Volume 132 — Wisconsin Reports

<p>Appeal from a judgment of the circuit court for Outa-gamie county: Jo it it Goodlaud, Circuit Judge.</p> <p>This is an action to recover a balance claimed to be due upon a contract for the manufacture and sale by the defendant lumber company of a large quantity of lumber from logs-belonging to the plaintiff. The contract was made in March,. 1896. At that time the plaintiff owned between 4,000,000- and 5,000,000 feet of pine saw logs which had been cut during the previous winter, the most of which were banked in Trap Lake near Monico Junction and a small portion at a railroad siding two miles north of Monico. The plaintiff owned no sawmill, but the defendant lumber company owned and operated a mill at Jeffris, about twenty miles distant from Monico. The contract provided that the defendant lumber company should load all the logs above referred to on cars and take them to the mill at Jeffris and there saw them into lumber, shingles, lath, and lumber products to the best advantage of all parties, pile the same separately, plane the same as far as necessary to make advantageous sales, make sale thereof as far as possible to the best advantage from time to time, load and ship on cars and collect all moneys due on sales as far as possible with due diligence, insure the product for the use of the parties, and perform all the conditions in a workmanlike manner, using due diligence in collecting the-money due on sales. It was further provided that plaintiff was to be paid out'of the first proceeds received from sales “at the rate of $5 per 1,000, log measure, until the same shall be fully paid.” After this payment the defendant lumber company was to retain from the proceeds of sales the actual cost of removing, hauling, sawing, piling, planing, selling, loading, and insuring, and the balance was to be divided equally between the two parties. The work of sawing was to begin July 15, 1896, and continue night and day. Monthly statements of sales were to be furnished and monthly remittances and annual settlements were to he made. The lumber company was to keep the logs and product free from liens and incumbrances, and to carry accident insurance so- as to prevent -liability from accidents to- employees, and the “logs and prod-nets” were to be kept separate. Other provisions relating to the division of insurance moneys in case of fire are not material here. The contract contained no provision stating how the “log measure” on which the defendant was to pay the plaintiff $5 per 1,000 feet should be determined.</p> <p>Soon after the execution of the contract the defendant company transported the logs banked at the siding by rail to Jef-fris, and dumped them in the mill pond or small lake at the mill, and inclosed the same in a separate boom. These logs made eighty-five carloads, averaging somewhere from 4,000 to 5,000 feet to the car. The lumber market was depressed during the simmer of 1896, and the parties concluded that it would' be best to postpone the manufacture of the lumber to the following year, and the logs in the lake at Mon-ico were left there until the spring of 1897. In August, 1896, however, an order was received by the defendant company for 8x8 timbers, and the defendant commenced the manufacture of the same from the plaintiff’s logs. The logs were not scaled as they went into the mill, and there is 'a dispute as to how many feet of logs were then manufactured, the plaintiff claiming that more than 100,000 feet were sawed, while the defendant claimed that not more than 40,000 to 50,000 feet were then sawed, and the referee found that the amount did not exceed 100,000 feet. Of the amount so cut, one carload, containing 11,648 feet, was immediately shipped to fill the order for timber. According to the defendant’s testimony the balance then cut was piled separately in the defendant’s millyard. The defendant claims that soon after this cutting an oral supplemental agreement was made by which the scale of the logs on which the $5 per 1,000 was to be paid was to be determined by deducting twenty-five per cent, from the scale or tally of the jESTo. 3 and better sound lumber cut from the logs. This is denied by the plaintiff, and the referee made no finding on the subject. It is admitted that the following written agreement was made May 6, 1897:</p> <p>“It is further agreed that the D. K. Jeffris Lumber Company are to start sawing on Wisconsin Sulphite Fibre Company’s logs not later than June 1, 1897, and that the log scale shall be determined by deducting twenty-five per cent, from the actual scale or tally of sound lumber cut from aforesaid logs.”</p> <p>In the spring of 1897 the boom inclosing the remainder of the siding logs in the millpond at Jeffris broke, and the greater portion of the logs escaped into the lake and mixed with the defendant’s logs, all of which had been cut during the immediately preceding winter. Defendant claims that the plaintiff’s logs were easily recognizable and were at once marked, and that the greater portion of them as they came to the mill were placed in a pocket by themselves. Plaintiff claims, however, that many, if not most, of them were manufactured into lumber indiscriminately with defendant’s logs and went into the defendant’s piles. Early in June, 1897, the defendant put in loading works at the lake at Monico, and took out the logs in the lake and transported them by rail to Jeffris. June 24, 1897, the defendant commenced sawing the plaintiff’s logs, and sawed exclusively thereon until September 6th, when all had been sawed except a few deadheads subsequently picked up. During this time the plaintiff employed two men, Dennis and Tubbs, who scaled the logs on the log deck as they, came into the mill, one working during the day and the other at night. Their scale aggregated 3,584,540 feet. The tally at the tail of the mill during this time showed a cut of 4,039,286 feet of lumber of all grades. The defendant’s testimony tends to show that all of this lumber, together with the amount previously ■ cut, was piled in a separate place and.marked with an “M.” . The defendant company had a large amount of its own lumber ■ in the yard. It did a large wholesale business. There were no cash o-r retail sales. All the lumber sold went out by cars. When orders were received they were filled from defendant’s piles and plaintiff’s piles, as was most convenient, and in a large majority of the cases there was lumber from both stocks. The defendant’s employees were instructed to keep the Monico stock shipped in separate items marked “M” on their tally cards as they made shipments, and testified that they did so. These tally cards were turned in at the office and the bookkeepers were instructed to keep account of the Mon-ico stock sold and shipped, and it appears that they attempted to do so. The defendant’s mill was burned in December, 1897, and soon after this the books of account were moved to Janesville, where they were afterwards kept.</p> <p>The defendant claimed that under the supplemental agreement the amount of logs on which it should pay $5 per 1,000 was to be determined by deducting twenty-five per cent, from the total amount of sound lumber No. 3 and better tallied into cars according to the hooks from the Monico stock, and adding thereto a small remnant left unsold in the yard in November, 1899, viz., 39,184 feet, which was inventoried by the parties at that time and sold to the defendant; that the total amount of all grades as so ascertained is 4,060,646 feet, of which 3,374,805 feet was sound lumber No. 3 and better, three fourths of which amount is 2,476,224 feet, which at $5 per 1,000 amounts to $12,381.12 to be paid for the logs. The defendant also claimed that the total amount received on sales of lumber was $44,443.25, and that, deducting from this the $12,381.12 to be paid for logs, there was left a balance-of $32,062.13 as the proceeds of sales on joint account. The defendant-claimed to have paid $11,800 on the log account, leaving $581.12 due thereon. It also claimed that the expense account aggregated $28,577.69, leaving a balance on the joint account of $3,484.44, one half of which belonged to the plaintiff, viz., $1,742.22, making a total on log and joint account of $2,323.34, to which should be added certain other items, resulting in a Mal balance due plaintiff January 1, 1902, of $2,751.80.</p> <p>Tbe plaintiff claimed by its original complaint that the amount due on the log account and the joint account over and above payments and expenses was $43,500, and upon the trial an amendment to the complaint was allowed by which a claim for damages in the sum of $25,000 for failing to< use diligence in removing the logs and for negligent and unworkman-like manufacture was added.</p> <p>The action was referred to a referee for trial. The referee found by his twentieth finding that the original agreement for the manufacture of the lumber was made by the parties, and that it was supplemented by the agreement of May 6, 1897, both of which have been previously stated. In this connection he further found</p> <p>"that there was no consideration paid by defendant to procure the execution or the modification of the contract, and it was not the intention of the parties in executing said modification to rely upon the sound lumber scale; that there is no such grade known among manufacturers of lumber as sound lumber; that under all the agreements made between the parties the plaintiff is entitled to $5 per 1,000 feet upon the actual scale of the logs after deducting twenty-five per cent, from said actual scale. The actual scale of lumber of No. 3 and better cannot be determined, owing to the imperfect manner of keeping tally and keeping the books of the defendant.”</p> <p>The referee then finds that the total amount of logs which were manufactured must be determined by taking the Dennis and Tubbs scale, viz., 3,583,540 feet, adding thereto ten per cent, for overrun, adding to this the siding logs, viz., 385,740 feet, and ten per cent, for overrun, and deducting from the total twenty-five per cent, in accordance with, the modified agreement, by which process he obtains a total of 3,274,657 feet, which at $5 per 1,000 amounts to $16,372.28, which should, be paid for the logs under the modified agreement.</p> <p>By his twenty-second finding the referee found that 4,039,274 feet of lumber of all grades was cut from tbe logs sealed by Dennis and Tubbs from June 24 to September 6, 1897; tbat this did not include any of tbe siding logs; tbat tbe siding logs aggregated 385,740 feet, to wbicb should be added ten per cent, for tbe overrun in No. J3 and better and eight per cent, for overrun in culls, thus maldng a total cut of lumber, exclusive of shingles and lath, of 4,494,447 feet; tbat tbe record kept by defendant of tbe amount of Monico lumber sold and shipped is not reliable, and to determine tbe amount by tracing tbe shipments through defendant’s books is impracticable; that tbe defendant claims tbat tbe whole amount of lumber sold is 4,052,598 feet, whereas in fact it was 4,494,459 feet, making 441,861 feet not accounted for, wbicb was reasonably worth $10 per 1,000 feet, making $4,418.61 wbicb should be credited to tbe joint account.</p> <p>By bis seventh and eighth findings tbe referee found tbat tbe logs cut in 1897 were properly slabbed, and tbat tbe lumber was piled as well as circumstances would permit; tbat proper care was not taken in trimming and edging tbe same, and consequently considerable of tbe lumber was graded as No. 4 wbicb by proper trimming would have made No. 3 and better, but tbat the damage thereby is unascertainable; tbat considerable sound timber was manufactured into shingles wbicb should have been made into lumber; and tbat from these causes it is impossible to say bow much No. 3 and better lumber was cut from tbe Monico stock.</p> <p>By bis twenty-eighth and twenty-ninth findings tbe referee found tbat tbe defendant bad failed to cut tbe logs into lumber and other products' to tbe best advantage of tbe parties; tbat it failed to perform tbe work in a workmanlike manner; tbat it failed to keep and present vouchers for tbe loading expenses, failed to keep correct accounts of receipts and disbursements, and failed to make monthly statements of sales and monthly remittances and annual settlements as agreed; tbat it failed to keep tbe products separate, but intermixed them with its own stock in shipping; that it failed to make a correct scale or tally of the lumber manufactured; that the plaintiff has not waived any of the conditions or terms of the contract, except that as to the time when the defendant should commence the moving and sawing of the logs. No damages are found to have resulted from these defaults.</p> <p>By other findings the referee disallowed numerous items of expenses claimed by the defendant which will be fully discussed in the opinion. The referee found in conclusion that the plaintiff was entitled to judgment for $13,648.18, with interest, said sum being made up as follows:</p> <p>Balance due on logs.'IS,709 23</p> <p>One half o£ joint account over and above expenses. 7,512 43</p> <p>Credits for omissions. 426 52</p> <p>Total. $13,648 18</p> <p>The referee’s report was confirmed by the court and judgment rendered thereon, from which the defendant appeals.</p>

<p>Appeal from a judgment of the circuit court for Milwaukee county: ORREír T. Williams, Circuit Judge.</p> <p>This is a claim, against the estate of Albert Taylor, deceased. It was wholly disallowed in the county court, and the claimant appealed. After trial in the circuit court he secured a verdict for $1,260.24, upon -which judgment was entered, and the administrator appeals.</p> <p>It appeared upon the trial that the deceased, Albert Taylor, in 1855 was a farmer living with his wife upon a farm which he owned in the town of Greenfield, Milwaukee county, and that in June, 1855, the claimant, being then an orphan five years of age not related to the deceased, went to live with the deceased as a member of his family upon the farm; that the deceased had no children of his own, and that the claimant was taken into the family and treated as a son, .though not formally adopted, and recognized as an adopted son and as a member of the family by the deceased and his relatives; that in June, 1870, the claimant enlisted in the regular army, and remained in the army until June, 1815, when his term of enlistment expired and he returned to the home of the deceased and worked on the farm until February, 1876, when the deceased sold his farm, and the claimant rented a farm a mile distant and commenced business for himself; that from February, 1876, until some time in 1884 the deceased lived during the greater part of the time in Indiana, but in the last-named year returned to Wisconsin and took up his resi-r ■ deuce in the town of Wauwatosa, in his own house, and lived there until some time in October, 1896; that the wife of the deceased died in September, 1891; that in October, 1896, the deceased went to Crown Point, Indiana, where he had some relatives, returning occasionally to Wauwatosa until he died, April 16, 1903, leaving a will executed September 22, 1896, by which he left all his property to Oassius M. Taylor, a relative residing in Lake county, Indiana, which will has been duly probated in the county court of Milwaukee county; that the claimant was married in April, 1881, and has a son and daughter both of adult years.</p> <p>The testimony further tended to show that in April, 1893, the claimant was living with his family in the city of Milwaukee, and that at this time the deceased, being alone in his house in Wauwatosa, requested the claimant and his family to come and live with him in Wauwatosa and that the claimant complied with the request; that from this time until the middle of September, 1895, the parties lived together in the house of the deceased, the claimant furnishing the meals and his family doing the washing and other work, including care of the deceased when sick; that the claimant then moved to another house near by, but the deceased continued to room in his own house and took his meals with the claimant, and the claimant’s wife and family continued to do the washing and to furnish him care when sick till he went to Indiana in October, 1896.</p> <p>The claim as originally filed in county court was for the sum of $2,761.83, and contained a number of items for money advanced and farm labor performed between April, 1868, and November, 1887. As to the money items no testimony was given in the circuit court, and the court directed the jury that they should only consider the evidence bearing on the claim for board, nursing, and care from 1893 to 1896. The only items during this period in the original claim were as follows:</p> <p>To board and lodging from April, 1893, to September 1, 1895, 126 -weeks at $4 per week. $504 00</p> <p>To interest on same from September, 1895, to April, 1902, at 6 per cent. 166 32</p> <p>To board from September 1, 1895, to September 25, 1896, 56 weeks at $2 per week. 112 00</p> <p>To interest on same from September, 1896, to April, 1902, at 6 per cent. 36 76</p> <p>At the opening of the trial in the circuit court, against objection and exception, the court allowed the claimant to file an amended claim, adding a number of items to the original claim aggregating $500, of which, however, the only items submitted to the jury were the following:</p> <p>To washing, sewing, mending, from April 1, 1893, to October 1, 1895, 78 weeks at $0.75 per week. $58 50</p> <p>To interest on same, 6% years at 6 per cent.. 22 82</p> <p>To cooking, washing, mending, and cleaning from October 1, 1895, to September 26, 1896, 52 weeks at $1.50 per week- 78 00</p> <p>To interest on same, 5% years at 6 per cent. 25 74</p> <p>Thus it appears that the aggregate amount of the items submitted to the jury was $1,004.14, while the verdict of the jury was for $1,260.24.</p> <p>After verdict the court, against objection and exception, allowed a further amended claim to he filed to conform with the verdict and evidence, in which the item for hoard, lodging, etc., from April, 1893, to September, 1895, was increased to $7 per week instead of $4, and a like increase made in the item of hoard, etc., from September 20, 1895, to October 10,. 1896, so as to make the aggregate of these two items $1,267.</p>

Appeals from an order of tbe circuit court for Milwaukee county: J. C. Ludwig, Circuit Judge.

