. 516; Louisville Gas Co. v. Dulaney, 100 Ky. 405; Baily v. Fayette G. F. Co. 193 Pa. St. 175; People’s G. L. ■& C. Co. v. Hale, 94 Ill. App. 406. Equity jurisdiction may be properly invoked on behalf of consumers generally by the city which granted the franchise. Muncie Nat. Gas Co. v. Muncie, 160 Ind. 97, 66 1ST. E. 436; Gas Light Co. ¶. Zanes-ville, 47 Ohio St. 35, 23 K". E. 60; State ex rel. Bridgeton v. Bridgeton & M. T. Co. (1ST. J.) 45 L. E. A. 837; Fla., C. Ai P. B. Co. v. State ex rel. Tavares, 31 Fla. 482, 20 L. E. A. 419 ; Waéertown v. CJowen, 5 Paige, 510; Williams v. Smith, 22 Wis. 594; State ex rel. Wilbur v. Trenton P. B. Oo. 57 N. J. Law, 212; Greenfield Gas Go. v. Trees, 165 IncL 209, 75 N. E. 2. The doctrine that municipalities may maintain actions to restrain unlawful interference with its streets, recognized and enforced by this court, is sufficient to enable the city to maintain this action, even if it were not a consumer of gas and electricity. Pewauhee v. Savage, 103 Wis. 271; Neshkoro v. Nest, 85 Wis. 126; Waukesha IT. M. Go. v. Waukesha, 83 Wis. 475; Oshkosh v. M. & L. W. B. Go. 74 Wis. 534; Jamestown v. G., B. ■& N. B. Oo. 69 Wis. 648.</p>

<p>Appeal from a judgment of-the circuit court for Eoud du Lac county: ChesteR A. Eoivlee, Circuit Judge.</p> <p>This is an action to recover damages for personal injuries •sustained by the plaintiff on the evening of January 31, 1903, by being struck by the defendant’s train while on the sidewalk on the north side of Western avenue and while crossing or about to cross the defendant’s railway track. The complaint is in the usual form in such cases, alleging the giving of the requisite notice January 29, 1904. The defendant answered by way of admissions and denials.</p> <p>At the close of the trial the jury returned a special verdict to the effect (1) that the plaintiff, at the time and place alleged, was injured by being struck by defendant’s train while ■on the sidewalk on the north side of Western avenue and while crossing or about to cross the railway track; (2) that the bell on the locomotive was not rung before and while the locomotive was passing over the crossing; (3) that the whistle on the locomotive was not blown at or near the Bowen factory; (4) that the defendant’s servants (under the existing circum-. stances) did not use ordinary care towards the public' in handling and running the train while it was approaching and passing over the crossing at the time and place in question; (5) that such want of ordinary care on the part of the defendant was the proximate cause of plaintiff’s injury; (6) that no want of ordinary care on the part of the plaintiff contributed to produce her injury; (7) that $927 will compensate the plaintiff for the injuries which she received. Erom the judgment entered thereon in favor of the plaintiff and against the •defendant for the amount stated and costs the defendant appeals.</p> <p>The appellant’s counsel states as undisputed facts in the-case that at the time of respondent’s injury Western avenue in the city of Fond du Lac ran in an easterly and westerly direction, and appellant’s track crossed the same at grade in a northerly and southerly direction. About thirty-six and one-half feet west of appellant’s track was a bridge about sixty feet long, which carried Western avenue over Fond du Lac river. At the east end of the bridge and on the north side of Western avenue there was a sidewalk running in a northeasterly direction; it then turned and ran in an easterly direction thirty-six and one-half feet to the west rail of appellant’s track. About 400 feet south of the crossing there was a factory building called the Bowen factory, and about thirty-five, feet west of the track and south of the crossing were some willow trees. There were no other obstructions to the view south of the crossing, except some telephone poles standing far apart. The respondent at the time of her injury was fifty years of age and had lived on Western avenue, about two blocks from appellant’s track, for about twenty years.</p>

<p> Mortgages: Foreclosure sale: Confirmation: Inadequacy of price: Fraud. </p> <p>An order confirming the sale of land upon foreclosure of a mortgage is held warranted by the proofs, as against the claim of the mortgagors that the price was grossly inadequate and that by false representations they were induced not to attempt to procure the attendance of bidders.</p>

<p>Appeal from a judgment of tbe circuit court for Green-Lake county: Ciiesteb A. Eowleb, Circuit Judge.</p> <p>Action to recover $1,315 on a policy of fire insurance. Tbe complaint was in tbe usual form. Defendant answered admitting tbe execution- and delivery of tbe policy but claiming-tbat it was void because tbe occurrence was produced by false-representations of tbe plaintiff of facts material to tbe risk, wbicb falsity was not known to the assurer till after tbe loss occurred. Tbe answer also put in issue tbe allegations of tbe complaint as to tbe interest of plaintiff in tbe property; also as to the amount of loss sustained and as to giving notice of loss as required by tbe contract. Defendant pleaded, particularly, tbat when tbe policy was applied for plaintiff represented tbat tbe cost and value of tbe dwelling bouse was-$1,800, whereas tbe value did not exceed $950; tbat it was expressly agreed that- defendant should not be liable for more than two thirds of tbe cash value of any building insured,, and tbat not more than two thirds of the cash value of any-building would be insured by tbe company, wbicb was well known to tbe plaintiff; tbat at tbe time application for the-insurance was made plaintiff falsely and fraudulently represented to defendant tbat there was no existing insurance on tbe property, while in truth there was such insurance to the-amount of $1,200, $700 being on tbe dwelling bouse, $100' on tbe household furniture, $25 on beds and bedding, $25 on family wearing apparel, $25 on provisions, and $325 on other-items, said insurance being in tbe Insurance Company of the-State of Illinois; tbat no notice of such existing insurance was given to tbe defendant, and tbat such circumstance of existing, insurance and tbat no notice was given to tbe defendant rendered tbe policy void by its terms. Defendant further answered tbat in furtherance of tbe fraud attempted as aforesaid, after tbe loss occurred, plaintiff delivered to tbe defendant a paper wherein be falsely swore tbat tbe dwelling bouse was worth $1,800, whereas it was only worth $950.</p> <p>Tbe facts aforesaid pleaded to defeat tbe. policy on the-ground of fraud were set forth as a counterclaim for rescission. Tbe counterclaim was duly replied to. Tbe jury rendered a general verdict in favor of tbe plaintiff. Proper motions and exceptions were taken to raise tbe questions discussed in tbe opinion.</p> <p>Tbe equitable issue raised by tbe counterclaim, after the-court granted plaintifPs motion for judgment, was in form closed by findings of fact to tbe effect tbat tbe allegations of fraud were untrue; tbat there was insurance on tbe plaintiff’s property when tbe policy in question was taken out, and tbat defendant was duly informed thereof; tbat plaintiff represented tbe dwelling bouse to have cost $1,800, and tbat it in fact cost tbat sum. Judgment was accordingly entered upon tbe verdict.</p>

<p>Slander: Evidence: Reputation of plaintiff: Hearsay: Impeachment of witness: Express malice: Cross-examination: Discretion: Parts of conversation: Right to prove whole: Separate slanders: Instructions to jury: Meaning of words spolcen: Court and jury: Pleading construed: Separate causes of action: Words actionable per se: “Infamous punishment."</p> <p>1. In an action for slander evidence as to plaintiff’s general reputation, in mitigation or partial denial of damages, must be confined to reputation in respect to the fault or trait of character involved in the offense charged.</p> <p>2. Where the alleged slander was to the effect that plaintiff had been “whipping her mother,” evidence that prior to the slander plaintiff had a general reputation for quarreling with and illtreating her mother-was admissible on the question of damages; but evidence as to such reputation at the time of the trial was wholly inadmissible.</p> <p>3. Evidence in such a case of specific instances of quarrels between plaintiff and her mother at times other than that of the alleged whipping, did not tend to prove that whipping; nor was such evidence admissible to show plaintiff’s reputation in 'that respect.</p> <p>4. Evidence of statements made to third persons by the mother as to plaintiff’s treatment of her was hearsay and inadmissible.</p> <p>5. A witness cannot be impeached by proof that he has made statements contradictory to his testimony, unless such statements are material to the controversy.</p> <p>6. A defendant who uttered a slander upon his own authority and as of his own knowledge cannot, in order to minimize or defeat the inference .of "express malice, prove the unsworn statements of others or current rumors injurious to the plaintiff.</p> <p>7. The extent to which cross-examination of witnesses may go is a matter peculiarly within the discretion of the trial court</p> <p>8. A. witness for defendant who had testified as to what happened at the time the alleged slander was uttered, and to a subsequent conversation with certain persons, was asked on cross-examination whether he did not tell them that he knew nothing of the occurrence. Held, that the question was proper either as contradicting the witness or as a basis for impeaching testimony.</p> <p>9.When one party gives in evidence a portion of a conversation ' material to the controversy, the other party may give the whole thereof, at least so far as it has any relation to the portion already offered.</p> <p>10. In an action wherein the complaint charged at least two slanders, the court instructed the jury that if they found that defendant did not speak substantially the words alleged in the complaint he was entitled to a verdict. Plaintiff’s counsel did not request any such modification or amplification of the instruction as would inform the jury that they might find a verdict for plaint- ' iff if they found that either of the alleged slanders had been uttered. Whether, in the absence of such request, the instruction given was so clearly erroneous as to necessitate a reversal, is not determined.</p> <p>11. Defendant was alleged to have said to plaintiff in the presence of-others: “Shame, shame, B. W., whipping your mother! She abuses her mother, and this isn’t the first time either.” Held, that these words, besides asserting that plaintiff had just been whipping her mother, were capable of being underst.ood as asserting that there had been other like abuse on previous occasions, and that the question whether they had that meaning to the hearers should have been left to the jury.</p> <p>12. A complaint alleged the speaking of certain defamatory words in the presence of certain persons and, a few minutes later, at another place, the speaking of other defamatory words, and that “said false and defamatory words were maliciously spoken” in the presence of certain persons named “and divers other persons and at divers other times and places." Held, that the words last quoted did not constitute a charge of distinct slanders at other times and places and to other persons, and that, to warrant the admission of evidence of such other statements as separate and independent slanders and not merely as bearing upon the question of malice, they should have been pleaded as separate causes of action.</p> <p>13. Spoken words falsely charging an indictable crime involving moral turpitude or which would subject the person charged to an infamous punishment are actionable per se,</p> <p>14. Imprisonment in the county jail is “an infamous punishment,” within the meaning of the above rule, and, an assault and battery being so punishable, spoken words falsely charging that crime are actionable per se.</p>

<p>.County court: Appeal: Failure to prosecute: Dismissal: Discretion: Setting aside judgment for fraud: Limit of time: Probate of will: Constructive fraud: Guardian ad litem: Pleading: Lost or destroyed will: Presumption of revocation: Amendment of petition on appeal.</p> <p>1. Refusal of the circuit court to dismiss for want of prosecution, under sec. 4038, Stats. 1898, an appeal from county court which had been pending about five years, is held not to have been an abuse of discretion, it appearing that said time had been largely consumed in litigation of other cognate matters proper to he settled before proceeding with the appeal, and in negotiations for settlement, and that there had been destruction of papers and other matters, all tending to show that the delay was not unreasonable.</p> <p>2. The power of the county court to set aside its order or judgment is not limited to one year after notice of the entry thereof, where such order or judgment was without jurisdiction or was the result of fraud.</p> <p>3.^ Failure of the guardian ad litem of an infant heir to oppose the probate of a will giving all the property to another, and to call the attention of the court to undisputed facts showing that the will was not entitled to probate, was a constructive fraud upon the infant, justifying vacation of the order or judgment admitting the will to probate.’</p> <p>4. The petition to set aside the order in such a case, although it does not in terms charge fraud, is sufficient if it alleges the facts constituting the constructive fraud.</p> <p>5. Under sec. 3791, Stats. 1898 (providing for the establishment of any will which shall be lost or destroyed by accident or design),'if a reasonable time elapsed after testator’s knowledge of the destruction of a will and before his death, and he had opportunity to reproduce it hut did not do so, a presumption of revocation arises and the will cannot be admitted to probate."</p> <p>€. Where a will was accidentally destroyed three years before the testator’s death, with his knowledge, and he afterwards adopted a child, but did not reproduce said will or make'a new one, it is held that the destroyed will was revoked.</p> <p>7. A petition asking that an order admitting a destroyed will to probate be set aside because of the failure of the guardian ad litem of petitioner (an infant heir of the testator) to call the court’s attention to undisputed facts showing revocation of the will, was denied by the county court. Held, that on appeal the circuit court properly allowed an amendment of the petition, setting up the claim of the petitioner as an after-born child and asking that an order assigning the real estate in accordance with the will be also set aside.</p> <p>8. No appeal from the last-mentioned order was necessary in such a case, since it must fall if the probate of the will should be set aside.</p>

<p>Appeal from a judgment of the circuit court for Columbia county: Chestee A. Fowleb, Circuit Judge.</p> <p>It appears from the record and is undisputed that Daniel Sowards died December 3, 1902, leaving a last will and testament executed April 12, 1901, and the same was admitted to probate by the county court in February, 1903, and an executrix appointed. The executrix having failed to file any account of her administration, and a dispute having arisen over the rights of the respective parties under the will, the plaintiff, as one of the heirs at law and devisees and legatees under the will, filed a petition in the county court February 24, 1905, calling upon the executrix to show cause, if any, why she should not file her account and why the will, and particularly the fifth paragraph thereof, should not be construed by the county court. A hearing was thereupon had, and on September 9, 1905, the county court found and adjudged that the said Elizabeth, L. Sowards took an absolute estate in the property mentioned in the fifth paragraph of the will, free and clear of any right or claim or interest therein in remainder or otherwise in favor of her daughter Evelyn A. Conlin (the plaintiff), and the executrix was not required to file and settle her account of administration. Said daughter duly appealed from that judgment to the circuit court.</p> <p>At the close of the hearing and trial in the circuit court that judgment of the county court was wholly reversed, and upon the facts, which are undisputed, the circuit court found as conclusions of law, in effect, that the widow and executrix holds the property devised and bequeathed to her by the fifth paragraph of the will in trust to pay the legacies therein mentioned and the costs and expenses of burial and the administration of the estate, and to have the full use, benefit, and enjoyment of the net rents, profits, and income of the residue for life, with remainder over to her two daughters, Evelyn A. and Florence E., and that such executrix was by the will vested with a special power in trust and charged with the duty ■of making a division of said remainder at her death, by testament or otherwise, between her said daughters in portions as nearly equal as possible, and that she should be required to render to the county court a full account of her administration of said estate. Judgment was therein ordered accordingly with costs. Erom the judgment so entered the executrix •appeals.</p> <p>to the point that the presumption, in case of doubtful words, is against a trust, cited Foose v. Whitmore, 82 N. T. 405; Knox v. Knox, 59 Wis. 172, 183; Swarthout v. Swarthout, 111 Wis. 102.</p> <p>to the point that the fifth paragraph of the will gives the residue of the estate to the widow in trust, to enjoy the use of the same for life, with remainder to the two daughters, cited Swarthout v. Swarth-out, lil Wis. 102; Knox v. Knox, 59 Wis. 172; Jones v. Jones, 66 Wis. 310; Littlewood’s Will, 96 Wis. 608; Derse v. Derse, 103 Wis. 113; Webster v. Morris, 66 Wis. 366, 394; Tabor v. Tabor, 85 Wis. 313; Wolbert v. Beard, 128 Wis. 391; Powers v. Powers, 28 Wis. 659; Warner v. Bates, 9§ Mass. 274; Smith v. Bell, 6 Pet. 68; Noe v. Kern, 93 Mo. 367, 6 S. W. 239; Woerner, Adm’n, 874-877; Harrisons v. Harrisons’ Adm’x, 2 Grat. 1, 44 Am. Dec. 365, 369; Wood v. Camden S. D. & T. Co. 44 N. J. Eq. 460, 14 Atl. 885; Van Dyclc v. Van Beuren, 1 Caines, 84; Phillips v. Phillips, 112 N. Y. 197; People v. Powers, 147 N. Y. 104, 41 N. E. 432, 35 L. R. A. 502.</p>

