Volume 130 — Wisconsin Reports

Halsey, Judge. Action to recover of tbe defendant moneys of Belle City Sasb & Door Company alleged to bave been fraudulently diverted by said defendant to bis own use. Tbe complaint alleged in substance tbe following facts: Tbe Belle City Sasb & .Door Company, a corporation, was organized with plaintiff as president, William Dunpby as vice-president, Alfred Koerner as treasurer, and tbe defendant as secretary.

Williams, Circuit Judge. This is an action to recover $2,700, the balance alleged to be due upon an accident policy of insurance issued by the defendant upon the life of the plaintiff’s husband, Gustav A. Weidner, September 17, 1902, “against loss of time resulting from bodily injuries caused solely, during the term of this insurance, by external, violent, and accidental means, which shall, independently of all other causes, immediately and continuously disable the insured,…

<p>Appeal from an order of the circuit court for Milwaukee county: J. C. Ludwig, Circuit Judge.</p>

Tarrant, Circuit Judge. Action to enforce alleged liens on real estate claimed to> have been created as indicated by tbe facts found by tbe trial court, which may be stated briefly thus: (1) Johanna Ertman died in 1899 leaving her surviving Paul Ertman, her bus-band, and tbe plaintiffs, sons by a former husband.

Halsey, Circuit Judge. Within tbe city of Milwaukee, Grand avenue, running east and west, reaches tbe Milwaukee river on its west bank. Tbe defendants Gimbel Brothers occupied, under lease, a parcel of land on tbe south side of Grand avenue, bounded on tbe east by tbe Milwaukee river and on tbe west by West Water-street, upon which, in 1906, there stood a building extending from West Water street eastward.

<p> Appeal and error: Findings, when disturbed: Varying written contracts: Parol evidence: Consideration: Recitals in deeds: Conclusiveness: Vendor’s lien: Gift of land. </p> <p>1. Where, on a careful examination of the evidence, it cannot be said that the findings of the trial court are antagonized by a clear preponderance of the evidence, they will not be set aside.</p> <p>2. Although a written contract may be the complete and final agreement between the parties at the time of its signature, it constitutes no obstacle to the making of a new, different, or substitu-tionary agreement thereafter by mutual consent.</p> <p>3. Such subsequent agreement would constitute a. new contract, and, if it rested mainly in parol, would be provable by all , ordinary means of evidence.</p> <p>4. In such case, if the new oral contract consisted in the re-adoption of a plan agreed upon or discussed before the written contract, the details of such plan can be proved to throw light upon the terms of the later oral contract, although they are inadmissible to prove that the written contract did not correctly express the agreement between the parties existing at the time of its execution.</p> <p>5. In an ordinary deed of conveyance the recital that there has been paid a consideration, and what that consideration was, is merely a statement of fact theoretically necessary to exist in order that the conveyance may take effect. The correctness of the recital is wholly immaterial. It binds no one as to its correctness, but may be proved, aliunde, to have been greater or less or different in character, so long as it is not inconsistent with the existence of some consideration to support the conveyance.</p> <p>6. Where a preliminary land contract recited that the Vendee was to pay $5,600 for the land, and the deed of conveyance recited a consideration of $5,500, there is thereby presented no obstacle to proof that the real consideration was $600 in money, the assumption of an existing mortgage, and an agreement by the vendee to hold the property subject to an equity in a third person to acquire the title upon payment of advances madé.</p> <p>'7. In such case the payment of the $600 and the actual assumption of the mortgage left no debt upon which to base a vendor’s lien.</p> <p>8. The execution and delivery of a deed, whether to the donee or to some one for him, is an entirely .sufficient completed execution of a gift of the land.</p>

<p> Fire insurance: Forfeiture: Breach of promissory warranty: Suspension of business: “Cease to be operated:’’ Application: Admissibility: Statutes: Foreign and domestic insurance companies. </p> <p>1. Policies of insurance of the Wisconsin, standard form provided, among other things, that the entire policy, unless otherwise provided by agreement indorsed thereon or added thereto, should be void if the subject of insurance were a manufacturing establishment and it ceased to be operated for more than ten consecutive days. The risk covered a flouring mill operated by water power. By reason of severe weather the water in the mill race froze, and the insured was therefore unable to operate the mill for more than ten consecutive days, but was operating it when the loss occurred. The agent, when soliciting the insurance, knew the mill was operated by water power, and that in severe weather the race might freeze and thereby prevent its operation. The mill was not in operation when the agent examined the premises. Held:</p> <p>(1) The specified clause in the policies must be given a reasonable construction in the light of the conditions attending the subject matter of the contract and within the contemplation of the parties when the contracts were made.</p> <p>(2) The cessation of operation covered by the policies had no reference to such cessation as occurred in the usual course of the business of the insured or as arose from causes beyond its control.</p> <p>(3) The fact that the mill could not be operated in severe weather on account of lack of power was an existing fact and known to the insurance companies at the time of issuing the policies, and therefore the policy provision respecting nonoperation did not apply.</p> <p>2. Secs. 1941 — 1 to 1941 — 13 and 1945a, Stats. 1898, respecting “mutual companies in cities and villages,” have reference to insurance companies organized under the laws of Wisconsin only, and. have no reference to foreign mutual fire insurance companies.</p> <p>3. Sec. 1945a, Stats. 1898 (requiring that all fire insurance corporations shall, upon the issue or renewal of any policy, attach to such policy or indorse thereon a true copy of any application which by the terms of such policy is made a part thereof or of the contract of insurance or referred to therein, or which may in any manner affect the validity of such policy), excepts from-its operation, among other insurance corporations, mutual companies in cities and villages. Plaintiff signed an application, addressed to an Ohio mutual insurance company, requesting. $4,000 of insurance on its flouring mill and represented that when the mill was not in operation it maintained therein a watchman. The agent, on receipt of such application, placed' $2,000 of the insurance in the Ohio company, and $1,000 each in Wisconsin city mutual companies. In an action to recover for a loss under such policies the defendants offered proof of the application and its falsity. The applicatipn was not attached to the Wisconsin policies or referred to therein. The testimony was ruled out. Held:</p> <p>(1) The ruling was proper as to the Ohio company, since it was not within the exceptions of sec. 1945a.</p> <p>(2) The ruling was also proper as to the domestic companies,, since they were not parties to the application addressed exclusively to the Ohio company.</p>

<p> Benefit societies: Actions: Conditions precedent: Abatement: Proofs: of death: Amendment: Nonsuit: Suicide: Appeal and error: New trial: Best evidence: Public records: Competency: Hearsay. </p> <p>1. Under the regulations of a mutual benefit society its contracts, 'of insurance were payable within ninety days after the receipt, of proofs of death. The original proofs were received nearly seven months prior to the commencement of the action, but an amendment thereto was received less than ninety days before' the action was commenced. Held, that the amendment did not operate as an extension of the time of payment or of the time-for the commencement of the action, and therefore the court did not err in its refusal to abate the action on that ground.</p> <p>2. Under a certificate in a mutual benefit society providing, in case of the death of a member by suicide, that the only liability under the contract should be the amount of benefit assessments paid to the association by the member, the original proofs o£ death contained a statement in a physician’s affidavit, in answer to a question as to the direct cause of death: “Gunshot wound in heart. Case of suicide,” and also a statement of the beneficiary that the insured “was killed by shooting himself in the heart, according .to verdict of coroner’s jury.” Thereafter the beneficiary, who had no personal knowledge of the manner of assured’s death, by amendment stated that she made such original proofs without fully “comprehending or understanding the meaning and import of the same,” and that the statement was based on rumors and current talk among citizens. It was contended that by reason of such proofs the court should have granted defendant’s motion to abate the action and a subsequent motion for a nonsuit. Held:</p> <p>(1) Such proofs, at most, were mere prima facie evidence of the facts therein stated.</p> <p>(2) The court did not err in refusing to abate the action or to grant a nonsuit.</p> <p>IS. A second proof of death does not nullify a prior proof returned by the company, but such proofs are to be taken together, as supplying each other’s defects, and if, combined, they answer the requirements of the policy, the law is satisfied.</p> <p>•4. In an action on a benefit certificate the sole defense was suicide. The jury returned a verdict that the insured’s death was not “caused by suicide, whether sane or insane.” Error was assigned because the court refused to set aside the verdict and grant a new trial. Held, that the verdict was sustained by the evidence stated in the opinion.</p> <p>5. In an action on a benefit certificate where the only defense was suicide of the member, the court correctly instructed the jury as to the burden of proof, that the presumption of law was against the commission of suicide, and that defendant must overcome this presumption by a preponderance of evidence. The proofs of death and amendments thereto did not deny the fact of suicide nor withdraw a statement of suicide made in the original proofs, and the defendant requested no instructions as to the proofs of death being considered as evidence in the case. Held that, the determination of the question whether the deceased intentionally killed himself being for the jury under the instructions of the court, any presumption of suicide arising from the proofs of death was not stronger than the general presumption against suicide, and did not shift the burden of proof.'</p> <p>C. In an action on a benefit certificate where the defense was suicide, a certified copy of the certificate of death made by the health officer, who was also a witness for the plaintiff, was offered, not by way of impeachment, but as original testimony, and was held incompetent.</p> <p>7. In an action on a benefit certificate where the defense was suicide, it is competent to show that the deceased was short in his accounts with a church, but testimony of a trustee that he had made partial inquiries among members of the church and found that certain of them claimed to hare made payments to the deceased and taken receipts therefor is mere hearsay.</p> <p>8. In such case the receipts themselves are the best evidence.</p>

<p> 'Reformation of instruments: Mutual mistake: Pleading: Amendments: Discretion: Dower: Merger. </p> <p>1. In an action to reform a deed, the evidence, state'd in the opinion, is held to justify a finding that a mutual mistake was made as to the identity of the-tract of land described in the deed, and that the deed should be reformed' so as to include that pointed' out and supposed to be conveyed.</p> <p>2. In an action to reform a deed the fact that the laqd was a homestead occupied by the grantor and his wife was not pleaded. On the trial testimony tending to show such fact was received subject to objection as to its competency, relevancy, and admissibility under the pleadings. No application to amend the answer was made until after the evidence had been closed and the facts argued, and was first requested nearly three months thereafter in defendant’s brief. Held, under the circumstances shown in the record, that there was no abuse of discretion in refusing leave to amend.</p> <p>3. In an action against the grantor and his wife to reform a deed the grantor died pending an appeal. After judgment and prior to his death the grantor conveyed all his title and interest in the land affected to his wife. It was contended, on appeal, that the wife had only signed the deed in that capacity, that she had received no consideration therefor, and that the law would not reform the deed so as to bar her dower in land which she had never conveyed nor agreed to convey, and for which she had received no part of the consideration. Held insufficient, since the record showed (1) there was neither pleading nor proof that the wife had received no part of the consideration; (2) that by accepting the deed of the fee the wife’s inchoate estate in dower was merged in the fee.</p>

<p> Appeal and error: Assignments of error, when not considered: Conclusiveness of verdict: Animals: Personal injuries: Evidence: Instructions to jury: New trial: Misconduct of jurors. </p> <p>1. Error assigned respecting the reception and rejection of evidence, not claimed to relate to findings of the jury questioned, not considered.</p> <p>2. If there is any credible evidence to support a verdict it cannot he disturbed on appeal.</p> <p>3. In. determining whether there is such credible evidence or not the-record should be viewed in the most favorable light it will reasonably bear in support of the verdict, and the conclusion of the-trial judge thereon will not be disturbed unless clearly wrong.</p> <p>4. In such case it is not sufficient that there is room for the trial. judge to have reached, or that the supreme court might have reached, a different conclusion.</p> <p>5. In an action for personal injuries to a traveler on a highway in consequence of his horse becoming unmanageable by being frightened by a dog, under the evidence, stated in the opinion, it was. held that a verdict for defendant could not be disturbed in view of the fact that the trial judge, both in submitting the cause to the jury and in deciding a motion to set aside the verdict, deliberately decided it was within reasonable probability, that the, horse was not frightened or made unmanageable by defendant’s dog.</p> <p>6. In such case instructions to the jury, stated in the opinion, are-held to be free from error.</p> <p>7. Findings made on a motion- for a new trial, that jurors were not guilty of misconduct, must stand unless they appear to be-against the clear preponderance of the evidence.</p>

<p> Paupers: “Supported as a pauper:” Questions for jury. </p> <p>1. Although one who is capable of earning a living and has some-money may not be a pauper in fact, such facts are not conclusive against the possibility of having been supported as a pauper.</p> <p>2. Under the expression “supported as a pauper,” it is not only essential that aid should have been given by the poor authorities, but that such aid should have been applied to or received by the-supposed pauper.</p> <p>3. After a town had furnished support for B., a transient pauper, and had been reimbursed by the county, in an action by the-county against the town in which B. had her legal residence the only question submitted to the jury was whether the town officers paid the money with the intention of aiding or supporting-B. as a poor person. Held, that such question exhausted the issues only in case the evidence was undisputed that B. did 'receive the aid or some part thereof.</p> <p>4. One, though living in the family and eating at the table of a-pauper aided by the poor authorities, who pays his board, cannot be said to receive aid as a pauper merely because the landlord uses the money furnished by the poor authorities to purchase the food which the boarder eats.</p> <p>5. In such case it makes no difference that the board is paid in services instead of money.</p> <p>6. As a means of extending aid and support the poor authorities paid certain moneys to L. under an agreement that C. should take charge of the housework and care of L.’s children, thereby permitting L. to work out and earn the balance of the support needed for her family, which was done, and, in'addition, C. paid-certain moneys to L. for the purchase of necessaries for L.’s family. Held, that it could not be said, as a matter of law, that C. received as a pauper, and not merely as return for her own-services and money, any portion of the aid furnished by the-poor authorities, but that the question should have been submitted to the jury for their answer in the light of all the facts, circumstances, and reasonable inferences to be drawn therefrom.</p>

<p>Appeal from a judgment of the circuit court for Manito-woc county: Michael KjewaN, Circuit Judge.</p> <p>Action to cancel and annul three promissory notes, executed by the plaintiffs to the defendants Roberts, Leggetand Hanen, who were copartners doing business under the name ■of “Westfield Importing Company” of Westfield, Indiana. The defendant John Gutman signed the notes. Upon his refusal to join as plaintiff in the action he was made a defendant. The defendants Schmitz, Burke, and Craite were attorneys for Roberts, Legget, and Hanen and were joined as parties in the action upon the ground that plaintiffs believed the notes in question were in their possession as such attorneys. They with their principals were temporarily restrained from transferring or parting with the possession of the notes. The defendants Alton P. Nave and the Citizens’ National Bank, a foreign corporation, after the action had been begun, petitioned, as bona fide owners of the notes, to be made parties defendant, and by order of the court they were allowed to intervene and were made parties defendant, whereupon they appeared generally in the action and served their answers. Before trial the complaint and answers were severally ¡amended at different times. These need not be particularly :reeited. After trial, upon notice, the complaint was further ■amended to conform to proof, received without objection, to ■the effect that the principal defendants had secured the subscriptions of plaintiffs and others for shares in the proposed ■company upon the representation, promise, and agreement with them that they would expressly warrant the mentioned horse to be sound and "free from disease. The court’s findings cover the facts of the case sufficiently to present the questions upon which error is assigned upon this appeal. The •material facts found by the court are as follows: In January, 1903, the defendants Roberts, Legget, and Hanen were co-■partners and continued so until after this action was commenced. They were engaged, under their firm name, in the buying and selling of borses, tbeir principal place of business being Westfield, Indiana. E. M. O’Connell was tbeir agent, and as sucb agent exhibited tbeir horse, named “Eusil,” to the plaintiffs and others at the villages of Valders and St. Nazianz in Manitowoc county, for the purpose of making a sale. To make a sale of the horse, O’Connell presented to plaintiffs and others a subscription agreement of the tenor following:</p> <p>“We, the undersigned subscribers, realizing the necessity of improving our stock, do hereby agree to pay the Westfield Importing Company $100 for each share in the Perdieron Horse Company now being formed at Valders, Wis., to buy one Perdieron stallion of the Westfield Importing Co., of Westfield, Ind. Capital stock, $3,000. Name of horse, Eusil. 31,079 (48,951). Payments to be made, one third in one-year, one third in two years, one third in three years, security by joint notes with interest or by cash.”</p> <p>He solicited subscriptions to the undertaking, and secured' plaintiffs’ assent and subscriptions</p> <p>“upon an understanding and agreement between each of them, respectively, and the Westfield Importing Company that no signature to said contract would be binding until' bona fide subscribers thereto for thirty shares had been obtained by said Westfield Importing Company.”</p> <p>Prior to February 28, 1903, plaintiffs were informed by-O’Connell that he had secured bona fide subscriptions to the-written contract for the thirty shares. Eelying upon such, representation as true and correct, plaintiffs signed and executed three promissory notes, each for $1,000, in form, to wit :•</p> <p>“$1,000.00. February 28th, 1903.</p> <p>“Sixteen months after date, for value received, we or either of us, promise to pay the Westfield Importing Co., or order,. $1,000.00 at the Manitowoc Savings Bank, with interest at 6 per cent, per annum, interest payable annually.”</p> <p>The two other notes were payable in two years and four-months and three years and four months after date. Eleven, of tbe persons wbo were represented to plaintiffs as subscribers to tbe subscription contract for shares in tbe borse refused to sign these notes after plaintiff bad signed them, and tbe Importing Company has never collected or enforced payment from them upon their alleged subscriptions. An action was instituted against one of such subscribers, Knut Berg, by the company to recover $100, tbe amount of one share in tbe Percberon Horse Company, which action terminated by entry of judgment dismissing tbe complaint on June 22, 1903, tbe date tbe instant action was begun. Two of tbe alleged subscribers to shares in tbe Percberon Horse Company, named Alfson and Nelson, were not in fact bona fide subscribers, though their names were on tbe subscription contract. They bad signed and made their subscriptions upon the' express oral understanding and agreement between them and O’Connell, as agent of tbe Importing Company, that such subscriptions were not to bold them to liability on tbe contract. It was further represented by tbe agent, O’Connell, to three of tbe plaintiffs that no signature to these notes would be binding until every subscriber to tbe shares in tbe Per-cberon Horse Company bad signed them, or, in lieu of signing these notes, bad paid their shares in cash. To tbe other plaintiffs in this action it was represented that all tbe other subscribers would sign these notes or pay their subscriptions in cash, and that such payments, to apply on tbe purchase price, would, in case of default, be enforced against them severally. Plaintiffs relied on this, but none of these conditions have been performed, nor has tbe Importing Company enforced such payments. Tbe court also found that tbe representation by O’Connell to tbe effect that be bad obtained subscriptions for thirty shares of $100 each in tbe proposed Percberon Horse Company was in fact untrue, that be knew it to be false, and that plaintiffs believed it to be true, relied on it, and were thereby induced to execute tbe notes. It was also found that plaintiffs bad good reason to believe and did believe that the defendants — copartners in the Importing Company at the time this action was commenced — had these notes, and had not sold, pledged, or hypothecated them or any of them; that plaintiffs before action offered the horse in question to these defendants and demanded the return of the notes; and that defendants refused to receive him and have so refused to receive him ever since, and have not returned the notes to plaintiffs.. Plaintiffs, therefore, have been compelled to keep, feed, and care for the horse ever since, and such feed and care is found to be worth $12 per month.</p> <p>The court found upon the issues that the defendants Have and the Citizens’ Rational Bank became the holders and owners of these notes in good faith, before maturity, and without notice or knowledge of any infirmity as to their validity, and that plaintiffs were liable thereon to such defendants, but that, as between plaintiffs and the defendants Roberts, Legget, and Eanen, the notes were fraudulent and of no effect, and that they had fraudulently and wrongfully transferred them under circumstances which enabled the transferees to collect and enforce them against plaintiffs to their damage to their face amounts, namely, the sum of $3,000, with interest from their date. Upon these findings the court held that the equitable relief prayed for in the complaint could not be awarded, but it retained the action and awarded the only relief available to plaintiffs, namely, a recovery of damages in the sum of $3,000, with interest, and costs of the suit. From this judgment the defendants Roberts, Legget, and Eanen appeal. '</p>

<p> Sales: Breach of warranty: Conditions: Appeal and error: Pleading: Demurrer. </p> <p>1. In an action for the price of a traction engine defendant counterclaimed, alleging breaches of warranty. It appeared from the-contract set out in a counterclaim that, if the defendant failed to settle for the engine as provided in the contract, the warranty became void. Held, that an allegation of the counterclaim that defendant never refused to make settlement for the-engine was a verity on an appeal from an order overruling a demurrer to the counterclaim, and rendered unnecessary consideration of the question whether defendant was bound to make-settlement if demanded.</p> <p>2. In an action for the price of a traction engine an allegation of a counterclaim that there was a breach of a special warranty entitling the defendant to damages is not inconsistent with contract provisions to the effect that ail warranties should be void if the engine was not settled for, where the counterclaim avers that the defendant never refused to make settlement.</p> <p>3. A contract for the sale of a traction engine contained a special warranty as to its capacity, and also a general warranty respecting material and construction which made no mention of capacity, and was followed by provisions that notice of the failure of the engine to fill “this" warranty should be given the seller, and that continued possession by the buyer for ten days should be conclusive evidence of the fulfilment of the warranty. Held, that the provisions as to notice and the effect of retaining-the engine had no reference to the special warranty.</p>

After the death of the intestate the county court on June 28, 1905, made an order in the matter of the estate limiting the time for the presentation of claims against said estate to December 28, 1905. The petitioner did not present his claim within the time so limited.