Eowlee, Judge. Tbe trustees of tbe estate of Aaron IT. Davis, deceased, petitioned tbe court for tbe construction of tbe will of tbe deceased. It appears that tbe deceased died, leaving a will with a codicil; that probate thereof bad been duly granted September 3,1889; and that petitioners were the duly appointed and acting trustees to administer the trust created by the will.

J. Eruit, Circuit Judge. Charge of bastardy laid by Louisa Veith alleging paternity of child horn July 1, 1905.

<p> Fire insurance: False representations in application: Avoidance of policy: Knowledge of facts by insurer: Finding in special verdict construed. </p> <p>1. In a printed blank application for fire insurance was the double question: “Is the property mortgaged and to what amount? Is there any insurance by the mortgagee?” Plaintiff answered that question, “No.” A finding by the jury to the effect that by that answer he intended to state that there was no insurance by the mortgagee, not that the property was not mortgaged, is held to be sustained by the evidence.</p> <p>2. Although at the time of applying for fire insurance plaintiff falsely represented to the president of the defendant company that no other person was interested in the property, yet if the president then had knowledge of the fact that some other person was interested therein the agreement then'made by defendant to insure the property cannot be avoided after a loss on the ground that the making thereof was induced by such false representation.</p> <p>3. A finding by the jury that the president of defendant company had “information” that some person other than plaintiff was interested in the property is a finding that the president had knowledge of the fact.</p>

<p>Appeal from a judgment of the circuit court for Green-county: B. E. DuNweddie, Circuit Judge.</p> <p>Peter Wells was born November 2, 1814. He died intestate September 26, 1904, leaving him surviving five children,, Thomas B., Joshua, Charles, Adeline M’Cammant, and Catherine Lichtenwalner, all of whom are defendants in this; action, and also four grandchildren, who are children of his. deceased son Matthew Wells, who died at his residence at Sumner, Iowa, January 12, 1893, and all four of whom are-the plaintiffs in this action. The said Peter Wells also seems-to have left some $40,000 of personal property to be administered in this state, and also a large amount of real estate,, said to be approximately worth $145,000. It appears that some two years and eight months prior to his death and soon-after he was eighty-seven years of age, Peter Wells conceived' the idea of dividing his real estate, or the most of it, among-his children and grandchildren under the circumstances hereinafter stated. Pursuant to such purpose and on January 27, 1902, he executed seven deeds, one to each of his five-children and one to each of two of his grandchildren, of the-lands therein respectively described.</p> <p>On April 29, 1905, the four grandchildren commenced this action against the son Thomas B. Wells and wife and the other children of the deceased to cancel, vacate, and set aside-the deed so executed by Peter Wells to the said Thomas B. Wells January 27, 1902, of the lands therein described, as-being a cloud upon the undivided one-sixth interest of the real estate left by the deceased, which the plaintiffs claim to-own as heirs at law of said intestate and as tenants in common with their said five .uncles and aunts. Thomas B. Wells-answered the complaint in the action, claiming title under-said deed to the lands therein described.</p> <p>At the close of the trial the court found as matters of fact,, in addition to the facts stated, (2) that the deed from Peter Wells to Thomas B. Wells was a warranty deed, reciting a consideration of one dollar and tbe love and affection borne by tbe said Peter Wells to bis said son Thomas B. Wells, and describing tbe premises therein conveyed; (3) that upon tbe same date, January 27, 1902, tbe said Peter Wells also made, executed, and acknowledged in the same manner deeds of real estate upon the same express consideration to each of his other surviving children and also to two of said grandchildren; (4) that upon the same date, January 27, 1902, the said Peter Wells made and signed a memorandum in writing in words as follows: “I hereby direct that the deed hereto annexed shall five days after my death be delivered by my executor or administrator to my son Thomas Wells, or his heirs, and that he have possession of the property contained therein. Petek Wells,” — and did annex said memorandum to the said deed to the defendant Thomas B. Wells hereinbe-fore mentioned; that upon the same day he made and executed similar memoranda, which he annexed to each of the deeds to his other surviving children named therein; that each of said deeds with the memorandum attached to each was placed by the said Peter Wells in a separate envelope; that all of said envelopes containing such deeds with the mem-oranda attached were placed in a large box envelope, upon which was written, at the direction of said Peter Wells, “In ' escrow to Henry Ludlow, with directions to deliver as within stated;” (5) that January 27, 1902, said Peter Wells had in mind the drawing of a will to dispose of other parts of'his property not disposed of by deed; that hé had determined to name said Henry Ludlow as executor of said will, and that in using the words “my executor or administrator,” in said memoranda, said Peter Wells intended to describe and did mean said Henry Ludlow, the person to whom he intended to deliver said deeds for the grantee and being the same person he intended to name as executor in his will; that said Peter Wells did not make a will, but intended such directions to be a. direction to said Henry Ludlow to deliver said deeds to the respective grantees named in said deeds; (6) that January 27, 1902, the said Peter Wells at Monroe, Wisconsin, did deposit said deed to the defendant Thomas B. Wells, together with the deeds to his' other- surviving children, each with a memorandum attached, as hereinbefore stated, and contained in said envelope, as hereinbefore stated, with Henry Ludlow to receive and hold for the defendant Thomas B. Wells and the other respective grantees named in each of said deeds, with intent thereby to give each of such papers effect as a deed and to place the same beyond the custody and control of the grantor, Peter Wells; that said Peter Wells delivered said deed to Thomas B. Wells, together with the other deeds inclosed in said envelopes, with instructions to the said Henry Ludlow to take them and hold them in his possession until after his, Peter Wells’s, death, and then to deliver them to their respective grantees named in the deeds, and said Peter Wells did relinquish all custody and control over said deed to Thomas B. Wells and the other'deeds contained in said envelope as aforesaid; (7) that said Henry Ludlow did take said deeds and place the same in his safety deposit box in the Eirst National Bank of Monroe, where he kept the same for the respective grantees until the 1st day of October, 1904, when the said Henry Ludlow delivered said deed made to said Thomas B. Wells as grantee to the said ’ Thomas B. Wells, and each of the other deeds contained in said envelope aforesaid to the respective grantees named therein; that thereupon the said Thomas B. Wells caused his said deed to be recorded in the office of the register of deeds for Green county, October 1, 1904, in volume 87 of Deeds, page 322; (8) that some time prior to January 27, 1902, the said Peter Wells placed the said Thomas B. Wells in possession of the property described in said deed, and that the said Thomas B. Wells had possession thereof for such time until the death of said Peter Wells, and still has possession thereof; (9) that the said Thomas B. Wells did not exercise any undue influence or any persuasion whatever over said Peter Wells to induce him to make and execute the deed here-inbefore described; that said deed was made by Peter Wells of his own free will, and was not procured by undue influence or fraud exercised over or practiced upon him by the defendant Thomas B. Wells, or any other person acting in his behalf.</p> <p>As conclusions of law the court found, in effect, that the warranty deed of Peter Wells to Thomas B. Wells became the present deed of the said Peter Wells to said Thomas B. Wells upon the delivery thereof by Peter Wells to Henry Ludlow, and that, upon the delivery thereof by Henry Lud-low to Thomas B. Wells, the title to all of the real estate therein described vested in said Thomas B. Wells absolutely, and that he is now the owner thereof in fee, and that Thomas B. Wells is entitled to judgment dismissing the complaint and for costs and disbursements of this action against the plaintiffs.</p> <p>Prom the judgment entered in accordance with such findings the plaintiffs appeal.</p> <p>to the point that the deed was testamentary in character and hence ineffective, cited Templeton v. Butler, 117 Wis. 455,. and cases cited; McOourt v. Peppard, 126 Wis. 326; Hayden v. OolUns (Cal.) 81 Pac. 1120, 1121; Spacy v. Bitter, 214 Ill. 266, 73 N. E. 447; C'oo/¿ v. Brown, 34 N. H. 460; Waiter v. Way, 170 Ill. 96, 48 N. E. 421; Osborne v. Eslinger, 155 Ind. 351, 58 N. E. 439; Only v. TJpham, 135 Mich. 131, 97 N. W. 405; Taft v. Taft, 59 Mich. 185, 26 N. W. 426; Harma/n- v. Harman, 70 Eed. 894; Leonard v. Leonard, 145 Mich. 563, IOS N. W. 985. Where a deed is delivered in escrow to be delivered after the death of the grantor it is null and void. Taft v. Taft, 59 Mich. 185, 26 N. W. 426; Hathaway v. Payne, 34 N. Y. 92; 3 Washb. Real Prop. (5th ed.) 319, 320.</p> <p>They argued, among other things, that delivery of the deed in question by Peter Wells to Henry Ludlow constituted a present deed and title vested absolutely in the grantees. Prutsmm v. Baker, 30 Wis. 644, 650; Albright v. Albright, 70 Wis. 528; Williams v.- Daub-ner, 103 Wis. 521, 523; Kittoe v. Willey, 121 Wis. 548; Foster v. Mansfield, 3 Met. 412; Albrecht v. Albrecht, 121 Iowa, 521, 96 N. W. 1087; Wheelwright v. Wheelwright, 2 Mass. 447; Hathaway v. Payne, 34 N. Y. 92; Wuester v. Folin, 60 Kan. 334, 56 Pac. 490; 1 Devlin, Deeds (2d ed.) § 280. The depositary -in such a case becomes the trustee of the grantee. Jenkinson v. Brooks} 119 Mich. 108, 77 N. W. 640; Bail v. Foreman, 37 Ohio St. 132. The grantor converts his estate into a life tenancy and becomes the tenant of the grantee. Albrecht v. Albrecht, 121 Iowa, 521, 96.N. W. 1087; White v. Watts, 118 Iowa, 549, 92 N. W. 660. It is immaterial whether the deed actually comes into the hands of the grantee, for the deed takes effect from the first delivery ; and this is so even though the grantee never gets possession of the deed. Prutsmam, v. Baker, 30 Wis. 644, 650; Bryan v. Wash, 2 Gilm. (7 Ill.) 557; Belden v. Carter, 4 Day, 66; Wheelwright v. Wheelwright, 2 Mass. 447. The decisions of other courts under facts.somewhat similar show that there was a legal and valid delivery. Foreman v. Archer, 130 Iowa, 49, 106 N. W. 372; Bury v. Young, 98 Cal. 446, ■33 Pac. 338; Sneathen v. Sneathen, 104-Mo. 201, 16 S. W. 497; Craibtree v. Crabtree, 159 Ill. 342, 42 N. E. 787; Lip-pold v. Lippold, 112 Iowa, 134, 83 N. W. 809; Munro v. Bowles, 187 Ill. 346, 58 N. E. 331, 54 L. R. A. 865; Trask ■v. Trask, 90 Iowa, 318, 57 N. W. 841; St. Clair v. Marquell, 161 Ind. 56, 67 N. E. 693; White v. Watts, 118 Iowa, 549, 92 N. W. 660; Miller v. Meers, 155 Ill. 284, 40 N. E. 577; .Stoikt ¶. Bayl, 146 Ind. 379, 45 N. E. 515; Owen v. Williams, 114 Ind. 179, 15 N. E. 678; Squires v. Summers, 85 Ind. 252; Arnegaard v. Arnegaard, 7 N. Dak. 475, 75 N. W. 797; Gilley v. Atkins, 78 Conn. 380, 62 Atl. 337, 4 L. R. A. sr. s. 816.</p>

<p>Appeal from a judgment of the circuit court for Dodge county: James J. Dick, Circuit Judge.</p> <p>Mandamus proceedings to compel the common council of the city of Watertown, Wisconsin, to expunge from its records proceedings respecting a suspension of the relator from his office as a member of such body, and for such other relief as might be proper.</p> <p>In impeachment proceedings against the relator as an alderman of the city of Watertown, Wisconsin, he was found guilty December 1, 1905, and, by resolution of the common council of the city, was suspended from office for a period of sixty days from such date, one Bittner, Jr., being appointed by the mayor and in due form confirmed to serve in his place. The charges were to the effect that the relator circulated a false rumor that the city council sold out the interests of the city in respect to a hill pending before the Wisconsin legisla* ture in which the city was interested, and later falsely asserted that members of the legislature informed him that the council so sold out to the concern in whose special interest said bill was introduced, and that the mayor and city attorney had been lobbying for the passage of the bill. The petition for the writ set forth the matters indicated and that certain irregularities, claimed to be jurisdictionally fatal to the impeachment proceedings, occurred. It further showed that eighteen days after the date of the suspension the relator demanded a rescission of the impeachment judgment, which was .refused.</p> <p>The specific relief asked was for the issuance of a writ commanding the mayor and common council of the city of Watertown to rescind, revoke, and vacate the resolutions relating to the impeachment proceedings and expunge the same from the city records. There was an alternative writ accordingly issued January 9, 1906. The matter was brought to a hearing May 14, 1906, when such proceedings were duly had that a motion was made to quash the alternative writ because of informalities and insufficiencies in the petition and writ, for a defect of parties, and for other reasons. The motion was granted without specifying any particular ground therefor. Judgment was entered accordingly, from which this appeal was taken.</p>

<p>Appeal from a judgment of the circuit court for Washington county: Chesteb A. Eowlee, Judge.</p> <p>This is the same case considered by this court upon demurrer to the complaint in Huber v. Martin, 127 Wis. 412, 105 N. W. 1031,1135. After that decision and on March 19, 1906, the defendant corporation passed a resolution which ordered the distribution among the members of said company of $50,000 of the accumulated surplus, but, being uncertain as to the proper method of distribution, submitted that question to the court by an answer stating the facts. There the court, by its finding, discloses the following interests: Eirst, people who had held policies and contributed towards the surplus, but whose policies had lapsed and expired and who were not policy-holders on March 19, 1906; secondly, those who had never held policies in the company up to March 19th, but who did hold at the time of the decree; third, those who held policies on March 19th, but whose policies had lapsed, and they ceased to be members before the distribution; and fourth, those who held policies on March 19, 1906, and continued to do so up to the time of distribution. The last two classes involved three subdivisions: Eirst, those who had never held but a single policy, that being in force on March 19th; secondly, those who had held a series of policies, each connected with its predecessor without interval; and third, those who had held policies previously and upon their lapse or termination had ceased to be members, and, after an interval, had taken out other policies. The court, by decree, adjudged that the $50,000 should be distributed among those who held policies in the company on the 19th day of March, 1906, and in the proportions in which each had contributed money to the treasury of the company, whether such contributions had been under the policy then in force or under prior policies connected with that without interval or separated from it by intervals of nonmembership. Erom this judgment two of the: interpleaded plaintiffs jointly appeal; one of them, William A. Zinn, who held a policy on March 19th, still in force at the time of the decree, but had never held any prior policy; also. William Luft, who took his first policy after March 19th and still held it in force at the time of the judgment.</p> <p>They cited 2 May, Ins. (4th ed.) §§ 548, 549, 560 B; Carlton v. Southern Mut. Ins. Go. 72 Ga. 371; Smith v. Hunterdon Go. Muí. F. Ins. Go. 41 1ST. J. Eq. 473, 4 Atl. 652; Comm. v. Mechanics’ Mut. F. Ins. Go. 112 Mass. 192; Citizens’ Mut. F. Ins. Go. v. Sortwell, 10 Allen, 110; Ilerlcimer Go. Mut. Ins. Go. v. Fuller, 14 Barb. 373.</p> <p>To the point that the basis of distribution adopted ¡by the trial court was just and equitable, they cited 21 Am. & Eng. Ency. of Law (2d ed.) 269; Mayer v. Att’y Gen. 32 U. J. Eq. 815, 822; Carlton v. Southern Mut. Ins. Go-. 72 Ga. 371; Grobe v. Erie Go. Mut. Ins. Go. 53 1ST. Y. Supp. 628; S. G. 39 App. Div. 183, 57 1ST. Y. Supp. 290; 1 Pom. Eq. Jur. (3d ed.) 405, 412.</p>