<p>Married women: Promissory notes: Separate property: Estoppel.</p> <p>A marriéd woman, though possessing separate property, is not liable in an action at law upon a promissory note signed by her with her husband, where it was not given for the purchase-price of any property bought or received by her, was not in any way necessary or beneficial to the management or enjoyment of her separate property or business, and did not relate to her personal services, and where there were no facts creating-an estoppel.</p>

<p> Municipal corporations: Acquiring steam or water power for lighting plants, etc.: Tote of electors: Construction of statutes: Constitutional law: Classification of cities: Injunction: Extent. </p> <p>1. Sec. 1, eh. 95, Laws of 1901, in terms grants to cities of the .fourth class power to purchase, lease, or construct steam power or water power for the purpose of maintaining and operating lighting plants and waterworks. Sec. 2 provides that the power granted in sec. 1 shall he exercised only when ratified by a two-thirds vote at a special election. Construing said act in the light of other legislation on the general subject, it is held, that, even if the power in terms granted by sec. 1 existed under prior statutes, it is subject to the condition imposed by sec. 2.</p> <p>2. The exercise of the power mentioned is equally subject to said condition whether the attempt be to acquire the steam or water power as a separate undertaking or as incidental to or a part of a general plan for construction of a lighting plant or waterworks.</p> <p>3. Where the words of a statute are plain and unambiguous and not absurd, courts must be guided thereby, and not by extrinsic facts and circumstances, in ascertaining the legislative intention.</p> <p>4. A statute not applicable to larger cities, but requiring in cities of the fourth class the approval of the electors by a two-thirds vote for acquiring steanror water power for light or water sup* ply, does not involve an improper classification of cities on a basis not germane to the subject of the act.</p> <p>5. An injunctional order restraining a city of the fourth class from entering into any contract or issuing any bonds for the con- • struction of an electric lighting plant pursuant to proceedings set forth in the complaint, which proceedings involved the acquisition of steam or water power for such plant in violation of ch. 96, Laws of 1901, is held not so broad as to bar the commencement of new proceedings for the establishment of a lighting system which did not include the acquisition of steam or water power.</p>

<p>Appeal from a judgment of tbe circuit court for Racine county: E. B. BeldeN, Circuit Judge.</p> <p>An action to recover tbe salary wbicb plaintiff alleges is due bim as policeman of tbe city of Racine from February 1, 1905, to July 1, 1905, at tbe rate of $65 per month. It appears that plaintiff bad been performing tbe services of a policeman for tbe city from March 1, 1900, to tbe 1st day of February, 1905, under an alleged appointment, and that be bad received tbe compensation of a policeman. On January 23, 1905, by letter from tbe secretary of tbe police and 'fire commission, plaintiff’s resignation was requested, to take ■effect tbe ensuing February 1st. ITe disregarded tbe request. On January 28tb be received notice, signed by tbe members •of tbe commission, that be bad been removed from tbe police ■department, and that tbe removal would take effect February 1st following. He thereupon left bis keys and other belongings of tbe city at tbe police office, in tbe belief that they ■could be demanded of him after tbe notice given him. He was at that time of tbe opinion that be could not demand to be kept in tbe actual employ and tbe performance of tbe service of policeman. He thereafter consulted counsel and, pursuant to their advice, in May, 1905, be commenced cet-■tiorari proceedings to test tbe legality of tbe commission’s .action in summarily removing him. On July 5, 1905, tbe •court decreed that tbe attempted removal of tbe plaintiff from bis office of policeman was illegal, and declared tbe action for naught. Other proceedings were taken, and by this second proceeding plaintiff was regularly suspended and removed by tbe commission from and after July 1, 1905. Plaintiff was not assigned to perform any police duty from February 1 to July 1, 1905. Tbe police and fire commission and tbe chief of police appointed policemen immediately after plaintiff bad been notified of bis summary removal on January 28, 1905, and they qualified and entered upon tbe performance of police duties for tbe city. 'The persons so appointed received a compensation of $55 per month. So far as appears, no person was appointed in tbe plaintiff’s place, and tbe services on tbe particular beat which plaintiff bad performed on and before be received tbe notice on January 28,• 1905, were thereafter performed by a member of tbe police force who bad been in tbe service for a considerable time before plaintiff was notified to quit tbe ■service.</p> <p>Tbe court found that from February 1 to July 1, 1905, plaintiff was a duly appointed and qualified police officer of the defendant city; that the emoluments attached to the office consisted of a salary of $65 per month; that the attempted removal of the plaintiff from this office by the police and fire commission on January 28, 1905, had been declared by judgment of the court to be illegal and ineffectual, and that such judgment was still in force; that no person had been appointed to fill the office, and that from February 1 to July 1, 1905, no person occupied the office of policeman held by this plaintiff; that the action of the city, through its chief of police and the police and fire commission, prevented plaintiff from performing the actual service of this office for this period; and that plaintiff at no time had resigned, surrendered, or abandoned the office so held by him. Upon this-state of facts the court held that plaintiff was entitled to-judgment for the amount of the salary attached to the office,, with interest from the time the monthly instalments were due and payable. This is an appeal from such judgment.</p>

<p> Contracts: Several agreements construed together: Execution: Parties: Modification: Insurance agents: Advances to be repaid from commissions: Mortgages: Resignation of agent: Discharge from obligation as to advances. </p> <p>1. A note and mortgage to an insurance company, and agency contracts between the company and the mortgagor and others, all relating to the same subject matter and delivered at the same time, are construed together as one instrument.</p> <p>2. A written contract reciting that it,was an agreement between an insurance company and one E. contained a provision to the effect that said E. and certain third persons agreed that all renewal commissions accruing under certain agency contracts with E. and said third persons should he paid to the company in liquidation of a certain note. Held, that the signatures of said third persons were not necessary to make the contract binding, and that the provision mentioned was in effect a promise on the part of E. that the commissions should be paid as stated.</p> <p>3. An agreement between an insurance company and an agent, providing that all renewal commissions accruing under certain agency contracts should be paid to the company in liquidation of a note, secured by mortgage, given by the agent for advances theretofore made to him, provided also that no call for payment of any part of the note should be made at any time in excess of the renewal commissions. Another agreement, bearing a later date, to which associate agents were also parties, provided for applying the renewal commissions to the repayment of advances thereafter to be made. Both agreements and the note and mortgage mentioned were delivered at the same time and took effect as parts of the same transaction with the consent of all parties, who obviously contemplated that the commissions would be sufficient to pay both the note and the future advances. Held, that the agreement of the later date did not supersede the other, and that there was no obligation to pay the note except in so far as there might be renewal commissions available for the purpose under the agreements.</p> <p>4. The agency contracts in such case did not provide how long they should be in force, but recognized the right of resignation by providing that in case of resignation of the agents the company should have authority to pay subordinate agents any commissions, etc., which the agents should have agreed to pay them. Held, that there was no implied covenant, arising from the existence of the note and mortgage and the agreements for repayment of advances, or otherwise, which would prevent the agents from resigning if, after fair and reasonable efforts, they were unable to conduct the business successfully.</p> <p>5. Having reasonably and lawfully exercised his right to resign, and having thereby ceased to be entitled to receive renewal commissions, the agent who had given the note and mortgage payable from such commissions became, by such resignation, discharged from obligation upon the mortgage indebtedness.</p>

<p>Appeal from a'judgment of the circuit court for Racine •county: E. B. Belden, Circuit Judge.</p> <p>. This is an action to recover damages for personal injuries sustained by the plaintiff June 9, 1905, while in the employ •of the defendant in its boiler shop. The machine and its ■operation and the manner in which the injury was inflicted are described by defendant’s counsel substantially as follows:</p> <p>There was a swinging crane used for handling large pieces of boiler plates and tires for traction engine wheels; said crane consisting of an upright post about fifteen feet high and swinging thereon near the top a horizontal arm designed to swing in a half circle, twelve or fifteen feet in length, and having on it pulleys and air hoist for the purpose of lifting material. The said upright post was held in position at the top by iron rods fastened to the top of the post and to the iron framework of the building. The punch stands about five feet high, and on the top of this is an iron post or upright of the crane about thirteen feet high. Near the top of it is a horizontal arm or boom sixteen feet in length moving in a semicircle about the upright post. On this arm is an air hoist running on a trolley, and it runs back and forth the entire length of the arm. Thus, when a tire plate is suspended from the air hoist it can be moved freely in any direction by the man on the floor. The top of the crane post is supported by four iron bars running at right angles to each other and fastened to the channel plates of the building. The one that broke was the northwest guy rod and was either seven eighths of an inch or an inch in diameter. It approached the channel plate from'the post at an angle of about thirty-five degrees, and was fastened to an eyebolt an inch in diameter and about four or five inches long, which passed through the ■channel plate and was bolted firmly thereto at right angles with a nut on each side of the channel plate. Thus, while the strain on the guy rod was a direct pull, an angle was 'formed between the guy rod and the eyebolt causing the strain on the bolt to be a side or breaking strain. The bolt broke next to the channel plate on the side nearest the guy rod. The end of it and the nut which was found after the accident are in evidence, and show that, on .the inner side of ■the break, the iron was crystallized for about twenty-five per cent, of the cross-section of the holt. The only claim of negligence relied upon was in the faulty construction of the-guy rod, in that a breaking strain came upon the bolt instead of a direct pull. At the time of the accident a load of about 1,000 pounds, including the air hoist and all that it carried, was resting at about the center of the arm. Much heavier loads had frequently been lifted by the same crane. The arm was pointing in a southeasterly direction, consequently bringing the strain almost entirely upon the northwest guy rod. The operator of the punch and the plaintiff, his assistant, were at work, and had just finished punching holes in one end of the tire; the plaintiff being at the south end of the tire assisting the operator to swing the tire around so as to-¡ranch the other end, when the crane toppled over, part of it striking the plaintiff upon the head, and the tire of which he had hold falling upon and crushing his hand.</p> <p>Issue being joined and trial had, the jury at the close thereof returned a special verdict to the effect (1) that the construction of the rod and eyebolt in question was not reasonably safe and sufficient for the purpose of sustaining the crane in view of the character of the work required; (2) that the defendant was negligent in respect to such construction ; (3) that such negligence was the proximate cause of the plaintiff’s injury; (4) that the plaintiff was not guilty of any want of ordinary care which contributed to produce his injury; (5) that they assessed the plaintiff’s damages at $1,500. From the judgment entered thereon in favor of the plaintiff and against the defendant for the amount stated, the defendant appeals.</p>

<p>Appeal from a judgment of tbe municipal court of Eacine county: Wm. Smiediptg, Je., Judge.</p> <p>Action to recover on a promissory note. Tbe defendant Anna Fink answered, among other things, that at tbe time of tbe execution of tbe note she was tbe'wife of tbe defendant Charles Fink, which was well known to tbe plaintiff; that she signed tbe note solely as surety for an antecedent debt of her husband; that tbe note did not concern in any way her separate estate, and that in such signing she did not intend to charge her separate estate. Tbe cause was tried by tbe court and resulted in findings of fact, in substance as follows: October 17, 1902, defendant Anna Fink was tbe wife of Oha/rles Fink. On such day both defendants signed tbe promissory note mentioned in tlie complaint, which was in the following words:</p> <p>“$944.91. Mt. Pleasant, Racine Co. Wis., Oct. 17, 1902.</p> <p>“Three years after date, for value teceived, we jointly and severally promise to pay to the dfder of Ida L. Bailey the-sum of nine hundred forty-four and 91-100 dollars, together Avith interest thereon at the rate of seven per cent, per annum, interest payable annually, anchi, Anna Fink, one of the makers of said note, hereby charge my separate estate with the payment of said note.</p> <p>“Ahita Eietk.</p> <p>“CHARLES ElHK.”</p> <p>Defendant Anna Fink at that time had a separate estate. She did not receive from the plaintiff anything of value nor any consideration for her act. She signed solely as surety for her husband. Neither, the note nor the consideration therefor in any way concerned her separate estate or business. Upon such findings the court concluded that plaintiff was not entitled to judgment against Anna Fink. The complaint Avas accordingly dismissed as to her, with costs.</p> <p>The plaintiff excepted to the decision that' Anna Fink did not receive any consideration for signing the note; that she signed it as surety only; and that it did not concern her separate property or business.</p>