<p>Appeal from a judgment of the circuit court for Kewau-nee county: Miohael Kiewak, Circuit Judge.</p>

<p> Assessment roll: Power of town chairman to malee purchases: Road machines: Statutes: “Last preceding assessment:” Pleading:Amendment: Appeal and error. </p> <p>1. When an assessment roll lias been corrected by tbe assessor and delivered to tbe town clerk pursuant to sec. 1064, Stats. 1898, it is an assessment roll witbin tbe meaning of eh. 83, Laws of' 1899 (providing that the chairman of the town board may, upon petition of the taxpayers of one or more superintendent districts of such town, representing more than one half of the taxable property of such district or in each of such districts — to be ascertained from the last preceding assessment roll, and certified to as such by the town clerk of such town — and also of the superintendent of highways of each district, contract for a road machine), notwithstanding it is still subject to correction as to mistakes under sec. 1065.</p> <p>2. If, after the assessment roll has been corrected by the assessor and delivered to the town clerk pursuant to sec. 1064, Stats. 1898, the chairman of the town is petitioned to purchase a road machine under ch. 83, Laws of 1899, the sufficiency of the petition, as to putting him in motion to obligate the town to make the purchase, is to be tested by such roll unless in the meantime another shall have been made.</p> <p>'3. It is sufficient to render one a competent petitioner under ch. 83, Laws of 1899, that he is a taxpayer of the road district when the petition is certified by the town clerk and presented to the chairman.</p> <p>•4. Under ch. 83, Laws of 1899, a petition dated June 14, 1900, was certified by the town clerk and presented to the town chairman on August 25, 1900. The assessment roll of 1900 was completed and on file prior to the time the petition was so certified and presented. The petition was signed by a sufficient number of • taxpayers as shown by the assessment roll of Í900, but by an insufficient number under that of 1899. In an action for the purchase price of a road machine ordered by the town chairman under the authority of such petition, held:</p> <p>(1) An allegation of the complaint, in effect, that the town chairman was “petitioned” on June 14, 1900, either standing alone or in connection with the date of the petition, did not control as to the date when an effective petition was presented.</p> <p>(2) The language of ch. 83, Laws of 1899, “The chairman of the town board . . . may, upon being petitioned,” reasonably points to the time of the certification of the petition for presentation to the chairman.</p> <p>(3) The assessment roll of 1900 governed.</p> <p>’5. It is not error to refuse to allow a complaint to be amended by adding thereto a new cause of action arising pendente Ute.</p>

Action for personal injuries received by plaintiff when about four and one-half years of age from being run over by an’ electric street cat of the defendant. A very few minutes-before he was injured the plaintiff had been playing with an. older boy on New York avenue in Sheboygan, at a point about 160 feet west of Eighth street. Eighth street, running: north and south, was traversed by a double track of the defendant company.

<p>Appeal from a judgment of the circuit court for Grant county: Geobge' ClemieNtsoN, Circuit Judge.</p> <p>On February 26, 1902,- plaintiff held an auction at his farm in the town of Elk Grove, Lafayette county, and at such sale defendants bid off certain personal property, to be paid for in cash at the time of the sale. Included in the property bought by the defendants was a group of heifers. There is no dispute as to the other property bought by them, but they claim that the group of heifers which they bought contained eight animals, and that a certain dark red heifer with a star in the forehead was included among them. The sale of the cattle was conducted as follows: The cattle were taken from sheds by plaintiff’s assistants in groups as they were wanted. The group was driven through a gate into the inelosure where the sale was held. This gate was then closed .•and the group in the inclosure was auctioned off. After they were sold the group was driven into a pasture through a gate at the opposite side of the inclosure from the sheds. This pasture gate was closed before another group was taken from the cattle sheds into the sale ring. In the early part of the cattle sale a group of two animals was disposed of to one ■John Huntington at $37 per head. This-group was then driven into the pasture. Several sales intervened between the ■sale to John Huntington and the driving into the ring of the .group of heifers which defendants purchased. Defendants claim that this group contained eight heifers, and that the dark red heifer with the star in the forehead was among them. Plaintiff claims that the group contained but seven heifers, and that the dark red heifer with the star in the forehead was not among them, but had been sold as one of the group of two head to John Huntington. Defendants bid in the group at $24.50 per head. A few days after the sale one of the defendants came to plaintiff’s farm to settle for the property purchased by them, and then claimed that the red heifer was among their purchase of heifers. Plaintiff denied this and refused to settle with defendants by allowing them what they demanded, namely, the difference between the sale price of the dark red heifer and the price per head at which the defendants had bid in the group of heifers. The heifers were thereafter delivered to defendants but not paid for on delivery. The total amount claimed by plaintiff for all the property sold to defendants at the auction was' $435. This included seven heifers at $24.50 per head. On March 31, 1902, plaintiff drew by bank draft on defendants for $435 ■and instructed the bank not to receive less than tbe face of the draft. On its being presented to defendants for payment they offered $417.50 as payment in full of the draft. The difference of $17.50 was made up of $12.50, the difference between the amount for which the red heifer had been sold to ITuntington, and $24.50, the price per head at which the defendants had bid in the group of heifers, and $5, claimed by defendants as their expense for having been compelled to. go a second.time to obtain their purchases. Plaintiff refused to receive this amount, and it has been in the bank since then. Plaintiff brought this action to recover the amount due him from defendants. His claim included $5 for keeping the stock from the time of the sale until taken away by defendants. On the trial the court submitted certain questions to the jury to be answered by them as a special verdict. The questions and the answers of the jury thereto are as follows</p> <p>“(1) Was the large dark red heifer with the star in the forehead, which was one of the eight heifers the plaintiff owned at the time of his sale, sold, at the time the cows were sold, to John Huntington, and turned from the sale yard into the pasture before Stephens bid upon the bunch of heifers, that were turned into the sale yard? A. Yes. (2) How many heifers were there in the sale ring at the time Mr. Stephens bid off the lot at $24.50 per head? A. Seven (7). (3) How much, if anything, ought the plaintiff to recover from the defendants for keeping the live stock Mr. Stephens had bid off, from the time of the sale on Wednesday to the following Saturday morning, when Mr. Stephens took the stock away? A. Nothing. (4) Did the defendant Steinhoff when, on or about March 31, 1902, he went to the First National Bank in Platteville, deliver to Mr. Hetherington, the cashier of the bank, $417.50 to be unconditionally and absolutely given to the plaintiff upon the debt of the defendants, to him ? A. Yes.”</p> <p>The finding of the jury on the question of partial payment was disregarded by the court, and, upon the facts shown, it was held that no partial payment had been made. Judgment was awarded in favor of plaintiff for $435, witli interest from March 31, 1902, and for costs. This is an appeal from such judgment.</p>

<p>Appeal from a judgment of the circuit court for Iowa county: G-eoege ClemeNtsoN, Circuit Judge.</p> <p>Certiorari to review a judgment of a justice of the peace of Iowa county.</p>

<p> Findings of fact, what constitute: Appeal and error: Review in absence of findings: Evidence: “Timber:” Injunction. </p> <p>1. A record containing what is therein called “findings of fact,” % which are at most mere conclusions that the plaintiff cannot recover, and hence that defendants are entitled to costs, does not show compliance with sec. 2863, Stats. 1898, and such failure to determine the issues litigated justifies a reversal and new trial, unless it can he said that the judgment is supported hy a preponderance of the evidence.</p> <p>2. The meaning of the word “timber” has more or less flexibility,. depending upon time, place, and circumstances, as well as the language of the instrument in which it is employed.</p> <p>3. Under a contract conveying “all the timber” on the land described, the same to be removed by a certain date, the evidence, stated in the opinion, is held to sustain a judgment denying an injunction to restrain the cutting of standing saplings, small trees, or any other trees more suitable for cord wood, fire wood, pole wood, or underbrush than for timber.</p>

<p> Highways Establishment: Prior application: Validity: Location: Variation from route in application: Joint meeting of town boards. </p> <p>1. Under the limitation of sec. 1283, Stats. 1898 (providing that the determination of the supervisors of any town in refusing to lay out any highway shall he final for the term of one year after making of such determination, and that no application for laying out any such highway shall he again acted upon within said term of one year), the first application must have been a valid application — one upon which a legal highway could he laid out.</p> <p>2. On certiorari to reverse the action of a town hoard in laying out a highway, one ground alleged was that a previous application had been made to lay out the same highway, which had been denied within one year prior to action on the instant application. It appeared from the return that petition and notice of meeting under the first application had described the proposed highway as commencing at the intersection of a designated road and the “north line of the southeast quarter of the northeast quarter” of a certain section; that the starting point in the second application was the intersection of the same designated road and the “north line of the southeast quarter of the northwest quarter” of the same section; that the designated road ran along the west line of the southeast quarter of the northwest quarter of such section, hut nowhere touched the northeast quarter, and that the first application was denied because of this defect in the petition and notice. Held, that' the petition and notice were jurisdictional papers in an adversary proceeding, must substantially comply with the calls of the statute in order to authorize action by the town board, and, although a careful reading of the application and notice might induce one to believe a mistake had been made in naming the quarter section, that the supervisors had no jurisdiction to lay out the highway in question under the first application and notice.</p> <p>3. In such case the refusal of .the town board to act under the first application and notice did not amount to a refusal to lay out the highway or a decision against the application under either sec. 1269 or sec. 1283, Stats. 1898.</p> <p>4. Where the location of a highway as laid out varies from the route proposed in the application and notice, but the variation is not so great as to make it a materially different highway, in the absence of any showing to the contrary it will be presumed that the variation was reasonable and required by the interests of the public.</p> <p>5. A.t the time fixed in the notice of hearing upon an application to the town board of C. to lay out a highway which would connect with one proposed to be laid out in the adjoining town of W., the town board of C. met and held a joint meeting with the town board of W. On certiorari to review the order laying out the proposed highway the record simply stated that the two boards met together to consider the application, and did not show that action was taken by the joint body, but on the contrary stated that after such consideration the road in question was laid out by the town board of 0. Held, that a judgment of affirmance of the action of the town board of C. was right.</p>

<p> Sales: Warranties: Fraud: Rescission: Principal and agent: Authority to malee warranties: Evidence: Witnesses: Cross-examination: Impeachment: Materiality: Appeal and error: New trial on. reversal. </p> <p>1. In an action for the price of a stallion transferred by a formal hill of sale containing a special warranty and a stipulation that, on failure of the warranty, plaintiffs would furnish another stallion of equal quality in exchange upon the'return of the stallion in question, there was interposed an answer alleging breach of warranty and of fraud in the sale, but there was neither pleading nor proof that the stallion had ever been returned or that defendants had ever offered to return it. Held, that the trial court rightly ruled that the question of fraud was not in the' case.</p> <p>2. In such case no breach of the written warranty was shown, since it only bound the plaintiffs to furnish another stallion upon condition of the return of the one sold.</p> <p>3. In an action on a joint and several note given by numerous defendants for the purchase price of a stallion, there was pleaded a breach of warranty. There was evidence of a special written warranty which had not been breached because of failure of defendants to comply with its conditions, and there was also an attempt to prove an oral warranty by the plaintiffs’ agent. The-jury found the making of such oral warranty and its breach. Held, that the jury’s findings were not justified in the absence of proof that the oral warranty was made to each one of the-defendants.</p> <p>4. In such case, even though the evidence tended to show that the agent made such oral warmnty to each and all of the defendants, the defendants could not succeed without showing that the agent had express authority from his principal to make such warranty, or that such sales were usually attended with such a warranty.</p> <p>5. Where several subscribers in buying a stallion understood that the talks each had with the agent of the sellers were merely tentative, that the transaction was only to be consummated after a required number of subscribers had been obtained, and then only with a voluntary association of all subscribers-then to be formed, a written warranty given at that meeting supersedes any oral promise of warranty made to individual subscribers.</p> <p>6. In an action on a note for the price of a stallion, one of the plaintiffs testified that they owned the note, stated the amount due thereon, and that a bill of sale with warranties was given with the animal. Upon cross-examination he denied that he had offered P. a share in the' horse for nothing if he would allow the use of his name to influence others. After plaintiff had so answered, a general objection was made and overruled. P. having been put on the stand by defendants was asked what offer had been made him, which question was objected to as incompetent, irrelevant, and immaterial, whereupon counsel stated it was offered to impeach plaintiff, and on this ground the objection was overruled. There was no issue* of fraud in the case. Held:</p> <p>(1) The question was irrelevant on plaintiff’s cross-examination, since plaintiff had given no testimony which the alleged statement tended to contradict.</p> <p>(2) The objection not being interposed until after the question was answered, and there being no motion to strike out the answer, plaintiffs, on appeal, could not take advantage of the fact that the question was answered.</p> <p>(3) On P.’s direct examination the objection should have been sustained. The question asked of plaintiff did not relate to a relevant fact, and hence his answer could not be contradicted even for the purpose of impeachment.</p> <p>7. In an action for the price of a stallion, where no warranty is claimed as to the quality of the colts gotten by the horse, testimony that the colts gotten by him were defective is immaterial.</p> <p>8. Although proper motions have been made to strike out and change the answers to a special verdict, where there are legal principles involved which were not appreciated by the parties or the trial court, and it is not improbable that on another trial there may be testimony on lines not covered on the first trial, a new trial is directed.</p>

<p> Appeal and, error: Trial after reversal: Law of the ease: Religious societies: Rights of members: Diversion of property: Trusts: Exercise of power of appointment by trustee: Evidence: Withdrawal of one unit from religious denomination: Resolutions of supreme body: Bill of exceptions: Certification as to evidence: “All the evidence:’’ Judgments.' </p> <p>1. When on appeal from an order sustaining a demurrer a decision has been made by the supreme court it becomes the law of the case, and must control any situation not materially variant from that set forth by the complaint and then considered.</p> <p>2. Neither seceding members, though a majority, nor any majority of a religious society, no matter how fully invested with all corporate powers, have a right to divert its property from the uses defined and limited by the grant of such property to it or the purposes of its organization as regards the particular religious faith it was organized to promote.</p> <p>•3. A religious society holding property charged with a trust for certain purposes cannot, even by due corporate action, divert it to other and inconsistent uses; and when such use is for the promotion of the doctrine and discipline of some particular denomination, courts will prevent diversion to the support of a different and inconsistent one, if even a single individual legally interested objects.</p> <p>4. Where a deed of lands gave to trustees the right to appoint, not an individual corporation or society, but some religious denomination, to exercise ecclesiastical control over the premises, viz., the occupation for religious services on Sundays and Wednesday evenings, an appointment of a designated religious denomination necessarily implies a limitation of such use to the doctrines and purposes of that denomination.</p> <p>5. Under a deed to trustees authorizing the appointment of some religious society to exercise ecclesiastical possession over church premises, the trustees made appointment to the Primitive Methodist Society, which was a subordinate member of, and subject to the discipline and regulations of, a conference, a synodical religious organization. These regulations provided, among other things, that all property was held subject to the uses of each society when not inconsistent with the discipline and usages of the Primitive Methodist Church, and should any society having property cease to exist, or exist contrary to the usages and discipline of the Primitive Methodist Church, then its property should pass to the conference trustees to he held for the benefit of any organized Primitive Methodist society in the place where the real estate was situated, or, if impracticable, then to be held for the general purposes of the church and under the direction of the annual conference. Held, that the use of the property in question was restricted to a society subject to the discipline and supporting the doctrine of the Primitive Methodist denomination.</p> <p>6. In such case, where the Primitive Methodist Society repudiated submission to the synodical head of the Primitive Methodist Church, and set itself up as the supreme authority over its own affairs and over its members in matters religious and secular, such action is held to be a departure from the use and purpose for which the possession of the property in question was originally conferred on the society and the use to which the property was limited.</p> <p>7. To constitute one a member of a church, or an individual society a member of a general synodical organization, at least two things are essential: a profession of the accepted faith and a submission to its government.</p> <p>8. Under a deed to trustees authorizing them to appoint some religious denomination to exercise ecclesiastical possession over the premises in question, the trustees appointed the Wesleyan Methodists to such use. In 1850 the Wesleyan Methodists withdrew from the occupation and ceased holding religious services upon the premises, and there was proof of some arrangement between them and the Primitive Methodist Society to occupy it, and that most of the original trustees were participants in the negotiations. It further appeared that immediately the Primitive Methodists entered into possession with apparent assent and approval of the trustees, and thence onward held religious services with the knowledge and active co-operation óf several of the trustees. Held, in view of the remoteness of the transactions and the absence of any prescribed form by which the trustees were to make appointment, that the showing of long occupation, reputation, and apparent approval were sufficient, and, 'in the absence of anything in conflict, established a legal and proper appointment to the Primitive Methodist Society.</p> <p>9. A resolution of the general conference of the Primitive Methodist Church: “If any church or circuit shall have decided to withdraw from the connection, we bid them God speed, and pray that their newer association may bring to them grander opportunities for the advancement of His Kingdom,” is held not to have become a part of the discipline of the church, or open to construction as a consent, approval, or authorization of any withdrawal whatever, but to have merely the significance of an expression of resignation tova situation of inability to prevent such withdrawals, and lack of animosity towards those exercising such right.</p> <p>10. Under a deed to trustees with power to appoint some religious denomination to exercise the ecclesiastical possession over the granted premises and with pow;er to make another appointment should the appointee “withdraw its services,” a second appointment vests in the appointee the right to the possession and use of the premises until it in turn withdraws its services.</p> <p>11. Where a religious society was entitled to the use of certain church property until it withdrew its services, and, having been supplanted by another society, was strenuous in its efforts to regain possession for the purpose of conducting its services, failure to maintain religious services in the church is held, not to be a withdrawal of such services.</p> <p>12. A bill of exceptions recited, at the close of the evidence, that it contained “all the evidence material to the questions raised on the appeal,” and in the certificate it was declared to contain “all the testimony given on both sides necessary to present the questions raised upon the appeal.” Held, that the recitation at the close of the evidence, and necessarily certified to be true by ' the judge’s signature, satisfied all requirements.</p> <p>13. In the rule that, to enable this court on appeal to go behind either the findings or the verdict, there must be a certificate of the trial judge that the bill of exceptions contains all the evidence, the expression “all the evidence” means all necessary evidence.</p> <p>14. Where a religious society, only entitled to a limited use and possession of a church edifice, recovers judgment establishing its right to possession, the judgment should only establish its right to such limited possession and use.</p>