<p>Appeal from a judgment of the circuit court for Dodge county: James J. Dick, Circuit Judge.</p> <p>This is an action to recover damages for an alleged trespass upon the property of the plaintiff by the defendants, who claim to have been acting in accordance with law in opening a highway under the authority of the chairman of the county hoard. On February 12, 1904, sis resident freeholders presented a petition to the supervisors of the town of Calamus, Dodge county, where these parties reside, for the laying out of the road in question over plaintiffs farm. On March 10th the supervisors of the town decided against the application. Thereupon application was made to the county court for the appointment of commissioners to review the action of the supervisors of the town in refusing to lay out the highway. The commissioners were appointed, and April 18, 1904, the •determination of the supervisors was reversed. On April 25, 1904, tbe supervisors of tbe town, witbont giving notice of tbe meeting, met for tbe purpose of laying out tbe highway, pursuant to tbe order of tbe commissioners reversing their former action by which they bad refused to lay out tbe highway. At this meeting and a subsequent meeting tbe damages and benefits to tbe property over which tbe highway was to pass were-assessed. On November 11, 1904, tbe supervisors gave notice to tbe plaintiff to remove his fence from tbe highway which bad been laid out. Tbe notice is as follows:</p> <p>“A highway having been laid out through land occupied by you, described as follows: [Description],- — by the undersigned and dated on the 11th day of November, 1904, a copy of which is hereto annexed, you are hereby required to remove your fence from the bounds of said highway within thirty (30) days from date of order.</p> <p>“Dated this 11th day of November, 1904.”</p> <p>The highway laid out in April,'1904, was not opened for travel by the town authorities, and an application was made to the county board that they take such action as was necessary to authorize the county authorities to open the road for travel. The county board took action on this application, and the alleged trespass was committed while the defendants were working on the road under the direction of the chairman of the county board. On April 27, 1905, a petition was filed with the board of supervisors of the town for the discontinuance of part of the highway laid out the previous year (the part from A to O on the diagram on page 94), and. for laying out a new road in connection with it (from O to D).</p> <p>On the same day the supervisors of the town made out a notice that they would meet on May 15, 1905, to consider this petition. This" notice was served on all of the owners of the lands abutting on the part of the road to be discontinued and the part to be laid out (from A to O and from C to D), but was not served on some of the occupants of lands abutting on that part of the highway laid out the previous year, but which was not to be vacated under the new petition (B to C). There is nothing in the record to show that this notice was served on John W. Hughes, Gottlieb Belle, and the heirs of the Owens estate. On May 18, 1905, the supervisors of the town made an order, in accordance with the petition of April</p> <p> </p> <p>27, 1905, laying out a highway (from C to D) and discontinuing a part of the old highway (from A to C), but they made no award of damages and did not find the benefits arising from the laying out of the new highway. Upon appeal to the county court from this order the action of the supervisors of the town was reversed “so far as it discontinues any highway.” This order was dated August 17, 1905, and was filed with the town clerk on August 23, 1905.</p> <p>The trial court found that the defendant Hughes had not participated in the trespass, had not separately answered, and was not entitled to costs; that the notice for the removal of the fence was not a legal notice; that the action under the so-called powers of- the county board of supervisors was not according to law; that the removal of the fence was within the period inhibited by the statute* and illegal; that there was no ■highway; and that the defendants were guilty of a trespass. Judgment was accordingly awarded against the defendants for $41.50 and for costs. This is an appeal by the defendant Hughes from so much of the judgment as denies him his ■costs, and by the other defendants from the whole of the judgment.</p>

<p>Appeal from an order of tbe circuit court for Dodge county: James J. Dice, Circuit Judge.</p> <p>This is a certiorari proceeding to review tbe action of tbe supervisors of tbe town, of Lebanon, in tbe county of Dodge, Wisconsin, in laying out a highway in said town, Tbe writ was issued on tbe petition of Alwina Kulike, respondent, setting forth certain alleged defects in tbe proceedings, and directed to tbe town clerk of said town. Tbe appellant town clerk, before return, moved tbe circuit court out of which the writ issued to quash tbe writ. Tbe motion to quash was denied, and in tbe same order denying it tbe court adjudged and decreed that tbe proceedings and decision of tbe board of supervisors of said town were illegal and void, and further adjudged and decreed that such proceedings be set aside and vacated with $10 costs of motion. Tbe appellant town clerk appealed from this order.</p>

<p>Appeai, from a judgment of tbe circuit court for Dodge county: Jakes J. Dick, Circuit Judge.</p> <p>On February 16, 1904, Annie Donnelly, then the owner and in possession of the real property in question, conveyed the same to her brother John Eox, and on the same day the latter executed back to her a land contract, in the usual form, providing for the payment to Eox of $800. On March 10, 1904, the plaintiffs docketed a judgment in Dodge county in their favor and against Annie Donnelly. Thereafter and on March 15, 1904, Annie Donnelly conveyed by deed to John Eox. On March 21, 1904, an execution upon the aforesaid judgment was levied on the real estate in question, and on July 22, 1904, the land was sold under this judgment and execution, bid in by plaintiffs, and on July 22, 1904, a certificate of sale on execution issued to tbe plaintiffs, wbicb plaintiffs beld at tbe time of tbe commencement of tbis action. Tbe appellant, Mary E. Griffin, claimed under land contract from John Fox bearing date March 31, 1904, recorded May 19, 1904, and a deed bearing date May 23, 1904, recorded May 24, 1904. Tbe complaint averred a mistake in description in tbe deeds of conveyance under wbicb tbe judgment debtor, Donnelly, claimed title and under wbicb Fox claimed title, and did not aver that tbe plaintiffs were in possession. Tbe appellant answered to tbe merits and pleaded two counterclaims, seeking to quiet title in berself to tbe same land.</p> <p>Tbe findings of fact recite a mutual mistake in tbe description contained in tbe conveyances above mentioned, and establish tbe facts of tbe docketing of said judgment, levy on said property, and tbe issue of tbe sheriff’s certificate of sale to tbe plaintiffs; also, that in a former action by tbe same plaintiffs against Fox and Donnelly judgment was on July 12, 1904, rendered in tbe circuit court for Dodge county in favor of tbe plaintiffs and against Fox and Donnelly, canceling, setting aside, and adjudging null and void as in fraud of tbe plaintiffs tbe deeds from Donnelly to Fox above mentioned, and that tbe appellant, Griffin, if she paid anything at all for her deed from John Fox, paid it after full notice of tbe fraudulent nature of tbe deeds to said John Fox and of tbe action brought by tbe plaintiffs to set aside said deeds as fraudulent. Tbe appellant was in tbis case adjudged to release to tbe plaintiffs all claims to tbe premises and to pay tbe costs of tbe action. It appeared by undisputed evidence that notice of lis pendens in tbe suit above mentioned to set aside as fraudulent tbe deeds passing between Fox and Donnelly was duly filed on April 21, 1904. Other facts are stated in tbe opinion.</p>

<p>Appeal from a judgment of tbe circuit court for Waukesba county:-James J. Dice, Circuit Judge.</p> <p>George Marx, father of tbe plaintiff and defendant, died testate November 15, 1903, at tbe age of seventy-seven years, ■leaving, bim surviving, bis widow, Mary Marx, and' four sons, •including tbe plaintiff and defendant, and one daughter living at tbe time.' He left also a farm inventoried at $3,000 and personal property inventoried at about $700. Tbe will was .executed three days before tbe testator’s death and admitted to probate, and tbe plaintiff, who was born in 1868, was named therein as executor without bonds, and was appointed as sucb January 5, 1904. On March 26, 1904, tbe plaintiff filed bis -verified claim in tbe county court for services rendered on tbe farm of tbe deceased at bis special instance and request from November, 1891, to November, 1902, for which tbe said deceased agreed to pay bim what tbe same were reasonably worth, and which services were reasonably worth the sum of $1,000. Tbe defendant, a son of the deceased, and as a dev-isee and legatee named in tbe will, contested sucb claim. Tbe county court allowed tbe claim at $900 January 27, 1905. Tbe defendant appealed from sucb allowance and judgment to tbe circuit court, and upon such appeal gave an undertaking signed by bim and two sureties, whereby be and they undertook in tbe sum of $250 to. secure said estate from all damages and costs in consequence of such appeal and to secure tbe intervening damages and costs to said Willimn H. MarXj and that tbe. defendant would diligently prosecute bis said appeal ■to effect and would pay all damages and costs that might be awarded against bim on sucb appeal.</p> <p>■Tbe cause was tried on sucb appeal in tbe circuit court in February, 1906,- and at tbe close of the trial tbe jury returned •a special verdict to tbe effect (1) that' tbe claimant rendered .and performed work and services for tbe deceased in bis lifetime, as claimed by tbe plaintiff; (2) that sucb work and services were’rendered and performed under an agreement or contract between said deceased and said claimant; (3) that there was no agreement between the said parties as to the sum to be paid to said claimant by the said deceased for such work and services; (5) that the work and services rendered and performed by the said claimant for said' deceased were reasonably worth $1,000; (6) that said claimant has not received any pay for such work and services; (7) that the agreement between said parties was that such payment for such work and services should be deferred until after the death of the widow of said deceased (the mother of said claimant) ; (8) that they assessed the claimant’s damages in this action at $1,000. Thereupon and upon motion of the claimant it was ordered and adjudged, among other things, that said claimant do have and recover in this action from the estate of said George Marx, deceased, the value of the services rendered by him, amounting to $1,000, the same to be payable by and from the said estate upon the death of the said Mary Marx, the widow of said deceased and the mother of said claimant, without interest upon said sum of $1,000 until the death of said Mary Marx, but with interest from and after her death until paid. And it was therein further ordered and adjudged that the said claimant do have and recover from said contestant, George W. Marx, his costs and disbursements of this action in this court taxed and allowed at $62.43, and that the same be entered and docketed as a judgment personally against the said George W. Marx, with directions to the county court accordingly. From such judgment the defendant appeals.</p>

<p> Pleading: Demurrer: Defect of parties: Improper joinder of causes of action: Sufficiency of complaint: Conspiracy: Essentials: Persons liable. </p> <p>1. In case of a complaint being open to objection for defect of parties a demurrer on that ground which does not specifically point out wherein the defect consists, naming the party plaintiff or defendant which should have been joined, is insufficient to raise the question.</p> <p>2. A demurrer to the complaint upon the ground, that several causes of action have been improperly joined is legitimate only when two or more good causes of action are pleaded which are not joinable.</p> <p>3. Allegations to the effect that two or more persons, naming them, have maliciously combined to produce a separation • between husband and wife, naming them, causing the former to desert the latter, she desiring performance of the marriage contract to continue, state a criminal conspiracy under sec. 4466a, Stats. (1898), and together with allegations to the effect that the purpose of the conspiracy has been consummated to the damage of the wife, and stating generally the means resorted to for that purpose, show a good cause of action in face of a demurrer for insufficiency, even though the allegations or some of them may not be sufficiently definite to defeat a motion to make more definite and certain.</p> <p>4. A consummated conspiracy, actionable for the recovery of damages at the suit of the injured person, need not as to the conspiracy satisfy every essential of sec. 4466a, Stats. (1898); the essentials of a conspiracy at common law are sufficient.</p> <p>5. Any combination of two or more persons to do a criminal or unlawful act by any means or to do a lawful act by criminal or unlawful means is an actionable conspiracy at common law, and upon the purpose thereof being consummated is actionable by the person injured to recover compensation therefor.</p> <p>6. It is not necessary to an action to recover compensation for an injury produced by a consummated conspiracy to do an unlawful act that the means resorted to to effect the purpose should be criminal or that the act be criminal: the breaking of a contract is a sufficient unlawful act.</p> <p>7. The gist of a civil action to recover compensation for injuries caused by a consummated conspiracy is the damage. The major significance of the conspiracy is in that it renders each party to the combination liable to the injured one regardless of the degree of his activity in effecting the unlawful purpose.</p> <p>[Syllabus by Marshall, J.]</p>