<p> Tovm drains: Jurisdiction of supervisors: Defective proceedings: Notice of hearing: Determination as to damages: Benefits to highway: Assessment of cost: Arbitrary or fraudulent action: Recording of orders, etc.: Remedy in equity. </p> <p>1. Under the statutes relating to town drains (secs. 1359-1371, Stats. 1898) the supervisors constitute a special tribunal for administrative purposes, not proceeding according to the course of the common law, and exact compliance in all substantial matters with the statutory procedure is essential to their jurisdiction.</p> <p>:2. If, by noncompliance with the statute, the supervisors lose jurisdiction, their proceeding and determination are wholly void and may be attacked collaterally or directly.</p> <p>3. Failure to give notice of the first hearing as required by see. 1360, Stats. 1898, is fatal to the jurisdiction, even though there is an affidavit of the service of notice.</p> <p>4. Under secs. 1363, 1364, Stats. 1898, a determination by the supervisors of the question of damages to lands through which the' ditch runs is an essential preliminary to an apportionment of the total cost of construction upon the lands to be benefited.</p> <p>5.' Where the ditch crosses a highway the supervisors must, under see. 1363, Stats. 1898, before assessing the cost to the lands to be benefited, consider and determine whether such highway will' be benefited and, if so, the amount of such benefit; but there is no presumption that the supervisors did not perform that duty from the mere absence of an assessment against the town on account of such a benefit.</p> <p>6. Arbitrary or fraudulent omission of lands directly benefited or inclusion of lands not at all benefited renders void the assessment of the cost of constructing the ditch.</p> <p>7. The recording of the order awarding damages to the owner of land, as required by sqc. 1363, Stats. 1898, and of the final certificate of assessment required by sec. 1364, is essential to the validity of subsequent proceedings.</p> <p>8. Where invalid proceedings to establish a drain across lands constitute a cloud upon the title or a threatened permanent injury to the land, the owner may maintain a suit in equity to have the-proceedings declared void and further steps therein enjoined. The remedy by appeal from the determination of the supervisors or by certiorari is not adequate in such a case.</p>

<p>Appeal from a judgment of the circuit court for Milwaukee county: LawreNCe W. Halsey, Circuit Judge.</p> <p>Plaintiff sues to recover damages for a personal injury. On tbe evening of March 16, 1902, Henrietta Bartholomaus,. tbe plaintiff, was a passenger on one of defendant’s street cars, traveling over and along Kinniekinnic avenue in tbe city of Milwaukee. Tbe car reached tbe point where tbe accident occurred at about 8:40 o’clock p. ra. At this point defendant’s tracks extend along Kinniekinnic avenue, running in a northwesterly and southeasterly direction, and are intersected by tbe tracks of the Chicago & Northwestern Eailway Company and the Chicago, Milwaukee & St. Paul Eailway Company. The sketch on the following page represents the track of the defendant company and the railroads located at the point of intersection.</p> <p>The night was cold. It had been and was still snowing, and there was a southwest wind blowing at a velocity of about twenty-five miles per hour. The street car approached the •crossing from the north at about the time the regular passenger train on the Chicago, Milwaukee & St. Paul Eailway, running from Chicago to Milwaukee, was scheduled to pass •over the crossing on the southeasterly track of the railway. When it approached the track of the Chicago & Northwestern Eailway the conductor of the car went in front of the car to where he had a clear view of this track, made observations of the track for approaching trains, and then signaled to the motonnan to come along with the car, meanwhile preceding the ear to the first main track of the Chicago, Milwaukee & •St. Paul Eailway Company. The motonnan obeyed the signal and advanced the car to cross the railway tracks. Before the car had cleared the last railway track the passenger train ■coming from Chicago collided with the rear' end of the car, threw it off the rails, caused plaintiff and other passengers to be violently thrown from their seats, and caused the injury to plaintiff’s person for which she claims damages. The plaintiff charged that the defendant’s servants were negligent in several respects in the performance of their duties as its servants and employees in running this car over the railway crossing. These will be specifically considered in the opin-</p> <p> </p> <p>ion. Tbe case was tried before tbe court and a jury. Tbe court directed a verdict to be found in defendant’s favor, upon tbe ground tbat tbe evidence showed without dispute that defendant was not guilty of negligence as charged in tbe complaint, and awarded judgment against plaintiff for defendant’s costs in tbe action. This is an appeal from such judgment.</p>

<p>Appeal from a judgment of the circuit court for Milwaukee county: WaebeN D. TaeRANT, Circuit Judge.</p> <p>This action was originally brought against the defendant Washington Beclcer and the Wisconsin Marine & Eire Insurance Company Bank to redeem certain securities which said bank held as collateral for the indebtedness of the plaintiff, and for discovery and accounting for the proceeds of such securities, and the setting aside of a settlement between the defendant bank and plaintiff. The action was commenced October 4, 1902, and the other defendants were afterwards brought in. The charter, of the Wisconsin Marine & Eire Insurance Company Bank expired in July, 1900. The defendant Marine National Banh acquired, substantially, the bank assets of the Wisconsin Marine & Eire Insurance Company Bank. The defendant Oldmar Investment Company was organized to take a part of the assets of the Wisconsin Marine & Eire Insurance Company Bank. The defendants Bthelinda T. Johnston and Harriet D. Mitchell are the representatives of John Johnston and John L. Mitchell, deceased, stockholders in the former Wisconsin Marine & Fire Insurance Company Bank.</p> <p>The stock involved in this case is 1,542 shares of the capital stock of the Western G-as Company. In June, 1892, Frank W. Montgomery obtained from John L. Mitchell an option to purchase 3,181 shares of the capital stock of the Milwaukee Gas Light Company. Benjamin Weil and the ■plaintiff became interested with Montgomery in the transaction, and negotiations were made by Montgomery, Weil, and Smith with John Johnston and David Ferguson, then officers of the Wisconsin Marine & Fire Insurance Company Bank, by which said bank agreed to loan Weil, Montgomery, and Smith $318,100 on joint note, secured by Milwaukee Gas Light Company stock. The only investment made by Weil, Montgomery, and Smith in addition to this borrowed money was $100 paid by Montgomery to Mitchell to secure the option. At the time of this loan Montgomery, Weil, and Smith agreed to give Johnston and Ferguson each 500 shares of stock of the Western Gas Company, which was to be organized out of the Milwaukee Gas Light Company. This stock was known as bonus stock. At the time of the loan Montgomery acquired fifty-five additional shares of the stock of the Milwaukee Gas Light Company, which together with 3,781 shares in the name of Mitchell were returned to the company and a new certificate, No. 2,319, for 3,836 shares was issued to Frank W. Montgomery, and by him deposited with the bank as collateral security for the loan. Afterwards and in September, 1892, Montgomery assigned to Weil 1,260 shares and to plaintiff 1,260 shares by indorsement on certificate No. 2,319 for 3,836 shares, and Milwaukee Gas Light Company stock certificate No. 2,322 for 1,260 shares was issued to Weil, and by him indorsed in blank, and certificate No. 2,323 for 1,260 shares issued to plaintiff, and by him indorsed in blank, and certificate No. 2,324 for 1,261 shares issued to Montgomery, and by him indorsed in blank, and these three certificates deposited as collateral for the joint note given for $378,100.</p> <p>On December 31, 1892, the joint note for $378,100 was 'taken up and Montgomery, Weil, and Smith each made his separate note; Weil’s and Smith's for $126,000 each, and Montgomery’s for $126,100, and the note of each indorsed by the other parties. The stqck of the Milwaukee Gas Light Company continued as collateral to these notes. Smith's note contained power of sale similar to other powers given by him ■subsequently. This note matured September 15, 1893. Pursuant to the original plan the Western Gas Company was organized, which purchased all the stock of the Milwatdcee Gas Light Company, and issued its own stock and bonds in exchange therefor at the rate of $125 in bonds and $125 in stock of the Western Gas Company for each'$100 of stock of the Milwaukee Gas Light Company. The exchange of the Weil, Smith, and Montgomery stock, as well as some other ■stock, was effected through subscription made by Montgomery. In pursuance of Montgomery’s subscription and the surrender of this Milwaukee Gas Light Company stock there was issued to Montgomery certificate of the Western Gas Company No. A-010 for 6,110 shares, dated June 1, 1893, and Montgomery assigned these 6,110 shares to the various persons entitled thereto, and the Western Gas Company stock which represented the 3,781 shares of Milwaukee Gas Light Company stock given by Montgomery, Weil, and Smith as collateral was represented by three assignments to defendant 'Washington Becker for the respective amounts of 1,577, 1,575, and 1,628 shares. Under the reorganization Weil was to receive stock to the par value of $126,142, Smith $120,766, Montgomery $120,892 (the greater amount going to Weil on ■account of his forty-three additional shares of Milwaukee Gas Light Company stock), D. Ferguson was to have $50,000, ■John Johnston $50,000, and J. P. Murphy $10,200. The bonus stock, under the arrangement, was not to be delivered until the bank had been paid; therefore the entire 4,780 shares were turned over to the bank as security, and for convenience were placed in the name of Washington Becher, who was assisting the bank. On the transfer by Montgomery as collateral there were issued to Washington Becher three certificates of stock by the Western Gas Company, dated June 15, 1893, as follows: Certificate No. A-185 for 1,575 shares of $100 each, certificate No. A — 186 for 1,628 shares, and certificate-No. A — 187 for 1,577 shares, which certificates represented respectively the Smith, Weil, and Montgomery stock, including the bonus stock and- the Murphy stock. Under the arrangement thus carried out the 1,575 shares of plaintiff of the Western Gas Company stock were held in the name of' defendant Becher with power of sale to the bank, and subject to the agreement on Smith's part to give his proportionate one-third of the 500 shares each to Ferguson and Johnston, and of the 100 shares to Murphy, when the bank should have been paid.</p> <p>In February, 1894, Weil paid the bank his note for $126,000, and certificate No. A — 186 for 1,628 shares was surrendered and a new certificate for 1,303 shares, No. A — 363, issued to Weil, and a further certificate, No. A — 364’ for 325 shares, was issued to defendant Washington Becher. These 325 shares represented all but eight shares of Weil’s one-third of the bonus stock, tire remaining eight shares having been delivered by Weil to Vermilye & Co., New York brokers. March 3, 1893, Montgomery made a settlement with the bank and his note for $126,100 was returned. In July, 1893, the Wisconsin Marine & Fire Insurance Company Bank was placed in the hands of Washington Becher as receiver, and was afterwards reorganized and resumed business in 1894, with Becher as president and John Johnston as-cashier, under name of Marine National Bank, defendant. In 1894 some changes were made in the form of these certificates — certificate No. A-491 for 3,477 shares was surrendered, and three certificates were issued in its place, No. A — 503 for 500 shares in the name of John Johnston, Ho. A — 604 for 600 shares in the name of Wisconsin Marine & Fire Insurance Company Bank, and Ho. A — 506 for 2,477 shares also in the name of Wisconsin Marine & Fire Insurance Company Bank. In October, 1894, the bank sent the certificates indorsed in blank to Vermilye & Co., bankers and brokers in Hew York, to be'held subject to the order of the bank. In December, 1894, the bank caused 500 shares of stock to be sold on account of Montgomery, and on these sales delivery was made from certificate Ho. A-503 in the name of John Johnston. On April 27, 1895, the bank made a settlement with Montgomery, and surrendered his note and some American Eealty Company bonds, and a life insurance policy, and gave him a receipt in full, the bank taking from him a bill of sale of 761 shares of the Western Gas Company stock and the $82,500 bonds.</p> <p>On April 27, 1895, the bank held 2,985 shares of stock, which included the plaintiff’s stock held by the bank as collateral security to his note, which note authorized “said bank, or its president, or its cashier, or its assign or assigns, to sell said bonds and stock at any time hereafter at public or private sale without advertising the same or demanding payment or giving notice of such sale, and it .may become the purchaser on such sale and apply the net proceeds to the payment of all or either one of the notes above described, and in such order and manner as it shall deem best.” Vermilye & Co., Hew York bankers and brokers, to whom this stock was sent subject to the order of the bank, by instructions of said bank undertook to sell it, and reported sales at different times between the 27th day of April and the 20th day of June, 1895, aggregating 1,542 shares. On April 27, 1895, Vermilye & Co. held for the bank 2,985 shares in three certificates, one for 2,477 shares, one for 500 shares, and one for eight shares received from Weil in December, 1894.</p> <p>After the reported sales by Vermilye & Co. and on or about the 24th day of June, 1895, the plaintiff made a final settle-meat with tbe bank through defendant Washington Becker its representative, and at this time the whole matter was gone into respecting the reported sales. - It is claimed that 700 shares of the stock held by the bank as collateral on reported sales of Vermilye & Co. were not sold, but held by Vermilye & Co. and at some time prior to May 29, 1902, transferred to defendant Washington Becker, who was not an innocent purchaser, and by him exchanged for American Light & Traction Co. stock, which he still holds. It is also claimed by plaintiff that 842 shares belonging to Smith were not sold, but were transferred by the Wisconsin Marine & Eire Insurance Company Bank to defendant Marine National Bank at the time of its organization, Washington Becker being president and John Johnston vice-president; while, on the other hand, it is contended on the part of the defendants that the bank sold the stock of the plaintiff through Vermilye & Co. under the power of sale given, and that such sale was valid. The defendants also set up as a bar to plaintiff’s action the settlement made June 24, 1895; also that the statute of limitations had run against plaintiff’s claim, and further that he is barred by his laches.</p> <p>The court below held that the sale'by the pledgee of the collateral was valid under the contract of pledge, and further found that the cause of action set up in the complaint was •barred by the statute of limitations, and that the plaintiff was guilty of laches, and ordered the complaint dismissed with costs, from which judgment this appeal was taken.</p> <p>They contended, inter alia, that the retention of the 700 shares by’ Vermilye & Co., agents for sale, under the pretense that they had made sale of the shares, did not effect any sale of the shares. Wilson v. Carpenter, 17 Wis. 512, 516; Anderson v. Crisp, 5 Wash. 178, 18 L. R. A. 419; 1 Dos Passos, Stock Brokers (2d ed.) 213, 214, 382, 383; Bosenstock v. Tormey, 32 Md. 169, 183; Maryland F. Ins. Co. v. Dalrymple, 25 Md. 242, 267; First Nat. Bank v. Bush, 85 Eed. 539, 544; Clidden v. Mechanics'' Nat. Bank, 53 Obio St. 588; Sharpe v. Nat. Bank, 87 Ala. 644, 649; Leahy v. Lobdell, 80 Fed. 665, 670; Bryson v. Bayner, 25 Md. 424; Middlesex Bank v. Minot, 4 Met. 325; Bank of Old Dominion v. D. & P. B. Co. 8 Iowa, 277; Norton v. Baxter, 41 Minn. 146; Appleton ¡o. Turnbull, 84 Me. 72; Minneapolis Asso. v. Canfield, 121 U. S. 295, 298; Bryan v. Baldwin, 52’N. T. 232; First Nat. Bank v. Hall, 22 App. Díy. 356; Terry v. Birmingham Nat. Bank, 93 Ala. 599; Taussig v. Hart, 49 N. Y. 301; Petti-bone v. Perkins, 6 Wis. 616; Kellogg v. Malicie, 125 Wis. 239, 252; Jones, Pledges, § 637; 3 Clark & M. Priv. Corp. § 622&, p. 1889. There is no evidence that 'Washington Becker was an innocent purchaser for value of these 700 •shares. The presumption is that property dealt with in breach of a trust or other fiduciary relation is acquired by a subsequent purchaser with notice. 1 Bigelow, Fraud, 131, 135; Sylvester v. Guernsey, 22 Wis. 569, 572; Weeks v. M., L. S. & W. B. Co. 78 Wis. 501, 525. As to the 842 shares, when the bank sold them from the common mass which included shares owned by the hank itself as well as shares held by it as collateral security, it became the conclusive presumption of law that the bank had sold its own stock. The result of the bank’s mixing these shares of plaintiffs with shares which afterwards became the property of the bank was that, if it wished to sell plaintiff’s shares, it was obligated to identify the shares sold as plaintiffs at the moment of sale by some unequivocal act. Nonotuck Silk Co. v. Flanders, 87 Wis. 237, 241; Skiff v. Stoddard, 63 Conn. 198, 227; Pinkett v. Wright, 2 Hare, 120, 128 et seq.j Newton v. Howe, 29 Wis. 531, 535; Haas v. Buston, 14 Ind. App. 8, 42 N. E.' 298; 1 Dos Passos, Stock Brokers (2d ed.) 213, 214. To constitute a valid exercise of the bank’s power of sale, the act must show that it was done in pursuance of the power. 2 Perry, Trusts (5th ed.) § 511c/ Roalce v. Derm, 4 Bligh, N. s. 1; Blagge v. Miles, 1 Story, 426; Lee v. Simpson, 134 U. S. 572, 589; Towle v. Swing, 23 Wis. 336; Lardner v. Williams, 98 Wis. 514; Mines v. Gambrill, 71 Md. 30, 18 Atl. 43; Patterson v. Wilson, 64 Md. 193, 1 Atl. 68; Brown v. Phillips, 16 R. I. 612, 18 Atl. 249.</p>