<p>Appeal from a judgment of the circuit court for Crawford county: Geoegke CleMENtsoN, Circuit Judge.</p> <p>Action to recover on an insurance policy. The complaint was in due form for the recovery of loss by fire insured .against by the contract contained in the policy. The defendant answered, among other things, that plaintiff had no insurable interest in the dwelling house, which was insured for $600, and that he forfeited all right to recover by reason of false swearing in making proofs of loss. The policy con-' tained conditions on both of such subjects. The evidence Was to the effect that plaintiff purchased the farm upon which the dwelling house insured was located at the agreed price of $4,600, $600 being paid doAvn, and the vendor, A. J. Hag-gerty, giving plaintiff a land contract in tbe usual form. Tbe plaintiff went into possession and made permanent improvements on tbe farm to tbe value of about.$1,000. About a year and a balf after tbe purchase was made, during wbicb time plaintiff paid interest to tbe amount of $240, it was agreed between tbe parties to tbe contract and one Kane that tbe latter should take a deed of tbe premises from Haggerty and make a new land contract to tbe plaintiff similar to tbe one made by Haggerty, and that tbe former should be substituted for tbe latter. That agreement was carried out, tbe new contract bearing date October 3, 1901, or about six months prior to tbe actual transaction between Kane, plaint-' iff, and Haggerty. January 23, 1902, plaintiff took out tbe insurance policy through tbe agency of Mr. Kane, insuring tbe dwelling bouse for $600, tbe household furniture therein and household goods for $300, and provisions to- tbe amount of $50. Several months thereafter plaintiff received an injury from wbicb blood poisoning set in and be left home and remained away, bis whereabouts being unknown, for about a year, when it was discovered that be was being cared for as an insane person in an asylum at Danvers, Massachusetts. Some time thereafter be recovered bis normal condition and returned to bis home. During bis absence and on March 1, 1903, taxes upon tbe land and interest upon tbe land contract being in' default and Mrs. Evans being somewhat embarrassed in respect to caring for tbe property, Mr. Kane proposed to give her $100 for a surrender of tbe property to him. She expressed a willingness to accept tbe proposition upon condition of her having till April 1, 1903, to dispose of her personal property, Mr. Kane to deposit tbe $100 with Thomas Coughlin and she to deposit with him tbe land contract and to vacate tbe premises in thirty days, tbe money and contract to be then delivered to tbe parties entitled thereto. Tbe money and contract were deposited accordingly, but tbe contract was not deposited till after tbe fire occurred. Mrs. Evans subsequently took the $100 and Mr. Kane took tbe contract. Proofs of loss under tbe policy were made by Mrs. Evans as agent for ber husband, aided by Mr. Sime, president of tbe defendant company. Before plaintiff returned she commenced an action in bis name to recover tbe loss. After such return tbe litigation was conducted by bis direction. Tbe cause was submitted to tbe jury for a special verdict containing questions agreed upon by counsel to cover tbe matters in controversy. Tbe verdict rendered was as follows :</p> <p>“(1) Did tbe plaintiffs wife, Mary Evans, knowingly and with intent to defraud tbe defendant company, make any false statements -in tbe proofs of loss submitted to tbe defendant company, in regard to tbe amount, value, or condition of any of tbe property damaged Or destroyed by tbe fire on March 5, 1903 ? A. No. (2) Did tbe plaintiff keep a good ladder of sufficient length to reach tbe roof of bis dwelling bouse in tbe immediate vicinity of said bouse? A. Yes. (3) If you answer tbe second question ‘yes,’ answer this question: Was said ladder in tbe immediate vicinity of said bouse at tbe time of tbe fire? A. Yes. (4) Was tbe plaintiff’s dwelling bouse provided with a scuttle or other means of reaching tbe under side of tbe roof from tbe inside of tbe bouse ? A. Yes. (5) If tbe court should finally decide upon your findings and tbe law applicable to this case that tbe plaintiff is entitled to recover, at wbat sum do you assess tbe value of tbe personal property damaged or destroyed by said fire, to wit: (A) At wbat sum upon tbe household furniture ? A. $51.26. (B) At wbat sum upon tbe wearing apparel? A. $50. , (C) At wbat sum upon tbe bedding? A. $25. (D)1 At wbat sum upon tbe provisions ? A. $25.”</p> <p>Defendant’s counsel moved tbe court to change tbe answer to tbe first question from “No” to “Yes” and to strike out tbe answer to tbe fifth question, and for judgment in favor of tbe defendant on tbe verdict as so corrected. As an alternative defendant’s counsel moved tbe court upon tbe exceptions taken on tbe trial to set aside tbe verdict and grant a new trial, and further to set aside the verdict and grant a now trial upon, various other exceptions specified. The motions were overruled. Thereafter judgment was rendered in favor of the plaintiff according to the special verdict and the defendant appealed.</p>

<p>Appeal from a judgment of the circuit court for Bicbland county: Geoege ClembNtsoN, Circuit Judge.</p> <p>Tbis action is in the nature of a creditor’s bill, brought by a trustee in bankruptcy to set aside, on the ground that the same was fraudulent as to creditors, a certain deed made by defendant N. H. Burgor to his wife and codefendant, Mattie Burgor, of a piece of real estate situated in the village of Viola upon which are located two business buildings, one used as a drug store and the other as a bank building. The deed was made October 26, 1903, and recorded within a day or so thereafter. November 6, 1905, defendant N. H. Burgor, who for many years had been doing business as a merchant and private banker at Viola, filed a petition in voluntary bankruptcy and was, on November 20, 1905, duly adjudicated a bankrupt. His liabilities as scheduled were upwards of $20,000, and his assets as appraised were about $7,500. The complaint alleges that he was, insolvent on the-date of the deed. Separate answers were made by defendants, Mattie Burgor denying all the allegations of fraud and fraudulent knowledge upon her part at the time of taking the deed, and alleging that the deed was, in fact, executed to secure her for the payment of various sums of money which she had furnished and loaned her husband from her separate estate in former years, and which, on the date of’ deed, amounted, including accumulated interest,,to $2,221.66, said answer asking that the deed he decreed to be an equitable mortgage for the amount found due her, and such-amount made a lien upon the premises prior to any lien decreed in plaintiff’s favor representing the creditors of her husband. The answer of defendant N. II. Burgor is substantially the same, alleging the receipt of money at various, times from his wife, which had never been repaid, and that the deed of October 26, 1903, was intended to secure her for-said loans. The case was tried by the. court, and the court found that the defendant N. II. Burgor was indebted to his wife on the date of the deed in the sum of $380 only, and that the conveyance was void as to creditors, except as-to defendant Mattie Burgor’s lien thereon for said sum, and that as to said sum the deed is an equitable mortgage. Judgment was entered on the findings of the court awarding plaintiff costs, and the amount of the costs as taxed was ordered to be deducted from the said $380, leaving $311.33 and interest to be paid to defendant Mattie Burgor by plaintiff before taking possession of said premises, from which judgment this appeal was taken.</p>

J. Fruit, Circuit Judge. Action to recover on contract. Henry C. Mierow filed a claim in tbe county court of Monroe county against tbe estate of bis father, Henry Mierow, wbicb was in process of settlement. There were two items in such claim, viz., $900 for three years’ work performed for tbe deceased, commencing in 1872 and ending in 1875, and $5,100 for seventeen years’ work, commencing in 1878 and ending in 1895.

<p>Appeax from a judgment of tbe circuit court for La Crosse county: J. J. Eeuit, Circuit Judge.</p> <p>An action to recover for injuries wbicb plaintiff’s intestate is alleged to bave sustained through, the defendant’s negligence. On February 20, 1903, Neis K. Nelson was a passenger for hire on defendant’s train from Mankato, Minnesota, to La Crosse, Wisconsin. This train was due at La Crosse at 10:45 p. m. When it arrived at La Crosse Nelson was carried by, and at about midnight was left at West Salem, the next station, twelve miles distant from La Crosse. Here he remained the rest of the night and the following day. It is alleged that he was ill at this time, and that defendant’s negligence increased and aggravated his illness, which resulted in permanent paralysis. The material facts of the case, which the evidence tended to establish, are as follows: Nelson resided at La Crosse, Wisconsin, and was a traveling salesman. On Sunday evening, February 15, 1903, he left home on a trip into Minnesota and arrived at Wells, Minnesota, Monday morning, where he stayed to transact some business. He left for Easton Tuesday morning. After his arrival he transacted some business and left there at 11:30 p. m. for Delavan, the next station, a short distance west, where he remained until the 5 p. m. passenger train, when he went to Winnebago City, arriving there shortly before 6 o’clock. After his arrival he partook of supper, and a short time afterward first began to feel somewhat ill. He says: “I felt trembling, shaky, sort of chill, if I may call it that, and sick at my stomach.” About 9 o’clock he retired, but did not sleep well. He felt somewhat ill the next morning, but went to Elmore on an early morning train, and, arriving there about 9 o’clock, visited some customers during the forenoon, and then for the first time observed that he could not move and handle his left arm and leg as well as usual— they seemed more difficult to control. At about 2 o’clock in the afternoon he took a train from Elmore to Mankato to go home. At Mankato, where he arrived between 4 and 5 o’clock, he. needed assistance to get off the train, and he says he needed this assistance because “I could not handle my arm and leg. I could not step down from the steps to the platform without some assistance.” Two traveling men assisted him off the train by taking hold of his arms, one on each side, and then assisted him to the hotel, which was across the street and railway tracks from the station. At the hotel he wrote his name on the register, and then, with •the porter’s assistance, walked to tire elevator and thence to his room. He remained in his room during the evening, the •night, and the following forenoon. In the evening he partook of a little lunch in his room, and retired about 9 o’clock, the porter assisting him to remove his clothing and to get into bed. About noon of the following day he arose, dressed, and, with the porter’s assistance, walked downstairs. In the afternoon, 'at about 2 o’clock, he left the hotel to walk to the depot. The two men who had helped him off the train the day before again assisted him to the depot. At this time he found that his leg and arm were in about the same condition as the day previous. Mentally he felt no ill effects, and, so far as he could tell, his faculties were not clouded or dulled. At about 2 o’clock he was assisted in getting onto the train and into the coach of the train for La Orosse, where, excepting for a short stop at Winona, he remained until he landed at West Salem. At about 9 o’clock in the evening he got off the train at Winona, went to a lunchroom for some lunch, and then returned to the car. Here he received some help from a gentleman in mounting the step of the car. He resumed his place in the car, and after leaving the station told the conductor that he was not well and wanted to get home, and requested that he be called in order to get off the train at La Orosse. The persons in charge of the train and can wherein plaintiff rode were thus informed of his illness and of his desire to get off the train at La Orosse.</p> <p>He did not hear the call for La Crosse, and did not discover this fact until the train had passed La Crosse. He then put on his overshoes, got up, walked to the conductor in the front end of the car, and stated that he wanted to get off at La Orosse. The conductor informed him that they had passed La Orosse, and that he could not let him off at the place where they were, but must take him to the next station, West Salem. This angered him somewhat, but he soon became composed and resumed his seat and rode to West Salem. Here be got off tbe train, tbe conductor and Mr. Wood, tbe hotel keeper at tbis place, helping him off, and Mr. Wood assisted him in walking to tbe hotel. Tbis was between 11 and 12 o’clock. Mr. Wood provided him with lodging by having him occupy a room with a Mi*. Larson, with whom Nelson bad been intimately acquainted for a number of years. Nelson states that be felt sick, weak, and tired, and was in about tbe same condition as theretofore; that be did not know tbe nature of bis affliction and bow serious it was, but that be was somewhat frightened and anxious to-get home to get help. He says be undressed to retire without Larson’s assistance; but Larson states that be bad observed that Nelson was lame, and that be helped him to remove bis shoes and clothing and to retire. Nelson states that be did not sleep well; that be was restive and nervous; that be awoke ,at 6 o’clock in tbe morning, felt fatigued, bad no appetite, wanted no breakfast; that bis left leg and bis arm were unruly and would not take bold of anything like bis right arm; and that, excepting that be got up and went to-tbe toilet for a drink of water, be remained in bis bed until about 3 o’clock in the afternoon. Larson assisted him to-dress when be got up in tbe afternoon. They conversed somewhat, and Larson says that Nelson’s mind was somewhat dazed, and be was not- as be was before. He helped him downstairs. Nelson stated that be wanted to go home-on tbe train leaving about 5 o’clock. With Larson’s assistance be walked from tbe hotel to Johnson’s store, where be recognized and spoke to persons be bad known. They then returned to tbe hotel, and, with Larson’s help, be walked into-tbe dining room, where be partook of some tea and toast. Larson testifies that be observed bis face and noticed that tbe left side of bis mouth dropped, and that, when be attempted to drink tea, some of it escaped from tbis side of his mouth. After supper be reclined on a lounge until about J o’clock, when they went to tbe train. Larson and another gentleman assisted bim to walls to tbe train and put bim on board. Larson went with bim to La Crosse, where be and tbe brakeman helped Nelson off tbe train. Larson and a hackman helped him into a back, took bim to bis home, and helped bim into tbe bouse, when Larson and tbe members of tbe family immediately assisted bim upstairs. Larson testifies that they half carried and that be half walked up stairs to bis bedroom, where tbe family helped to undress and assist bim to bed. Dr. Gunderson was immediately called and soon appeared. He examined bim and describes bim as being numb in tbe whole left side of bis body, including tbe tongue and face. lie could move bis left arm and foot somewhat, but was weak and feeble; tongue would fall to one side; was able to talk; sensorium a little cloudy, not as bright as before; thought be was suffering from quite a severe hemorrhage, which was increasing. During tbe first twenty-four hours be became so entirely paralyzed that be could not move bis whole left side. His mind was a little cloudy, and be thought he would not recover from tbe ailment.</p> <p>Nelson was well acquainted with the hotel keeper, Wood, Mr. Larson, and others at West Salem. He knew that there was telegraphic communication with La Crosse and telephonic connection between tbe hotel and bis home. He was acquainted with tbe physicians in practice there. He sought no medical aid at this place, nor did be send for members of bis family or bis family physician at La Crosse. Tbe opinion evidence of tbe physicians was to tbe effect that paralysis is caused by tbe rupture of a blood vessel in the brairf. This permits suffusion of tbe blood and consequent pressure on tbe brain, destroying or impairing tbe centers of motion or sensation. Tbe degree of paralysis depends upon the extent of tbe hemorrhage. Tbe extent of tbe hemorrhage is judged by tbe indirect symptoms of tbe degree of impairment of motion and sensation. The progress of the hemorrhage and its cessation and recurrence can be diagnosed only by the variations of these paralytic symptoms. The approved medical treatment is to keep the patient and his environment as quiet as possible, place him in a reclining position with the face upright, his head slightly elevated, to apply packs of ice to his head, and to evacuate his bowels. Excitement of the brain and nervous system from fright, anger, motion, or intense mental strain are injurious to the patient in the early stages of the ailment and tend to produce a recurrence of the hemorrhage. The causes producing the lesions of the brain and the resulting paralysis are not definitely known. It comes to persons under all circumstances and conditions, varying from extreme shocks, violent motion, and excitement to conditions of absence of shock, absolute quiet and repose, both mental and physical. In response to hypothetical questions based on the evidence adduced, the physicians gave it as their opinion that on Tuesday evening Nelson suffered a slight paralysis from a hemorrhage which soon reached its climax, and that it had stopped flowing before Thursday evening when he arrived at La Crosse; that his condition kept growing worse during the night and day at West Salem and upon his return home Friday night; that this aggravation of his condition indicated a recurrence of the hemorrhage; and that such a result was caused by the excitement incident to the worry, physical efforts, and mental strain to which he was subjected by being taken to West Salem, his stay there, and his return to La Crosse, and the consequent delay in receiving care, rest, quiet, and appropriate treatment, at his home.</p> <p>The case was submitted to the jury by a special verdict. They found that defendant was negligent in carrying Nelson by La Crosse; that from being so carried by his paralysis was aggravated; that such aggravation of Nelson’s paralysis was the natural and proximate result of defendant’s negligence in carrying him by La Crosse; and that, in the light of the attending circumstances, a person of ordinary intelligence and prudence ought to have foreseen that some injury might result to Nelson. The court awarded judgment for plaintiff on the verdict for the amount assessed by the jury, and for costs. This is an appeal from such judgment,</p>

<p>‘.Certiorari: When issued: Discretion: Parties: Highways: Review of award of damages: Adequate remedy.</p> <p>1. The writ of certiorari is not a writ of right, but is issued only-in the discretion of the court as an extraordinary process when other and ordinary remedies are inadequate.</p> <p>2. A writ of certiorari cannot issue save on the relation of a party to the record sought to be reviewed, either in name or in substance, in the sense that the decision sought to be reviewed would involve special, immediate, and direct injury to his interests.</p> <p>•3. A taxpayer as an individual, on behalf of himself and other taxpayers similarly situated, sued out a writ of certiorari to review and annul the decision of an appellate jury appointed by the county judge to review an award of damages to A., resulting from the opening of a highway through his premises upon an application signed by relator and others, A. being the appellant. Held:</p> <p>(1) The decision of the jury merely created an ostensible and •prima facie claim against the town: legal if the decision was valid, no claim m fact or law if the appellate proceedings were void.</p> <p>(.2) The town being a legal person capable of making its own defenses, the effect of the decision of the jury on the plaintiff was neither special, immediate, nor direct. It was not special, for it fell upon him only in common with the great body of taxpayers. It was not direct or immediate, for it fell upon the town and reached the relator only through the general process of taxation,</p> <p>(3) While taxpayers might in a proper case invoke the aid of the court to prevent the depletion of the common treasury or prevent an illegal charge thereon, the primary duty and right to resist such injury rested on the town itself acting by its constituted authorities, and the relator could not he heard to champion the rights of the town without showing that the officers refused to do so either by words or acts.'</p> <p>(4) Before the relator could suffer any injury from the award of the jury it must be presented either to the town board or to tlie electors in town meeting, and no presumption exists that either body would allow or pay it if illegal.</p> <p>(5) If the award were disallowed by the town board or town meeting the claimant, in order to enforce it, must sue upon the award, and in that suit all the grounds of invalidity suggested by the petition or writ would be available for consideration.</p> <p>(6) The court rightly exercised its discretion in quashing the writ.</p>

J. Eeuit, Circuit Judge. This action was brought to recover damages for assault and battery.. At the time of the alleged assault and battery plaintiff was a butcher workman employed in the city of La Crosse, Wisconsin. He was a member and officer of an organization commonly known as the Butchers’ Union.