<p>Appeal from a judgment of the circuit court for Oconto county: S. D. Hastings, Circuit Judge.</p> <p>Application for mandamus to command the respondents, as mayor and aldermen of the city of Oconto, that they award contract for electric lights and lighting to the relator according to the terms of notice for bids and the bid of the relator as submitted at a council meeting held May 1, 1906. The application asserted that the city of Oconto exists under a special charter (ch. 56, Laws of 1882) ; that the respondent Holt is mayor and the other respondents are the aldermen of said city; that in December, 1905, a former contract, originally made with W. A. Holt, present mayor, but afterwards assigned to W. A. Young, for the supply of certain arc lights for street lighting and certain other lighting for public buildings, being about to expire, a resolution was adopted that the mayor and clerk advertise for bids for furnishing fifty arc lights, more or less, whereupon notice was published and two bids received, one from said Young and the other from the relator, differing somewhat in terms, but the former making a price of $75 and the latter of $50 for arc lights. On January 2, 1906, the council voted to reject all bids and re-advertise upon slightly more specification. Re-advertisement was made and bids again presented by the same parties, the relator bidding $55 as against $60 by its competitor. The •council voted to accept the relator’s bid, which resolution was vetoed by the mayor for reasons stated, such as the necessity of a bond and inadequate description of the lights to be furnished. Whereupon it was again resolved to advertise for bids embodying further specifications and meeting the grounds of objection raised by the mayor in his veto. To this only Mr. Young’s company responded with a bid, which on April 3d was rejected, with directions to the clerk to re-advertise. Whereupon another advertisement was made, reserving the right to reject any and all bids, and on May 1st bids were submitted by Mr. Young’s company and by the relator, differing somewhat in details and description of services to be performed, but the former naming $60 as the price for arc lights and the latter $50. Motion to accept relator’s bid was amended into a resolution to reject all bids and re-advertise, and, as so amended, was adopted by a vote of six alder* men each way, the mayor voting in the affirmative. The relator made some attempt to allege that the mayor, Soli, directly or indirectly, derived some financial benefit from Mr. Young’s company; that some of the aldermen were actuated by ill-will towards officers of the relator’s company, and wil-fully, arbitrarily, and without reasonable cause repeatedly rejected all bids without assigning any cause therefor. It is also made to appear that the charter contains a provision: “All work for the city or either ward thereof . . . shall be let by contract to the lowest reasonable responsible bidder.” No statement as to relator’s responsibility or ability to perform the contract is made, except that it possesses a franchise to fnrnish electric lighting.</p> <p>Alternative writ being issued, a motion to quash .was made, which motion was granted on grounds of general insufficiency to entitle the relator to the relief, and, relator having announced that it did not desire to amend, the proceedings were dismissed with costs in favor of the respondents, from which judgment or order relator appeals.</p> <p>cited Harlem Q. Go. v. Mayor, 33 N. Y. 309; Boren v. Darke Go. 21 Ohio St. 311; People ex rel. Mathews v. Buffalo, 5 Mise. 36; People ex rel.. Putnam v. Buffalo Go. 4 Neb. 150, 161; Follmer v. Nuckolls Go. 6 Neb. 204; Merrick Go. v. Batty, 10 Neb. 176; People ■ex rel: Vickerman v. Contracting Board, 46.Earb. 254; State, •ex rel. Fourth Nat. Bank v. Johnson, 1.03 Wis. 591, 623; Chippevja B. Co. v. Durand, 122 Wis. 85; Wood v. Strother, 76 Oal. 545; Stockton & V. B. Co. v. Stockton, 51 Oal.. 328, 339; Ex parte Bradley, 7 Wall. 364, 377; Uoole v. Kinkead, 16 Nev. 217; State ex rel. Conger v. Middlesex Co. 55 N. J. Law, 112, 25 Atl. 275; In re Johnson, 156 Pa. St. 322, 26 Atl. 1066; Zanone v. Mound City, 103 Ill. 552; Brady v. Bartlett, 56 Oal. 350; State ex rel. W. D. P. Go. v. Cornell, 52 Neb. 25, 71 N. W. 961; People ex rel. Coughlin v. Gleason, 121 N. Y. 631; State ex rel. Buchanan v. Kellogg, 95 Wis. 672.</p> <p>To the point that mundamus will not lie to compel the council to accept relator’s bid, they cited State ex rel. Lord v. Washington Go. 2 Pin. 552, 555; State ex rel, Kane v. La/rrabee,. 3 Pin. 166; State ex rel. Spaulding v. Elwood/ll Wis. 17;' State ex rel. Pfister v. Manitowoc, 52 Wis. 423 ; State ex rel. O’Donnell v. Benzenberg, 108 Wis. 435, 438; State ex rel. Carpenter v. Hastings, 10 Wis. 518; Anderson v. Public Schools, 122 Mo. 61, 26 L. R. A. 707, and cases in notes; Comm, ex rel. Snyder v. Mitchell, 82 Pa. St. 343, 350; Qrcmt v. Detroit, 91 Mich. 274; People ex rel. Bullard v. Contracting Board, 33 N. T. 382; People ex rel. McEown v. Creen, 50 How. Pr. 500, 503; State ex rel. Irondale C. P. & I. Co. v. New Orleans, 48 La. Ann. 643; State ex rel. Phelan v. Board of Ed. 24 Wis. 683; Milwaukee v. State ex rel. News Pub. Co. 97 Wis. 437.</p>

<p>Appeal from a judgment of the circuit court for Brown county: S. D. Hastings, Circuit Judge.</p> <p>This is an action to set aside a deed by which plaintiff conveyed an interest in lands to the defendant Franh Ohampeau, who in his turn had conveyed to his wife, Emma Champeau. The plaintiff, Louis Ohampeau, and the defendant Franh Ohampeau are brothers and are the children of Emanuel and Adeline Champeau, who owned separate parts of the farm on which they resided, situate in the town of Howard, Brown county. Franh was the eldest of nine children. On March 30, 1884, being then advanced in years and infirm in health, both of the parents made wills. The mother died February 11, 1890, and her will was probated in March, 1903. By this "will she bequeathed $20 to each of her daughters aud $5 to each of her sous Ered aud Dempsey, aud the residue of her property -was given to Frank aud Louis iu equal shares, upon condition that these two sous care for aud maintáin her husband Emanuel during his life aud provide him a proper burial, aud the further conditions that they support and educate her daughter Leocadie, if she remained living with them on the farm, and that they care for and support her grandson John Eournier until he should attain the age of twenty-one years. The father’s estate went to the nine children as intestate estate.</p> <p>Frank remained on the farm most of the time and helped support his parents. ' He contributed the larger ^portion of what he earned away from home to the support of his parents. After Louis left home in 1886 Frank remained with them and eared for them in their ill health and during their declining years. The other members of the family left the parental home early in life and thereafter rendered no financial aid to their parents. Louis left home some time during the year 1886. His whereabouts were unknown for about three years. He then wrote Frank that he was in a hospital in Montana and needed financial assistance. Thereupon his brother Dempsey visited him, and found him at the hospital receiving treatment for an affliction of the eye, which finally necessitated its removal. Dempsey informed Frank of-the condition of Louis, and Frank then sent Louis $100 as requested. When the father died in 1892 Frank made an effort to find Louis, but did not succeed. Louis remained away from the old home until 1902.</p> <p>Frank secured conveyances from all the heirs of their interests in the parents’ estates in 1892. The mother’s will was not probated until 1903, after the trouble arose concerning the property which resulted in this suit. Whether Frank had always had it in his possession is not clear. He either had it in his possession or it was in the hands of his sister.</p> <p>On May 10, 1892, .while Louis resided at Concentrado, Montana, Frank secured a quitclaim deed to himself from Louis of his interest in his parents’ property. It appears that Frank received a letter from Montana informing him that Louis was ill and in need of assistance. A few days thereafter Frank went to Montana and took with him the copy of the quitclaim deed which Louis thereafter signed and executed. When Frank arrived at Concentrado on May 9th he found Louis engaged in the saloon business with another, and doing manual labor for others, such as chopping wood. Frank and Louis were together during the afternoon and evening of this day, and together occupied Louis’s bed that night. During the night they talked over family and property affairs and the proposition of Louis deeding his interest in the estates of his parents to Frank. The next morning they walked to Superior, a distance of four miles, for the purpose of having Louis make a transfer of his interest in his parents’ estates to Frank. The subject had evidently been discussed, and was discussed on this trip. Upon arrival at Superior they immediately went to the office of J. C. Bower, a justice of the peace, before whom a quitclaim deed was executed and acknowledged. At this time Frank paid Louis some money. After having their photographs taken and after Frank had given Louis some money to pay for them, Frank departed on ■the noon train for his home, where he arrived on May 14, 1892. He spoke of the matter to his sister Leocadio and to his nephew John Eournier, showed them the deed, and exhibited the signature of Louis to his sister. Louis confirms this transaction in his testimony on the stand at the trial of this case, and expressed his satisfaction with the transaction. The court found the value of the property so conveyed by Louis to Frank to have been $1,500 at the time of the transfer.</p> <p>In the year 1891 a tree fell on Louis and injured him and caused the loss of an eye. He thereafter suffered from mountain fever and was delirious the following winter. There is. evidence tending to show that at about tfie time of the execution of the deed Louis was addicted to gambling and that he exercised little mental control; that he was confirmed in his intemperate habit, of drinking, and that his mental condition was weak; that he displayed eccentricities which he had not shown before his sickness in the West; that he suffered from severe and repeated headaches; and that he was irritable, stubborn, and talked at random. A number of witnesses who had known him for some time before the execution of the deed testified that he was not competent to transact business and comprehend his relation to his property sufficiently to protect himself. There was testimony that he had mental vagaries concerning financial matters and manifested an uncontrollable desire for gambling; that immediately after receiving the money from -Frank in consideration of the conveyance he squandered it in a drunken debauch, and then reproached himself for selling his birthright. About two years after the deed was executed he was committed to an insane asylum in Montana, where he remained for some time. He is now in the asylum for the insane at Oshkosh, where he has been since 1903.</p> <p>The court found, among other facts, that Louis was never very bright, and that he had had a stroke of paralysis in his early manhood; that at the time of deeding the property to Frank he was mentally so weak as to render him incapable of fully appreciating the import of his acts; that he was readily susceptible to undue influence, and especially to that of his brother Frank; and that Frcmk at the time of the transfer paid Louis not to exceed $400 for his interest, which was wholly inadequate to cover its actual value. The court found that the conveyance from Frank Champeau to his wife on January 16, 1896, was without consideration, and that she holds the property for his benefit and in trust for him, and that Frank Champeau has never in fact released his ownership and control of the property so pretended to be conveyed. The court awarded judgment in plaintiff’s favor, adjudging the conveyances from Louis to Frank and from Frank to his wife void, and directed a reconveyance by Frank and his wife to Louis of his interest and for plaintiff’s costs of the action against Frank. This is an appeal, from such judgment.</p>

<p> Sales: Misunderstanding as to price: When vendee liable for invoice price: Pleading: Amendment: Evidence: Secondary evidence r Experts: Appeal: Yerdict, when set aside. </p> <p>1. Where there is a misunderstanding as to the price of an article,. the vendor understanding it to he one sum and the vendee another, the contract of sale is incomplete and the law will not imply an agreement to pay a reasonable price.</p> <p>2. Where, through a misunderstanding, the minds of the parties. had not met upon the price of an article prior to its delivery, and the vendee, after receiving it with an invoice showing the price fixed by the vendor, retained the article and converted it to his own use without any agreement for a different price, he became bound to pay the invoice price.</p> <p>3. Where the original complaint was sufficient to permit the recovery had, there was no error in allowing, after trial, aru. amendment which did not change the cause of action, but merely made the complaint more specific in conformity with the proof.</p> <p>4. It was not prejudicial error to exclude a question as to the difference between the specifications of two organs on the ground; that the specifications themselves were the best evidence, where the witness had previously testified there was no difference.</p> <p>5. To render other specifications admissible as secondary evidence-of the contents of the specifications in question, it should have-been shown that the latter could not be produced.</p> <p>9. There was no prejudicial error in permitting an expert who hadi testified fully as to the mechanism of an organ and its condition to state that its condition indicated that the management of the instrument had been improper.</p> <p>7. Although a verdict is against the weight of evidence, if there • is any credible evidence to support it the refusal of the trial court to set it aside will not be disturbed.</p>

<p> Appeal: Review of findings by jury: Evidence: Competency of expert: Exhibiting goods to show quality: Wife as witness for husband: Agency: Special verdict: Informing jury of effect of amwers: Instructions: Fire insurance: Permitting additional insurance: Restrictions as to amount and validity: Construction of statutes. </p> <p>1. Findings of fact in a special verdict based upon conflicting evidence will not be revised or reversed on appeal.</p> <p>2. In an action upon fire insurance policies, to rebut possible inferences from testimony as to an explosion and the subsequent finding of a can of the kind used for gasoline, burned but intact, in the basement of the building, plaintiff offered as an expert witness a graduate pharmacist who stated that he had acquired “knowledge of explosives and their action," and that he had knowledge from his own experience of the action of gasoline and sugar as explosives. Held, that this established prima facie some degree of qualification and, defendant having failed to show by cross-examination that he lacked competency, the witness was properly permitted to give opinion evidence on the subject.</p> <p>3. In such action it was not prejudicial error to allow a witness, in rebuttal of defendant’s evidence that the merchandise destroyed was cheap and inferior, to exhibit, in connection with her testimony to the effect that the articles purchased out of the plaintiffs stock were of good quality, the articles themselves.</p> <p>4. The wife of a merchant who was shown to have exercised a very general agency for him in the management of his store prior to the transactions in question was competent to testify on his behalf to transactions by her as his agent, the whole or some part of which took place in his presence.</p> <p>5. Instructions to the jury, in which, among other things, the trial court stated certain claims of the respective parties, are held not to have been erroneous or improper on the ground that they informed the jury of the effect of their answers to questions of the special verdict.</p> <p>6. In an action upon fire insurance policies, where a question of the special verdict asked whether plaintiff knowingly swore falsely as to either of several matters, there was no prejudicial error in charging the jury: “You will notice there are a number of things embraced in this question, and if you find that he did knowingly swear falsely to any one of them, then you will answer the question in the affirmative; but, if you are not satisfied as to any one of them, then your answer will be in the negative.”</p> <p>Y. The provision in the Wisconsin standard policy that it shall be void in case the insured has or shall procure other insurance unless it is otherwise provided by agreement indorsed on the policy or added thereto — sec. 1941 — 46, Stats. (1898) — authorizes an agreement specifying or limiting the amount of additional insurance permitted, and gives the right to contract with respect to the extent to which additional insurance shall be valid.</p> <p>8. An agreement attached to a policy, permitting additional insurance under certain restrictions and conditions as to the amount and validity thereof, cannot be held valid as to the consent and void as to the conditions thereof.</p> <p>9. See. 1943a, Stats. (1898) — prohibiting the issuance of any pplicy containing any provision limiting the amount to be paid in case of loss below the actual cash value of the property, if within the amount of the insurance for which premium is paid, etc. — applies only to cases in which the insurer attempts by stipulation in the policy, or with the policy, without consent of the insurer and without reduction of premium, to limit its liability thereon below the amount or face of the policy upon which or for which the insured has paid full premium, and where the value of the goods destroyed is within the amount of such insurance carried on the property. It does not prohibit permission for additional insurance, nor restriction of the amount thereof, nor waiver of the invalidity of the additional insurance in whole or in part. An agreement, therefore, attached to a policy, made at the option of the assured and in consideration of a reduced rate of premium, permitting other insurance to an amount not exceeding seventy-five per cent, of the actual cash value of the property, and providing that if at the time of the fire the total insurance should exceed such per cent, the policy should be void only in proportion of such excess to such total insurance, was valid.</p> <p>10. A statute as originally enacted may be resorted to in aid of the construction of it as afterwards embodied in a revision, and it is to be presumed that the revisers Intended no substantial change in the law unless otherwise expressed.</p>

<p> Wills: Contest: Costs on appeal. </p> <p>An appeal from a judgment of the circuit court sustaining the probate of a will haying been taken in good faith, and the questions involved being worthy of consideration by the supreme court, costs awarded to respondent on the appeal are ordered paid out of the estate.</p>

D. Hastíeos, Circuit Judge. Action to recover for a personal injury. On the 27th day of July, 1905, plaintiff, a child five years and ten months of age, residing with her parents in the city of Green Bay, Wisconsin, while on the way to do an errand for her mother, was injured by one of defendant’s cars running over her hand, injuring it so that amputation was necessary.