<p> Boundaries of land: Streets: Deed construed: “Corner” of lot: Costs of party defending separately. </p> <p>1. The grantee of a lot in a recorded plat takes title to the center 'of an adjoining street, subject to tbe public easement, even where tbe lot is described by metes and bounds extending to° tbe line of tbe street, altbougb without express -reference to such street, and also where tbe lot is described as bounded by tbe street. *</p> <p>2. In a conveyance of part of a lot, described by metes and bounds, tbe expression “tbe northwest corner of” tbe lot is held to mean tbe point at tbe intersection of tbe south and east lines respectively of tbe two streets at tbe corner of tbe lot and not tbe point at tbe intersection of tbe center lines of such streets.</p> <p>3. In ejectment, wber^ tbe sole heir of tbe common grantor of tbe parties was also brought in as a party and successfully defended by a separate attorney, she was entitled to recover full costs and disbursements, excluding such items as were common to both issues.</p>

<p> Libel: Picture of plaintiff in newspaper article as to another person. </p> <p>1. A newspaper article falsely stating that a person is a suicide fiend, has attempted suicide twenty-five times, and would usually go to the hospital and ask to he pumped out, is libelous as tending to bring that person into public contempt and ridicule.</p> <p>2. Where a picture of plaintiff was inserted in such an article in such a way as to be in effect a statement that it was a picture of the person referred to, the article and picture together constituted an actionable libel, although the article gave as the name of the person referred to a name other than plaintiff’s and although plaintiff may not have been damaged in the estimation of friends who knew her well.</p>

<p> Husband and wife: Necessaries: Contracts made by wife: Ratificar tion: Agency: Pleading: Variance: Court and jury. </p> <p>1. A set of “Stoddard’s Lectures” is held not to have been necessaries for which, if purchased by the wife on the husband’s credit, he was bound to pay.</p> <p>2. When a wife contracts an indebtedness on her own credit, the mere promise of the husband to pay it stands upon the same footing as any other promise without consideration to pay the-debt of another. The act of the wife in such a case is not capable of ratification.</p> <p>3. But if a wife, assuming to act as her husband’s agent, contracts an indebtedness and he subsequently, with knowledge of the facts, adopts her act as his own by promising to pay the debt, or by accepting the benefit of the transaction, or in any other way, he thereby becomes liable for the debt.</p> <p>4. So, if a wife, assuming to act as her husband’s agent, signed his name to an agreement to take and pay for a set of hooks and lie afterwards adopted her act, the contract became his from the beginning; and proof of such facts did not constitute a variance from a complaint alleging that the husband contracted for the books.</p> <p>5. Evidence that in such a case the husband stated that if his wife ordered the books he would pay for them at the rate of about $10 per month, and that the vendor’s representative assented to such condition of payment, was sufficient to take the question of ratification to the jury.</p>

<p>Appeal from an order of tbe circuit court for Milwaukee county: WakreN D. TaeeaNt, Circuit Judge.</p> <p>Tbe appeal is from an order sustaining a demurrer to the plaintiff’s complaint praying cancellation of an assessment and levy of general taxes for tbe year 1904 on plaintiff’s real estate, and for temporary and permanent injunction against any steps to collect such taxes. Tbe complaint alleges that plaintiff is a corporation organized under ch. 44, P. & L. Laws of 1869, under tbe name of “The Gymnastic Association of the South Side of Milwaukee/’ called in German “Der Turn Verein der Suedseite von Milwaukee,” without stock and not for profit, and that it is authorized to own and bold real estate for tbe purposes of tbe association not exceeding in value $50,000. Such act also provided “that all real and personal property of this association shall be exempt from taxation.” It is alleged that tbe property in question held by tbe association is of tbe value of about $25,000, with a mortgage thereon of $10,000; that tbe same is divided into a gymnasium, a dining room on tbe first fioor, and a saloon and barbershop in tbe basement; that tbe saloon is rented to tbe janitor of said building for $45 per month, together with tbe use of a room in tbe rear for living purposes, in consideration of which contract of rental tbe janitor is required to perform all tbe duties of janitor for tbe entire building, tbe saloon being run by him for bis own profit. Tbe barbershop is rented to persons not members of the association at a rental of $12.50 per month. Both saloon and barbershop front on the street and are open to the general public. It is further alleged that the gymnasium hall is frequently rented to outside parties for dances, political meetings, concerts, and lectures at prices ranging from $15 to $40; that all of said rentals, together with the annual dues of $4.20 of each of the 500 members, go into the treasury of the association and are expended in paying its necessary expenses; that the plaintiff •conducts regular gymnastic exercises- in the gymnasium each day except Sunday for eleven months in the year and regularly employs a gymnastic instructor at a salary of $1,200 per annum; that from 300 to 320 children between the age of six to fourteen years, as well as adults, receive instruction covering the whole field of gymnastics; that for such instruction the members of the association and their children pay nothing, while others pay twenty-five cents per month; that the plaintiff also conducts during the winter months a course of lectures on scientific and historical subjects, also a series of debates. Under the organization of the plaintiff corporation no dividends or pecuniary profits can be made by individual members thereof; no salaries are paid to officers, except $1,200 a year to the physical instructor and $75 to the finance secretary. The complaint also alleges the levy and attempted collection by the city of taxes and the cloud upon title resulting therefrom.</p>

<p>Tax titles: Second tax deed to same grantee: Effect on former deed: Judgment: As to %ohat matters conclusive: Appeal: Findings of fact: Presumption as to correctness.</p> <p>1. Where the grantee in a tax deed secures a second deed on a tax certificate issued prior to his first deed hut based on taxes subsequent to those on which his first deed is based, the second deed does not cut off and extinguish his title and interest under the first; and one to whom said grantee afterwards conveys the land may claim title under said first tax deed.</p> <p>2. In an action to quiet title, brought by one claiming under a tax deed, defendant tendered the defense to the original owners at the time the taxes were levied, who had warranted the title, but they neglected to defend. Plaintiff had judgment, and defendant then brought action against said original owners for breach of the covenant of warranty. Held, that the judgment quieting title was conclusive in the later action as against the claim of said covenantors that the purchase at the tax sale was for the benefit of the covenantee.</p> <p>3. Where a deed was in evidence and is referred to, but not included, in the bill of exceptions, a finding of the trial court that by such deed the grantee assumed payment of a certain mortgage on the land as a part of the consideration for the conveyance, will be presumed to be correct.</p>

<p>Appeal from a judgment of the circuit court for Milwaukee county; WaeeeN D. TaeeaNT, Circuit Judge.</p> <p>Anna Selma Breier died intestate, leaving a separate estate, and was survived by her husband, John Breier, who lived with her as such up to the time of her death. August F. Schneider, plaintiff, an undertaker, at the request of the surviving husband, prepared and buried said deceased, and furnished all necessary work, labor, materials, and services, .amounting to $145.75,'which claim was duly filed against •the estate and allowed by the court. An appeal was taken to ■the circuit court, and the judgment of the county court affirmed, from which judgment this appeal is taken.</p> <p>To the point that a husband is liable for the expenses of his wife’s funeral, he cited Sears v. Giddey> 41 Mich. 590; Gunn v. SamueVs Adm’r, 33 Ala. 201; Smyley ■v. Reese, 53 Ala. 89; Jenlcins v. Tuclcer, 1 H. Bl. 90; Am-brose v. Kerrison, 10 O. B. 776; Bradshaw v. Beard, 12 C. B. N. s. 344; Bertie v. Lord Chesterfield, 9 Mod. 31; Melh. E. Church v. Jagues, 1 Johns. Oh. 450.</p>

<p> Contract for support: Enforcing contribution: Necessary parties: Plea in abatement: Contract construed,: Married women: Contract benefiting separate estate: Evidence: Competency: Husband, and, wife: Agency of wife: Special verdict: Form of questions: Court and jury. </p> <p>1. Where several persons contracted to support a woman during her life, each being bound in the same degree, and one of them discharged the obligation alone, he is entitled to contribution and may enforce it in a legal action.</p> <p>2. The plaintiff in such a case may enforce his claim for contribution against any one or more of the persons liable to him for their proportionate shares, and the other persons so liable are not necessary parties to the action.</p> <p>3. Where in such a case defendants in the action for contribution had given a mortgage of land to secure performance of the contract for support, a third person who had afterwards purchased the land and assumed the lien of the mortgage is not a necessary party to the action, there being nothing to show that he assumed the personal liability of his grantors to contribution.</p> <p>4. Allegations of an answer that certain third persons are necessary parties are, under sec. 2667, Stats. 1898, to be deemed controverted by the plaintiff, and the issue thereon may be tried with the general issues, in the court’s discretion, under Circuit Court Rule XIV.</p> <p>5. A contract executed by two husbands and their wives for the support of the wives’ mother, providing that she should have the privilege of'living with either family as she should elect and for such time as she desired, is construed as binding all the parties to furnish the support wherever the mother might choose to reside, and not as putting the whole burden upon those with whom she did reside.</p> <p>6. A contract by a married daughter having separate estate and by others for the support of her mother during life, which protected such daughter from liability under the statute to furnish such support in case her mother should become unable to support herself, operated to the benefit of the daughter’s separate estate, and she was therefore bound thereby.</p> <p>7. In an action to enforce contribution from persons who had contracted jointly with plaintiff to support a certain person, evidence as to the comparative value of two pieces of land which had been conveyed to plaintiff and one of the defendants respectively in consideration of their joining in the contract, as to the health of the person supported while she lived with plaintiff, as to the value of the support which he furnished her, and as to her fear of one of the defendants, is hefti to have been material and competent.</p> <p>8. The fact that plaintiff’s wife, in the usual course of the management of the household affairs, attended to the details of procuring provisions, etc., and performed the labor incident to furnishing support for a person in their house,- did not show that she was the agent of her husband in the matter of such support so as to make her a competent witness for the defense in an action by the husband to enforce contribution from other persons jointly bound with him to furnish such support.</p> <p>9. A question for special verdict, asking what was the real value of support furnished to a person over and above the value of her services in the household, covered but one issuable fact and was not objectionable.</p> <p>10.The terms of a contract for support not being in dispute, its construction was for the court, not for the jury.</p>

<p>Appeal from an order of tbe circuit court for Milwaukee ■coxuity: J. 0. Ludwig-, Circuit Judge.</p> <p>Action under cb. 422, Laws of 1905, to annul a certificate of registration issued by tbe Wisconsin board of medical examiners. Tbe action is brought in tbe name of tbe state as plaintiff. Tbe complaint begins as follows: “And now comes tbe above-named plaintiff [state of Wisconsin] by Francis E. McGovern, district attorney for Milwaukee county, and A. C. Umbreit, attorney for tbe Wisconsin board of medical examiners, and complains, of tbe above-named defendant.” Tbe complaint is signed by “Francis E. McGovern, District Attorney,” and by “A. C. Umbreit, Attorney for Wisconsin Board of Medical Examiners.”</p> <p>Defendant demurred to tbe complaint on tbe grounds (1) that it did not state facts sufficient to constitute a cause of action; (2) that there is a defect of parties plaintiff in that tbe Wisconsin board of medical examiners should not have been joined as plaintiffs; (3) that tbe action is barred by limitation, specifying subd. 1, 4, sec. 4224, subd. I, sec. 4222, and secs. 4629, 4630, Stats. 1898. Tbe trial court overruled tbe demurrer, and defendant appealed.</p> <p>contended, inter alia, that defendant obtained bis certificate September 25, 1899, under cb. 81, Laws of 1899. Tbe only punishment inflicted at tbe time for any fraudulent representation was that prescribed in sec. 6 of said act, viz., a forfeiture of $50. Tbe right to enforce such penalty was limited to two years by subd. 1, sec. 4224, Stats. 1898. See sec. 4229. Tbe only power of revocation which existed at the time defendant obtained his-certificate was contained in sec. 14355, Stats. 1898, and that, was barred at the end of three years by sec. 4630. Defendant had a vested right which the law of 1905, if held constitutional, would deprive him of. At least the right of defense had vested in the defendant and cannot be taken away from him by the law of 1905, because it would be impairing and. taking away a vested right, for the right of defense is a property right under the decisions of this court. Eingartner v. III. S. Go. 103 Wis. 373, 376; Oorbett v. Joannes, 125. Wis. 370, 380. The Wisconsin board of medical examiners,, through its attorney, has joined as plaintiff in the action. While, as a general rule, a demurrer for defective parties-will not lie for excess of parties, yet where, as here, no costs could be taxed against the board as plaintiff, the demurrer-should be sustained. Bead v. Sang, 21 Wis. 678.</p> <p>For the respondent there was a brief by A. O. Umbreit, attorney for Wisconsin board of medical examiners,.and F. E. McGovern, district attorney, and the cause was argued orally by Mr. Umbreit. They argued, among other things, that under ch. 1, Laws of 1905, the time limited for the commencement of actions of this kind by the state is ten years,, and the statutes cited by appellant are inapplicable. The right to practice medicine is not a vested or property right,, but is practically a mere privilege. State ex rel. Kellogg v. Ourrens, 111 Wis. 431. The regulation of the practice of medicine is within the police power of the state, and hence no person can secure a vested or property right in such practice. Meffort v.' State Board, 66 Kan. 710, affirmed 195-U. S. 625; Hawker v. New York, 170 U. S. 189; State ex reL Powell v. State Med. Exam. Board, 32 Minn. 324. The Wisconsin board of medical examiners is not a party plaintiff. The fact that its attorney subscribed the summons and complaint as such attorney does not make the board a party.</p>