Appbax, from a judgment of tbe circuit court for La Orosse county: T. J. Eeuxt, Circuit Judge. This is an action to recover damages by reason of injuries caused by tbe alleged negligence of tbe defendant October 8, 1904, wbicb resulted in tbe death of tbe plaintiff’s intestate, then in tbe employ of tbe defendant.

<p>■Criminal law: Robbery: Assault with intent to rob: Evidence: Information: Sufficiency: Statutes: Pleading: Variance: Instructions to jury: Dangerous weapons. ,</p> <p>1. In a criminal prosecution for an assault with intent to rob, tbe evidence, stated in tbe opinion, is held to sustain a verdict of guilty.</p> <p>:2. Tbe elements of tbe crime at which sec. 4375, Stats. 1898, is directed are: (1) assault; (2) actual robbery; (3) being armed with a dangerous weapon; and (4) intent, if resisted, to bill or ^aim, or, in lieu of this intent, actual wounding or striking. Hence an-information charging that tbe defendant feloniously 'assaulted tbe complaining witness and put him in fear and actually robbed him, specifying an amount, tbe defendant being armed with a dangerous weapon, to wit, a revolver, wholly omits tbe fourth element and does not charge tbe crime defined by that section.</p> <p>’3. Such information does, however, charge tbe crime defined by sec. 4376, Stats. 1898 (providing that any person being armed with a dangerous weapon who shall assault another with intent to rob or murder shall be punished).</p> <p>4. Although such information charged actual robbery instead of intent and was followed by a verdict of guilty, there is no prejudicial variance between the statute, the information, and the verdict, since, while the information charged more than the statute required, it in legal effect charged also all that the statute and verdict covered.</p> <p>5. In a criminal prosecution for assault with intent to rob being armed with a dangerous weapon, the court stated in its charge that no one had given any testimony upon the question whether the defendant was armed at a specified time and place. Held, that testimony of the defendant that he had no revolver on the night in question did not render such statement erroneous, since the jury must have understood the charge as referring to absence of specific testimony, and not that defendant’s testimony was untrue or not to be considered.</p> <p>6. An empty revolver merely pointed at a person, and not used to strike with, is not a dangerous weapon, however much the person at whom it is pointed may be put in fear.</p> <p>7, A loaded revolver pointed at a person within shooting distance is a dangerous weapon as a matter of law.</p> <p>8. In a criminal prosecution when the state proves that a gun or revolver was pointed, at a person within shooting distance with a threat or other words indicating intention to fire, the person assailed not knowing but that it is loaded, the state has made prima facie proof that the gun or revolver was loaded and consequently a dangerous weapon.</p> <p>9. Such facts, if proven beyond a reasonable doubt, conclusively establish an assault, are prima facie proof that the assault was committed with a dangerous weapon, and it then devolves upon the defendant to show that the weapon was not loaded in order to meet the presumption that it was loaded.</p> <p>10. In a criminal prosecution for an assault with intent to rob being armed with a dangerous weapon, there was no direct proof that the revolver was loaded, and instructions to the jury, stated in the opinion, are held erroneous in omitting any proper instruction as to what constituted a dangerous weapon, and in stating that if the revolver, as used, was the means by which the complaining witness was compelled to submit to the robbery, it was thereby shown to be a dangerous weapon.</p> <p>11. In such criminal prosecution it was error to refuse a requested instruction: “You are instructed that if you can reconcile the evidence before you upon any reasonable hypothesis consistent with the defendant’s innocence, you should do so, and in that case acquit the defendant,” such instruction not having been covered by the general charge.</p>

EbeoR to review a judgment of the municipal conrt of Milwaukee county: A. 0. Bbazeb, Judge. The accused was charged with having stolen three barrels of meat, the property of the Plankinton Packing Company, of the value of $55.20, and was found guilty. The cause was appealed to and tried in the municipal court- of Milwaukee county on evidence taken in the lower court, a jury being waived.

M. Webb, Circuit Judge. Action in ejectment to recover premises described in tbe complaint as lot 5 of subdivision of fractional lot 7 of section 8, township 22 north and range 6 east, according to Sargent’s plat of tbe city of Grand Eapids, containing about two and one-half acres.

M. Webb, Circuit Judge. Mary Weed, at that time Mary Breed, presented a claim in county court against the estate of Catherine M. Breed. This claim was disallowed, and, in the manner provided by statute for appeals from the county to the circuit court, she perfected an appeal to the circuit court.

M. Webb, Circuit Judge. J.P. Malicie petitioned the circuit court for Portage county, in an action that had proceeded to judgment in such court entitled as follows, to wit: Jackson Milling Company, plaintiff, v. A. Scott, defendant, setting forth in substance as follows: May 25, 1897, plaintiff obtained judgment in tbe county court of Portage county for $360.47 and costs against defendant A. Scott.

<p>Appeal from a judgment of the circuit court for Waupaca county: Chas. II. Webb, Circuit Judge.</p>

<p> Order made in proceedings to examine adverse party: Interlocutory orders: Appealable orders. </p> <p>1. The examination of a party under the provisions of sec. 4096, Stats. 1898, is both a special proceeding and a provisional remedy.</p> <p>2. An order requiring the witness to produce books and papers, made in the course of an examination of a party under the provisions of sec. 4096, Stats. 1898, is merely an interlocutory order regulating the manner of procedure upon the examination, is in no sense a final order, and does not in any proper sense grant, refuse, continue, or modify such provisional remedy.</p> <p>3. Such order is not appealable under the calls of sec. 3069, Stats. 1898.</p>

M. Webb, Circuit Judge. Action to recover on a sale contract between plaintiff as-seller and the defendant as purchaser, the terms of which were as follows: “To.The F. MacKinnon Mfg. Go.: “Quantity... .40 tons malleable castings. Patterns to be furnished by buyer. Castings to be good and suitable quality for hub • bands.

M. Webb, Circuit Judge. Complaint was made by David Morgan, tbe present respondent* to the county judge of Waupaca county, .under sec. 978 eb seq., Stats. 1898, alleging that tbe relator, Velie, having been removed from tbe office of treasurer of a certain school district, and tbe petitioner having been duly appointed thereto, tbe former retained, and against tbe latter’s demand refuses to deliver, tbe books, papers, and money in bis custody as such treasurer.

Croix, county: E. W. HelMS, Circuit Judge. Tbe plaintiff is owner of a lot abutting on Third street in. tbe city of Hudson. In tbe year 1900 tbis street was graded by tbe proper authorities of tbe city of Hudson. Tbis resulted in raising tbe street grade above tbe level of plaintiff’slot, from about one foot at tbe northeast corner to about seven feet at tbe southeast corner.

W. ITelks, Circuit Judge. Tbis action was brought by the plaintiff to recover the purchase price of a gasoline engine and freight charges upon rescission of contract of sale because of alleged breach of warranty. The plaintiff claims to have purchased the engine from defendant, a Minnesota corporation doing’ business at Minneapolis, through its agents, Wright & Thum, implement dealers at Menomonie, Wisconsin.

<p> Partnership: Realty as partnership assets: Pleading: Demurrer:Fraud: Resulting trusts: Statute of frauds: Parol evidence. </p> <p>1. In an action to charge defendants as trustees holding the legal' title to certain real estate for the plaintiff partnership, it was alleged in the complaint, among other things, that the defendant C. had been a member of a partnership with plaintiffs for-years, conducting business on tbe premises in dispute, the legal title to one third of which was in each partner in trust for the firm; that, the firm haying dissolved by mutual consent, C. retired and sold to plaintiffs all his interest in the firm assets and property, including such real estate; that by the agreement of dissolution the plaintiffs assumed all obligations against the firm, released C. therefrom, and paid him the balance due him on such dissolution; that C. received such agreement, release, and payment in full satisfaction for his interest in the firm property, but failed to make conveyance thereof to plaintiffs; that thereafter the remaining partners for over eight years carried on the same business upon and were in the actual, open possession and occupancy of such real estate without objection or question by C.; that C. had, for the purpose of defrauding plaintiffs, wilfully and wrongfully, and in violation of the trust imposed, conveyed the legal title to such one third to his co-defendant, who accepted such conveyance, with full knowledge of the facts, for the purpose of defrauding the plaintiffs. The complaint prayed that defendants be adjudged to hold the legal title to such real estate in trust for said firm and for the plaintiffs. On appeal from an order overruling a demurrer to such complaint, held:</p> <p>(1) The real estate in question was property belonging to the partnership up to the time of its dissolution.</p> <p>(2) Although the complaint did not in express terms allege that C. agreed to convey to plaintiffs such legal title, such agreement was necessarily implied from allegations that plaintiffs purchased the real estate from C. and paid him in full the agreed purchase price.</p> <p>(3) C.’s refusal to convey the legal title to the lands to plaintiffs and his conveyance to his co-defendant was a breach of a trust and a fraud on the plaintiffs.</p> <p>(4) The transaction between plaintiff and C. did not create an express trust within the calls of sec. 2081, Stats. 1898, but a resulting trust within the calls of sec. 2076 (excepting from the chapter on uses and trusts those arising or resulting by implication of law).</p> <p>(5) The demurrer was properly overruled.</p> <p>2. Real estate purchased for partnership purposes and appropriated to those purposes and necessary therefor, always becomes partnership property, and it is immaterial in what manner, or by what agency, the land is bought, or in what name it stands. The partner holding the legal title to land, however it may have come to him, will be held as trustee for the partnership, if it be certain that the land was in fact a part of their joint property as partners.</p> <p>3. Where a partnership holds land not as the chief purpose of its existence, but as an incident to its business, the statute of frauds does not apply, and the land may be shown to be part of the partnership stock and affected with partnership equities by oral evidence.</p> <p>4. Real estate so purchased and held is in equity not only considered as the property of the firm for the payment of its debts, but also for the purpose of adjusting- the equitable claims of the copartners between themselves.</p>

<p>Appeal from a judgment of the circuit court for Dunn •county: James O’Neill, Judge.</p> <p>This is an action to recover upon a promissory note of $400 executed by the defendant to the plaintiff March 23, 1904, ■on which $100 is admitted to have been paid. The defendant by answer alleged in substance that the note in question was executed solely in consideration of an illegal and void •contract made at the same time, by the terms of which defendant was to have the exclusive right to sell to residents of ■Gates county a certain patent pole and thiil coupling, to be manufactured by plaintiff at prices specified, as well as the privilege of selling to other residents of Wisconsin the exclusive right to sell such couplings in other counties; the plaintiff agreeing to pay him one half the cash and notes received on such sales of territory to residents of Gates county ■secured by him and one fourth the cash and notes received from sales of territory to residents of said county not secured by him, also one half the cash and notes received from sales •of territory to residents of the state secured by him, provided the county from which such sale was made was unsold fo others, and in that case to pay him one fourth the cash and notes received from sncli sale. And it was further agreed that each person to whom a sale was made should have the-same right as the defendant to sell exclusive territorial rights in other counties, and purchasers from him still the same rights, and so on without limit. The answer further alleges, that the right to sell such couplings in Gates county was of no value and known to be of no value by the parties, and did not form any part of the inducement to make said contract, but that the sole inducement was the right to sell other territorial rights in other counties, with the right of resale thereof in the purchasers. Two counterclaims are also pleaded, which are unnecessary to be stated. The plaintiff replied, alleging that the note was made in consideration of a -written agreement and not otherwise, and denying any representation, warranty, or agreement other than those contained in such written agreement. A copy of the written agreement was attached to the reply, and is as follows:</p> <p>“Articles of agreement made and entered into this twenty-third day of March, 1904, by and between the Twentieth Oentury Company, a Wisconsin corporation, of Tomah, Wisconsin, party of the first part, and Herbert W. Quilling of Menomonie, county of Dunn, state of Wisconsin, party of the second part, witnesseth: The said party of the first part, for the considerations hereinafter mentioned, has agreed and does hereby covenant, promise, and agree: 1st. To grant and does hereby grant to said party of the second part the exclusive right and privilege of reselling its pole and thill coupling patent No. 718,893, with double spring improvement, in the county of Gates and state of Wisconsin, to residents only of, and for use in, said Gates county, for a term of seventeen years from January 20, 1903. 2d. To sell said pole and thill coupling to said second party in any quantity he may wish to purchase for the purpose of reselling same, in manner’, as above specified, in the above granted territory, at $3 per dozen with single spring, at $3.60 per dozen with double spring, and at $9 per dozen nickel plated, f. o. b. factory, during the continuance of this contract. 3d. To pay said second party opse half of the cash and one half of the notes received, from sales of territory to residents of said county secured by bim. 4th. To pay said second party one fourth of the cash and one fourth of the notes received from sales of territory to residents of said county, not secured by said party. 5th. To pay said second party one half of the cash and one half of the notes received from sales of territory to residents of the state of Wisconsin, secured by said second party, provided that the county from which said sale is made is unsold to others, and in that case to pay said second party one fourth of cash and one fourth of notes received. No payments to be made on this contract until note given therefor has been fully paid; in case of any dispute arising over division of commission earned hereunder, the decision of the purchaser shall in all cases be final, conclusive, and binding on all parties hereto. (This contract is operative only when countersigned by D. W. Jackson.) And said second party in consideration of the above has agreed and does Hereby promise and agree to pay said first party five hundred ($500) dollars on the signing of this agreement, and that he will make sales of said pole and thill coupling strictly in accordance with the right and privilege herein granted.”</p> <p>Trial by jury was waived, and the case came on for trial before the court. The plaintiff offered the note, contract, and its articles of incorporation in evidence, and rested, its ownership of the patent being admitted. The defendant was then called as a witness in his own behalf, and after stating that he met the plaintiff’s agent March 23, 1904, he was asked what conversation he had with the agent in regard to the business in question. Objection was made to the question on the ground that any oral arrangements were merged in the written agreement, and the court sustained the objection, and also ruled that the written agreement was a valid agreement. Thereupon the defendant offered to amend his answer by adding to it allegations to the effect that the contract between himself and the plaintiff was partly oral and partly in writing; that a part of the contract was that plaintiff agreed to make effort to obtain purchasers of territory under similar contracts; that it was understood that the right to sell territory and induce others to make similar contracts was, in fact, tbe sole consideration for tire giving of tbe note, and that the right to sell couplings in Gates county was not of any real value, but was inserted for the purpose only of giving it an appearance of legality; that it was also agreed and understood that it should not be made known to persons who were to he induced to make like contracts how many counties remained unsold; that said contract, when carried out as contemplated, would result in a large number of people being cheated and defrauded by reason of there being no remain-' ing counties unsold, and that the understanding was that the plaintiff was not to sell couplings, but that he was only to endeavor to make money by selling territory and inducing others to make like contracts, the result contemplated being that the first persons to go into the scheme would make money, and the persons who bought later would lose money. The amendment was rejected on the ground that it stated no defense, and offers to make proof of facts tending to support the proposed answer were also rejected. The testimony was then closed, and the court found that the transaction was valid and free from illegality and rendered judgment for the plaintiff for the amount unpaid on the note, from which judgment the defendant appealed.</p>

<p>Appeal from a judgment of tbe circuit court for Pepin county: E. W. Helms, Circuit Judge.</p> <p>Action to recover on three promissory notes dated February 18, 1903, one for $934, and two for $933 each, made by tbe defendants, payable to the order of Robert Burgess & Son, with six per cent, interest per annum payable annually, the first one being made payable July 1, 1904, the second July 1, 1905, and the third July 1, 1906. Each note provided that in case of any delinquency to meet it as to principal or interest the whole should become immediately due. >The complaint contained a cause of action stated' in the usual form as to each note, the two causes of action as to the notes not due on their face containing sufficient allegations to show that they were due under the condition before mentioned. Defendants Smith, White, Andrew Larle, Stranberg, Anderson, and A. P. Larh answered jointly. Defendants Dunn, Dngel, Heitman, and V. Brownlee answered jointly. Defendants Smith, Andrew Larle, and A. P. Larle joined in an amended answer, defendant Franlc answered separately, and the defendant Stranberg interposed an amended answer. By these several answers, as to all defendants, issue was taken on the allegations of the complaint as to plaintiffs having become owners of the notes for value in due course before due, and as to whether the second and third notes became due before the commencement of the action. A defense was pleaded as to all defendants, that the notes were given for a stallion sold with certain specified warranties and representations, among them being one that the animal was but three years of age, and that such representations were false. Further defense was pleaded that each and all defendants signed the notes under an agreement that they were to be signed by Otto Jahhke and B. J. Hall and were not to take effect till so signed, and that neither of such persons did so. Defendants Dunn, Dngel, Heitman, and Brownlee pleaded that they signed the notes with the understanding that they should not be held liable; that their signatures were wanted only to make it appear that they were actual purchasers of shares in the horse. Defendant Franlc answered specially that he never executed the note. Defendant Stranberg answered specially that he was induced to sign through, threats, fraud, aud duress practiced upou him by the agent for the sellers of the horse; that he signed a hook agreeing to take a share in the animal and to sign the note, but that he did not recollect it when asked to sign the note; that his name was placed on the hook when he was so intoxicated that he did not know what he was doing; that his signature was subsequently exhibited to him and he was threatened with being sent to state’s prison if he did not sign the notes, and that being thereby frightened and through his inexperience, being ignorant of his rights, he signed the notes.</p> <p>At the close of the evidence the court directed a verdict in favor of the plaintiffs against defendants Smith, Andrew Larh, and A. P. Larh as to the first note, and a verdict in the latter’s favor as to the other notes, and otherwise submitted the cause to the jury, resulting in a verdict in plaintiffs’ favor for the full amount claimed. Thereafter upon due application the verdict directed in plaintiffs’ favor was set aside and the verdict otherwise rendered in plaintiffs’ favor was also set aside, as said by the court, “for errors of the court in so directing a verdict and in submitting certain issues to the jury and instructions thereon.” Thereupon, on motion of the defendants, judgment was ordered in their favor and was ■accordingly rendered.</p>