<p> Corporations: Change in purpose: Waiver of objections: Withdrawal of subscriptions: When subscribers become stockholders. </p> <p>1. Plaintiff had subscribed and had been active in obtaining subscriptions for stock in a corporation to be formed for a specific purpose. A committee, which had been authorized by the subscribers “to sign application for a charter,” executed and duly recorded articles of incorporation which went substantially beyond the purposes specified in the subscription agreement. Two of the incorporators thereafter gave notice of “a meeting of the subscribers of stock in the” corporation “for the purpose of organization and election of directors.” Most of the original subscribers had no knowledge that a corporation had actually been formed or of the difference between its purposes and the purpose mentioned in their agreement. Plaintiff attended the meeting, which was called to order by one of the incorpo-rators who had also been chairman of the subscribers’ organization. Another chairman was elected, who stated that only those of the subscribers who had paid twenty-five per cent, of their subscriptions would be allowed to vote. Plaintiff acted on a committee to ascertain who were so qualified. A motion was then made to adopt the articles of incorporation. Plaint- ■ iff attempted to speak in opposition to this, but was declared out of order. He did not vote upon the motion, but immediately after its adoption announced to the secretary of the meeting, who also had the custody of the moneys paid in, that he withdrew his subscription, and then, with others, left the meeting. Afterwards he demanded the return of the amount paid on his subscription, which was refused. Held that, even if plaintiff knew of the execution and recording of the articles of incorporation, he did not, by his attendance or participation in said meeting, waive objection to the changed purposes of the corporation as in fact organized or become bound as a subscriber to its stock; and that he might recover the amount paid on his subscription.</p> <p>2. The name of the corporation, used in the notice of said meeting, “Burns Boiler & Manufacturing Company,” did not present such a departure from the plan, which had been called by the subscribers the “Burns Boiler Works,” as to suggest that those attending the meeting would thereby become bound as stockholders in a corporation organized with purposes different from those contemplated.</p> <p>3. One who has been accepted as a subscriber for stock in a corporation is completely a stockholder and entitled to yote as such, whether he has paid his subscription or not.</p>

<p>Appeal from a judgment of the circuit court for Brown county: S. D. Hastings, Circuit Judge.</p>

<p>Appeal from a judgment of the circuit court for Brown county: S. D. Hastings, Circuit Judge.</p>

<p>Injunction: Order restraining cutting of timber: Dissolution, and permission to cut, on defendant’s giving bond: Judgment: Collateral attack,: Rights of pendente lite purchasers: Estoppel.</p> <p>In an action against the patentee of land to' establish plaintiff’s right thereto notice of lis pendens was filed and plaintiff obtained an order restraining the patentee from cutting timber. Afterwards it was ordered that the injunctional order be dissolved and that the patentee be at liberty to cut and dispose of the timber on the land upon filing an undertaking in a certain sum to pay plaintiff the value of any such timber so cut or disposed of in case the action should finally be decided in favor of plaintiff. The patentee filed an undertaking accordingly. Plaintiff recovered judgment for transfer of the legal title to him and barring the patentee and all persons claiming under him from claiming any right, title, or interest in the land or the timber growing thereon at the date of the patent or thereafter. In a subsequent action of trespass against persons who purchased the timber from the patentee and cut and removed the same after the dissolution of the injunctional order and before the judgment, it is held:</p> <p>(1) Such purchasers were bound by the judgment in the prior action and cannot attack it in the trespass action.</p> <p>(20 The dissolution of the injunctional order did not withdraw the timber in any way from the operation of the judgment finally recovered. Neither that order nor the undertaking given thereunder could affect plaintiff’s rights in the property.</p> <p>(3) No estoppel bars the plaintiff from enforcement of his rights against the pendente lite purchasers, whose liability for the value of the timber cut and removed by them is fixed by the judgment against their vendor.</p> <p>Timlin, J., dissents.</p>

<p> Mortgages: Lien for taxes paid,: Purchase of tax certificates: Foreclosure. </p> <p>Where a mortgagee, for protection of his lien, has obtained tax certificates by purchase from others and at tax sales of the premises, such acts amount to payment of the taxes and give him a further lien, under secs. 1158, 1160, Stats. (1898), so that a subsequent tender of merely the amount due on the mortgage with interest, though made before action and kept good, will not defeat foreclosure of the mortgage.</p>

This is an action to recover damages for the death of the plaintiff’s husband while in defendant’s employ. The deceased, Dominic Monte, on the 2d day of December, 1904, was a married man thirty-four years of age, and was employed as a laborer in the beater room of the defendant’s large paper mill at Brokaw, Wisconsin, and had been so employed for about a year. He was an intelligent, observing man, a good workman, and spoke fairly good English.

■ Appeal from a judgment of the circuit court for Brown county: S. D. Hastotos, Circuit Judge. Thomas House, Sr., an Oneida Indian, died on the Oneida reservation, in Brown county, November 13, 1894.

<p>Appeal from a judgment of tbe circuit court for Bayfield county: JohN K. Rakish, Circuit Judge.</p> <p>Action to recover on two promissory notes, aggregating $2,523.56, with interest. Tbe complaint was in tbe usual form to recover of tbe defendant corporation as an indorser, The notes were signed by Humphrey & Holdridge, payable to the order of the defendant, and indorsed in its name by W, W. Hathway, treasurer, and by Willoughby & Hathway, a firm of which said treasurer was a member. The defense was that the defendant had no connection with the transaction of giving the notes; that it received no consideration therefor; and that plaintiffs were not bona, fide holders.</p> <p>There was evidence to this effect, and on many points the same was uneontroverted: Plaintiffs shipped to Willoughby & Hathway, at Tonawanda, New York, a considerable quantity of lumber to be sold on commission, they to be responsible as guarantors for the payment of all lumber sold, remittances to be made at the end of each month for lumber sold during the preceding month. After the commission contract was made defendant corporation was formed with Willoughby & Hathway, one Smeaton, and one Ellmaker as its stockholders, the latter becoming president, Smeaton vice-president, and Hathway secretary and treasurer, and the last two being given the active management of the corporate business. January 1, 1890, the corporation rented the Willoughby & Hathway lumber yard and also a yard near by belonging to Calkins & Co., purposing to transact there a general lumber business. It did not purchase the lumber stock in the Wil-loughby & Hathway yard, but arranged to sell the same on commission. It was customary for a firm known as Humphrey & Holdridge to accommodate defendant with its credit, delivering to it signed blank promissory notes, which it might fill up and use in its discretion. At the times hereafter mentioned when notes were given to the plaintiffs the defendant had several of such signed pieces of paper on hand in the custody of Hathway as its secretary and treasurer, or where he had opportunity to obtain them.</p> <p>In May, 1899, Hathway, for Willoughby & Hathway, sent plaintiffs a note, dated April 29, 1S99, signed by Humphrey & Holdridge, payable to the order of Willoughby & Hathway and duly indorsed by them, payable in four months with interest, for $2,486.27. Willoughby & Hathway were then indebted to plaintiffs on the aforesaid commission contract in excess of the sum mentioned in said note and it was sent to plaintiffs and received by them on account thereof. There was no express agreement that the note should be regarded as payment. Though it was purely accommodation paper plaintiffs had no knowledge thereof. It was produced by Hathway by his taking and filling up one of the signed blanks .aforesaid, designed for the use of the defendant, his act in that regard and in sending the paper to plaintiffs being without any authority of the corporation. The corporation did not then owe plaintiffs or Willoughby & Hathway for any lumber purchased of the latter and sold by them under the aforesaid commission contract. When the note came due Hathway renewed it, using another of the aforesaid signed blanks. The renewal note was made payable to the order of ■defendant, and was indorsed in its name by W. W. Hathway, treasurer, and also indorsed by Willoughby & Hathway. When the second note came due it was renewed by the two notes in suit, they being produced by Hathway in like manner as the others. The first note did not represent sales of plaintiffs’ lumber to the defendant, not paid for till the note was given. On this point there was a controversy in the evidence. 'There was also a controversy as to whether the vice-president of the defendant knew of the indorsements of the notes in the name of the defendant and the use of them by Hathway and consented thereto, but there was no controversy that Hathway did not have special authority to devote defendant’s name and credit to the use of himself and partner. There was also a controversy in the evidence as to whether the defendant after the giving of the first note and before November 29, 1899, became indebted to plaintiffs for lumber stock received from Willoughby & Hathway.</p> <p>The jury rendered tibe following verdict:</p> <p>: “(1) Was defendant — Spider Lalce Sawmill & Lumber Ofimpany — ever the owner of the promissory notes, or either of thenq described in plaintiffs’ (Pelton & Reid’s) complaint ?' -4. Yes. (2) Did W. W. ITathway, who indorsed said notes described in plaintiffs’ complaint over to plaintiffs in the name of defendant, have any authority from said defendant to indorse said notes or either of them in the name of defendant? A. Yes. (3) Were said notes indorsed in defendant’s, name over to plaintiffs by the said ITathway for the sole purpose of satisfying the partnership indebtedness of Willoughby & Hathway to said plaintiffs? A. Yes. (4) Did said defendant ever receive any consideration for its alleged in-dorsement of said notes or of that of either of them ? A. No. (5) Was defendant’s name indorsed on the note of April 29,. 1899, before it was delivered to plaintiffs ? A. No. (6) Did Willoughby & Hathway sell defendant any of plaintiffs’ lumber or lath? A. Yes. (7) If you answer question No. 6-by ‘Yes,’ what was the entire purchase price thereof ?" A. $16,253.88. (8) If in question No. 7 you fix the purchase price thereof, has, defendant paid Willoughby & Hath-way that amount? A. Yes. (9)- Has defendant paid Wil-loughby & Hathway in full for all lumber or lath purchased* by defendant from them? A. Yes. (10) Were Willoughby & Hathway indebted to plaintiffs on April 29, 1899, on account of lumber or lath sold by Willoughby & Hathway to defendant? A. Yes. (11) Have Willoughby & Hathway been indebted to plaintiffs ever since said April 29th on said account ? A. Yes. (12) Was defendant indebted to plaintiffs, on April 29, 1899, on account of lumber or lath sold by Wil-loughby & Hathway to defendant? A. No. (13) Was defendant indebted to plaintiffs for any lumber or lath had or received by defendant from Willoughby & Hathway any time between April 29, 1899, and November 29, 1899 ? A. No.”</p> <p>The court changed the answer to question No. 1 from “Yes” to “No” and the answer to question No. 2 to “Only such authority as is conferred by defendant’s by-laws,” and upon the verdict as so amended rendered judgment in defendant’s favor.</p> <p>They contended, inter alia, that plaintiffs were holders of the first note for value, having impliedly agreed to extend the time of. payment of the amount thereof until the maturity of the note. J ohnston H. Go. v. McLean, 57 Wis. 267. If, then, Hathway misappropriated this piece of paper, the result of his wrongdoing was to fasten a liability upon Humphrey & Holdridge. And for this misconduct of his, the defendant corporation was clearly liable to Humphrey & Holdridge. 7 Am. & Eng. Ency. of Law (2d ed.) 825, 826; Gralcer v. G. & N. W. P. Go. 86 Wis. 657; Ga/rvik v. B., G. E. & N. B. Go. 131 Iowa, 415, 108 N. W. 327; 7 Am. & Eng. Ency. of Law (2d ed.) 827 (b) ; Foster v. Essex Bank, 17 Mass. 499, 511. The action would be trover. 1 Am. & Eng. Ency. of Law (2d ed.) 384, note 2. The second note was in renewal of the first and was indorsed by the defendant (by Hathway). The purchaser is “put upon inquiry” only when the note shows upon its “face that an officer of the corporation had dealt directly with himself and adversely to the interests of the corporation.” Hiawatha I. Go. v. J ohn Strange P. Go. 106 Wis. Ill, 116; Park Hotel Go. v. Fourth Nat. Bank, 86 Fed. 742, 744; West St. L. Sav. Bank v. Shawnee Co. Bank, 95 U. S. 557, 24 L. Ed. 490., It is true that by the delivery of this note Hathway was paying a note upon which he was liable as an indorser, as one of the firm of Willoughby & Hathway. But the utmost effect of that circumstance is to make the note presumptively an accommodation note. McLellan v. Detroit F. Works, 56 Mich. 579, 23 N. W. 322. And this presumption vanishes here in the light of the uneontradicted evidence that the defendant corporation did receive a consideration — value—for this note. “The surrender of an outstanding obligation to avoid any suit that might be brought upon it is a sufficient consideration.” Mansfield v. Watson, 2 Glarke (Iowa) 111, 11 Cent. Dig. 263 (e) ; Perry v. Buclcmcm, 33 Vt. 7, 11 Cent. Dig. 264 (p’) ; Ooggins v. Murphy, 121 Mass. 166. If, then, tke second note was issued upon a valid consideration moving to the corporation defendant, it became a valid obligation of the corporation in the hands of plaintiffs, and the notes in suit, being renewals of that note, are therefore adequately based on a sufficient consideration.</p>

<p> Automobiles: Failure to stop on signal from driver of horses: Statute construed: Pleading: Criminal complaint: Instructions to jury: Evidence: Appeal: Immaterial error. </p> <p>1. Under sec. 1636 — 50, Stats. (Supp. 1906; Laws of 1905, eh. 305, sec. 4), providing that every person operating an automobile shall upon signal, etc., from a person driving horses, cause such automobile “to stop all motor power and remain stationary, unless a movement forward shall be deemed necessary to avoid accident or injury,” an allegation in a criminal complaint that defendant while operating an automobile did not, upon signal, etc., “stop such automobile” sufficiently charges violation of the requirement “to stop all motor power and remain stationary.”</p> <p>2. Under said statute it is for the operator to determine whether a forward movement is necessary, and his conclusion is controlling unless he acts unreasonably or in had faith.</p> <p>3. Although an allegation that the operator did not stop an automobile “when a forward movement was not necessary to avoid accident” was imperfect in form because of the omission of the word “deemed,” yet the defect was one which might have been obviated by amendment before trial, and an objection to the complaint on that ground, not made until after the prosecution had rested, came too late.</p> <p>4. In this case, where a signal to stop was given to defendant when he was eighteen or twenty rods distant from a frightened team, it is held that, under the circumstances shown, there was no necessity for him to move forward to avoid accident.</p> <p>5. Where the instructions given were correct and sufficiently covered the case, it was incumbent on a party desiring more specific instruction on any subject to present a written instruction on that subject and request that it be given.</p> <p>6. In a prosecution for failure to stop an automobile on signal from the driver of frightened horses, evidence as to the speed of the automobile at the time of approaching and meeting the horses was relevant.</p> <p>7. -An instruction to the jury that they had nothing to consider or determine in respect to the matter of assistance by defendant and others in the automobile to the driver of the frightened horses, is held sufficient to remove all liability of prejudice from the admission of evidence on that subject.</p>

<p>ERROR to review a judgment of the circuit court for Eau Claire county: Jambs O’Neill, Circuit Judge.</p> <p>Charge of adultery committed on December 15, 1905, by defendant upon his stepdaughter. The evidence generally consisted of testimony that on the day named defendant announced at supper that some one of the family needed to come to a neighboring barn, where he was employed, to bring the milk, as he was obliged, after doing the chores, to take his employer to drive; that after dusk the stepdaughter, Pauline, about twenty years of age, went to the barn, remained about half an hour and returned without the milk, stating that defendant had not completed milking, but would bring it himself, as he found he need not go to drive. This was supplemented by testimony of admissions made thereafter by defendant to other daughters of his wife and the husband of one of them, also to a neighbor, that he had had sexual relations with Pauline. Some time in January Panline had been seized with a nervous or hysterical attack, not by any evidence connected with the fact charged, and had become deranged and had been sent to an insane asylum, so that she did not testify. Defendant denied all improper relations with her, and denied her presence at the barn on the evening in question, and denied all the alleged admissions, and offered proof of good reputation in the community.</p> <p>On the trial defendant insisted, by motion for dismissal and by plea in abatement and demurrer to the information, that there had been no preliminary examination on which he had been properly held to trial, because the evidence offered on that examination was not sufficient to warrant a finding either that any crime had been committed or that there was reasonable probability that defendant committed it, upon all of which he was overruled. He also, at the close of the state’s evidence, moved for discharge and acquittal, and again, at the close of all the evidence, moved for a direction to acquit, both of’which were overruled and exceptions reserved, whereupon the jury returned a verdict of guilty, and the court, after overruling motions in arrest of sentence and for a new trial, sentenced the defendant, to review which he sued out writ of error from this court.</p>

Appeals from a judgment of tbe circuit court for Milwaukee county: J. C. Ludwig, Circuit Judge. Plaintiffs commenced this action for an apportionment of tbe accretion formed on tbe margin of Lake Michigan and abutting on tbe property of the shore owners as shown on the plat attached to the judgment of the circuit court. The old shore line on which the accretion abuts commenced at the point A on tbis plat, and extends through the points K, M,.