<p>Appeal from a judgment of tbe superior court of Milwau-, kee county: J. O. Ludwig, Judge.</p> <p>Tbis is an appeal from a judgment of tbe circuit court for. Milwaukee county dismissing tbe plaintiff’s complaint. Tbe plaintiff, an artist, contracted witb defendant to paint a por-, trait of bis deceased wife, and for sucb purpose, at plaintiff’s, request, defendant furnished two photographs, one taken indoors, and tbe other, a group photograph, taken out-of-doors,, in which she appeared with others. The photographs were furnished for the purpose of aiding plaintiff in the work. It, was agreed between plaintiff and defendant; that a portrait should be painted from the “outing” photograph for $175,. which was done and the portrait delivered and paid for. A few days after defendant received the portrait plaintiff wrote him that, without any direction, he had painted a portrait of his deceased .wife from the “indoor” photograph, and asked whether defendant desired to see it. Defendant, by letter,, requested tbat tbe second portrait be brought to bis bouse, wbicb was done. Tbe painting was never returned or paid for. Tbis action was brought to recover for goods sold and delivered of tbe alleged value of $190. Tbe case was tried by tbe court without a jury, and tbe court f ound:</p> <p>“Tbat, without any authority, contract, or permission from ■ said defendant, said plaintiff painted and prepared a second portrait of defendant’s deceased wife from tbe aforesaid photographs, while tbe same were still in bis possession. Tbat after said plaintiff bad delivered tbe first portrait to said defendant and bad received tbe agreed price therefor, be, tbe said plaintiff, notified said defendant tbat be bad painted a second portrait of defendant’s deceased wife from said photographs, and inquired whether said defendant desired to see said second portrait, to wbicb inquiry said defendant replied, and instructed said plaintiff to bring said second portrait to bis bouse; and, in response to said suggestion so made by said defendant, tbe plaintiff brought said second portrait to tbe bouse of defendant, and upon inquiry as to the price of said second portrait stated tbat tbe same would be one hundred and seveny-five ($175) dollars, wbicb price said defendant refused to pay him therefor, and also refused to surrender to him, tbe said plaintiff, tbe said portrait, for tbe reason tbat said plaintiff bad received no instruction, authority, or direction to paint same, and tbe defendant then and there offered to destroy said portrait, wbicb said plaintiff refused to have done. That at tbe time of tbe delivery of said portrait as aforesaid, said defendant offered to- have tbe picture removed from tbe frame wbicb said plaintiff bad placed thereon; and, prior to tbe commencement of tbis action, tbe defendant offered and tendered to said plaintiff tbe frame in wbicb said picture was set, and tbe plaintiff refused same and still refuses same. Tbat said defendant has ever since said day held himself in position and has been ready ánd willing to return said frame, but said plaintiff refused, and still refuses, to receive tbe same. Tbat said plaintiff bad no authority to paint, said second portrait from tbe photographs in bis possession, thus received for tbe purpose of painting said first portrait, and tbat tbe doing of the same was a breach of faith on the part of said plaintiff, and be acquired no property rights or interest in said picture by reason thereof.”</p> <p>Judgment dismissing the plaintiff’s complaint, with costs, was'ordered, from which this appeal was taken.</p>

<p>Appeal from a judgment of tbe circuit court for Milwaukee county: WareeN D. TarraNT, Circuit Judge.</p> <p>Action to foreclose a mortgage and to .obtain a judgment against Charles J. Btuw/pf as one personally liable for tbe mortgage indebtedness, as well as against John Stumpf, Jr.,, maker of tbe note mentioned in tbe mortgage.</p> <p>Tbe complaint contained all tbe usual allegations for tbe foreclosure of a mortgage as to tbe defendant John Stumpf,. Jr. Tbe note was for $3,500, payable two years after-date witb interest at tbe rate of six per cent, per annum, payable according to tbe tenor and effect of coupons attached thereto,, which provided for interest at tbe rate of seven per cent, per annum after due. There were appropriate allegations -showing tbe due execution of tbe mortgage, tbe conditions thereof,, tbe recording of tbe same, and default in tbe performance of such conditions creating tbe cause of action for foreclosure. There were also allegations as grounds for the alleged liability of Gharles J. Stumpf, in effect as follows: On or about May 29, 1899, at a sheriff’s sale to enforce a judgment of foreclosure of a mortgage wherein Gharles J. Stumpf was adjudged to be personally liable for the mortgage indebtedness, the property involved was bid in by the plaintiff, acting through an agent, in his own name for said Gharles J. Stumpf for $3,400, pursuant to an agreement between them that the sheriff’s deed should run to the plaintiff, and upon the sale being confirmed that he should deed the property to said Stumpf and receive from him reimbursement for all money advanced in so securing the property. The total sum so advanced was $3,500. Subsequent to the sale it was duly confirmed, and thereafter on or about June 13, 1899, said 1Gharles J. Stumpf informed plaintiff that he was unable at ■once to pay back the advances, but could and would secure the same by a mortgage on the premises; that he would have the title to the property vested in his brother John Stumpf, ■Jr., and then have the latter give a note for $3,500 and a mortgage on the property to secure the payment thereof, and that he, the said Gharles J. Stumpf, would indorse said note and would pay the indebtedness with interest as provided in said note. Plaintiff accepted the proposition of said Gharles J. Stumpf, deeded the property to said John Stumpf, Jr., delivered the deed to Gharles, and received from him the note of John Stumpf, Jr., and the mortgage on the property in suit.</p> <p>The defendant Gharles J. Stumpf answered, among other things, admitting that plaintiff purchased the property involved under the circumstances stated in the complaint, and alleging that it was agreed that plaintiff should convey the property to said Gharles J. Stumpf or such person as should be mutually agreed upon, and that he should pay plaintiff, such sum over and above $3,500 as might be necessary to make up the difference between the latter sum and the amount due under the judgment of foreclosure, and as security for the said $3,600 a mortgage should be given, by the person ■so receiving the conveyance of the premises; that pursuant thereto $638 was paid plaintiff and he conveyed the property to John Stumpf, Jr., who executed the note and mortgage in suit and delivered the same to plaintiff. The answer contained a specific denial that Charles J. Stumpf agreed to pay the note.</p> <p>As a defense sec. 2302, Stats. 1898, was invoked upon the ground that the agreement between plaintiff and Charles J. Stumpf was merely verbal.</p> <p>No issue was taken on any of the allegations of the complaint as to the cause of action against John Stumpf, Jr.</p> <p>The court found all the facts requisite to a judgment of foreclosure as to John Stjimpf, Jr., and found that there was justly due plaintiff upon the note and mortgage covering the indebtedness of Charles J. Stumpf, for which the note and mortgage were given, $5,038.62. The court further found, as regards the liability of Charles J. Stumpf, that he merely promised orally to guarantee the payment of the note and mortgage and that such promise was void under the statute •of frauds.</p> <p>The court further found, as to the liability of Charles J. ■Stumpf: Plaintiff purchased the mortgaged property for 'Charles J. Stumpf at a foreclosure sale, as alleged in the complaint, under an agreement that the sheriff’s deed should run to the plaintiff and that upon its being confirmed Charles J. Stumpf should reimburse plaintiff for all moneys advanced by him in the matter. To complete the purchase plaintiff advanced $3,400, took the sheriff’s deed, and the same was thereafter confirmed. Plaintiff also advanced for said Charles ■J. Stumpf, at his request, a further sum of $100 towards discharging the deficiency of $73.8.44 due on the foreclosure judgment, for which said Charles J. Stumpf was liable. Thereafter, having in view the carrying out of the aforesaid agreement, said Charles J. Stumpf, representing that he was unable at once to pay back tbe said sum of $3,500, said tO' plaintiff’s agent that he would secure the same by a mortgage on the premises; that to avoid injuring his financial standing he would have the title to the property transferred to his brother John Stumpf, Jr., and have him give the mortgage to plaintiff to secure said sum of $3,500, and that he would guarantee the payment of his brother’s note. On June 13, 1899, $638.44, the balance of the. deficiency on the foreclosure judgment, was paid by said Charles Stumpf. Relying upon such representations and promises plaintiff deeded the property in question to said John Stumpf, Jr., and received from him, at the same time, the note and mortgage in suit. Such note and mortgage were given to secure the $3,500 and interest due to plaintiff from said Charles J. Stumpf at the time the note and mortgage were given.</p> <p>Upon such decision and findings the court concluded that Charles J. Stumpf was not liable for the mortgage indebtedness and that he and his wife Agnes, who was made a defendant, were entitled to judgment against plaintiff dismissing the complaint as to them, with costs. Judgment, in due form, for a foreclosure sale was rendered as to John Stumpf, Jr., and as to Charles J. Stumpf and wife in accordance with the foregoing. From such judgment dismissing the cause with costs as to Charles J. Stumpf this appeal was taken.</p> <p>To the point that, even if the agreement of Charles J. Stumpf to guarantee payment of his brother’s note were within sec. 2307, Stats. 1898, the defense of the statute of frauds, to be available, must be pleaded, they cited Matthews v. Matthews, 154 N. T. 288; Crane v. Powell, 139 N. N.-379; Sanger v. French, 157 N. T. 213; Ilamill v. Hall, 4 Colo. App. 290; Chicago & W. C. Co. v. Liddell, 69 Ill. 639; Osborne v. Fndicott, 6 Cal'. 149, 65 Am." Dec. 498; Citty vJ Manufacturing Go. 93 Teim. 276, 42 Am. St. R. 919; 9 Ency. PL & Pr. 705, 716, and cases there cited.</p>

<p>Appeal from a judgment of the circuit court for Milwaukee county: OREEN T. Williams, Circuit Judge.</p> <p>Plaintiff, when thirteen and one-half years of age, was employed in the factory of the defendant, which was engaged in making chain belts composed of U-shaped links joining the jaws of one to the base of another by a transverse bolt running through holes in the jaws of the one link and the straight base of the other. These links were about two inches long and two inches wide. They were roughly cast, with a transverse hole through each of the jaws and through the straight base, and plaintiff was set to work with a drill at reaming out these holes. The machine had a table on which the link was placed, and from above descended a vertical revolving shaft having at the lower end a sharpened drill, rapidly revolving, which penetrated these holes and smoothed them. Upon the table was a jig or bar of iron calculated to just fit within the jaws of the link and to hold it rigid so that the descending drill would exactly strike and penetrate the holes. The drill was caused to descend by pulling upon a lever with the left hand of the operator. The link was placed upon the jig with the right hand of the operator, who, under most circumstances, was also required to squirt, from an ordinary oil can, water upon the drill to keep it from heating. Plaintiff’s testimony tends to show that the jig on the machine in question had become somewhat worn so that it did not hold the link in perfect position, but needed the aid of his hands; also that the water can worked badly so that the process of drilling made the link too hot to be comfortably touched with bare fingers; also it is claimed that the drill supplied him had been worn so short that it would not reach the hole in the lcwer jaw of tbe link when in position, so that after drilling a hole in one jaw the link had to be withdrawn, turned over, and again pushed onto the jig in order to bore the hole in the other jaw. Plaintiff’s fingers became sore from repeated contact with the hot' links. He complained of the situation and of this trouble and asked to be put at other work, but was commanded to go back to this work or go home. He accordingly returned to the work, and at noon constructed a device of his own invention, consisting of a small wire one end of which he bent at right angles to constitute a hook to insert in the hole through the base of the link to pull it away from the machine. At the other end he bent the wire into a loop to fit round the two middle fingers so as to hang there during other operations with the right hand, thus avoiding delay of laying the hook' down and picking it up each time. This wire, as it was attached to the fingers, was necessarily brought into close proximity to the vertical revolving drill in each operation of turning over the link and reinserting it on the jig. After about a half hour’s use it caught thereon, and the wire was rapidly wound around the drill shaft, and plaintiff’s two. middle fingers pulled off.</p> <p>After trial and overruling motions for nonsuit and for direction of a verdict in favor of the defendant, the jury found a special verdict to the effect that plaintiff was not sufficiently instructed of danger, and had not sufficient knowledge to comprehend the risk of the wire hook used by him, and was not guilty of any want of ordinary care; that the drill press was defective and defendant charged with knowledge thereof; and, in answer to the seventh question, that the insufficient condition of the drill press was'the proximate cause of the plaintiff’s injury. Plaintiff’s motion for judgment was denied, and defendant’s motion to reverse the answer to the seventh question was granted, and judgment rendered in favor of the defendant, from which plaintiff appeals.</p> <p>To the point that tbe defective condition of the machine was the proximate cause of the injury, they cited Coolidge v. Hallauer, 126 Wis. 244; Winchel v. Goodyear, 126 Wis. 271, 276; Darcey v. Farmers L. Go. 87 Wis. 245; Shepherd v. Morlon-Fdgar L. Co. 115 Wis. 522; Tess v. Chicago B. Co. 124 Wis. 406; Cleveland B. M. Co. v. Corrigan (Ohio) 3 L. E. A. 385, 390 ; Siegel, Cooper & Co. v. Trcka, 218 Ill. 559, 2 L. E. A. N. s. 647; Block v. Milwaukee St. B. Co. 89 Wis. 371.</p>