<p>Appeal from a judgment of the circuit court for Sauk county: E. Ray Stevens, Circuit Judge.</p> <p>Defendants, local hardware dealers, ordered from the Eut-tan Manufacturing Company certain bar grates for one of their furnaces in use in a school building at Bamboo. They received from the plaintiff such grates, which were turned •over to the school officers and put into the furnace. A few ■days later defendants received from the plaintiff a bill of $45 for the grates, with the explanation that the plaintiff was the successor to the business of the Euttan Manufacturing Company. Defendants objected to the price, and sent their check for $21.37, which they claimed to be fair. Plaintiff' immediately replied that the manufacturers had raised price of these grates, and they could not be obtained for less, but gave defendants the choice to retain the goods and pay the price of $45 for 'same, or to return them to the shipper at once. To this proposition the defendants replied November 14, 1902, by letter, that, upon return of their check, the goods would be returned at once, as per instruction. The check was sent them. Bpon a later inquiry defendants wrote, December 11th, “the furnace repairs that you refer to have been returned, as per instructionsbut, as matter of fact, they never did return them, and they remained in the school furnace permanently. About December 31st a set of castings was made by a local foundryman from those grates as patterns, and those castings were sent in pretended return of the grates, but were refused. The complaint, after amendment in circuit ■court, declared that prior to November 14th defendants were in possession of these goods received from plaintiff; that on that date defendants agreed with plaintiff that they would return and redeliver said goods, but that they had wholly failed .and neglected so to do, and thereby plaintiff had suffered damage in the sum of $60, together with interest on $45 from November 14th, for which amounts judgment was prayed. The foregoing facts were established without controversy, except as to the damages. Upon the trial but one issue was submitted to the jury, namely, the reasonable value of the property in question in October, 1902, which was answered by the-jury to be $20.62. The defendants, before suit, having tendered $26.25, and maintained the tender by delivering it into court, the judgment directed that such sum of $26.25 be-turned over to plaintiff, and that defendants recover judgment for costs. From this judgment the plaintiff appeals.</p>

<p> Highways: Insufficiency: Personal injuries: Frightening horses: Reception of evidence: Appeal and error: Direction of verdict. </p> <p>1. In an action for injuries caused by a horse taking fright at material placed in a highway, the plaintiff is not prejudiced hy the admission of evidence offered by defendant showing the purpose for which the material was placed in the highway, where the complaint alleged that it was so placed for use in repairing a culvert in the highway, although the answer did J not allege it was placed there for that purpose.</p> <p>2. In such case, were the complaint silent on the subject, such evidence would only he proper if the defendant had alleged such fact to show that the use of the highway for such deposit was within recognized exceptions to the general rule requiring highways to be kept free from obstructions tending to make them unsafe for public travel.</p> <p>3. In an action for injuries caused by material deposited in a highway by a contractor engaged to repair a culvert, it appeared that the material consisted of boards, planks, barrels, and a mortar box with a coating of dry white material, placed oil top of the other material so as to elevate it about three feet, all placed within about two feet of the traveled track. It also appeared that the material could readily have been, placed along the margin of the highway, near a fence, some twenty feet distant from the traveled track. Held, that it was error to direct a verdict for the defendant.</p> <p>4. In such case the ruling was held unobjectionable so far as it related to the length of time,the material had been left in the highway, the manner of piling the material, and the leaving of it without a lantern or other signal to apprise travelers of its presence and location in the road, but erroneous in that it did not submit to the jury the question whether the box and other material was unnecessarily dangerously near the traveled track of the highway, making it defective for public travel.</p>

<p>Appeal from a judgment of the circuit court for Sauk county: E. Rat Stevens, Circuit Judge.</p> <p>This action was brought by the appellant against the respondent town of Reedsburg, Sauk county, Wisconsin, to recover for personal injuries sustained by her on account of’ an alleged defective highway in said respondent town. The appellant' had resided in said town for about eleven years-prior to the time of injury, and was accustomed to riding over the highway in question. The defect complained of' consisted of a large sand rock extending across tbe Highway. Appellant at the time of injury was riding over the highway upon a load of potatoes, and claims to have been thrown therefrom by a jolt occasioned by the wheels of the wagon striking the rock in the highway. It is alleged in the complaint that '.the highway runs north .and south; that the defective condition was a few rods north of where the road leading from Lime Ridge joins the highway, running north from Logan-ville to Reedsburg; that the highway is extensively used; that ■said highway was laid out on land that is rolling and which slopes to the south, and that underneath and at the surface there exists a great deal of sand rock, from which the water had washed the dirt for a considerable distance and carried it down the hill; that running across said highway at this point is a large sand rock which extends across the entire portion of the highway used for travel; that at either end, either as a part of the rock or as a second large sand rock, towards the south and east on one side and towards the south and west on the other, there were large sand rocks; that said rocks were ■large and the rain and water washed the dirt away, leaving a depression of from twelve to fifteen inches and running back from said center rock southerly a distance of from fifteen to eighteen feet; that it is impossible to drive on either ■side of this portion of said road or that portion usually taken in driving because of the existence of said rocks; that in traveling over said highway in going from south to north it is necessary to drive over this portion of the highway that had been partially washed out; and that said highway in consequence thereof was insufficient, defective, unsafe, and dangerous for public travel, and had so existed for several months prior to the injury.</p> <p>The answer admits the residence of the appellant, and that the place where the injury occurred is a public highway, and denies the other material allegations of the complaint, and alleges that the injuries alleged to have been received by appellant were caused, if at all, by her own negligence. It is conceded that notice of the injuries was served upon the respondent as required by law, and that the appellant’s claim was duly filed with the respondent town and its proper officers in manner prescribed by law, and that said respondent refused to allow said claim or any part thereof. The case was tried by the court and a jury, and after the evidence was in the court directed a verdict in favor of defendant on the ground that plaintiff was guilty of contributory negligence. On direction of the court the jury returned a verdict for defends ant, to which plaintiff duly excepted, and from judgment in favor of defendant this appeal was taken.</p>

<p>Appeal from a judgment of the circuit court for Sauk county: E. Kay SteveNs, Circuit Judge.</p> <p>This action was commenced February 9,-1905, to compel the defendant to remove from the plaintiff’s mill pond the structure and sewer described in the complaint, and to perpetually enjoin the defendant from erecting or maintaining within the limits of the flowage created by the dam any obstruction of any kind or description, and for damages and costs. The complaint alleged facts sufficient, if true, to entitle the plaintiff to such injunction. February 28, 1905, the defendant answered by way of admissions, denials, and counter allegations. The case came on for trial April 24, 1905, and, after’the close of the trial, the court made findings of fact wherein it is found, in effect, that the plaintiff was the owner in fee of the premises described in the complaint and of the milldam, water power, and rights of flowage appurtenant thereto; that such dam had been established and maintained on said premises at the same height and to the same extent as at the commencement of the action for more than thirty years immediately prior thereto, without interruption and under claim of right by the plaintiff and his grantors, and they had thereby acquired and owned at the time of the commencement of this action the right to flow-over all lands covered by the mill pond created by said dam that the defendant owned and occupied lands adjoining said pond upon the south; that opposite said lands of the defendant and extending northerly into said pond and nearly at right angles to the stream, without permission or authority from the plaintiff, entirely within the limits of such flowage belonging to the plaintiff, the defendant built- a board and post structure described as follows: 2x4-inch posts driven eighteen to twenty-four inches into the bottom of the pond and about two feet apart, extending in two lines about eight feet apart, forty feet within the limits of said flowage right of the plaintiff, and a like row of posts across the north end of such structure; that upon these posts the defendant securely nailed boards eight to ten inches wide, placed closely together, extending nearly to the bottom of the pond and above the surface of the pond sixteen or eighteen inches, and within the inclosure formed by the structure the defendant placed sawdust and other refuse; that the said milldam consisted of the flume and gates leading to the plaintiff’s mill, and waste gate fourteen feet wide, and west of that an overflow dam constructed of piling bolted together, plank apron extending under the pond to the south end of earth and rock; that the whole of said overflow dam was ninety to one hundred feet in length, and west of said overflow dam was an earthen dike, constituting a part of the dam, from forty to fifty rods in length; that said earthen dam extended both to the west and east of said land of the defendant, which was situated upon the opposite or south bank of the stream and pond; that the said dam and waste gate were upon the north side of the stream and pond; that the entire width of the stream at the point where said structure was built was 180 feet, and the depth of the water at the ordinary stage not to exceed four feet at the deepest place; that the portion of the dam so constructed of earth was easily washed away by water flowing over it or by currents of water in the pond flowing against it; that the stream was subject to sudden rises of water and floods; that during such periods the water from the whole pond flowed toward the dam; that at such times there was a decided current over the place where the defendant built said structure; that at such times it was often necessary, in order to save the dam from overflow, to open the waste gates and permit the water to escape; that there was danger that such structure might be carried by the current down the pond and stop the passage of water through the waste gate and result in the destruction of the dam; that there was also danger, in case such structure should be washed away, of debris being carried into the flume and damaging the gates and wheel; that such structure was an obstruction to the flow of water in said pond in times of freshet; that it endangered the dam, and that any snob structure was an invasion of tbe plaintiff’s rights of flowage and increased the danger of overflow in times of freshet and, consequently, injury and loss to the plaintiff; that the said dam and water power thereby created and appurtenant thereto was a valuable right and was found to be worth from $400 to $600 per year, and that the danger of injury to the plaintiff resulting from such structure recurred with each succeeding freshet. As conclusions of law the court found, in effect, that the plaintiff had no adequate remedy at law for the injuries mentioned; that the defendant should be ordered and required to remove said structure completely and entirely from said pond; that the defendant and all persons claiming under him he restrained •and enjoined from erecting or maintaining any similar structure within the limits of said mill pond; that the plaintiff was entitled to taxable costs and disbursements in this action against the defendant; and ordered judgment to be entered accordingly. Erom the judgment so entered the defendant •appeals.</p>

<p>Mandamus: Intoxicating liquors: Revocation of license: Certiorari: Adequate remedy: Statutes: Construction: “Order:” “Made pur-' suant to law:” Hearing before common council: Complaint: Defects: Waiver.</p> <p>1. It is the settled law of Wisconsin that mandamus will lie to compel the common council of a city to revoke a liquor license in a case where, upon complaint duly made, the facts requiring such revocation are established heyond dispute.</p> <p>2. Although certiorari is a complete and adequate remedy for one who has been wrongfully deprived of his license, it is not a complete and adequate remedy where a common council dismisses proceedings for the revocation of a license when it should have revoked the license, since a judgment reversing that dismissal is barren of any substantial result except to remove a possible bar to the beginning of a new and independent proceeding for revocation.</p> <p>3. Under see. 1558, Stats. 1898 (providing that a license for the sale of intoxicating liquors may he revoked, among other things, for failure to observe “any order of such supervisors, trustees, aldermen, or county superintendent of the poor, or any of them, made pursuant to law”), the word “order” is a word of broad and general meaning, includes all commands, precepts, or rules made by competent authority, and hence includes an ordinance passed by the board of aldermen of a city which has been approved and published so as to become valid.</p> <p>4. If such an ordinance is within the power of the common council it is an order “made pursuant to law.”</p> <p>6. A common council having duly enacted and published an ordinance prescribing the hours of closing and opening for saloons, complaint was made to the common council that a licensee was guilty of a violation of such ordinance. On the hearing the evidence clearly showed such violation, but the common council nevertheless refused to revoke such license. Held:, that the action of the common council could be corrected and coerced by mandamus.</p> <p>6. In such case the complaint was radically defective, in that it charged a sale of liquor after the prescribed hour of closing but failed to charge a sale thereafter and before the hour prescribed for opening. On the hearing before the common council no objection was made to the sufficiency of the complaint, and the answer and proofs showed a clear violation of the ordinance. Beld, under the liberal rules of secs. 4658, 4659, 4706, Stats. 1898, requiring defects or imperfections in matters of form which do not tend to prejudice the defendant to be disregarded and permitting amendments, that a peremptory writ of mandamus requiring the common council to revoke .the license was rightly ordered by the circuit court. ./</p>

Rat Stevens, Circuit Judge. An action in equity. For breach of condition subsequent plaintiff seeks enforcement of her rights under a deed given by her to the defendant and asks to have it canceled and removed as a cloud on the title.

<p> Boundaries: Courses and distances: Ancient monuments: Surveys: Relocation of section corners: Conflict of evidence: "Waters and watercourses: Trespass: Cutting ice: Evidence: Appeal and error: "Verdict: Instructions to jury. </p> <p>1. In the location of boundaries courses and distances must give way to ancient monuments.</p> <p>2. Where there was conflict of evidence as to a section line, the location of which depended on the correct relocation of a section corner, the verdict of a jury on such disputed question of fact is held supported by the testimony of plaintiff’s surveyors that they established the corner with reference to a bearing tree, an ancient monument, and absence of any evidence that they violated any rule of law in establishing the corner.</p> <p>3. In an action for trespass in cutting and carrying away ice, alleged to be the property of plaintiff, the evidence, stated in the opinion, is held to support findings that the trespass was committed before the commencement of the action.</p> <p>4. In an action for trespass in cutting and carrying away ice claimed to be the property of plaintiff, one issue was the location of a section line bounding the tract from which the ice was cut. The location of this line depended upon the correct relocation of an original government section corner. Each party gave testimony of a survey, each showing a different location. The court instructed the jury that the plaintiff was required to show by a “preponderance” of the evidence that he was in possession of the land from which the ice was taken by defendant, and the jury were required to determine which of the surveys correctly located the original line fixed by the government survey; that if the corner could not be ascertained with absolute certainty, yet if, from known and existing monuments, bearing trees, field-notes, and other means, the location could be ascertained with reasonable certainty, that would be sufficient; and that the first fact the jury would have to determine was whether the evidence, viewed in the light of the instructions which the court had given, established the location of this original government corner. The defendant requested no specific instructions, and the exception was general and not to any specific part of the charge. Held, that the charge as a whole was sufficiently favorable to the defendant.</p>

<p> Constitutional law: Class legislation: Equal 'protection of the laws; Public policy: Pharmacists: Regulation: Discrimination based on population: Evidence: Relevancy: Materiality. </p> <p>1. In determining the constitutionality of class legislation based on population it must be borne in mind (1) that there are distinctions between large and dense communities and small and sparser ones as separate classes, and such differences are general and relevant to some purposes of legislation; (2) that merely the distinctions between individuals of one class and of the other are not to be considered; (3) that the line of demarcation may be arbitrary.</p> <p>2. By the enactment of ch. 56a, Stats. 1898, regulating the practice of pharmacy and drawing a line between communities over and under 500 population for application of the prohibition against independent practice by assistant pharmacists, the legislature did not transgress its legitimate field of discretion over public policy, and the statute is constitutional.</p> <p>3. Ch. 56a, Stats. 1898, while originally enacted in 1882, was prospective in contemplation, prohibited the various acts according to. conditions as they might exist at the time of their commission, and hence is not open to the construction that it is based on circumstances existing at the time of the act, and prohibits and punishes the practice of pharmacy by other than a registered pharmacist in communities which in 1882 had 500 population or more, while permitting practice by assistant pharmacists in all places which at the same date had less than 500 population.</p> <p>4. Ch. 56a, Stats. 1898, is not void simply because it fails to provide a method of ascertaining or proving the population and leaves that fact to be proved by the ordinary common-law means of evidence instead of prescribing a statutory method.</p> <p>5. The statute regulating the practice of pharmacy (ch. 56a, Stats. 1898, as amended by ch. 340, Laws of 1901) exempts from the operation of the general law such persons of good moral character as,'previous to the enactment of ch. 167, Laws of 1882, had had ten years’ experience as pharmacists. Held that, even if such exemption was valid (a point not decided), the only result would be that the liability of one not within the exempted class would remain as it was before the amendment.</p> <p>6. In an action to enforce the penalty denounced by ch. 56a, Stats. 1898, regulating the practice' of pharmacy, testimony of a pharmacist as to whether he saw any reason for discriminating between large and small communities is irrelevant.</p> <p>7. In an action against a physician who maintained a pharmacy ' in a village of more than 500 population, he not being or having in his employ a registered pharmacist, to enforce the penalty denounced by ch. 56a, Stats. 1898, a question was asked a witness whether “it would interfere with defendant’s practice as a physician if his prescriptions could not be put up at his own store.” The statute provides, among other things, that it shall not “interfere with any practicing physician from dispensing his own medicines or supplying his patients with such articles as may seem to him proper.” Held, that the question was immaterial.</p>

<p> Ejectment: Cause of action: Pleading: Complaint: Demurrer: Tax titles: Limitation of actions. </p> <p>1. On an appeal from an order overruling a demurrer to a complaint in ejectment the complaint is held to state a good cause of action.</p> <p>2. Where in an action of ejectment the complaint sets out a cause of action based on a tax title, alleges all the facts required by see. 3077, Stats. 1898, and is sufficient to entitle the plaintiff to recover, its sufficiency is not destroyed by additional allegations that the lands were “vacant and unoccupied” and “that the defendant claims title in fee simple to said lands.”</p> <p>3. Tax deeds on lands that had at all times been vacant and unoccupied had been recorded for upwards of three years prior to the time that plaintiff, grantee by mesne conveyances from the original tax-deed grantees, brought an action of ejectment. Plaintiff in its complaint pleaded the three years’ statutes of limitation contained in secs. 1, 2, ch. 309, Laws of 1880, and secs. 1187, 1188, S. & B. Ann. Stats, and Stats. 1898. On demurrer that the cause of action alleged in the complaint was barred by the same three years’ statutes of limitation, it was held that the plaintiff and its grantors were entitled to the protection of such statutes, and that the cause of action alleged in the complaint was not barred.</p>

Action to recover on 135 causes of action, each being on contract. All but eight were tbe same in tbe essential features as tbe second relative to the question of whether the cause, in the whole, was a proper one for a compulsory reference to hear, try, and determine.

Suit for loss under an insurance policy, tried to the court.

In September, 1903, a highway was laid out over the line dividing the farms of plaintiff and defendant and continuing through land belonging to the defendant. A survey made in 1903 showed that the supposed line fence between their farms was in fact located wholly upon plaintiff’s land. On Eebruary 12, 1904, the town officers notified defendant to remove his fences from the highway within thirty days.

Tbis action was brought to recover upon two promissory notes for $100 eacb, executed and delivered by defendants to plaintiff. Tbe notes bore date June 25, 1897, and were payable one four and tbe other five months after date, with interest at eight per cent, after due. Tbe complaint was in tbe usual form. Tbe defendant M. Wigderson was held not liable because tbe wife of defendant E. 'Wigderson, and not bound by the contract.

<p> Costs: Actions to enforce mechanics’ liens. </p> <p>1. The statute authorizing trial courts to allow partial costs in their discretion in equitable actions applies to actions to enforce mechanics’ liens.</p> <p>2. Where, in .an action to enforce a mechanic’s lien, the court allowed but $10 for costs and disbursements, it was held that the circumstances shown by the record did not so clearly show abuse of discretion as to warrant reversing the action of the trial court. ,</p>

The following shows so much of the complaint as is necessary to he considered: Carl Steinberg died intestate July 6, 1878, leaving a widow, Dmelie Steinberg, and three children hy a former wife, two being the plaintiffs in this action and the other named Wehilm Steinberg. The latter before the commencement of this action duly transferred his interest in the lands hereinafter described to the plaintiffs and they now own the same.