<p>Appeal from an order of tbe circuit court for Milwaukee ■county: WarreN D. Tarbaht, Circuit Judge.</p> <p>It- appears from tbe record and is -undisputed tbat March 11, 1884, the defendant issued to the plaintiff its twenty-year “semi-tontine” policy No. 274,493, upon which the plaintiff was to pay,' and did pay, to the defendant the annual premium of $410.85, making in the aggregate for the said twenty years the sum of $8,217. At the expiration of the twenty years covered by the .policy, March 10, 1904, the plaintiff claimed as the total cash value of said policy of insurance a sum in excess of $13,000, which the defendant refused to pay, and claimed that there was only due to the plaintiff thereon the sum of $9,122.70. July 29, 1904, the plaintiff commenced this action by the service of a summons only, on an affidavit showing the facts stated and alleging that under such contract of insurance the plaintiff was entitled to said policy’s share of the reserve fund and the accumulated surplus funds and other funds therein mentioned. The tidal court on September 20, 1904, made an order on the defendant, under sec. 4183, Stats. (1898), and Circuit Court Eule No. XIX, to show cause why the defendant should not allow the plaintiff to have “inspection or sworn copies of all books, data, and memoranda showing the reserve fund and accumulated surplus and other funds of said defendant, within the period covered by the policy, . . . and showing what portion of said reserve fund and such accumulated surplus and any other funds in the hands of the defendant are proper to be applied upon said policy of insurance.”</p> <p>The hearing of that order to show cause was extended to October 29, 1904. Before such hearing and on October 21, 1904, and upon application of the defendant, the plaintiff was required to be examined October 26, 1904, before a circuit court-commissioner therein named “otherwise than as a witness on the trial,” under sec. 4096, Stats. (1898). Thereupon and after full hearing the trial court “ordered that all proceedings before the said John T. Wentworth, court commissioner, until after the hearing and the determination of the order to show cause made and entered herein on the 20th of September, 1904, be and the same are hereby stayed, and that the plaintff have costs on this motion in the sum of $10.” Ellinger v. Equitable L. Asswr. Soc. 125 Wis. 643, 645, 104 N. W. 811. Upon an appeal from that order the same was reversed, and the cause was remanded for further proceedings according to the opinion. 125 Wis. 649 (104 N. W. 813).</p> <p>Upon the remittitur being filed the examination of the plaintiff under sec. 4096, Stats. (1898), was had at great length. Thereupon and on October 25, 1906, and upon such examination of the plaintiff and affidavits on the part of the defendant, and all the records, affidavits, and other papers read or used by either party in the cause, the trial court ordered that the defendant be and it was thereby ordered and required to give to the plaintiff an inspection and copy, or permission and opportunity to take a copy, of all books, data, and memoranda showing the reserve' fund and accumulated surplus and other funds of the defendant within the period covered by said policy and in any way affecting and pertaining to said policy, and showing what portion of said reserve fund and such accumulated surplus or any other funds in the hands of the defendant are proper to be applied upon said policy of insurance; said inspection and said opportunity to take a copy to be made and had by the defendant depositing said books, data, and memoranda with the clerk of this court in his office on or before 2 o’clock p. m. of November 25, 1906, and such deposit to continue until 2 o’clock p. m. of January 25, 1907, unless sooner notified by the plaintiff of the completion of such inspection and examination; or at the option of the defendant and upon written notice to the plaintiff or his attorney to be given within ten days from the date hereof to that effect, or within ten days after any stay of proceedings which may be granted herein shall have expired, the said inspection and copy or permission and opportunity to take a copy of said books, data, and memoranda may be bad and given at tbe general office of tbe defendant in tbe city of New York, said inspection to commence witbin thirty days after tbe service upon tbe plaintiff or bis attorneys of said notice, and to continue for and during a period of sixty days after tbe commencement of sucb inspection and examination, unless the defendant shall be sooner notified by tbe plaintiff of tbe completion of sucb inspection and examination. It was therein further ordered that tbe time witbin which tbe plaintiff might make, serve, and file bis complaint in said action be extended to and including twenty days from and after tbe completion of the inspection and examination of books, data, and memoranda of tbe defendant, and tbe notification to that effect to be given by plaintiff to tbe defendant as hereinbefore provided, subject, however, to tbe further order of tbe court upon tbe application of tbe defendant. It was therein further ordered that tbe defendant be required to pay to tbe plaintiff’s attorneys tbe sum of $10 costs of motion witbin ten days after service of a copy of this order. From sucb order tbe defendant appeals.</p> <p>They cited, among other cases, Noonan v. Orton, 28 Wis. 600; Kraus v. Sentinel Go. 62 Wis. 660, 663; 2 Wait, Pr. 526, 529, 530, 532; 6 Ency. PL & Pr. 188, 792, 795, 796, 805, 806; Phillips v. Curtis, 70 App. Div. 551; Walsh v. Press Go. 48 App. Div. 333, 335; Goodyear’s I. B. G. Mfg. Go. v. Gorham, 83 Hun, 342; Brownell v. Nat. Banh, 20 Hun, 517; Fx parte Clarice, 126 Cal. 235, 46 L. R. A. 645; Equitable L. Ássur. Soc. v. Glarlc, 80 Miss. 471, 31 South. 964; Oaspary v. Garter, 84 Fed. 416; Ryder v. Batema/n, 93 Fed. 31; Bischoffsheim v. Brown, 29 Fed. 341; Phelps v. Atl. & Pac. Tel. Go. 46 Wis. 266, 268; Story, Eq. PI. §§ 319 — 325; Green v. Carey, 81 Hun, 496.</p> <p>Tbey argued, among other things, that where the interest or equity of the obligee is, by virtue of the contract, dependent upon facts evidenced by records in the exclusive control of the obligor, inspection will be granted upon a showing sufficient to raise a reasonable presumption that the evidence contained in such records will aid in framing his pleading with definiteness and certainty: indispensable necessity need not be shown. Fuller v. Knapp, 24 Eed. 100; Pierce v. Equitable L. Assur. Soc. 145 Mass. 56; U. S. L. Ins. Go. v. Spinks (Ky.) 96 S. W. 889; Chicago Mut. L. Ind. Asso. v. Hunt, 127 .Ill. 257; Huber v. Martin, 127 Wis. 412, 105 N. W. 1031, 1037; Ohurchill v. Loesser, 89 Hun, 613; Veiller v. Oppenheim, 75 Hun, 21; Fjddy v. Bay Circuit Judge, 114 Mich. 668, 72 N. W. 890; Church v. Anti-Kalsomine Co. 118 Mich. 219, 76 N. W. 383; Anti-Kalsomine Co. v. Kent Circuit Judge, 120 Mich. 250, 79 N. W. 186; Williams M. & B. Co. v. Baynor, 38 Wis. 132; Nichols v. McGeoch, 78 Wis. 360; State v. Baetz, 86 Wis. 29.</p>

<p>Appeal from a judgment of tbe circuit court for Chippewa county: A. J. YiNje, Circuit Judge.</p> <p>This action is brought by the plaintiff as a taxpayer of the village of Fairchild, Eau Claire county, on behalf of himself and all other taxpayers similarly situated, to restrain the village authorities from spreading on the village tax roll the tax in question, which had been authorized by the commissioners of equalization under secs. 1077a, 1077b, Stats. (1898)'. The village authorities defaulted in the ease, and the defendant Rows, a taxpayer of the city of Eau Claire, was allowed to defend. He demurred to the complaint upon the grounds (1) that the court had no jurisdiction of the subject of the action; (2) that plaintiff had no legal capacity to sue in his behalf and in behalf of all others similarly situated; (3) that there was a defect of parties, in that the village was a necessary party plaintiff; and (I) that the complaint did not state facts sufficient to constitute a cause of action. The demurrer was sustained, and on appeal from such order to this court the order was affirmed. The ease is reported in 128 Wis. 326, 107 N. W. 635, where a complete statement of the complaint is given, which need not be repeated here. After remittitur of the case upon the decision thus made, the case was submitted to the trial court upon the same complaint and no evidence was offered. The court awarded judgment dismissing the complaint and for costs against plaintiff. This is an appeal from such judgment.</p>

<p>Appeal from a judgment of tbe circuit court for Rock county: B. F. DuNwiddie, Circuit Judge.</p> <p>This is an action in equity seeking judgment declaring a certain deed to be in fact a mortgage. Many of the facts were substantially undisputed and may be stated as follows:</p> <p>Prior to March, 1889, the plaintiff became the owner of eighty acres of farm land in the town and county of Rock, and his wife became the owner of another eighty in the same town, both tracts being subject to mortgage. Mrs. Lynch was a cousin of the defendants J oseph A. Ryan and J. B. Slattery. Edward H. Ryan was a brother of Joseph A. Rycm. All the parties named liyed in Rock county excejff Slattery, who lived at Shreveport, Louisiana. Mrs. Lynch died intestate, early in 1889, leaving children, and on March 5, 1889, the plaintiff was appointed administrator of her estate and gave bond in the sum of $2,000, signed by Joseph A. Ryan as surety, and entered on his duties as administrator. February 7, 1895, the plaintiff Lynch executed and delivered to Edward H. Ryan a general power of attorney authorizing him to transact business and mortgage and convey real estate, and shortly thereafter removed to Shreveport, Louisiana. Edward H. Ryan thereupon acted as plaintiff’s agent in managing the plaintiff’s interests and looking after his real estate in Wisconsin, and continued so to do until January 1, 1899. In June, 1895, the plaintiff’s account as administrator was settled by the county court of Rock county, and plaintiff was found indebted to the estate in the sum of $1,067.94, for which sum judgment was entered against the plaintiff and Joseph A. Ryan. December 14, 1895, tbe plaintiff, acting tbrongb bis attorney in fact Edward H. Ryan, gave J oseph A. Rya/n bis personal bond to indemnify bim against hie liability on tbe said administration bond and judgment. To secure this bond be also gave a mortgage covering not only tbe aforesaid eighty acres owned by bim in fee, but also bis estate by tbe curtesy in tbe eighty acres formerly owned by bis wife. Tbe court found that tbe eighty acres owned in fee were at this time not worth more than $2,800 and were incumbered by mortgages to tbe amount of $2,141.67, and that tbe lands held as tenant by tbe curtesy were incumbered in tbe sum of $1,350, 'and tbe value of the plaintiff’s interest therein was less than $600. Joseph A. Ryan paid tbe judgment of $1,067.94 upon tbe administration bond, and was afterwards reimbursed by one of tbe plaintiff’s children in tbe sum of $158.97, leaving due him $908,97 and interest.</p> <p>July 11, 1896, tbe plaintiff executed and delivered to John B. Slattery a quitclaim deed of both parcels of land. Tbe consideration expressed in this deed was $1,800, but in fact there was no consideration therefor, and Slattery simply took tbe title at the request of tbe plaintiff under an agreement to bold tbe title subject to plaintiff’s order. E. H. Ryan continued to manage tbe property. About December 1, 1897, J oseph A. Ryan saw E. H. Ryan and threatened to foreclose tbe mortgage, whereupon E. H. Ryan proposed that be would get Slattery to convey tbe land if be ( Joseph A. Ryan)' would allow Slattery to have tbe rents for tbe year 1898 and thus save the expense of a foreclosure. J oseph A: Ryan consented to this, and E. H. Ryan consulted with plaintiff, who consented to tbe plan, and Slattery on plaintiff’s request executed a warranty deed of tbe lands to J oseph A. Rycm December 27, 1897, which deed excepted the mortgages from tbe covenant against incumbrances, and also stated that it conveyed only such rights, title, and interest as Slattery acquired under bis deed from plaintiff. On tbe 31st of December, 1897, when this deed was delivered, J oseph A. Ryan executed and delivered to Edward H. Ryan a contract giving the latter the exclusive right to sell the property until hlarch 1, 1899, and providing that in case of sale J oseph A. Ryan should first he paid $908.97 and interest from November 1, 1897, also his costs and expenses in the care of the land and buildings, with interest, after which Edward H. Ryan was to have all that should be received as his compensation. At the same time it was orally agreed that Edward H. Ryan should receive the rents and profits of the farm for the year 1898 as agent for Slattery or the plaintiff. E. H. Ryan claims that he assigned this contract at once to the plaintiff, but plaintiff claims he never knew of it, and further claims that Joseph A. Ryan orally agreed with him that he {Lynch) was to retain the same interest in the land as before. This latter claim is denied by J oseph A. Ryan. E. II. Ryan continued to collect the rents, and both he and Lynch (wbo had returned to Wisconsin and lived in Beloit) endeavored to sell the land during the year 1898, but did not succeed. Plaintiff applied to Joseph A. Ryan in December, 1898, for an extension of time in which to sell, but Joseph A. Ryan refused to grant it. J oseph A. Ryan went into possession of the land about January 1, 1899, and has since received the rents and profits and expended some $2,000 in improvements on the property.</p> <p>The court found that the deed from Slattery to Rycm was an absolute and valid conveyance of the title of the lands in consideration of the assumption by Ryan of the incumbrances and the release of his claim for money paid upon the administration bond, and entered judgment for the defendants declaring the deed to be an absolute conveyance. From this judgment the plaintiff appeals.</p>

<p>Appear from, a judgment of the circuit court for Polk county: A. J. Viitje, Circuit Judge.</p> <p>This is an action for the recovery of damages for injury done by defendant’s sheep in trespassing on lands occupied by plaintiff. There is no dispute but that some of the damage was committed by defendant’s sheep. Defendant is the owner of eighty acres of land used for farming purposes, and plaintiff is the tenant of the land adjoining it. on the east. The court found that the lands occupied by plaintiff and defendant were adjoining lands used and occupied for farming purposes and that the partition fences were not maintained and kept in repair by the respective owners. The court awarded judgment in favor of defendant on the ground that plaintiff was precluded from recovering damages for the trespass o-f defendant’s sheep, because the partition fences were not maintained and kept in repair by the parties as, adjoining occupants and owners. This is an appeal from the judgment.</p>