<p>Appeal from a judgment of the circuit court for Milwaukee county: LawbeNCe W. Halsey, Circuit Judge.</p> <p>Action to foreclose a real-estate mortgage. On May 10, 1900,. Herman J. Lindenmann gave a mortgage on real estate lie then owned to secure his note for $850, payable to the order of Mary Kurth. C. W. Milbrath, as her attorney in fact, under power of attorney giving authority to make an assignment of this note and mortgage, transferred them by written agreement to Elizabeth Becker, plaintiff’s wife. This assignment has not been recorded, and is either lost or destroyed. On August 21, 1905, Elizabeth Becker transferred this note and mortgage by written assignment to the plaintiff. This assignment is unrecorded. After the giving of this mortgage Lindenmann conveyed the premises, subject to the mortgage, to Charles Eisner, who on June 21, 1900, conveyed them by warranty deed to the defendants Haase and Gm.be, the grantees assuming payment of the debt secured by this" mortgage on the land. The note matured May 10, 1905. On May 19, 1905, plaintiff, as agent of his wife, Elizabeth Becker, delivered this note and mortgage to the C. W. Mil-brath Company for collection. The Milbrath Company had acted as collecting agents for her of like secured claims, and, whenever so directed, reloaned the proceeds and gave releases to the paying debtors.</p> <p>In the month of March, 1905, the Milbrath Company received $800 for the defendant Johanna Bluemel. This was paid to it on a note and mortgage then due and owned by her and in the hands of the Milbrath Company for collection. Under an agreement with her the company was authorized to reloan the money- on real estate for her. The Milbrath Company entered tbe receipt of tbis money in their books of account in the name of Johanna Bluemel under “Bills Payable,” and as received from the mortgagor of the loan. • Johanna Bluemel never received this money, or any part thereof, from the Milbrath Company.</p> <p>About May 25, 1905, Herman J. Lindenmann, the maker of the note and mortgage now sought to be enforced by plaintiff, agreed with the Milbrath Company, for himself and the defendants Haase and Grube, the present owners of the land covered by plaintiff’s mortgage, that the present owners, should execute a new note for $850 and a new mortgage on the same lands securing its payment, and that such note and mortgage should be received by the Milbrath Company as payment of the plaintiff’s note and mortgage. Pursuant to< such agreement, on May 25, 1905, Haase and Grube made a note for $850 payable after five years to Mary Kurth, and gave a mortgage on the same premises to Mary Kurth to secure its payment. This note and mortgage they delivered to Herman J. Lindenmann. He delivered them to the Mil-brath Company under the arrangement with its officers that such note and mortgage should be received by them in payment of plaintiff’s note and mortgage, which they then held for collection as agents of plaintiff’s wife, Elizabeth Becker. Upon.receipt from Lindenmann by the Milbrath Company of the Haase and Grube note and mortgage, the Milbrath Company, as attorney in fact for Mary Kurth, on May 25-, 1905, executed a satisfaction of the note and mortgage now sued on by plaintiff and delivered the note and mortgage to Lin-denmann, who ever since has kept them and the satisfaction piece in his possession without'placing the satisfaction on record.</p> <p>The Milbrath Company, at the time of the transaction, had an account upon its ledger in the name of Elizabeth Becker, and therein credited her with $850 as the proceeds of the Haase and Grube note and mortgage, debited their “loan account” on the books with a like sum, specifying that it pertained to a loan of “Johanna Bluemel ” and made other boplc entries to the effect that they had paid $850 of the money of Johanna Bluemel to Haase and Grube, and that they had collected from Haase and Grube a like sum in payment of plaintiff’s note and mortgage. No money was in fact received or paid by the Milbrath Company on account of this transaction, except the sum of $50 paid to it by Johanna Bluemel, and these entries were in fact, except as to the $50, mere colorable book entries. At the time of these transactions, on or about May 25, 1905, the Milbrath Company did not have the $800 collected by them in March, 1905, for Johanna Bluemel, and it was in fact insolvent. It was owing to its clients, who had given it money to invest, an amount exceeding $5,000. The cash it had at this time was deposited to the personal account of C. W. Milbrath, an officer of the company, and was somewhere between $200 and $300 in amount. The company’s financial condition did not improve up to the time it went into bankruptcy on the following August IS, 1905.</p> <p>The note and mortgage for $850, given by Haase and Grube' on May 25, 1905, and delivered to the Milbrath Company by Lindenmann in the manner above related, were assigned by the company, in the name of C. W. Milbrath as attorney in fact for Mary Kurth, to Johanna Bluemel, and an instrument of assignment, together with such note and mortgage, was delivered to her, and such assignment was duly recorded August 19, 1905. The transfer of the Haase and Grube note and mortgage was conducted by the officers of the Milbrath Company for Johanna Bluemel. None of the defendants had actual knowledge of the rights of Elizabeth Becker or of the assignment of the note and mortgage sued on. Elizabeth Becker and the plaintiff had no knowledge of the transactions respecting the execution, delivery, and assignment of the note and mortgage of Haase and Grube given .May 25, 1905,'nor of tbe satisfaction and delivery to Linden-mann of the note and mortgage sued on.</p> <p>The court found that the plaintiff’s note and mortgage had never been paid or discharged, and that notice of lis pendens was duly filed at the commencement of the action August 23, 1905, and decreed that the full amount of the principal and interest due on the note be recovered by the plaintiff, that foreclosure of all the right, title, and interest of the defendants in and to the lands be had, that Herman J. Lindenmann deliver the note and mortgage to the clerk of the court for the use of the plaintiff and Johanna Bluemel, that the satisfaction of them as executed by O. W. Milbrath, as attorney in fact for Mary Kurth, be canceled and held for naught, and the Haase and Grube note and mortgage, now held by Johanna Bluemel, to be without consideration and void, and that they should be canceled. Erom this judgment Johanna Bluemel appeals.</p>

<p>(1) Appeal to supreme court: Notice, how directed and served. (2) Appeal from county court: Undertalcing. (3-5) Divorce: Jurisdiction: Proof of service by publication: Order for publication within reasonable time after affidavit: Neglect to enter judgment after order therefor: Subsequent judgment nunc pro tunc.</p> <p>1. The notice of an appeal to the supreme court, under sec. 3049, Stats. 1898, need not he in form directed to the clerk of the circuit court; and the filing of such notice with said clerk is a sufficient service upon him.</p> <p>2. On appeal from a county court to the circuit court, an undertaking conforming strictly to sec. 4032, Stats. 1898, and approved as to form, amount, and sufficiency of sureties hy the county court, was sufficient to give the circuit court jurisdiction, although it did not run “to the judge of the county court” for the security and benefit of all persons interested, under sec. 4013.</p> <p>3. In an action for divorce, where the mailing of copies of the summons and complaint to defendant had been ordered; the mere fact that an affidavit showing such mailing was not on file did not deprive the court of jurisdiction to order judgment of divorce, where copies had in fact been mailed as ordered and an affidavit showing that fact was subsequently filed.</p> <p>4. An order for service by publication, under sec. 2640, Stats. 1898, made four days after the making of the affidavit therefor and three days after a return of the sheriff that defendant could not be found, is held to have followed such affidavit “within a reasonable time” and to be valid.</p> <p>5. Where, at the close of the trial of an action for divorce, judgment was “ordered for plaintiff and against defendant,” and nothing further was to be done except for the clerk to enter judgment in obedience to such direction, but the clerk failed to perform such duty, a judgment of divorce ordered and entered fourteen years later, nunc pro tunc as of the date of said first order for judgment, was binding and effectual in dissolving the marriage as of said date.</p>

<p>Appeal from a judgment of the circuit court for Milwaukee county: J. 0. Ludwig, Circuit Judge.</p> <p>Tliis was originally an action of replevin commenced by tlie plaintiff against the Chicago, Milwaukee & St. Paul Eail-way Company to recover possession of a quantity of surgical instruments, books, medicines, etc., which were in possession of the railway company at Milwaukee as common carrier, consigned to the intervener Tillie Walter. An affidavit for immediate delivery was made and an undertaking given, and the goods were seized and delivered to the plaintiff. The railway company answered, denying wrongful detention and denying knowledge as to plaintiff’s ownership or right of possession, and alleging that it held the goods as common carrier, and that Tillie Walter was named as consignee. Subsequently the appellants, who are husband and wife, petitioned the court to be let in as defendants, claiming to be the owners of the property in question by virtue of a bill of sale made by plaintiff to the appellant Alexander Walter, and a second bill of sale by Alexander to Tillie. The court made an order allowing them to intervene and directing amendment of the' summons and complaint.</p> <p>By the second amended complaint the plaintiff -alleged that prior to September 6, 1904, he was a physician in good practice at the city of Detroit and owned the property in question, and at about that time made an arrangement with the appeb lant Alexander (also a physician) to go into partnership with him and establish a sanitarium at Milwaukee and ship the goods in question to Milwaukee for use in the business; that it was agreed that Hurley should go to Milwaukee in advance to find a location, and that Alexander shotdd remain in Detroit for a time and crate, pack, and ship the goods, and that Hurley should give Alexander written authority empowering him to so handle and ship the goods; that they went to a lawyer’s office to execute an agreement of partnership .and a paper authorizing Alexander to pack and ship the goods; that plaintiff was unable to read without glasses, owing to an infirmity of the eyes, and had broken his glasses, and that the appellant Walter falsely and fraudulently induced him to sign a hill of sale of the goods, representing that it was simply a paper authorizing him to pack and ship the same; that there was no consideration for the hill of sale; that Alexander afterwards, without consideration, pretended to convey the goods to the appellant Tillie. Judgment was demanded setting aside the hill of sale- and declaring the same a power of attorney, and that plaintiff’s right in the property he established, and for such other relief as should he just and equitable. To this complaint the interveners answered, denying plaintiff’s ownership of the property, and claiming that the goods were actually sold by the plaintiff to the intervener Alexander, and by him sold to his wife, Tillie.</p> <p>The case came on for trial, and the interveners demanded a jury trial, but the demand was overruled and the case tried by the court. ' The plaintiff’s witnesses were examined, but the interveners, offered no testimony except the bill of sale from Alexander to Tillie. The court made findings of fact in effect finding the original ownership of the property, the agreement to form a partnership, and the agreement to give Alexander authority to pack and ship the goods, substantially as alleged in the complaint. The court further found that the plaintiff signed the bill of sale with the intention of authorizing Alexander to pack and ship the goods, and that it was entirely without consideration. As conclusions of law the court found that a title to the goods was in the plaintiff, that the bill of sale was in fact a power of attorney, that the plaintiff had the right of possession of the same and should recover costs of the interveners. Judgment was entered in accordance with the finding in favor of the plaintiff and against the interveners, and discharging the railway company from any further liability, and the interveners appeal.</p>

0. Ludwig, Circuit Judge. Tbis is an appeal from an order continuing a temporary injunction. Tbe action was equitable to restrain persons as suming to act as tlie board of school directors of the city of Milwaukee from carrying out a threatened purpose to make a change in text books used in the schools of such city.

Appeax from a judgment of tbe circuit court for Milwaukee county: E. Eat SteveNS, Judge.

Halsey, Circuit Judge. Tbis is an action for damages on account of personal injuries sustained by plaintiff by reason of being struck and injured by one of defendant’s street cars in tbe city of Milwaukee on April 1, 1903. In tbe city of Milwaukee, Downer avenue runs north and south and is intersected at right angles by Summit Place. 'Defendant operated a double-track line 'of electric railway consisting of two parallel tracks along and upon Downer avenue.

Tabbawt, Circuit Judge. This is an appeal from an order of the circuit court authorizing a referee to mortgage lands'in which a minor has an interest under a will. On February 17, 1895, Phillip Lueft, a resident of Milwaukee, died testate. His will was admitted to probate April 5, 1895. The executors named in the will duly qualified and letters testamentary issued to them, and they continued to act as executors and trustees during the continuance of the trust under the will.

<p> Bills and notes: Ambiguity as to signature: Officer of corporation: Statutes construed: Parol evidence. </p> <p>A note read: “Four months after date the Northwestern Straw Works promise to pay,” etc., a.nd was signed.</p> <p>“The Northwestern Straw Works,</p> <p>“E. R. Stillman, Treas.</p> <p>“John W. Mariner.”</p> <p>Mariner was the secretary of the corporation, duly authorized to sign the note on its hehalf. Held:</p> <p>1. The signature of Mariner was not “so placed” on the instrument as to make it doubtful in what capacity he intended to sign, within the meaning of subd. 6, sec. 1675 — 17, of the Negotiable Instrument Law (ch. 356, Laws of 1899), providing that a person whose signature is so placed is to be deemed an indorser.</p> <p>2. It appearing 'from the instrument itself that Mariner placed his signature thereon as maker, either individually or in a representative capacity, sec. 1677 — 3 does not apply.</p> <p>[3. Whether the note itself showed that Mariner signed on behalf of the corporation and is therefore not personally liable thereon, under see. 1675 — 20, not determined.]</p> <p>4. If sec. 1675 — 20 does not apply, the note was ambiguous upon its face as to Mariner, and parol evidence that he signed merely in his representative capacity and as agent for the corporation was admissible, even as against a bona fide purchaser of the note for value before its maturity.</p>

<p> Judgment by default.-Tacating: Claim of defendant must appear meritorious: Proofs. </p> <p>1. Upon a motion to vacate a default judgment and permit a defense to be interposed it is essential that it should appear, from the proposed answer and the whole case made, that the claim of the defendant is meritorious.</p> <p>2. The truth of the allegations of the proposed answer in such a case may properly he tested hy the proofs produced on the motion, to the extent of determining whether, in any reasonable probability, the claim of the defendant can be established on a trial; and if there is no such probability the answer, though meritorious in mere words, may be condemned as unmeritorious in fact.</p>

<p>Appeal from a judgment of the superior court of Milwaukee county; J". 0. Ludwig, Judge.</p> <p>Defendants, being tenants under lease of a store building at the corner of Third street and Grand avenue, in Milwaukee, entered into a written agreement with the plaintiff that,, in consideration of $225 then paid and for the further consideration of $25 per month to be paid on the 1st day of each subsequent month, “permission is hereby given by us to J ames-Speliopoulos to maintain and conduct a bootblacking stand on the east side of Third street north of Grand avenue alongside of the store building occupied by Schick & Ducey.” Eurther, that it was understood that such permit should continue for two years upon the above terms, and be renewable by plaintiff for further two years at the rate of $30 per month, -and further provided that permission was given upon the understanding that should Speliopoulos leave or remove his bootblacking stand for any reason whatsoever he forfeits all claim, right, and title to the $225 above mentioned; also, “in permitting said James Speliopoulos to conduct said business, the said Schick & Ducey do not in any way whatsoever guarantee said James Speliopoulos the right to keep these premises without molestation on the part of the city or other persons than themselves.” Plaintiff, before the making of the agreement, had ■obtained a written formal permission to maintain the stand on the sidewalk from the mayor, who had no authority whatever to give it, the board of public works being vested with all such authority, and exhibited same to the defendants. After making of the contract plaintiff employed a carpenter to construct the stand, some twenty feet in length, four feet in width, and brought it to the place where he commenced its erection. He was there interrupted by a policeman, to whom plaintiff exhibited his permit, whereupon, according to the plaintiff’s evidence, the policeman said “go ahead,” and, according to the policeman’s testimony, forbade further proceedings until a proper permit from the board of public works was obtained. The carpenter continued to construct the stand, when it was again forbidden by a wholly unascertained person described as a man who called himself a lawyer. Plaintiff appealed repeatedly to the defendants, and as to their conduct a distinct issue of fact arises, the defendants claiming that they repeatedly said to him that they had nothing to do with other people’s Objections, they were willing he should proceed and thought he had a perfect right to; plaintiff claiming that, after first so stating, they afterwards told him that he could not build, but must take his stuff and go away. This, after some days, he did, and demanded return of his money, which they refused, and this action was brought to recover his damages from the breach of their agreement. The jury returned a verdict in favor of the plaintiff for $225 “forfeit” and $125 paid to the carpenter. From judgment entered upon, such verdict, after motion to set it aside, defendants appeal.</p>