<p>Appeal from a judgment of tíre circuit court fot Outaga-mie county: John Goodland, Circuit Judge.</p> <p>Tlie amended complaint alleged that the defendant, being a foreign corporation engaged in the state of Ohm in the business of manufacturing steam engines and boilers and various agricultural implements, which had not complied with sec. 1710&, Stats. 1898, by filing copy of its charter, etc., with the secretary of state, on July 17, 1902, entered into contract, at Appleton, Wisconsin, with three persons named Bailey, there resident, whereby the latter gave to the defendant their promissory note for $1,874 and a chattel mortgage to secure the same upon certain machinery belonging to them. On July 25th the plaintiff purchased said note and mortgage from the defendant for $1,675, and is still the owner and holder of the same; that, by reason of noncompliance with sec. 1770&, said note and mortgage were void and worthless, whereby plaintiff has been compelled to pay out the sum of $571.75 in discharge of an execution levied upon said property under a preexisting judgment against the Baileys, which sum, it is alleged, the plaintiff has paid to the use of the defendant, and before this action demanded repayment thereof. Recovery of this ainount with interest from April, 1904, was prayed. A general demurrer was interposed, which was sustained, with leave to the plaintiff to serve amended complaint within twenty days upon the payment of $10 costs. Such order was served on the plaintiff October 3, 1905. On October 30th, upon affidavit of failure to serve such amended complaint, but without notice, defendant moved for judgment, whereupon judgment was ordered and entered dismissing the complaint, and for costs, from which judgment the plaintiff appeals.</p>

<p> Setoff and counterclaim: Parties: Sales: Failure of consideration: Measure of damages. </p> <p>1. Defendants negotiated for the purchase of a part interest in a manufacturing plant, of which plaintiff and M. were each a one-fourth owner. Plaintiff made sale of one half of his one fourth through M. as his agent. Plaintiff and M. each took a separate note for the consideration. Seld, under these circumstances, if defendants had a valid claim for partial failure of consideration, they could counterclaim for a proportionate amount of damages in a suit by plaintiff on his note, although M. was not a party to the suit.</p> <p>2. Plaintiff brought an action on a note evidencing the consideration defendants agreed to pay him for the sale and transfer of his interest in the net assets of a manufacturing business. The purchase was made in reliance on the statements contained in an inventory, purporting to give a full, complete, and correct statement of the resources and liabilities of the business, which was admittedly incorrect. Defendants had given plaintiff a note for the proportionate part of the consideration moving to him. Seld, that thereby was established a partial failure of consideration and a defense pro tanto, properly enforceable by way of counterclaim in an action on the note, and the fact that the misstatements were not made wilfully did not affect defendants’ rights.</p> <p>3. The statements in the inventory being in fact untrue, although the party malting them at the time believed them to be true, were a legal wrong for which relief should be awarded, upon the ground that the party making them must be held to respond for the injury done in assuming to know and to represent as facts things which did not actually exist, but upon which the other party relied to his damage in making the purchase.</p> <p>4. Where one bought for $2,000 an eighth interest in a manufacturing business on the basis of $16,000 of net assets, while the inventory showed somewhat over $18,500, his damages by reason of an overstatement of the resources to the amount of $1,050 is not one quarter of that sum, but one eighth of thirty-two thirty-sevenths thereof.</p>

<p>Appeal from a judgment of the circuit court for Shawamo county: Johw Goodlahd, Circuit Judge.</p> <p>This action was brought to restrain the sale of lands levied upon under an execution. An execution was issued upon a judgment obtained by defendant Barth against plaintiff. Plaintiff claimed and set up in his complaint that the property levied upon was his homestead and of less value than $5,000. The action was brought against defendant Barth and MeDonell, sheriff, who levied under the execution. The complaint sets up facts showing that the real estate levied upon was plaintiffs homestead, does not exceed tbe amount in value of $5,000, and that defendant 'Barth caused an execution to be issued and a levy made thereunder by defendant McDonell, sheriff of Shawano county, and notice of sale to be published; that judgment was not upon cause of action arising out of liability and debts upon liens, mortgages, or taxes, and that defendants threaten to sell the real estate so levied upon; and prays for an injunction restraining sale, and for general relief. The answer admits that plaintiff is owner of the premises levied upon, the issuance of execution, and levy and notice of sale, and denies other allegations of the complaint. The case was tried by the court and findings made in favor of plaintiff, and judgment ordered according to the prayer of the complaint. Judgment was entered accordingly, from which this appeal was taken.</p>

<p>Wills: Probate: Appeal to circuit court: Procedure: Estoppel: Trial de novo: Appearance by attorney: Jurisdiction.</p> <p>1. On appeal to 'the circuit court by an heir and legatee from an order of the county court admitting a will to probate, it is error for the circuit court to rule that appellant, who was present in the county court at the time the will was admitted to probate and made no objection thereto, is estopped from contesting such probate in the circuit court by reason of his consent given in the county court.</p> <p>2. Under sec. 2294, Stats. 1898 (providing that no will shall be effectual to pass either real or personal estate unless it shall have been duly approved and allowed .in the county court as provided in the statutes, or on appeal in the circuit court or in the supreme court), sec. 4031 (providing that in all cases not otherwise provided for, any person aggrieved by any order, judgment, decree, or determination of the county court may appeal therefrom to the circuit court), and sec. 4034 (providing that, when the cause is thus transferred from the county court to the circuit court by appeal, it may be brought to trial in the same manner as actions originally brought therein, and the court shall proceed to the trial and the determination of the matter according to the rules of law, allowing a trial by jury of all questions of fact, in cases where such trial may be proper; and such court may direct an issue to be made up between -the parties in a brief form, when it shall be deemed necessary, and appeals may be taken to the supreme court as in other cases), an heir named as legatee in a will, who was present in the county court on its probate and made no objection, may appeal from the determination admitting such will to probate and file objections to such probate, and is thereupon entitled to a trial de novo in the circuit court.</p> <p>3. On an appeal from a judgment of the circuit court admitting, on appeal from a judgment of the county court, a will to prohate, claims were made in the supreme court, for the first time, that the appeal papers from the county court were insufficient to give the circuit court jurisdiction. These claims were based on two grounds: (a) that it did not appear that appellant was in any wise interested in the estate; (b) that the notice of appeal was not signed by appellant nor by any person by his 'direction. Held:</p> <p>(1) Recitation in the petition for the probate of the will that appellant was one of testator’s next of Inn and heirs at law, and in the will, by which he was named as a legatee, that he was a son of deceased, and a statement in the notice of appeal that appellant was aggrieved by the order of the county court, showed that appellant was interested in the estate.</p> <p>(2) Appellant having given and signed the undertaking on such appeal as principal, and the same having been approved by the county court, the notice of appeal signed B., “attorney for appellant,” sufficiently established that the notice of appeal was given by his direction.</p> <p>(3) The circuit court had jurisdiction by virtue of the appeal.</p>

<p>Appeal from a judgment of the circuit court for Milwaukee county: OeeeN T. Williams, Circuit Judge.</p>

<p> Yenclar and purchaser: 'Construction of contracts: Purchase or option? </p> <p>1. A contract on which plaintiff founded its action provided that whereas plaintiff was the owner, as vendee, of certain leases and options on certain lands, describing them, it, for a valuable consideration, did thereby grant, bargain, and sell, assign, set over, and deliver to the defendant all its right, title, and interest in and to the options thereinbefore described, upon the following terms and conditions, to wit: “With the express understanding and agreement that this contract is to be in force for and during the period of nineteen months from the date hereof, and that on or before the expiration of said nineteen months the said [defendant! is to pay to the [plaintiff] for such options for all the lands described therein the sum of $300 for each and every acre thereof, ... in other words, the whole 193% acres to be taken and paid for at the rate of $300 per acre. At which time and upon the payment of which said sum the [plaintiff] is to deliver to or cause to be delivered to the [defendant] a deed of the premises described in said options.” The contract further provided that “all liabilities attendant as on the option herein described, which are therein imposed” upon the plaintiff, were assumed by the defendant. Held:</p> <p>(1) The instrument was not an option to purchase, but an express sale and transfer of the plaintiff’s right, title, and interest in the options to defendant, an assumption by defendant of liabilities thereunder, and an express promise by him to nay the stipulated price per acre on or beforé nineteen mouths, with a promise on the part of plaintiff to deed the lands to defendant.</p> <p>(2) The provision that the contract was to be in force for> nineteen months was not repugnant to or inconsistent with the express agreement to pay.</p> <p>(3) The covenants in the contract were mutual.</p> <p>(4) It was immaterial whether the options transferred gave the right to possession or not, since the options secured to plaintiff the right to acquire the ownership of the lands thereby covered and transfer the title to the defendant.</p> <p>2. In such case the recital of a "valuable consideration” did not necessarily mean that the parties stipulated for a consideration separate and outside of the alleged purchase price of the lands, since a nominal consideration would satisfy the formal recital of consideration usually inserted in contracts.</p> <p>3. The fact that plaintiff would make a large profit was not significant, since it could not be inferred, for the purpose of construing a contract to purchase into an option, that the stipulated price was unreasonable.</p>

<p>Appeal from a judgment of the circuit court for Milwaukee county: Oreew T. Williams, Circuit Judge.</p> <p>Action to enjoin the sale of land for nonpayment of a street improvement tax.</p> <p>The city of Milwaukee, which imposed the special tax, and the owner of the certificate, 0. Beck, who did the work as contractor, were joined as defendants. The claim of the plaintiffs was that the assessment was invalid because made on an arbitrary basis of $6 per front foot for benefits regardless of damages, the assessing board well knowing, as the fact was, at the time of making the assessment that the contemplated improvement would result in making a deep cut in front of .plaintiffs’ property, greatly damaging the same, while the law only permitted the cost to the excess of benefits accruing to the property over damages thereto to be charged against such property.</p> <p>The allegations of the complaint appear with sufficient detail for a full understanding of the case by the abridgment of the findings hereafter referred to.</p> <p>The city answered the complaint, putting in issue all the allegations as to the claim above mentioned, and pleaded the pendency of an action at law between plaintiffs and the city in the circuit court for Milwaukee county to recover damages alleged to have been caused to plaintiffs’ property by the alleged unlawful improvement.</p> <p>The defendant Beck answered by way of cross-complaint and prayed that in case of the tax being declared void a reassessment should be made under ch. 354 and ch. 276, Laws of 1903, and that the difference between the amount of the void certificate and the proper amount chargeable to the plaintiffs’ premises on account of the improvement should be adjudged in defendant’s favor against the city. The latter did not plead to such cross-complaint.</p> <p>Omitting formal matters and those which are not in controversy or are not necessary in deciding the case, the facts as determined by the court are substantially as follows: The city of Milwaukee had authority by its charter to improve the street in question in a prescribed manner. The defendant, 0. Beck, duly contracted with the city to improve such street as alleged in the complaint. March 10, 1902, for the purpose of a foundation for making the improvement the board of public works of such city submitted to its common council a resolution to grade and macadamize the roadway, pave the gutters, and grade, curb, and plank the sidewalks on National, avenue, the street in question, from Washington avenue to Thirty-fourth avenue in the Twenty-third ward of said city, which was referred to the local committee of the ward. Subsequently it was amended by substituting the words “Thirtieth avenue” for “Thirty-fourth avenue” and adopted. The engineer’s estimated cost of the improvement in front of plaintiffs’ property was $4,239.12 and the actual cost was $5,062.92. There was issued to the contractor a certificate against the premises for $4,250 and one against the ward fund for $812.92. The estimated cost of the improvement throughout its whole course varied from $96.15 to $231.75 for a 30.10 foot lot. June 30, 1902, the board of public works aforesaid transmitted to said common council duplicate assessments of benefits and damages for making the improvement as set forth in the complaint, showing that such benefits were assessed by the frontage rule instead of according to the excess of benefits over damages as to each parcel of land. On said day the assessment was confirmed by said council and is the sole basis for the tax in question. Plaintiffs’ premises are-on the crest of a natural elevation. The surface of the east line is 6.69 feet and at a point 337 feet west 53.1 and at the west line 0.6 feet above the sidewalk level, which level at a point thirty-seven feet west of the east line of the premises is 3.15 feet and at a point 300 feet west thereof 5.55 and at the west line 2.15 feet above the roadway. The established grade of the street in front of such premises is from five and one-half to sixteen and one-half feet below the natural surface thereof and of said premises. To grade such premises, so as to make them conform to the grade of the street, back-from the street line 150 feet would cost more than $5,200. The city was benefited by the improvement to the extent of the cost thereof. The certificate issued to the contractor is now owned by him. It was issued on the uniform basis of $6 per front foot, that being the basis of assessments along the whole street so far as the same was improved. The board of public works in making the assessment did not consider the benefit and injury which might result to each lot or parcel of land from the improvement, nor consider nor determine the effect of the improvement as to each lot separately, nor the cost thereof, nor consider and assess the benefits and injuries or either of them as to each parcel of land as a separate matter. The assessment was based on the estimated cost o-f the entire work as if each parcel of land was equally affected.</p> <p>From such findings the conclusion was reached that the special tax for want of a proper assessment of benefits and damages as to plaintiffs’ premises Was void, and that defendant Beclc was entitled to receive of the defendant city by way of a special assessment against plaintiffs’ premises such part of $4,250 as should be by due proceedings to that end determined to be legally chargeable thereto and to receive of the defendant city the balance of said sum with interest upon the whole of such sum from the time the same was payable to said' Bede, to wit, November 24, 1904, and that the final judgment should declare the certificate for $4,250 void and award plaintiffs full costs, and that further proceedings should be-stayed to wait the result of a new assessment of benefits and damages according to the statutes on that subject, which was ordered to be made forthwith.</p> <p>An interlocutory judgment was rendered accordingly.</p> <p>A new assessment of benefits and damages was thereafter-made as ordered by the court, which was confirmed by the-common council of the defendant city and conceded by plaintiffs to be regular, though excepted to by them as to the damages to the premises as determined.</p> <p>The court, upon such new assessment of benefits and damages being completed and confirmed as aforesaid and proof thereof being duly made, filed final findings in harmony with the preliminary decision, and further to this effect: According to the re-assessment of benefits and damages to which no-objection is made by plaintiffs going to the regularity thereof, no benefits accrued or were assessable to the plaintiffs’ premises by reason of the improvement of the street in front of' their premises.</p> <p>Judgment was accordingly ordered decreeing the certificate issued to defendant Bede on the first assessment void and requiring it to be delivered up for cancellation, awarding him $4,250 against the defendant city with interest thereon from November 23, 1904, and awarding plaintiffs full costs against said city, and said Bede full costs likewise. Such judgment was duly rendered, from which this appeal was taken.</p>

<p>Appeal from a judgment of the circuit court for Dane county: B. F. Duítwiddie, Judge.</p> <p>Action upon a benefit certificate held by plaintiff’s deceased husband in defendant association. Defense, fraud in application of the assured in representing himself in good health and free from pulmonary trouble, when, in fact, at the time of the application he was suffering from tuberculosis, from which he died sik months later. Also, a settlement and written release after the death and after proofs of loss by the' plaintiff. The trial court directed a verdict for the defendant, without indicating which of the defenses he found conclusively sustained by the evidence. From judgment upon such verdict the plaintiff appeals.</p>

<p>Appeal from a judgment of tbe circuit court for Dane county: E. Rat Stevehs, Circuit Judge.</p> <p>Plaintiff sues to recover for breach of a lease and option contract. It appears that on January 4, 1904, plaintiff made a contract with. W. J. Smith, now deceased, by which Smith agreed to lease and sell plaintiff a farm. The lease was for five years with an option to purchase. It fixed the amount to be paid annually by plaintiff, and what part of the sum was to be applied as a payment for the option and to be credited on the purchase price of the farm should plaintiff elect to purchase the property under the agreement. Among the obligations assumed by plaintiff he agreed “to make improvements during the first year as follows: to build a tobacco shed twenty-seven (27) feet by one hundred and twelve (112) feet, •eighteen (18) foot posts; to build a kitchen on the house he •occupies, sixteen (16) feet by eighteen (18) feet, on fourteen (14) foot posts.” Plaintiff went into possession of the premises in January, 1904, and cultivated the farm for that season. He paid Smith two of the monthly instalments under the contract, and he alleges that he arranged an extension of time of payment for the instalments due after March 1, 1904, to such time in the latter part of the year as he should realize on his crops. He built the kitchen in part during the earlier portion of the season, made arrangements for the purchase •of the necessary lumber for the tobacco shed, and by starting the foundation and piers undertook its construction. It appears that Smith, through his attorney, at this time notified the lumber dealer with whom plaintiff had arranged to furnish the lumber for the tobacco shed that he (Smith), as ■owner of the land, would not be responsible for the cost of such material should plaintiff fail to pay for it, and forbade plaintiff’s employees to construct the foundation of the shed •on which they were then engaged, threatening them with arrest if they continued the construction of the shed on the premises. Plaintiff was not present at the time of such interference with the employees. The employees continued in the work of building the foundation throughout that day, and ■then communicated to plaintiff the action taken by Smith to prevent the erection of the shed. After Smith had notified the lumber dealer that he wo-uld assume no responsibility for-the cost of the lumber for the tobacco shed which plaintiff intended to erect on the farm and had forbidden plaintiff’s employees building the foundation, plaintiff negotiated with the-lumber dealer for the purchase of this material, but failed to-mate such purchase, and therefore abandoned the undertaking to build the tobacco shed. He thereafter notified Smith’s-attorney and representative that he would move off the premises in the folio-wing December or January, after having harvested the season’s crop. To this Smith assented. Plaintiff removed from the premises at the end of the first year’s tenancy. Collection of the unpaid monthly instalments was-enforced by litigation. Plaintiff prosecutes this action as a claim for damages against the estate of W. J. Smith, now deceased, upon the ground that through the acts of Smith in his lifetime, resulting in his damage, he was compelled to-abandon the contract of lease and option.</p>

<p>Appeal from a judgment of tbe superior court of Douglas, county: Charles Smith, Judge.</p> <p>This action was brought by the plaintiff, a minor, through his guardian against the defendant to recover for an assault and false imprisonment. The plaintiff on November 19, 1904, with some other hoys was playing on or near the right of way of defendant, and while one of the passenger trains was passing one of the hoys threw a stick at it, striking the trucks of one of the cars. The following afternoon one Gallagher, a watchman of the defendant, went to the home of plaintiff, placed his hand on plaintiff’s shoulder, and said he wanted to talk with him; they went around in front of the house and Gallagher asked plaintiff to .go to''jail, whereupon the hoy broke away and ran to the house. Gallagher followed, threatening to shoot him, finally caught him, and asked him if he was the hoy who threw the stick at the train, which the boy denied. Gallagher afterwards took him to the house of one of the other hoys .who was present at the time the stick was thrown, then took him to the city hall, where he was questioned relative to throwing the stick and also in reference to stealing coal. It is claimed by plaintiff that Gallagher was acting within the scope of his authority, and therefore defendant is liable for such assault and false imprisonment. The complaint alleges, in substance, that defendant maliciously and with intent to injure plaintiff, with force and arms assaulted him, and then and there directed and caused him to be seized and laid hold of with force and violence, and then and there, without any reasonable or probable cause whatever, ■and without any writ, warrant, or legal process of any kind for so doing and against the will of plaintiff, unlawfully, wrongfully, and maliciously took him and forced and compelled him to go in and along divers streets in the city of Superior to the rooms occupied by the police department, and then and there against the will of plaintiff unlawfully, wrongfully, maliciously, and falsely imprisoned him for about one hour, and then and there confined him in said room and restrained him of his liberty, without any writ, warrant, or legal process, against the will of plaintiff. Defendant denied generally the allegations of the complaint. The case was tried by the conrt and a jury and the jury fonnd for the plaintiff in the sum of $250. Judgment was rendered* upon the verdict, from which this appeal was taken.</p>