<p>'Appeal from a judgment of tbe circuit court for Milwaukee county: WaeeeN D. TaebaNT, Circuit Judge.</p> <p>Quo warrcmto. Tbe appeal is from a judgment dismissing tbe complaint after order sustaining a demurrer thereto, and time to plead over bad expired. Tbe respondents, John A. F. Croih, Louis Manegold, Timothy Driscoll, August F. Zentner, and W. E. Chase, were elected by tbe county board of supervisors of Milwaukee county trustees under cb. 94, Laws of 1905 (secs. 697 — 45—49, Stats.: Supp. 1906), and were bolding and exercising sucb office under said appointment. Tbe relator is a member of said county board, a citizen, taxpayer, and freeholder. Milwaukee county bad adopted tbe county system of support of tbe poor, and for sucb purpose a county hospital, a county poor farm, and almshouse, waterworks, and a department of outdoor relief bad been established. It is contended that cb. 94, Laws of 1905, is unconstitutional and void because in conflict with sec. 23, art. IV, Const. Tbe provisions of that law will be found stated in tbe opinion.</p>

<p>ArpmAX from an order of the-circuit court for Milwaukee-county: J. C. Ludwig, Circuit Judge.</p> <p>This is a proceeding commenced by the Milwaukee Light,. Heat & Traction Company, a street railway corporation, to» condemn certain parcels of land in Milwaukee county for a right of way for an interurban line of electric railroad. The-proposed line commences in the city of Milwaukee and runs, north and slightly west for a number of miles in Milwaukee-county, and continues in the same general direction in Ozau-kee county until it reaches the city of Cedarburg in the last-named county. Eour and one-half miles of the proposed., line in Milwaukee county and about the same distance in-. Ozaukee county lie immediately east of and contiguous to-the right of way of that division of the Chicago, Milwaukee & St. Paul Railway which runs from the city of Milwaukee ■ northward through Cedarburg. The parcels of land of which condemnation is sought in this proceeding include the parcels in Milwaukee county which so adjoin the right of way of the Chicago, Milwaulcee & St. Paul Railway, and it is=. as to these parcels, constituting a continuous strip of the general width of seventy-five feet, that the controversy here-arises. The circuit court denied the application for right of way over these parcels, for the reason that the Milwaukee-Northern Railway Company had obtained the prior right to use the same for railway purposes, and the petitioner appeals to this court from such denial.</p> <p>The facts appearing by the testimony were in substance as follows: The petitioner is a corporation organized in December, 1896, under ch. 86, Stats. (1898), for the purposes, among others, of constructing and operating street railways for the transportation of passengers and freight in the city of Milwaukee and elsewhere in Wisconsin, and extending its railways to adjoining towns, and building and operating street railways in any village or town or from one village or town into or through any other village or town. The respondent is a corporation organized October 25, 1905, under said ch. 86, for the purpose of constructing and operating “an electric railway for the carriage of passengers and all kinds of property, . . .” in and between the cities of She-boygan, Milwaukee, Eond du Lac, and any neighboring towns, villages, or cities. In September, 1903, the petitioner was operating a number of interurban electric lines radiating from Milwaukee, and on the 8th day of said month its board of directors passed a resolution authorizing the president and general manager (Mr. Beggs) to have surveys made and procure the necessary right of way and franchises for the construction of a railway line to Cedarbuxg and Port Washington by such route as in his judgment might be most advantageous and desirable. Under this resolution Mr. Beggs caused surveys to be made of a line from North Milwaukee to Cedarburg and Port Washington. These surveys were commenced in September, 1903, and were continued and finally completed May 4, 1905, but the maps were not completed'until January 6, 1906. These surveys located the line over the strip now in controversy in both Milwaukee and Ozaukee counties, and stakes were driven marking the center line of the proposed road. On the 16th day-of January, 1906, the petitioner’s board of directors met in New York Oity and adopted a formal resolution adopting the line so staked out- and locating its route over the strip in controversy, in both counties. No franchises from town boards had been obtained at this time. Right-of-way agents had been sent out from time to time to obtain options of purchase from the owners of the various parcels of land included in the strip in both counties, but these efforts failed because the prices asked were deemed exorbitant, save in the case of five tracts in Ozaukee county aggregating about four fifths of a mile in length. Options on these tracts were secured in April and May, 1905, and expired in one year. Mr. Simmons, the petitioner’s superintendent of construction, testified that while the surveys were progressing he endeavored to get farmers to contribute the right of way, that he told them that it would hurry the building of the road if the right of way were contributed, and that he may have told some of them that the line would be built when they gave the right of way; but he denied that he stated to any one that the road would not be built unless the right of way were contributed. Mr. Theirman, a merchant and real-estate dealer of Thiens-ville, Ozaukee county, called on Mr. Beggs some time in 1904 and inquired upon what condition the company would build the line, and Mr. Beggs told him that if the citizens would get the right of way and give it to him he would build the line. In or about October, 1905, Mr. Theirman again called on Mr. Beggs concerning' the matter, and' Mr. Beggs stated to him that they would build the road when they got ready. After the passage of the resolution of January 16th the present petition, seeking to condemn so much of the proposed right of way as is situated in Milwaukee county, was prepared, and on the 15th day of February, 1906, the same was filed, and upon the following day notice of the pend-ency of the proceedings was filed in the proper office. The foregoing facts are practically undisputed, and they constitute substantially the facts relied on by the petitioner in support of its right to condemn.</p> <p>On the part of the respondent the following facts appeared: Tbe Comstock-Haigh-Walker Company (hereafter ■called the construction company) was in March, 1905, a ^Michigan corporation organized for the purpose of constructing and operating electric railways, and of the company Mr. F. W. Walker was a director and apparently the active manager. Early in March, 1905, Mr. Walker, Mr. Haigh, -and Mr. Comstock, representing the construction company, had conceived the idea of constructing an electric railroad from Milwaukee northward to Oedarburg, Port Washington, 'Sheboygan, West Bend, and Fond du Lac. In the latter part •of March they went over the ground and noticed the advantages of locating the route on the strip in dispute in both Milwaukee and Ozaukee counties. About the middle of ■October, 1905, two surveying parties were started out by the construction company, one from Sheboygan going south ■and one from Cedarburg going south to Milwaukee. These parties, under Mr. Walker’s direction, located the proposed line by stakes as they went along, and completed the survey -over the line from Cedarburg to Milwaukee and on the disputed strip in the latter part of November, 1905. While these surveys were progressing Mr. Walker noticed some of the stakes set by the petitioner near Oedarburg and was informed that they were set by Mr. Beggs, of whose official relations to the petitioner he was informed, but he paid no attention to them except to inquire of the officers of the cities of Port Washington and Cedarburg and of the village of C-rafton and town of Mequon whether any application for franchises had been made to such officers, and was informed that there had been none. During the progress of the surveys •option contracts were rapidly secured from the owners of the various parcels of the contested strip in both counties for a right of way sixty-six feet in width. The options all provided that the land was to be used for the purpose of the right of way of an electric railway company and might be •assigned by the grantee for such use. Those executed in October were executed to Mr. J. M. Saeman, of Sheboygan, Wisconsin, wbo bad become associated witb tbe construction company in tbe enterprise, while those thereafter executed ran to tbe Milwaukee-Northern Railway Company. Fifteen of these options, taken between October 15th and October. 24th, cover lands on the disputed strip in Milwaukee county. Three others, taken in January, cover parcels of the same strip in Milwaukee county. Twenty options, taken in October, cover lands in the disputed strip in Ozaukee county, while one other was taken in November and two in January, 1906. The option contracts so acquired prior to January 16, 1906, covered a very large proportion of the respondent’s entire proposed right of way from Milwaukee to Port Washington, and over the disputed strip the option contracts covered all but a mile. Many other options were secured after January 16th upon parts of the right of way not in dispute. The respondent corporation was duly organized under ch. 86, Stats. (1898), October 25, 1905, with 1,000 shares of capital stock of $100 each, 993 of which were taken bv-the construction company and seven by individuals who became directors of the corporation. Mr. Walker became the vice-president and active manager of the corporation, twenty per cent, of the stock was at once paid in, and a meeting of the stockholders was held and directors were elected. A meeting of the board of directors was immediately held and the following resolutions were adopted:</p> <p>“Resolved; that pursuant to authority this day vested in this board, a contract be entered into between the Milwaukee-Northern Railway Company and the Comstock-Haigh-Walker Company, providing for the acquirement of all additional rights of way, privileges, franchises, and other rights necessary for the building of the company’s proposed line of electric railway, and also for the complete construction and full equipment of said proposed line running from the city of Milwaukee to and through Cedarburg and Port Washington into the city of Sheboygan, with a branch line running northwesterly from Cedarbnrg through West Bend and into the city of Fond du Lac; that said contract be negotiated by the president, secretary, and treasurer of the company, and reduced to whiting an'd submitted to the board for approval at a later meeting; that said contract be upon such terms and for such consideration as said officers deem expedient and right; and that until said contract is approved by this board and duly signed and entered into, said officers be authorized to arrange with said Comstock-Haigh-Walker Company to continue the work of securing the necessary rights, franchises, and private rights of way for the use of the railway upon terms to be by them agreed upon.</p> <p>‘"Resolved, that the proper officers of this company be and they are hereby authorized to pay over to the Comstock-Haigh-Walker Company upon vouchers duly itemized and approved, out of the funds of this company, a sum not exceeding twenty thousand dollars ($20,000) for the rights of way already secured for the company and on account of disbursements and for services in procuring additional rights of way and franchises and for services and disbursements in the matter of the organization of the company and the procurement of its charter and other rights.”</p> <p>The active work of surveying and staking the route and obtaining options proceeded uninterruptedly after this meeting as before, under charge of Mr. Walker, who had frequent consultations with the directors of the respondent company and acted in accordance with their conclusions but without any regular meeting. The options which had been procured in the name of Mr. Saeman were duly assigned to the respondent company' November 10, 1905, but not recorded, and all further options secured were taken in the name of the respondent. The $20,000 referred to in the resolution was paid out from time to time as necessary in paying for options and deeds of right of way, but at what precise times does not appear. No deeds were- secured prior to January 16th, but between that date and before February 15th thirty-one deeds and one release of tenant’s rights covering parcels in the disputed strip in Ozaukee county, and twenty-two deeds covering parcels in the disputed strip in Milwaukee county, had been secured, all running to the respondent as grantee, and all containing a clause that the land is to he used for right-of-way purposes for an electric railroad. The Ozaukee deeds were all recorded February 16, 1906, and the Milwaukee county deeds were recorded February 17th, with the exception of four which were recorded February 20th. These deeds covered all but two parcels of the contested lands in Milwaukee county and all but six parcels (on five of which the petitioner had options) in Ozaukee county.</p> <p>In October, November, and December, 1905, the respondent obtained all the necessary franchises and highway-crossing privileges from the villages and towns through which the line from Milwaukee to Port Washington runs to enable it to construct and operate the entire line, except in the city of Port Washington and city of Milwaukee, and these latter franchises were obtained on the 2d of January and the 22d of March, 1906, respectively. December 15, 1905, Mr. Walker and Mr. Haigh, treasurer of the respondent, had an interview at New York with Mr. O. W. Wetmore, one of the directors and executive officers of the petitioner, and informed him of their projected road and its route as well as of the options and franchises they had obtained,, and asked for a contract giving the respondent the right to enter the city of Milwaukee over the petitioner’s tracks, but this was refused.</p> <p>The petitioner had obtained no franchises or highway-crossing privileges outside of" Milwaukee and North Milwaukee on January 16, 1906. The respondent had done no grading or other work of physical preparation of the route necessary for the construction of the road prior to the filing of the petition herein, but in April, 1906, work of grading was begun on other portions of the road north of the disputed strip, and at the time of the trial in June, 1906, nearly ten miles had been graded and the work was actively progressing. At the last-named date, also, a power-house site had been.' purchased in Port Washington, materials consisting of bridges and rails had been purchased, many options secured on the Sheboygan and Eond du Lac lines, and $124,000 in cash had been expended by the construction company, besides liability incurred for material to be delivered, amounting to $75,000, in addition to the cash expenditure.</p> <p>Upon these facts the court found that the surveys made by the petitioner in 1903, 1904, and 1905 were tentative only, and that petitioner had no fixed intention to build a road over the route until the 16th day of January, 1906, when the route was fixed and located by resolution of the board of directors; that by virtue of the surveys made by the construction company and the resolutions of the directors of the respondent company passed October 25, 1905, and the subsequent acts of the construction company and the officers of the respondent, the route of the respondent’s main track was in good faith actually located and fixed over the disputed strip prior to December 1, 1905, with intent to build thereon; that by this prior location in good faith the respondent had, in effect, appropriated the disputed strip for railway purposes before the commencement of these condemnation proceedings; and hence that the petitioner was not entitled to condemn any portion of the strip in controversy.</p> <p>contended, inter alia, that by priority in time of location the petitioner acquired priority of right. Baldwin, Am. R. R. Law, 108; 2 Lewis,’Em. Dom. (2d ed.) § 306; 3 Elliott, Railroads, § 927; Bo,rre R. Co. v. M. & W. R. R. Co. 61 Yt. 1; Contra. Costa C. M. R. Co. v. Moss, 23 Cal. 323, 330; Williamsport & N. B. R. Co. v. Phila. & E. R. Co. 141 Pa. St. 407, 414; New Brighton & N. C. R. Co. v. P., T. & C. R. Co. 105 Pa. St. 13; Washington & I. R. Co. v. C. D’A. R. & N. Co. 160 U. S'. 77, 100; Rochester, II. & L. R. Co., v. N. Y., L. E. & W. R. Co. 110 N. Y. 128; Chesapealce & O. R. Co. t. D. R. Go. 57 W. Va. 641, 50 S. E. 890, 900; Weidenfeld v. Sugar Bun B. Oo. 48 Eed. 615; Pittsburg, Va. ■& G. B. Go. v. P., G. & S. L. B. Go. 159 Pa. St. 331; Kanaiuha, C. J. & E. B. Go. v. G. J., L. L. & D. W. B. Go. 45 W. Va. 119 ; Schneider v. Knickerbocker Ice Oo. 119 Wis. 171; In re Milwaukee S. B. Go. 124 Wis. 490, 497. No location of the route of defendant’s proposed road was ever made by its boa/rd of directors. Sec. 1846, Stats. (1898) ; Kavanaugh v. Wausau, 120 Wis. 611, 616; Gammeyer v. U. G. L. Churches, 2 Sandf. Ob. 186, 229; United B. Ghurch v. Vandusen, 37 Wis. 54; Pilón v. Miller B. Co. 60 Hun, 582; Baldwin v. Canfield, 26 Minn. 43; Johnson v. Sage, 4 Idaho, 758, 44 Pac. 641; Kansas City H. P, Go. v. Devol, 72 Eed. 717; Schmidt v. Densmore, 42 Mo. 225; 7orle & G. B. Go. v. Bitchie, 40 Me. 425; Emerson v. Providence II. Mfg. Oo. 12 Mass. 238; Manchester & L. B. Go. v. Fisk, 33 N. H. 297; Galdwell v. Mut. B. F. L. Asso. 53 App. Div. 245; Lyon v. Jerome, 26 Wend. 485. See, also, 10 Oyc. 770 — 774. The petitioner was entitled to condemn any premises not appropriated to a public use prior to the time of its location, January 16, 1906. Peoria B. Go. v. P. & S. B. Go. 66 Ill. 174; Phila., G. & N. B. Co/s App. 2 Walk. (Pa.) 291; In re Bochester W. Gomm’rs, 66 N. Y. 413; Suburban B. Go. v. Met. W. S. E. B. Go. 193 Ill. 217.</p> <p>They argued, among other things, that the adoption of the strip in controversy as a part of its right of way, and the location of its road upon it, was in fact made by respondent before the attempted adoption by appellant of the same strip. Helliwell, Stock & Stockh. § 251; Hoyt v. Thompson’s Ex’r, 19 N. Y. 207; Black Bluer Imp. Go. v. Holway, 85 Wis. 344, 354; Detroit & T. S. L. B. Go. v. Gampbell, 140 Mich. 384, 387, 103 N. W. 856, 857; Wood v. Whelen, 93 Ill. 153; Schneider v. Knickerbocker Ice Oo. 119 Wis. 171, 175; Sioux Oity & D. M. E. Oo. v. O., M. & St. P. E. Go. 27 Fed. 770: Melledge v. Boston Iron Oo. 5 Cusí. 158; 2 Cook, Corp. (5tl ed.) § 721; 2 Morawetz, Corp. § 629; Bank of U. S. v. Dandridg'e, 12 Wheat. 64, 70; 4 Thomp. Comm, on Corp. §§ 5063, 5303, 5312, 5327; 7 id. §§ 8430, 8436, 8438, 8443, 8444. Under sec. 1854, Stats. (1898), whenever it appears in a condemnation suit that the- land sought to be condemned was acquired by another railroad company before the commencement of the suit for condemnation, the time of which, as fixed by the statute, is the filing of the petition, such land can be condemned only after' the commissioners have determined the' necessity therefor, and not at all if it appears that such condemnation. would interfere with the main track of the railroad first acquiring such lands. As no portion of the strip in controversy can be taken without interfering with the main track of respondent’s road which has been located since November, 1905, such disputed strip is not subject to condemnation at all in this proceeding. Pa. E. Oo/s App. 93 Pa. St. 150; Cake v. Phila. & E. E. Oo. 87 Pa. St. 307; Eousatonic E. Oo. v. L. & E. E. Oo. 118 Mass. 391; Boston & M..E. Oo. v. L. &'L. E. Oo. 124 Mass. 368; Prospect Park & O. I. E. Oo. v. Williamson, 91 N. Y. 552; St. Paul U. D. Oo. v. St. Paul, 30 Minn. 359; Central City E. E. Oo. v. Ft. Glorie II. E. Oo. 81 Ill..523; Eickok v. Eine, 23 Ohio St. 523; Pittsburgh J. E. Oo/s App. 122 Pa. St. 511; Phila., W. & B. E. Oo. v. Williams, 54 Pa. St. 103; Del. & E. G. Oo, v. Whitehall, 90 N. Y. 21.</p>