<p>Appeal from a judgment of the circuit court for Milwaukee county: J. O. Lubwig, Circuit Judge.</p> <p>On the 10th of July, 1905, the plaintiff in error was duly licensed by the city of Milwaukee to sell spirituous, malt, and intoxicating liquors within the city. He paid thfe prescribed license fee and complied with the requirements of the law to entitle him to conduct such a business until July 1, 1906. On December 8, 1905, petitioner was arraigned before the district court for Milwaukee county-upon complaint of having sold liquors to minors contrary to the provisions of the city ordinances, and was convicted and sentenced to pay a fine for such offense. The court also determined and adjudged: “And the court further orders that the license be revoked.” The part of the judgment imposing a penalty and costs of the action was paid by plaintiff in error and is fully discharged. 'On April 27, 1906, plaintiff in error petitioned the circuit ■court that a writ of certiorari issue to the district court and to the clerk thereof commanding return to be made to the circuit court by the district court and its clerk of the proceedings had and taken in that action, and praying that the part of the judgment revoking the license to sell liquors, granted him hy the city of Milwauhee, be vacated and held for naught. A proper return was made in obedience to such writ, containing the judgment of the district court in the action specified in the petition, showing that the court had found plaintiff in error guilty of the offense charged and had imposed a penalty and the costs of the prosecution, and further adjudging: “And ■the court further orders that the license be revoked.” It also appeared by the return that plaintiff in error had paid the penalty and costs.</p> <p>A trial was had in the circuit court in the proceeding, and the court determined as follows: “It is adjudged (1) that that part of said judgment above referred to, wherein the saloon license of plaintiff in error is attempted to be revoked, be and the same is hereby reversed.” This is an appeal from such judgment.</p> <p>By sec. 3, ch. IV, of the Milwauhee city charter the common council is given power to enact</p> <p>“ordinances, rules, by-laws and regulations for the government and good order of the city — for the benefit of the trade, •commerce and health thereof — for the suppression of vice — ■ for the prevention of crime — and for carrying into effect the powers vested in said common council, as they shall deem expedient ; and to declare and impose penalties, and to enforce the same against any person or persons who may violate any ■of the provisions of such ordinances, rules, by-laws and regulations. And such ordinances, rules, by-laws and regulations are hereby declared to be, and have the force of law, provided, that they be not repugnant to the constitution of the United States or of this state. And for these purposes the common council shall have authority — anything in a general law of this state to the contrary notwithstanding — by ordinances, resolutions, by laws, rules or regulations.”</p> <p>Ry subd. 1 of this section the common council is given power:</p> <p>“To regulate groceries, . . . saloons, gardens and all other places within said., city, where wines and other liquors are sold for any purpose.”</p> <p>By see. 7, ch. XVIII, of the General Ordinances of the city (1896) it is enacted that any licensed saloonkeeper who shall be guilty of the acts therein specified “shall be punished by a fine,” in the amounts prescribed. It is further ordained as follows:</p> <p>“Sec. 8. Whenever any person licensed under this chapter shall be convicted of any of the offenses specified in the last preceding section, the court in which conviction may be had or the common council shall have the power, in its discretion, to revoke or cancel any license issued to such person under the provisions of this chapter, and such license shall thereupon and thereafter be null and void.”</p>

<p> Deeds: Competency of grantor: Undue influence: Evidence: Burden of proof: Judgment: Witnesses: Attorneys at law: Physicians: Appeal: Immaterial error. </p> <p>1. In an action to set aside a deed and a transfer of personalty by an aged woman to a daughter to the exclusion of her children by a former husband, the evidence (sufficiently stated in the opinion) is held to sustain findings of the trial court that the grantor was mentally competent and that there was no undue influence.</p> <p>2. Plaintiffs’ evidence in such case is held not to have constituted such a prima facie showing of fraud or undue influence as to have put the burden of proof upon the defendant.</p> <p>3. In an action to set aside a deed from a mother to a daughter, where a part of the consideration was a promise by the grantee to pay certain sums to .plaintiffs, who were also children of the grantor, a judgment establishing the validity of the deed and directing payment of tlie agreed sums to plaintiffs was not erroneous because it made such, payment conditional upon plaintiffs’ paying defendant’s costs and disbursements in the action, but should not have made such payment to plaintiffs conditional upon their paying defendant’s expenses in connection with the action or conditional upon “the final termination of the action, by consent or otherwise, in accordance with” that judgment.</p> <p>4. An attorney at law who drew a deed and a contract by the grantee to support the grantor, and who, at the grantor’s request, signed such papers as a witness, was properly allowed to testify as to the mental competency of the grantor at that time.</p> <p>5. A physician who signed a deed as a witness is competent to testify as to the mental competency of the grantor, where his testimony does not involve disclosure of any communications received by him while attending the grantor as a physician.</p> <p>6. Error in the admission of evidence is immaterial where, even without such evidence, the findings of the trial court are abundantly supported.</p>

Halsey, Circuit Judge- This action was commenced May 8, 1903, to foreclose a note and mortgage executed by the Milwaukee Eealty Company November 3, 1897, to the order of Henry Herman for $1,800, payable three years from the date thereof, which mortgage was on the land therein described and was recorded November 6, 1897, in vol. 398 of Mortgages on page 183.

0. Ludwig, Circuit Judge. This action was originally brought by plaintiff against tbe Prudential Insurance Company to recover upon a policy of life insurance issued upon tbe life of plaintiff’s brother, Adolph Fleischer, of which tbe plaintiff was tbe sole beneficiary. Tbe insurance company answered, admitting liability on tbe policy, offering to bring tbe money into court, and alleging that one Jennie 8. Fleischer, widow of tbe deceased, claimed tbe same. Jennie 8.

Bat SteveNs, Judge. Action to restrain defendants from violating a contract not to engage in or be concerned in the laundry business. The differences between the parties, as indicated by the 'complaint, answer, and reply, are shown with sufficient clearness for the purposes of this appeal by the following summary of the findings: (1) Plaintiff is a duly organized corporation engaged in general laundry business in the city of Milwaukee.

<p>Appea'l from a judgment of the circuit court for Milwaukee county: Laweence W. Halsey, Circuit Judge.</p> <p>Defendant was engaged by contract in the driving of foundation piles within the limits of property of its employer at the southeast comer of Michigan and Jefferson streets in Mil•waukee, and for that purpose had a number of piles scattered ■along opposite said property upon the easterly side of Jefferson street. People were in the habit of passing along such street, and'children were often present, either in passing or in play. While defendant was engaged in driving a pile, the plaintiff, agefi two years and ten months, in company with two other boys, was' seated upon one of the logs within the limits of the street, and had been from five to fifteen minutes, according to varying testimony. Soon after commencing to ■drive the'pile, at the second or third stroke or later, the pile broke transversely in two or three places, such breakage being apparent to observation. Thereupon another blow was struck, whereupon one of the sections of the broken pile flew out of the pile driver and fell upon the plaintiff, causing him severe injury. In an action for damages charging negligence •of the defendant, a general verdict was rendered in favor of the plaintiff, after overruling motion for nonsuit and for direction of verdict in favor of the defendant. After denial of motion for a new trial, judgment was rendered upon the verdict in favor of the plaintiff, from which the defendant brings this appeal.</p> <p>Friedman v. Snare ■& T. Go. 11 LT. J. Law, 605, 61 Atl. 401. The plaintiff being a trespasser, he had no legal right that could be infringed by negligence on the part of the defendant, as distinguished from intentional injury. Felton v. Aubrey, 43 U. S. App. 278, 291; Bolin v. G., St. P., M. & O. B. Oo. 108 Wis. 333, 348. Defendant owed no greater duty to plaintiff because he was a child than if he had been an adult. Felton v. Aubrey, 43 U. S. App. 278; Savannah, F. & W. B. Oo. v. Beavers, 113 Ga. 398, 21 Am, & Eng. R. Cas. sr. s. 646, 54 L. R. A. 314, 39 S. E. 82; Dobbins v. Mo., K. & T. B. Oo. 91 Tex. ■60, 8 Am. & Eng. R. Oas. ur. s. 179; Hargreaves v. Deacon, 25 Mich. 1; Stendal v. Boyd, 73 Minn. 53, 75 ET. W. 735;. Glarh v. Manchester, 62 3ST. H. 577; Grindley v. McKechnie, 163 Mass. 494, 40 ET. E. 764. There was no implied invitation to sit on the piles. Savannah, F. & W. B. Go. v. Beavers, 113 Ga. 398, 21 Am. & Eng. R. Oas. sr. s. 646, 656-658, and cases there cited; Busse v. Rogers, 120 Wis. 443, 98 1ST. W. 219; Stendal v. Boyd, 73 Minn. 53, 75 1ST. W. 735; Ryan v. Towar, 128 Mich. 463, 87 ET. W. 644. ETo one is bound to watch for trespassers. Masser v. 0., R. I. & P. R. Go. 68 Iowa, 602, 27 ET. W. 779, note. The right of the plaintiff in the street, assmniñg that the place where he sat had not been withdrawn from public use, was the right to jiass and repass at his pleasure for the purpose of legitimate travel and for no other purpose. Adams v. Rivers, 11 Barb. 390, 392, 393; Harrison v. Buhe of Rutland (1893) L. R. 1 Q. B. Div. 142; State v. Buchner, 1 Phill. Law (ET. O.) 558; Stinson v. Gardiner, 42 Me. 248; Tighe v. Lowell, 119 Mass. 472; Ilurst v. Salem, 121 Mass. 294; Stichney v. Salem, 3 Allen, 374.</p> <p>They cited Reed v. Madison, 83 Wis. 171; Meibus v. Dodge, 38 Wis. 300; Busse v. Rogers, 120 Wis. 443; Delaney v. M. <& St. P. R. Go. 33 Wis. 67; Hogan v. C., M..& St. P. R. Go. 59 Wis. 139; Townley v. G., M. & St. P. R. Go. 53 Wis. 626; Davis v. G. & N. W. R. Go. 58 Wis. 646; Whalen v. O. & N. W. R. Go. 75 Wis. 654; Johnson v. L. S. T. & T. Go. 86 Wis. 64; Garmer v. G., St. P., M. & O. R. Go. 95 Wis. 513.</p>

<p>Appeal from an order of the circuit court for Milwaukee county: Wabben D. Tabbant, Circuit Judge.</p> <p>This is a proceeding for the appointment of a guardian for two minor children. The petitioner and the father of the children were hnshand and wife from 1892 to 1895. Petitioner in 1895 'secured a divorce because of the husband’s failure to support her and because of his cruel and inhuman treatment. It appears that the mother was at the time of the divorce without means, and that the father had threatened not to pay for the maintenance of the children if they were taken' from him. Under these circumstances the care and custody of the children was given to the father, but the mother was given the right to visit them. This she did very regularly as long as the children remained in Milwaukee, where the mother has been since the divorce. Roth parties again married. The mother, who has no other children, is now living with her second husband. After his second marriage the father lived most of the time in New York city. He.died July 11, 1905, his second wife having died previously. Some time before the father’s death the children were brought back to Milwaukee, and shortly after the death the mother instituted these proceedings for her appointment as. general guardian of their persons.</p> <p>An issue was raised by the answer of the appellants to the petition. This answer was in the nature of a cross-petition, and asked for the appointment of Otto J. Tanlc as general guardian. The mother filed a reply, and the matter was referred to a court commissioner as referee. The' answer to the mother’s petition alleges that the mother is an unfit person to have the care and custody of the children. It is alleged that her unfitness is shown by the fact that she sustained immoral relations with a roomer at their house about a year and a half before the divorce, that she is not a good housekeeper, and that her home is not a fit place for the children. It is further claimed that she has not a mother’s affection for the children, that she was cruel and inhuman in her treatment of the father of the children, and that she is irreligious. Otto J. Tanlc, one of the petitioners in the cross-petition, is a brother of the father of the children, and sets tip that he has been married for four years, and that he and his wife have no children; that they are warmly attached to the children, and are regular attendants at the Lutheran church, which was the church the father of the children attended ; that they have ample means to support and educate the children without impairing the estate left them by their father; and that the father, knowing that his death was near, wrote to him, asking him to be appointed administrator of his estate and guardian of his children, and to be a father to the boys. He now asks to be appointed as such guardian. The petitioner in her reply denies the allegations of the cross-petition which allege her unfitness. Both parties offer to support and care for the children without impairing the estate left them by their father and to give the children the religious training desired by the father.</p> <p>The referee found that the mother was a fit and suitable person to have the care and custody of the children, that the immoral relation which was so largely the basis of the charge of unfitness had continued for but a short time, that it had been confessed to and condoned by the husband, and that the petitioner had lived a virtuous and blameless life in this respect ever since — a space of over 'twelve years. The referee also found that the evidence tending to sustain the charge that petitioner was a poor housekeeper, that she was without a mother’s affection for the children, that her home was not a suitable one for the children, and that she and her present husband do not live in peace and harmony, but constantly quarrel, to be of slight probative force, and that these charges were untrue. The referee reported that the best interests of the children would be served by the appointment of the mother as general guardian. The findings of the referee were approved by the circuit court, and an order was made accordingly. This is an appeal from the order of the circuit court.</p>

<p> Landlord and tenant: Duty to make repairs: Modification of leaser Abandonment of premises. </p> <p>1. An oral agreement, made some months after the execution of a. written lease, relating to the making by the lessor of certain specific repairs in the leased building is held to have been separate from and independent of the lease and not to have altered or modified a provision therein that the lessee should make alL necessary repairs inside the premises.</p> <p>2. Where the lessee expressly covenanted to make all necessary repairs inside of the leased premises, he cannot justify an abandonment of the lease and refusal to pay rent on the ground of the lessor’s failure to make such repairs.</p>