<p> Boundaries: Slats: Physical location of lot lines: Natural monuments: Courses and distances. </p> <p>1. In an action of ejectment involving lots in the plat of an addition to a city no field-notes of title survey of the addition were produced. It appeared that the east and west lines of the lots, as-. shown on the plat, were not closed on the south, hut there appeared upon the plat a short distance south of the south ends of the east and west lines an irregular line, helow which were a series of pen marks such as are commonly used by surveyors and plat makers to indicate elevation, and it also appeared from the evidence that south of the south ends of the east and west lines as indicated on the plat there was in fact an abrupt descent. Held, that the irregular line at the crest of the descent was the south boundary line of the. lots in question, and not a line drawn between the east and west lines at points distant from the north boundary the number of feet called for by the figures marked upon the plat.</p> <p>2. Where there is a natural monument or what is equivalent to a natural monument there cannot be said to be absolutely no direct evidence as to the place of physical location on the ground of the line or point in question.</p> <p>.3. While under the rule: In ascertaining the true location of streets, lots, and blocks according to a plat, regard is to be had (1) to the natural monuments referred to therein, and (2) to the artificial monuments placed by the surveyor to mark lines or 'boundaries, before resorting to the courses and distances marked in the plat or survey, — courses and distances come third in order of certainty, it is not intended to lay down a rule of law that courses and distances shall, in all cases, overcome every other species of evidence with reference to location except natural or artificial monuments.</p>

<p> •Guaranty: Statute of frauds: Promise to answer for det>t of another: Memorandum: Consideration. </p> <p>1. Whether, under the facts stated in the opinion, notice of acceptance by plaintiff of a memorandum of guaranty was necessary in order to charge the defendant with liability as guarantor, not determined.]</p> <p>2. A written instrument: “R. S. agrees to assume one-half of W. S.’s liability under the above guaranty,” fails to express any consideration, and hence is void under subd. 2, sec. 2307, Stats. 1898. It is at best merely a promise to answer for the debt of another person.</p>

<p> Executors and administrators: Title to personal estate: Right to assets: Possession by heir: Trover and conversion: Pleading: Complaint: Demurrer: Limitation of actions: Death of party entitled ,to sue: Suspension pending appointment of administrator. </p> <p>1. Upon tlie death of any person possessed of personal estate the legal title thereto and right to possession thereof vests in his personal representative and can only reach the heirs, ultimately entitled thereto, by due course of administration.</p> <p>2. In the absence of some sufficient equity in favor of an heir who has possessed himself of personalty of a decedent, the mere fact of his having an equitable interest therein as such heir does not deprive the personal representative, duly appointed to administer the estate of which such personalty forms the whole or a part, of an absolute right to recover the value thereof from such heir in case he has converted the same to his own use.</p> <p>3. In an action to recover money claimed to have been converted, the complaint alleged that plaintiff’s intestate instructed defendant to carry a sum of the intestate’s money to a bank and deposit it in the bank to her account; that the defendant deposited it in the names of “M. O. or H. J. O.,” the decedent and defendant, respectively; that defendant was an heir of decedent; and that the defendant thereafter, without authority and by falsely representing to the contrary, withdrew such deposit, part in the lifetime of decedent and part after her death. Held, that the complaint stated a cause of action although it showed that defendant was entitled, as heir, to receive one half the residue of the estate of decedent left after the payment of all claims allowed against the estate and the expenses of administration.</p> <p>4. In suck case the reasonable inference from such allegation was that tbe money was deposited either in tbe name of decedent, or in the name of defendant as tbe money of tbe decedent.</p> <p>5. So construed such complaint is held not to show any wrongful conversion by defendant at tbe time tbe deposit was made.</p> <p>6. In an action against an heir for conversion of money deposited in a bank, tbe complaint alleged that defendant wrongfully withdrew from tbe bank and converted to bis own use part of tbe money within one year before decedent’s death, and that tbe balance of tbe deposit was so withdrawn and converted six days after her death, both conversions occurring more than seven years and less than eight years before an administrator was appointed. Held:</p> <p>(1) As to tbe first withdrawal and conversion tbe right of tbe administrator to recover was barred by sec. 4222, Stats. 1898.</p> <p>(2) Tbe limitation of sec. 4222, Stats. 1898, was not extended under sec. 4234 by tbe death of decedent, since the death did not occur during tbe last of tbe six years after tbe right of action accrued.</p> <p>(3) As to the withdrawal and conversion after tbe death of decedent (there being no person in existence competent to bring an action on account thereof until plaintiff was appointed administrator nearly eight years after decedent’s death), tbe cause of action was not barred, tbe situation being governed by sec. 4251 (providing that there being no person in existence who is authorized to bring an action thereon at tbe time a cause of action accrues shall not extend tbe time within which, according to the provisions of ch. 177, Stats. 1898, an action can be commenced upon such cause of action to more than double the period otherwise prescribed by law).</p>

<p> Railroads: Negligence: Personal injuries to employee: Conditions-precedent: Notice of injury: Sufficiency:Evidence: Questions for jury: Findings, when disturbed: Contributory negligence: Anticipation of injury: Assumption of risk: Proximate cause: Surrounding conditions and circumstances: Appeal and error: Instructions to jury: Burden of proof: Requests for instructions: Court and jury: Deliberation of jury: Coercing verdict: Statutes: Construction: Hazards peculiar to railway employeesr “Operation of railroads.” </p> <p>1. In an action to recover damages for an injury to the person, the-matters required hy sec. 4222, Stats. 1898, to he stated in the notice to be served upon the defendant within one year after-the event causing the injury are: The time and place, a brief description of the injuries, the manner in which they were received and the grounds upon which claim is made, and that satisfaction is claimed of the person or corporation notified. Held, that a notice addressed to the defendant, declaring that plaintiff demanded satisfaction from the defendant for injuries received by him in a place described, in the performance of his duties as an 'employee, and that he was injured by a handcar-rolling upon and over him down an embankment, is not insufficient because it failed to state, in terms, that the plaintiff claimed that the damage was caused by the defendant. The-statute does not require that the notice shall so state.</p> <p>2. Under sec. 4222, Stats. 1898 (providing, among other things, that the required notice shall be served “upon the person or corporation by whom it is claimed such damages were caused”), service of such notice upon the defendant corporation sufficiently-informs it of the claim that the damages were caused by it.</p> <p>3. Notice of an injury, claimed to have been caused by a handcar rolling upon and over plaintiff, and given under the requirements of sec. 4222, Stats. 1898, was alleged to he defective because there was no specific statement of the grounds upon which the claim was made, in that it did not, in terms, declare that the handcar was precipitated onto the plaintiff by the negligence of the defendant. In an action for such injuries it was amply proved that full disclosure and explanation were made to defendant’s special agent within a few days after the accident. Meld, that defendant could not have been misled by any such omission in the written notice, nor could any intent to mislead be presumed.</p> <p>4. In an action for personal injuries to a sectionman while engaged in lifting a handcar from the track, questions as to the credibility of plaintiff’s testimony as to the conduct of the foreman in lifting the handcar so as to precipitate the whole weight thereof upon the plaintiff, as to whether the action of the foreman was that customarily adopted, and as to whether plaintiff was guilty of contributory negligence, are held to be governed by the well-established rule that, under circumstances of mere conflict of credible testimony of witnesses, the supreme court should not and will not overrule the conclusions of the jury and the trial court.</p> <p>5. In such case the method of removing the handcar described by the plaintiff, and stated in the opinion, is held to present no question of physical impossibility.</p> <p>6. In such case, on the evidence, stated in the opinion, it is held that it could not be said as matter of law that plaintiff, standing in front of the handcar, as he did, to control the front end of it, was guilty of negligence where he had no reason to anticipate the result causing his injury, nor that he assumed the risk.</p> <p>7. Plaintiff, who was injured while engaged in lifting a handcar from the track, the foreman lifting the rear of the car and precipitating it down and upon plaintiff, testified that, but for slipperiness, he and his companion could probably have held the car notwithstanding the conduct of the foreman. Held, that such testimony presented a case of an existing condition, in the face of which acts of carelessness were likely to be injurious, and that those acts should be held to be the legal cause rather than the slippery condition of the ground, which consti-» tuted merely one of the surrounding circumstances and conditions.</p> <p>8. Instructions to the jury which assumed that there was evidence upon which the jury might find the facts in accordance with plaintiff’s testimony are held not erroneous, where the appellate court also finds that the jury might have done so.</p> <p>9.It is not error to instruct the jury that the burden of proof is upon the defendant to establish contributory negligence.</p> <p>10. No error can be predicated merely upon the refusal to give requested instructions where the request was an oral one and the party did not even undertake to formulate the instruction desired.</p> <p>11. Where the court instructed the jury as to each question of a special verdict where an affirmative answer would be favorable to the plaintiff, that, in order to give such affirmative answer, they must be satisfied by a preponderance of the evidence, it is held that the instruction carried to the jury the idea' that they could not decide against the defendant without being so satisfied, and to fairly cover a requested instruction that the burden of proof rested on the plaintiff.</p> <p>12. A trial court has full authority, in the exercise of sound discretion, to offer aid to the jury by way of further instruction or explanation, and may, without impropriety, make inquiries of them as to whether they are likely to agree. Hence it is not error for the court, after the jury had been deliberating for some time, to recall them and ask them if they could be aided in their deliberations either by further instructions or by reading any of the evidence, or the trial judge, before leaving the courthouse for supper, to direct the officer in charge to inquire whether the jury were likely to agree within the next twenty minutes, to which they responded in the negative.</p> <p>13. The phrase added to sec. 1816, Stats. 1898, by ch. 448, Laws of 1903, “provided that such injury shall arise from a risk or haz- . -ard peculiar to the operation of railroads,” is hardly accurate, since injuries do not arise from hazards or risks, but from acts or events.</p> <p>14. The idea intended would seem to be more clearly expressed by ' ’ describing the injury or the event causing it as within such peculiar risk or hazard.</p> <p>15. The transportation of men and materials over its tracks is part of the “operation of railroads,” and none the less so because the vehicle is a handcar.</p> <p>16. Plaintiff, while engaged with another sectionman and the section foreman in removing a handcar from the track, received an injury caused by the section foreman raising the rear end of the car, thereby causing it to be precipitated upon and over the plaintiff down a steep embankment. Held that, while the ulti- , mate purpose of plaintiff and his fellows was to repair the road- , bed, they were, at the moment of the injury, engaged in the transportation of themselves, their handcar, tools, and materi als from a station on the railway to the place of their proposed labor, and the fact that they had reached the end of their trip and were engaged in the act of alighting did not preclude the view that they were still in the course of such transportation, which could not he considered terminated until their destination was completely reached.</p> <p>17. In such case the risk of injury attending the hurried removal of the handcar at an inconvenient and dangerous place is held to be peculiar to railroad business.</p> <p>18. In such case the trial court was right in refusing to rule that plaintiff was outside the protection afforded employees of railroads by sec. 1816, Stats. 1898, as amended by ch. 448, Laws of 1903.</p>

<p>Appeal from a judgment of the circuit court for Rock county: B. F. DtJNWiDDiE, Circuit Judge.</p> <p>Action for personal injuries. It appears that the defendant is a corporation engaged in the manufacture of machinery and engines in the city of Beloit, Wisconsin, owning and maintaining buildings used as mills and shops. At the time of this accident it was engaged in erecting a second-story addition to a shop building. The old one was a one-story brick .structure, with hip roof in sections running east and west across the building, which was longest north and south. The improvement consisted of a second-story "brick structure, to be •built oír top of the walls of the original structure. The plaintiff was engaged as a bricklayer on the walls of this new part •of the structure. The accident happened on October 10, 1904. At the time of this accident the walls of the addition to the shop had been built to, and in part above, what is called scaffold height. Plaintiff was engaged at the southwest corner of the addition in laying the outside brick wall, which was somewhat higher than the rest of the south east-and-west wall. He was working on a scaffolding inside of the wall along the west end of the structure. In performing his duty it was necessary to use the leadline for laying the bricks on the outside ■of the walls. This line was placed over and around the corner and attached to a pin fastened in the outside of the south wall. "When the wall had been built to a height so he could not reach from where he stood on the inside scaffolding to change the pin and leadline, it was necessary for him to go onto the scaffolding outside of the south wall to adjust the line. Some days before the accident the defendant’s mason foreman had notified the carpenter foreman engaged on this building that the scaffolding on the outside south wall would be needed to proceed with the erection of the building. On Friday and Saturday preceding the Monday when the accident happened, •carpenters under the direction of the carpenter foreman built •this outside scaffolding, except the west end of it, which was •completed early in the forenoon of Monday and shortly before ■the accident. It was placed on the roof of the old structure, immediately south of the wall of the new addition. It consisted of uprights and standards, with ledger boards, footlocks [putlocks], and planks for the covering or floor on which the workmen were to stand and building material was to be placed. Soon after the carpenters had completed it, the plaintiff, while engaged in laying the southwest corner of these walls, as above stated, stepped from the inside scaffolding over •the south wall onto this outside scaffolding to adjust the leád-line at this corner, and then returned to his wort on the inside scaffolding. In the course of about ten or fifteen minutes the leadline required resetting, and he again stepped over the south wall onto this o-utside scaffolding to perform this duty. While so engaged near the southwest corner the scaffolding collapsed and fell, throwing him violently to the ground among the planks and other material of the scaffolding, causing him serious personal injuries.</p> <p>It appears that no other weight than that of the plaintiff was on this scaffolding at the time it fell. He had used it in the usual and ordinary way and for the purpose for which it was designed. It is claimed that the scaffolding was defectively constructed and not reasonably safe; that defendant was guilty of negligence in not performing its duty in this respect. Allegations of specific negligence were that the scaffolding was insufficient and unsafe by reason of defendant’s omission to place the footlock nearest the southwest corner of the building into a footlock hole of the south wall (footlocks are pieces of lumber extending from the ledger boards to the wallj upon which the floor of the scaffolding rests, and footlock holes are openings in the walls into which the footlocks are placed to hold them in place) ; that the westerly footlock was too far removed from the corner of the building and insecurely placed and supported by too short a standard, and that this was in turn supported at its foot by two or three bricks under it; that this footlock was not securely nailed to the standard; and that the scaffolding floor was composed of short planks so placed and projected over the last footlock as to render the structure insufficient and not reasonably safe for its purposes. The plaintiff’s injuries were serious and caused him much pain. The evidence tends to show that he suffered the following injuries: The right leg was crushed, a break near the left wrist, dislocation of the right arm, injury to his left leg and knee, a break of the bones of the nose, and a cutting through the larger part of his upper lip. His right leg had to be amputated at the junction of the upper with the middle third of the femur. During the period of several months in the hospital plaintiff suffered much pain and troublesome sores developed. After leaving the hospital in January following the accident he was delirious at times as the result of his pain and suffering and suffered much from sleeplessness. His condition up to the time of the trial has necessitated much care and nursing, and he will require such assistance for an indefinite period. It is uncertain whether he will be able to make use of an artificial limb and to what extent he will be able to employ artificial aids to locomotion. Before the accident plaintiff’s health was apparently good. He had always been active as a laborer and contractor. His earnings from his business ranged from $1,200 to $1,500 a year. At the time of the injury he was sixty-four years of age. The jury found by general verdict for the plaintiff, and assessed his damages at $13,500, for which sum and costs judgment was awarded him. This is an appeal from such judgment. ■ '</p>

F. DüNwxddie, Circuit Judge. This action was brought to recover damages alleged to have-been caused by the improper construction and maintenance of a guy wire extending across a public highway. The action was commenced in justice’s court, and on appeal tried in the circuit court.

E. DuNwiddie, Circuit Judge. This action was commenced January 18, 1905.

<p> Railroads: Negligence: Death of employee: Compromise and settlement with beneficiary: Executors and administrators: Title in assets: Duties: Trusts and trustees: Cause of action. </p> <p>1. A settlement made by a railroad company with, the sole surviving heir at law of one of its employee^, for injuries resulting in the death of such employee, prior to the granting of administration, is binding upon the administrator subsequently appointed, where the assets involved in the settlement are not needed by the a,dministrator for creditors or expenses of administration, and where the assets involved in the settlement, if recovered hy the administrator, will go to the heir who made-such settlement.</p> <p>2. An executor or administrator is invested with the legal title to-the personal property of the estate, hut holds that title charged with the duty of managing and disposing of the same in accordance with the provisions of the will or of the law.</p> <p>3. The duties of an administrator or executor are trust duties. In all essential respects he is regarded in courts of equity as a trustee.</p> <p>4. In the broad sense of the word a trustee is one in whom some estate, interest, or power in or affecting property is vested for the benefit of another. In this sense the term includes executors, administrators, guardians, receivers, trustees in bankruptcy, factors, bailees and agents, and all persons vested with ' the title or control of property and charged with fiduciary duties in relation thereto for the benefit of-another.</p> <p>5. Beneficiaries of trust property, who are sui juris and whose rights are vested, may deal with and convey their equitable interests in the trust property, and the trustee will be required to convey the legal estate in accordance therewith if such action be not contrary to the terms of the trust.</p> <p>6. On the administration of an intestate estate the beneficiaries of the trust are the creditors of the estate and the heirs at law, and when all creditors have been paid the heirs are the sole beneficiaries.</p> <p>7. While in an action for the death of plaintiff’s intestate, brought to recover damages for the sufferings of the deceased, the damages belong technically to the estate, in the absence of any creditors or other beneficiaries, the recovery is for the sole benefit of the person who is the sole heir at law, and any settlement made by such heir, if sui juris, is binding on the administrator.</p> <p>8. In such case, if there are creditors or beneficiaries who are interested in the recovery, their rights are not affected by the settlement made by such sole heir at law.</p>

Dice, Circuit Judge. Action by beirs to set aside a deed executed by Richard Quinn, now deceased intestate, to the appellant, his son, on October 31, 1903, in consideration of one dollar and a bond secured by mortgage, on the part of appellant that he would support the grantor, according to certain details, including medical attendance, and, within one year after the grantor’s death, would pay $200 to the pastor of the grantor’s church, and provide proper burial; the deed…

Dice, Circuit Judge. Action to recover for injury resulting from defect in highway, occurring on the night of May 13, 1905. It was alleged and established that on the 12th and 13th of May a trench was dug from the west curb of North Washington street to a point east of the center of the street to connect with the sewer therein by persons licensed to do so by the city but in the employ of private individuals.

Dice, Circuit Judge. William Kingston died testate January 14, 1902. He left real estate consisting of two farms.

B. Belden, Judge. This action was brought to recover damages alleged to have been, sustained by plaintiff in con sequence of injuries received by a splinter of steel hying from a hammer, striking him in the eye and causing loss of sight.