<p>Appeal from an order of the circuit court for Milwaukee ■county: J. O. Ludwig, Circuit Judge.</p> <p>Mandamus to compel the supervisors of the town of Lake in Milwaukee county to execute a certain contract. The -facts are stated in the opinion. Paul Welbes, one of the supervisors, moved to quash the alternative writ, and appealed ±rom an order denying such motion.</p> <p>As to the power of the electors to pass the resolution in question, they cited Vincent v. JSfantuclcet, 12 Oush. 103, 105; Tuttle v. Weston, 59 Wis. 151, 153, 154; Fox Balee v. Fox Lahe, 62 Wis. 486, 489, 490; Woodman v. Bohan, 91 Wis. 36, 37; State ex rel. Mitchell v. Decatur, 58 Wis. 291, 295, 296; Butternut v. O’Malley, 50 Wis. 329, 331; State ex rel. Manitowoc v. County Cleric, 59 Wis. 15, 17; Cady v. Bailey, 95 Wis. 370, 374.</p>

<p>Appeal from a judgment of tbe circuit court for Milwaukee county: WaereN D. TakbaNt, Circuit Judge.</p> <p>Action under sec. 4532, Stats. 1898, to recover money alleged to have been lost at gambling.</p> <p>Tbe complaint stated in substance tbis: Defendants during tbe times mentioned were copartners in operating a gambling bouse in tbe city of Milwaukee. Various methods of gambling were carried on, among them gambling by tbe use of a roulette wheel, whereby tbe loss went to tbe defendants. Plaintiff between March 28, 1904, and March 10, 1905, lost -on tbe said roulette wheel specified sums of money aggregating $788. Such money was received and retained by tbe •defendants though a return thereof before suit was demanded;</p> <p>Tbe defendants answered by a general denial.</p> <p>The cause was submitted to tbe jury on tbe evidence and a verdict was rendered in plaintiff’s favor for $748. Motions for judgment in defendants’ favor notwithstanding the verdict and for a new trial were made. Both motions were denied and judgment was thereupon rendered in plaintiff’s favoi% The defendants appealed.</p>

<p>Ebroe to review a judgment of the municipal court of Brown county: N. J. MohahaN, Judge.</p> <p>Information charging the defendant with obtaining a- promissory note by the false representation that he had sold for $7,500 for the prosecuting witness a bóat owned by the latter to one H. H. Hayward, a man who resided at Elks. Rapids, Michigan, and was worth $100,000, the information, charging that the statement that he had so sold the boat and that H. H. Hayward lived at Elks Kapids, Michigan, was. false, as defendant well knew.</p> <p>Evidence was given that the prosecuting witness, ITagerty,. being half owner of a certain boat, agreed with defendant in writing to give him a commission of $500 if he “makes tlie sale, or is instrumental in making sale, of the steamer Belle at $7,500.” On the following day, June 19th, Olaw-son produced a telegram dated Chicago and signed H. H.. Hayward, directing him to close deal at $7,500, provided clear title was made in Hayward’s name by Wednesday and placed in Kellogg ISTational Bank. On the following day be asked for bis commission, and Hagerty inquired as to who-Hayward was, and, as be testified, was informed tbat be was-a man living at Elks Eapids, Michigan, and was worth about $100,000. "Whereupon, relying upon this statement, Hag-erty gave to the defendant bis promissory note payable to the latter or order, in thirty days, for $500, and wrote on the foot of it below his signature the following: “Hue July 20th. This note is given in accordance with agreement with Mr. Clawson " Evidence was offered that no such man lived at Elks Eapids, Michigan. There was evidence tending to prove that Hagerty was in some trouble with his partner as to accounts of the vessel and their respective interests, and was not able to produce a good bill of sale Wednesday, the 22d of" June, as specified in that telegram. There was evidence of his attempting to buy out his partner at a less price and of his having commenced foreclosure and asking Clawson to attempt to get postponement for a few days, and the latter produced in response thereto a telegram dated Chicago, June 23 d, signed Hayward, as follows:</p> <p>“Perfect title in my name and place same in charge of Kellogg Bank. You inspect same, advise me by Eriday. Will not entertain further delay.”</p> <p>On Eriday Hagerty was still in controversy with his partner, and did not produce at the bank the bill of sale, although he testifies that if the money had been there he could have obtained it. Defendant testified, with confirmation by another witness, that at that time he had received and had in his possession a certified check for $7,500 from Hayward, payable to Kellogg Uational Bank, which, under his directions from Hayward, he could only deliver when satisfactory -conveyance was placed with that bank, and, no such conveyance being so deposited, he returned the check to Hayward on the following day. Hagerty, on July 8th, received a letter signed H. H. Hayward, care of Conrtland Hotel, Oliicag’o, offering to complete the purchase on the terms named if title were made by August 1st. To this Hagerty replied, but the substance of his reply is not in evidence. Neither party has ■since been able to find Hayward, the Courtland Hotel, where he made his headquarters in Chicago, having burned shortly after this time. The fact of the existence and apparent responsibility of IT. IT. Hayward was testified to by two Chicago witnesses, and the presence of such a man in company with the accused on the l'Tth of June inspecting the boat in ■question was also proved.</p> <p>After motion to direct a verdict in favor of the defendant, a verdict of guilty was found by the jury, and, after motion for a new trial, judgment and sentence were pronounced, to which defendant sued out writ of error.</p>

<p>Error to review a judgment of tire circuit court for She-boygan county: Michael KirwaN, Circuit Judge.</p> <p>On January 6, 1906, complaint was made in the municipal court for the city of Sheboygan charging plaintiff in error with forgery of an instrument of the tenor following:</p> <p>“Sheboygan, Wis., Jan. 6, 1906. No. 14.</p> <p>“BANK or SheboygaN</p> <p>'“Pay to John Walsh or oi'der $52 J5-100</p> <p>“Eifty-two Dollars</p> <p>“ERNEST GoNZENBAOH.”</p> <p>A warrant was issued. Plaintiff in error was arrested and bound over to the circuit court. He was there tried upon •the information charging him with the forgery of this instrument, and found guilty by the verdict of the jury. The ■court pronounced sentence upon the verdict, imposing as punishment confinement at hard labor in state prison for tbe term of eighteen months. The case is before this court for review on writ of error.</p>

<p> Primary elections: Ballots: Written names. </p> <p>Under the primary election law (ch. 451, Laws of 1903) the voters of a party may write in upon the primary election ballot the . name of any person as their choice for the party nominee for any office, and such votes shall be counted; and the person receiving the greatest number of votes for the party nomination for an office at such primary election shall have his name placed on the ballot for the general election as the nominee of that party.</p>

<p>Mandamus to the County Clerk of Dane County.</p> <p>At the opening of court bn the 9th day of October, 1906, application was made to the court by the attorney general, on the sworn complaint or relation of Christian F. Binder, for leave to commence an action in equity in this court to enjoin the defendant, as county clerk of Dane county, from printing the name of one W. S. Packard as Republican candidate for county treasurer of said county upon the official ballot for the general election in November following, and to command him to.print the name of the relator as such candidate upon such ballot. The proposed complaint or relation, after stating the official character of the defendant and the fact of the holding of a general primary election under the primary law, September 4, 1906, alleged, in substance, that the relator and W. S. Packard and one Boloff were candidates upon the primary ballot for the Bepublican nomination for county treasurer of said county at said primary election; that in the Third ward of ‘the city of Madison (being one of the election precincts in said county) the relator actually received eighty-three votes, Packard forty-nine votes, and Bo-loff twenty-seven votes, and that the precinct inspectors so counted and announced the result and that the same so appeared upon the written tally sheet provided by the secretary ■of state for the purpose of computing the result, but that the inspectors, in making their written statement of the result required by the statute, by mistake certified that Packard had received eighty-three votes, Boloff forty-nine votes, and jBinder twenty-seven votes, and that said statement and tally sheet, as well as the ballots cast, were duly returned in a sealed package to the county clerk; that a like mistake of five votes was made in the town of Middleton, another election precinct of the county; that the county board of canvassers of said county met on September 7th following and canvassed the votes, and determined and certified, among other things, that Binder had received 2,007 votes and Packard .2,000 votes at said primary, and adjourned sine die; that on September 19th following, the defendant, as county clerk, issued and delivered to the relator a certificate of his election as Be-publican candidate for county treasurer, which relator still holds; that afterwards, on September 24th, said canvassing board pretended to meet again to take further action, and passed a resolution reciting that the board had canvassed the tally sheets instead of the inspectors’ certificates, that there was a discrepancy between the tally sheets and the certificates -of the inspectors, that the tally sheets show the nomination of Binder and the certificates the nomination of Packard, and resolving that the certificate theretofore issued to Binder be rescinded and that a certificate of election be issued to Packard, in accordance with the inspectors’ certificates; that the ■defendant declares and threatens that he will print the name ■of Packard upon the official ballot and not the name of Binder; that Binder actually received the greater number of votes; and that the relator has no other remedy in the premises unless this'court entertain the action. A temporary in-junctional order was also prayed for and an ancillary writ of •certiorari directing the defendant to certify to this court the original returns and ballots.</p> <p>The court took this application under advisement, and on the 10th day of October denied the application for leave to commence an action in equity, but directed that an alternative writ of mandamus issue, returnable forthwith, commanding the defendant to place Binder s name on the official ballot or •show cause to the contrary. An ancillary writ of certiorari to bring up the records and ballots had previously been issued as prayed in the original relation, and the said records had been returned when the alternative writ of mandamus was issued.</p> <p>The defendant made return to the alternative writ on October 12th, admitting the holding of the primary election, the candidacy of Binder and Packard, the discrepancy between the tally sheets and the certificates from the precincts in question, the canvass of the returns by the county canvassing board, and that “said canvassing board computed the number of votes received for said Binder and said Packard from the tally sheets in the first instance, with the result as alleged in said complaint.” ■ The return further admits that the board re-assembled and corrected their mistake, and determined, upon the inspectors’ certificates, that Packard had received a majority of the votes, and alleges that on the 24th of September, 1906, be executed and delivered a certificate of nomination to Packard, which Packard still has. The return further alleges that the recount was made on advice of counsel, that Packard claims to have actually received the greater number of votes, and admits that, unless otherwise directed, he will cause Packard’s name to be printed on the official ballot, and prays that the action be dismissed.</p> <p>Afterwards, and before argument of the cause, both parties appeared in court by their counsel and applied for an order appointing commissioners to count the ballots actually cast. This application was also taken under advisement, and on October loth was denied, and the following statement of the reasons for such denial was filed:</p> <p>Peu Cubiam:. Serious questions as to the construction of the primary law and the duties of executive officers thereunder may properly be considered as questions affecting the prerogatives of the state and the liberties of the whole people, and on that accoimt this court may properly consider them in the exercise of its original jurisdiction, because the decision of such questions necessarily prescribes a rule of conduct for all election officers in the'state, though the case in which they arise may affect only the nomination for a local office. Especially should this be so.held in view of the fact that an authoritative. decision of such questions could rarely be reached through the exercise of the appellate jurisdiction, on account of the shortness of the time between the primary election and the general election, when the question must be tested, if tested at all. But a controversy as to who received the most votes at a primary election for the nomination for a local office, not involving any construction of the primary law itself, is not a question affecting prerogatives of the state or liberties of the people, so as to call for the exercise of the original jurisdiction of this court. In the Binder Case the question whether the certificate issued to Binder or the one afterwards issued to Pack-arel by tbe canvassing board is controlling upon tbe county clerk in printing tbe ballots is considered a question within tbe original jurisdiction of tbis court; but tbis court will not go into tbe question as to which candidate received tbe most votes, either by counting tbe ballots or by taking other testimony. Tbe court will confine itself to tbe question as to tbe duty of the county clerk under tbe primary law in view of tbe action of tbe canvassing board.</p> <p>On tbe 16th day of October tbe relator moved to quash tbe return, and the case was argued by counsel and taken under advisement.</p> <p>To tbe point that tbe county board of canvassers, having met pursuant to law and canvassed the returns and declared that Binder bad received tbe most votes for nomination as county treasurer, and having issued to him tbe certificate of bis nomination, has no power to reconvene at a later date and annul tbe certificate and issue another to Packard, they cited McCrary, Elections (4th ed.) §§ 267-269; Bowen v. Hixon, 45 Mo. 340; Good-ing v. Wilson, Dig. Elec. Oases in Congress (1871-1876) 79; State ex rel. Biggs v. Churchill, 15 Minn. 455; Ciarle v. Buchanan, 2 Minn. 346; Rice v. Board of Canvassers, 50 Kan. 149; Rosenthal v. State Board of Canvassers, 50 Kan. 129; Crouse v. Nixon, 65 Kan. 843; State ex rel. A tt’y Gen. v. Donnewirth, 21 Ohio St. 216, 220; State ex rel. Irigerson v. Berry, 14 Ohio St. 315; In re Hearst, 183 1ST. T. 274, 76 1ST. E. 28; Smith v. Lawrence, 2 S. Dak. 185, 49 FT. W. 7; Croio-ell v. Lambert, 10 Minn. 369, 375; Atl’y Gen. v. Board of Co. Canvassers, 64 Mich. 607, 611, 31 K. W. 539. Tbe tally sheets may be considered. Stale ex rel. Welly v. McFadden, 46 Keb. 668, 65 1ST. W. 800. that the county board of canvassers had no authority under the statute to compute the number of votes cast for county treasurer except upon the certificates of the inspectors of election. Had it been discovered that they were following any other rule, this court would by mandamus have compelled them to make their canvass from such certificates. Sec. 16, ch. 451, Laws of 1893; secs. 76, 81 et seq. Stats. 1898; Att’y Gen. ex rel. Carpenter v. Ely, 4 Wis. 420; Att’y Gen. ex rel. Bashford v. Bar stow, 4 Wis. 567. The court will go behind the returns. S'tale ex rel. Burnett v. Bierpont, 29 Wis. 608; State ex rel. Field v. Avery, 14 Wis. 122; State ex rel. Guernsey v. Meilihe, 81 Wis. 574. If the board had not corrected its error the court would direct the county clerk to print Packard’s name on the ballot, as upon the record he is clearly the nominee. People ex rel. Smith v. Pease, 27 N. T. 45; People ex rel. Eastman v. Seaman, 5 Denio, 409; People ex rel. Yates v. Ferguson, 8 Cow. 102; People ex rel. Van Voast v. Van Slycle, 4 Cow. 297; People ex rel. Benton v. Vail, 20 Wend. 12; Bex v. Vice-Ghancellor, 3 Burr. 1647.</p>