<p>Appeal from a judgment of the circuit court for Oconto county: Samuel D. HastiNgs, Circuit Judge.</p> <p>The appeal is from a judgment ousting the appellant from' the office of county judge of Oconto county.</p> <p>They contended, inter alia, that the offices of county judge and justice of the peace are not incompatible. State ex rel. Barnhill v. Thompson, 122 EF. 0. 493, 29 S. E. 720; State ex rel. Walker v. Bus, 135 Mo. 325, 33 L. E. A. 616, 620; Opinion of Justices, 3 Me. 484; Bamford v. Melvin, 7 Me. 14; State ex rel. Murphy v. Towiisend, 72 Ark. 180. The offices must subordinate, one with the other, and they must, per se, have the right to interfere, one with the other, before they are incompatible. Att’y Gen. v. Detroit, 112 Mich. 145; State ex rel. Walker v. Bus, 135 Mo. 325, 33 L. E. A; 616, 620; State ex rel. Metcalf v. Goff, 15 E. I. 505, 2 Am. St. Eep. 921; State ex rel. Glawson v. Thompson, 20 EF. J. Law, 689 ; Bryan v. Oattell, 15 Iowa, 538; Slate ex rel. Murphy v. Townsend, 72 Ark. 180; Mechem, Pub. Off. §§ 422, 424. The question does not depend on a mere technical conflict. The conflict must be such that, on grounds of public policy, the offices ought not to be held by the same person. State ex rel. Walker v. Bus, 135 Mo. 325, 33 L. E. A. 616; Abry v. Gray, 58 Kan. 148, 48 Pac. 577; Att’y Gen. v. Detroit, 112 Mich. 145, 168.</p>

<p>ERROR to review a judgment of the circuit court for La Crosse county: J. J. FfluiT, Circuit Judge.</p> <p>Error to review a conviction of the offense of fornication with a sane female of previous chaste character under the age of eighteen years.</p> <p>It was claimed by tbe prosecution that the alleged offense was in fact committed at the home of the plaintiff in error. The companion of the alleged guilty party was a girl seventeen years of age. Such party was a Catholic priest in charge of the congregation to which the people belonged with whom the girl resided. At the request of the plaintiff in error, November 1, 1904, the girl visited him for the ostensible purpose of receiving religious instruction. She was received into his private study. There was a bedroom adjacent thereto. She testified that when she was so received, plaintiff in error locked the door; that he proceeded to ask her some questions, and soon thereafter gave her a powder, making some suggestions which induced her to take the same on her tongue; that she soon thereafter became unconscious; that after a time §he regained consciousness, when she found herself sitting in the chair, as before, with the priest beside her; that she was. somewhat dizzy; that he handed her the catechism, and soon opened the door for her to depart, admonishing her not to tell what had occurred, for if she did she would lose her religion; that she promised not to tell; and that while on her way home she was conscious of a new sensation, indicating that something wrong had occurred. She testified to having visited the house of plaintiff in error, and been received and treated as before, on five subsequent occasions, and thereafter received from time to time and npt so treated, and that on March, 1905, she v^as baptized and received into the church. She further testified that on each of the six visits she first made she experienced on her way home the sensation before referred to, and that on the last of such visits she discovered that her clothes were disarranged, and that there were other indications of her having been abused. About nine months after the first of such visits she gave birth to a child. Her condition was discovered about two months prior thereto, whereupon plaintiff in error was induced to visit the place where she resided, and was then by the man of the house accused of baying been the means of her condition. He became, thereupon, greatly excited, vigorously denied the accusation, and demanded of the girl if she would face him and claim that any such thing had occurred as had been suggested. "Whereupon she said that she knew what he had done. A few days thereafter he left the country. Later la warrant was sworn out for his arrest, and he was found at the home of a Catholic brotherhood in the vicinity of Dubuque, Iowa. At the time of his arrest he said to the officer that there was m> need of reading the warrant to him, as he knew what it was about. He claimed to have been sent into retirement at the home of the brotherhood by his bishop. There was evidence on his part that the story of the girl as to his having given her powders which rendered her unconscious was untrue; that her visits to him were not characterized by the privacy indicated by her testimony; that he locked the outside door only to prevent its blowing open; that there was a door opening from his study to parts of the house frequented by the housekeeper, so that she had full opportunity, at any time, tó observe occurrences in the study, and that several persons .came into the study while the girl was there. There was further evidence that at about the time of the girl’s visits to plaintiff in error, young men were paying her attentions. That on one occasion, on a Sunday, she attended a dance, which occurred in a hall over a saloon, and late at night after the dance walked a long distance to her home with her young man attendant. Several exceptions were saved to instructions given by the court and refusals to instruct.</p>

Mandamus to Orren T. Williams, Judge of the Circuit Court for Milwaukee County. On March 20, 1906, the cause was argued on motion to quash the writ. They contended, inter alia, that the supreme court is without jurisdiction to issue the peremptory writ prayed for unless under and in accordance with an express statute. Fx parte Burtis, 103 U. S. 238; U. 8. v. Lawrence, 3 Dali. 42; U. 8. v. Peters, 5 Cranch, 115; Life & F. Ins.

Tarrant, Circuit Judge. This is an appeal from an interlocutory judgment of tbe circuit court for Milwaukee county. Held: all the stockholders at that time being plaintiff, William Bergentlial, Anna M. Bergentlial, William F. Bergentlial, and one Adelheid Gran, a relative of William Bergentlial.

TIastiegs, Circuit Judge. This is an action of trespass commenced January 24, 1906, to recover damages for cutting grass and timber on the lands described between September 1, 1905, and December 15, 1905.

<p>Appeal from orders of tbe circuit court for Price county: •JohN K. Paeish, Circuit Judge.</p> <p>Tbe plaintiff filed bis claim witb tbe county board for certain fees as justice of tbe peace, and appealed to tbe circuit court for Price county from an order disallowing it in part. In tbe circuit court defendant filed a formal answer to tbe claim and also set up a counterclaim. Tbe action was tried without a jury during tbe January term, 1905, and taken under advisement. Afterwards and on July 5, 1905, a certain paper purporting to be findings of fact and conclusions of law, but without any signature of tbe judge, was filed witb tbe clerk of tbe court, reciting in effect as facts that tbe allegations of tbe complaint were true and that tbe allegations of tbe counterclaim were not proven; and as conclusions of law that tbe plaintiff was entitled to recover of tbe defendant tbe amount claimed in tbe complaint, and ordered that judgment be entered accordingly. Afterwards and upon tbe 11th day of July, 1905, without any order or direction from tbe .judge, tbe clerk entered judgment for $80.58 in favor of tbe plaintiff, with costs. On tbe 27th day of July, 1905, tbe ■circuit judge made an Order, based upon tbe records and certain, affidavits, requiring tbe plaintiff to sbow cause before tbe circuit court for Taylor county at Medford on September 5, 1905, wby tbe judgment should not be vacated and set aside. On tbe 24th day of October, 1905, tbe plaintiff filed a transcript of tbe judgment, with tbe necessary affidavits attached thereto, in tbe office of tbe county clerk, as provided by sec. 661, Stats. 1898. Tbe order to sbow cause wby tbe judgment should not be vacated and set aside wak beard on affidavits of tbe respective attorneys, O. E. Scbwindt for plaintiff, and Arthur R. Barry for defendant, and also on that of Alex. Rasmussen, clerk of tbe circuit court for Price county, from which affidavits it appeared that there were filed with the clerk of tbe circuit court alleged findings of fact and conclusions of law, but that said findings were not signed by tbe Honorable JonN K. Pabish, circuit judge, who tried tbe action, which fact was discovered on tbe 15th day of July, 1905, and that no findings of fact and conclusions of law signed by said judge who tried tbe action bad been filed; that on tbe 27th day of June, 1905, tbe Honorable Jonsr K. Pabish, circuit judge, entered in bis minutes that tbe counter claim of tbe defendant be dismissed and tbe plaintiff recover judgment as prayed for in tbe complaint; that on tbe 5th' day of July, 1905, plaintiff’s attorney filed what purported to be findings of fact and conclusions of law, which bad not been signed by tbe circuit judge or by any judge, which fact had not been discovered by tbe clerk of tbe court until tbe 15th day of July, 1905; that through inadvertence and error the clerk of the court who entered tbe judgment failed to note that tbe alleged findings and conclusions bad not been signed by any judge. Other facts appear in tbe affidavits not necessary to state. Upon tbe bearing on tbe order to sbow cause why tbe judgment should not be vacated, tbe court on tbe 2d day of November, 1905, vacated and set aside tbe judgment, and in such order recited that tbe judgment in said action was made and rendered by mistake and inadvertence. Tbe court also ou tbe 1st day of November, 1905, on motion of defendant, made an order requiring tbe plaintiff, witbin one day after service of a copy of tbe order, to' withdraw tbe transcript of tbe judgment docket and affidavits thereto annexed from tbe offi.ee of tbe coknty clerk, with $5 costs of motion, and staying all proceedings until tbe further order of tbe court. Tbe court also on tbe 4th day of November, 1905, on its own motion, set aside and vacated the alleged findings and conclusions of law hereinbefore referred to. The appeal is from tbe three orders above referred to. '</p>

<p>Appeal from a judgment of tbe circuit court for Ashland county: Joi-iN K. Parish, Circuit Judge.</p> <p>Tbe circuit court for Ashland county in this action made findings and rendered judgment against tbe appellant on an agreed statement of facts. From admissions in tbe pleadings and tbe stipulated facts it appears that plaintiff is a New York corporation carrying on in tbe city of New York a general commission and brokerage business and buying and selling stocks and bonds. Tbe complaint averred that the plaintiff at tbe city of New York, at tbe request of tbe defendant, purchased for defendant 1,000 shares of tbe capital stock of tbe Arizona Copper Mountain Mining Company of Phoenix, Arizona, at thirty-five cents per share, and that be further agreed to pay plaintiff an additional $25 for obtaining a transfer of said stock into tbe name of defendant on tbe books of tbe said mining company, all of which plaintiff performed. Tbe answer, after some admissions, contained a general denial, followed by an averment that, if any contract was entered into as averred in tbe complaint, tbe same was entered into at (Midden, Ashland county, Wisconsin, and that tbe plaintiff corporation was not licensed to do business within this state. Ry tbe stipulation of facts it was also agreed that tbe sole question in tbe case was: Is tbe plaintiff, which was not licensed under the laws of Wisconsin to do business in this state, entitled to maintain this action and recover therein ? Tbe contract was entered into by correspondence between defendant, residing at and writing from Gflidden, Wisconsin, and tbe plaintiff, resident at and writing from New York. April 6, 1904, defendant wrote plaintiff stating that be could use 5,000 shares of said mining company stock and would pay eighteen and one-half cents per share therefor. April 8th plaintiff answered to the effect that tbe market was thirty cents per share. April 11th defendant wrote making an offer of thirty-five cents per share for 5,000 shares or less, and ordering the stock if sent to be forwarded to the Wisconsin State Bank witb draft attached. April 14th plaintiff wired defendant that it had secured 1,000 shares at thirtydive cents, and the same date plaintiff wrote defendant that it had bought for his account 1,000 shares of the mining stock at thirty-five pents per share and was sending the same to defendant with draft through the Glidden bank, and that if it could pick up any more of the stock for defendant it would advise him by wire. April 16th defendant wrote acknowledging receipt of plaintiff’s letter of April 14th, giving some excuse for delay, and adding, “But draft will be promptly honored next week,” and requesting more stock, adding, “Hope you can secure more stock.” The stock with draft attached came to the Glidden bank, the indorsements of transfer were informal and not satisfactory to defendant, and he returned it to New York to the plaintiff to have the same transferred on the corporate books of the mining company into his name, offering to pay the plaintiff $25 for attending to the transfer and asking the plaintiff to get him more of tire stock. The plaintiff procured the transfer of the stock on the books of the mining company to the name of defendant, returned it to the Glidden bank with draft for $375 attached, and after some further correspondence the defendant refused to pay the draft or accept the shares, on the ground that the plaintiff was an unlicensed foreign corporation. There is no proof to show the domicile of the Arizona Copper Mountain Mining Company of Arizona except what may be inferred from its name, but the shares in question had to be returned to New York in order to be transferred on its books into defendant’s name. The circuit court found these facts, but failed to find the admitted fact that the plaintiff was a foreigu. unlicensed corporation, and did "find that the plaintiff in the city of New York, at the instance and request of the defendant, purchased and obtained for the defendant said stock. Error is assigned in not finding that plaintiff was a foreign corporation which had failed to comply with the provisions of sec. 17705, Stats. -1898; in finding contrary to the stipulated facts; in not finding that the contract was a Wisconsin contract; in not finding as a matter of law that defendant was entitled to judgment.</p>

<p> Tax titles: Sales to prohibited officers: Evidence: Findings: Purchase of tax certificates or tax title from county: Sales at discount: Right of tax-title claimant to face of tax certificate and interest. </p> <p>1. A conveyance of a tax title by tbe county is not to be held void within the prohibitions of sec. 1143, Stats. 1898 (providing that certain county officers shall not make any purchase, directly or indirectly, of any tax certificate or tax title held by the county), because a deputy county treasurer was interested in making the sale, where the court on sufficient evidence has found that such officer was not interested in the purchase.</p> <p>2. In an action by the original owner to quiet title as against a tax-title claimant it is not error, under the provisions of sec. 121071, Stats. 1898, to require the original owner to pay the face value of the tax certificates and interest from the time the tax-title claimant acquired them, or from the time he received conveyance from the county of the title acquired by the county under them. It is not the purpose of the statute to enable the original owner to escape paying a portion of his taxes by reason of the county haying sold its tax certificates at less than their face value.</p> <p>3. Under sec. 1210b, Stats. 1898, in an action to set aside a tax deed, i the court adjudged that the tax deed was void, that the original owner he barred unless within the time allowed he pay into court, for the use of the tax-title claimant, the face of the tax certificate on which the deed was based and the face of all subsequent tax certificates, with interest, and upon such payment that the title to the lands in question he established in the original owner, and awarded a judgment for costs in favor of the tax-title claimant. Held,, that the judgment for costs was premature and erroneous.'</p>

<p>Appeal from a judgment of tbe circuit court for Sawyer county: W. C. Silveethoem, Judge.</p> <p>This is an action to recover damages for personal injuries sustained by plaintiff April 21, 1902, while employed in defendant’s sawmill at Hayward, Wisconsin. On the day named the plaintiff was working as a rider upon one of the saw carriages in the mill, which carriage was operated by means of what is known as a steam feed, which lets steam into a long cylinder in which a piston works, which is attached to the carriage and propels it very rapidly forward and back past a band saw, thus sawing lumber from a log or cant fixed upon the carriage. The head sawyer operates the carriage by means of a lever which moves a valve in the steam-feed apparatus and lets in or shuts off the steam. Just prior to the accident the sawyer, one Magnuson, called the engineer, Lee, and stated that the feed was working hard. After finishing the sawing of the log then on the carriage the sawyer stepped aside and Lee took hold of the lever and ran the carriage back and forth a few times, apparently without difficulty, and the sawyer told him to open the valve wide and he would feel it. The plaintiff meanwhile remained on the carriage. Lee then opened the valve wide and the carriage started rapidly past the saw. Lee failed to reverse the lever in time and the carriage bumped against the bumper, the plaintiff was thrown down on the carriage, which at once started rapidly back, and plaintiff’s leg, which was projecting over the edge of the carriage, was sawed off below the knee as the carriage passed the saw. The sawyer grabbed the lever as the carriage passed the saw and shaped the carriage. The plaintiff’s claim was that the steam-feed apparatus was defective in that the pipe conducting the exhaust steam away from the valve, called the port pipe, was too small, and that there were other defects of which he was ignorant but which the plaintiff well knew, causing the carriage to jerk or stick. He also claimed that Lee was an incompetent engineer and known to be so by defendant, and that the accident was the combined result of the defects in the apparatus and the incompetence of Lee. The jury returned a special verdict as follows:</p> <p>“(1) Was the North Wisconsin Lumber Company, the defendant, at the time mentioned in the complaint in this action, a corporation existing under the laws of the state of Wisconsin? A. (by the court) Yes. (2) Was the said North Wisconsin Lumber Company, on April 21, 1902, the owner of and engaged in operating a sawmill at Hayward, Wisconsin? A. (by the court) Yes. (3) Was the plaintiff, Ole Odegard, on said 21st day of April, 1902, as an employee of the defendant, the North Wisconsin Lumber Company, engaged in its service in the work of riding upon the log carriage in the said mill while the same was in operation in- the manufacture of lumber? A. Yes. (4) Was the said Ole Odegard, while so engaged on that day, thrown down upon the said carriage in such a way that as the carriage was impelled toward the band saw his left leg was cut off by said saw a short distance below the knee ? A. Yes. (5) Hid any want of ordinary care on the part of the plaintiff, Ole Ode-gard, contribute to produce his injury? A. Ho. (6) Was said Reodor Lee a competent engineer at the time of the accident by which the plaintiff Odegard lost his leg? A. Ho. (7) If said Reodor Lee was an incompetent engineer at the time of the accident by which Ole Odegard lost his leg, did the North Wisconsin Lumber Company know, or ought it reasonably to bave known, prior to tbe accident aforesaid that said Reodor Lee was incompetent. A. Yes. (8) Was the-said injury to tbe plaintiff, Ole Odegard, caused by tbe incompetence or want of skill as an engineer on tbe part of said Reodor Lee? A. Yes. (9) Did tbe defendant, tbe North Wisconsin Lumber Company, furnisb its employee, said Ole Odega/rd, at tbe time of tbe accident, in tbe said steam-feed apparatus wbicb moved tbe carriage upon wbicb be was riding, a reasonably safe appliance for tbe work in wbicb be was engaged? A. No. (10) If tbe said steam-feed apparatus was not a reasonably safe appliance for tbe work in wbicb said Odegard was engaged at tbe time be lost bis leg, did tbe defendant, tbe North Wisconsin Lumber Company, know, or ought it reasonably to bave known, prior to tbe said accident, that tbe said steam-feed apparatus was not a reasonably safe appliance for tbe work in wbicb said Ode-gard was engaged wben tbe accident occurred? A. Yes. (11) Would tbe majority of millowners and superintendents, under tbe circumstances of tbe situation in wbicb Odegard was placed at tbe time of tbe accident, bave reasonably expected and foreseen that tbe said steam-feed apparatus would be likely to cause an injury to tbe plaintiff, Odegard, by reason of tbe condition in wbicb it tben was? A. Yes. (12) Would tbe majority of millowners and superintendents, under the circumstances of tbe situation in which Odegard was placed at tbe time of tbe accident, bave reasonably expected and foreseen that Reodor Lee would be likely to cause injury to tbe plaintiff, Odegard, by reason of the incompetency as an engineer of the said Reodor Lee? A. Yes. (13) Was tbe danger to be apprehended from riding the carriage in question at tbe time of tbe accident so great, immediate, and constant that a reasonably prudent person, under all tbe circumstances in which Odegard was then placed and acted, would not subject himself to it? A. No. (14) Was tbe defendant guilty of negligence in failing to furnisb tbe plaintiff a reasonably safe appliance in tbe said steam-feed apparatus with wbicb to do his work? A. Yes. (15) If you answer tbe last question Wes,’ tben was such negligence of the defendant tbe proximate cause of the injury ? A. Yes. (16) What damages has tbe plaintiff, Odegard, sustained by reason of bis said injury ? A. $8,500.”</p> <p>Judgment for the plaintiff was rendered on tbis verdict, and the defendant appeals.</p>