Appeals from orders of the circuit court for Ozaukee county: James J. Dick, Circuit Judge. Held: at which the route theretofore surveyed under Mr. Walker’s direction through Ozaukee county, including the disputed strip, was formally adopted as the route of the company’s line in that county, and the attorneys of the company were directed to prosecute condemnation proceedings to acquire the six parcels of land which had not been…

<p>Appeal from an order of tbe circuit court for Dame county: WaisbeN D. TaeeaNt, Judge.</p> <p>Tbis action is brought by tbe state of Wisconsin for an accounting and a discovery of license fees due it from tbe defendant railway company. Tbe plaintiff, by tbe attorney general of tbe state of Wisconsin, by appropriate averments in its complaint, alleges tbe following facts: Tbe defendant is a railroad company incorporated under tbe law of tbis state, and as sucb corporation bas ever since and including tbe year 1884 continuously to tbe commencement of tbis action been engaged in operating various lines of railroad in tbis state, and bas been and now is so engaged in tbe business of a common carrier of freight and passengers. Tbe defendant owns real estate and personal property situate in tbis state of great value, wMcb has since and before the year 1884 been by law exempt from taxation. The defendant was, however, required by law to pay four per centum of its gross earnings as a license fee, in lieu of paying taxes on its property and in consideration of being granted the privilege of doing a railroad business in this state. This license fee was to be paid, one half at the time the license for each year issued and one half on or before the 10th day of August in each year. It is alleged on information and belief that defendant’s gross earnings, since and including the year 1883, have exceeded $3,000 per annum per mile of operated railroad in the state. The defendant is alleged to be charged with the duty of making and returning to the treasurer of the state of Wisconsin, on or before the-10th day of February of each year, a true statement of its gross earnings for the preceding calendar year, this statement to contain a correct statement of the number of miles of railroad it operated, and the gross earnings per mile per annum for the preceding year, as a condition precedent to the right to a license from the state authorizing operation of its railroads within this state, and exempting its property from taxation for each year, beginning January 1st and ending December 31st. The complaint alleges, on information and belief:</p> <p>“That defendant has not made and returned to the state treasurer a true statement of its gross earnings for the preceding calendar year in any year from and including the year 1884 to and including the year 1903, and has failed and neglected each and every of said years to make and return to the state treasurer such true statement as it is required to do by law, but has failed and neglected in that' behalf each and every of said years; that defendant has made and returned to the state treasurer certain so-called written statements each of the years above mentioned, contained in each of which statements was a pretended statement of the true amount.of its gross earnings for the year preceding each and every of the years above mentioned.”</p> <p>Tbe complaint alleges that the statements made were falsely represented to be a complete, full, and correct statement of gross earnings, and that the railroad paid the four per centum license fee thereon, and thus paid much less annually for the years from 1884 to 1903, both inclusive, than it should have paid as such license fees. The complaint sets forth that the statements were actually made by the defendant for each, of such years, states the reported gross amount of earnings of the railroad and the four per centum of the same, and then alleges,</p> <p>“on information and belief, that each and every statement so made and returned by defendant as above set forth, purporting to give the amount of defendant’s gross earnings, was falsely and fraudulently made, and was and is untrue and incorrect, as defendant well knew at the time each such statement was made, and was not a true statement of the gross earnings of defendant for the preceding year; that in fact and in truth, as defendant well knew, the gross earnings of defendant were much more than the amounts represented by defendant in said statements for each of such years; that each and all of said statements were made and returned by defendant with the intention of defrauding plaintiff out of large sums of money due plaintiff from defendant as license fees, and were made and returned by defendant for the purpose of fraudulently obtaining its license for each year of said years between 1884 and 1903, both inclusive.”</p> <p>It is alleged that, by reason of such false and fraudulent statements, defendant has defrauded the state out of large sums of money, and that the state, relying on such statements,' caused licenses to be issued to defendant to operate its railroads in this state. .It is alleged that defendant has failed and neglected to keep its books of account within the state and accessible to the state officers charged with the duty of ascertaining therefrom the actual facts respecting the railroad’s gross earnings. It is stated that plaintiff, without fault or neglect on its part, did not know the alleged false and fraudulent character of the statements so made by defendant respecting its annual gross earnings; that defendant now refuses to pay tbe amounts actually due tbe state as sucb license fees for eacb of these years; tbat defendant is indebted to plaintiff for sucb amounts; and tbat tbe licenses to operate its railroad in tbe state were fraudulently obtained, and are void.</p> <p>“Plaintiff further alleges tbat it cannot state the true amounts of gross earnings of tbe defendant company for tbe years hereinbefore mentioned, or any of them, and of tbe sums of money fraudulently as aforesaid withheld by and due from the defendant for license fees for said years; tbat tbe knowledge and information relating thereto is solely within tbe possession of tbe defendant, and tbat tbe records, books, vouchers, and papers showing and relating to said gross earnings are solely within tbe possession and under tbe control of tbe defendant and are without tbe state of Wisconsin. . . . Plaintiff still further alleges, on information and belief, tbat in order to determine tbe true amount of tbe gross earnings of tbe defendant for tbe year preceding eacb and every year from and including tbe year 1884 to and including the year 1903, and tbe amount of license fees on sucb gross earnings which it owes and ought to have paid tbe state for said licenses and eacb thereof hereinbefore mentioned, it will be necessary tbat tbe defendant account to tbe plaintiff for tbe true amount of all sucb gross earnings for eacb preceding year as aforesaid during eacb and every of the years.from and including tbe year 1884 to and including tbe year 1903, tbat sucb accounting would require examination and inspection of hundreds of thousands of items extending over the period of at least twenty years, and it will be further necessary, in order tbat plaintiff may obtain relief in tbe premises, tbat plaintiff may have a discovery of and from defendant under oath relating to tbe above facts.”</p> <p>The plaintiff demands judgment whereby defendant shall be required to make and render a true and correct account and to make full and true discovery of all its gross earnings for tbe years specified in tbe complaint; tbat plaintiff have judgment for such amount as may be found due tbe state ■over and above tbe amounts actually paid on account of sucb license fees; tbat tbe licenses heretofore obtained be adjudged to have been fraudulently procured and to be void and tbat they be ordered canceled; and tbat plaintiff recover its ■costs and disbursements of tbe action and have sucb other relief as may be found just and equitable.</p> <p>Tbe defendant demurred to tbe complaint upon tbe following grounds: (1) Tbat tbe court has no jurisdiction of tbe subject of tbe action; defendant averring tbat cb. 328, Laws of 1905, is violative of sec. 1, art. XXV, of tbe constitution of tbe United States, in tbat it deprives defendant of its property without due process of law and denies it tbe equal protection of tbe law. (2) Tbat several causes of action are improperly united. (3) Tbat tbe complaint does not state facts sufficient to constitute a cause of action; defendant ■averring specifically tbat tbe demands for license fees are invalid because tbe statutes attempting to impose tbe license fees violate sec. 8, art. I, constitution of United States, and because cb. 328, Laws of 1905, is void, as alleged under tbe first ground of demurrer. (4) Tbat tbe action was not commenced within tbe time limited by law; defendant relying ■on and referring to subd. 3, 4, sec. 4222, Stats. (1898), and ■also referring to and relying on subd. 1, sec. 4224, Stats. <(1898). Defendant demurs separately to tbe alleged cause ■of action against it for tbe first instalment of unpaid license fees for tbe year 1899, relying on and referring to tbe statutes of limitation above specified.</p> <p>Tbe court overruled tbe demurrer. This is an appeal from tbe order overruling tbe demurrer.</p>

<p>Appeal from an order of the circuit court for Dane county: Wab-een D. Tabrant, Judge.</p>

<p> Appealable order: Taxation of costs: Review on appeal from judgment: Bill of exceptions. </p> <p>1. An order retaxing costs is not appealable, but is reviewable only on appeal from the judgment.</p> <p>2. For the purpose of reviewing the taxation of costs a bill of exceptions is necessary, showing what occurred before the court and taxing officer, the items objected tó, and what decision was made thereon.</p>

‘Appeal from a judgment of the circuit court for Marinette county: B. E. Dunwiddie, Judge. This is an action to recover damages for personal injuries sustained by the plaintiff August 24, 1903, when she was fifteen years of age and while in the employ of the defendant,, where she had been at work in its paper machine room No. 1 as cutter girl about four weeks.

<p>Sale of stallion: Warranty of identity: Breach: Evidence: Bills and notes: Bona fide purchaser: Credit on hank account.</p> <p>.1. In an action upon a note given in part payment for a stallion purchased on the faith of a warranty and representations that he was a certain imported, thoroughbred, pedigreed, and registered stallion, proof of a discrepancy in marks and coloring between the stallion and the picture and description accompanying the pedigree delivered with him did not show such a breach of warranty as would constitute a defense to the note, the stallion having been received and retained with full opportunity for examination and ascertainment of the facts.</p> <p>2. A bank purchased a note from depositors, placing the amount paid therefor to their credit on account subject to check. The balances on such account varied, and at times it was overdrawn, before the maturity of the note. Held,' that the fact that- at various dates, including the date of purchase and the date of maturity of the note, the amount to the credit of the sellers exceeded the amount due on the note, did not prevent the bank from being a bona fide purchaser for value.</p>

<p> Appeal from, county court after time limited: Refusal to allow: Discretion. </p> <p>Refusal by the circuit court to allow an. appeal to be taken, from a judgment of the county court after the time limited therefor is held in this case not to have been an abuse of discretion, the circuit'court being justified in holding that the petitioners had failed to excuse their neglect to take the appeal in time or to show that justice required a revision of the case.</p>

<p>Appeal from a judgment of the circuit court for Iowa county: GeoRG-e Clementsox, Circuit Judge.</p> <p>This is an action to charge property in the hands of defendant which came to her through her deceased husband with the payment of his debts. The action was tried in the circuit court for Iowa county, and resulted in judgment for defendant establishing her right to her portion of the proceeds of sale of the property. The court found substantially that defendant is the widow of George Bartle, deceased, who died intestate May 16, 1902; that in April, 1900, said Bartle and his brother, J. L. Bartle, were engaged in building a hotel known as Hotel Grand, situated in Dodgeville, Iowa county, Wisconsin, on real estate which they then owned, and on April 28, 1900, they borrowed $1,000 from plaintiff, Mary ■Bartle, to be used and which was used in the construction of the Hotel Grand, and gave therefor their promissory note; that for three years after March, 1902, the defendant paid one half of the interest on said note out of the rents and profits from said hotel property; that after the death of George Bartle an administrator was appointed; that plaintiff’s claims as well as other claims were allowed against said estate, which claims remain unpaid except the undertaker’s claims; that the administrator of George Bartle’s estate has received no assets belonging to the estate, and that the personal assets of the estate are not sufficient to pay the expense of administration and debts of prior class to that of plaintiff and other claims allowed; that on the 26th day of March, 1902, George JBartie, deceased, deeded to defendant, in consideration of one dollar and natural love and affection, the hotel property, which deed was witnessed, acknowledged, and recorded; that at the time the construction of the hotel was commenced George Bartle and his wife, the defendant, lived on a part of said hotel property, which was then their homestead, they owning no other homestead at that time; that shortly prior to the commencement of the construction of said hotel George Bartle and defendant had a homestead which they sold for $1,300, which sum was used in building the Hotel Grand; that for a time, while the Hotel Grand was being constructed, George Bartle and defendant lived in a rented house; that in September, 1900, George Bartle and defendant moved into the third story of said Hotel Grand, and occupied said story as their homestead with the consent of J. L. Bartle until July 1, 1901, they having no other homestead at the time, the lower part of the hotel being otherwise occupied; that on July 1, 1901, said George Bartle and defendant moved to the second story of said Hotel Grand and kept hotel therein, and occupied said premises as their homestead with the consent of said J. L. Bartle until February 1, 1902; that on February 1, 1.902, said George Bartle-and defendant moved out of said hotel on account of ill health of George Bartle; that said hotel property on February 1, 1902, and March 26,. 1902, was the homestead of George Bartle and defendant, with the implied consent of J. L. Bartle; that when George Bartle and defendant left said hotel February 1, 1902, they moved into a rented house and continued to live there until the death of George Bartle, not having acquired any other homestead; that when George Bartle and defendant left said hotel they considered and claimed it to be their homestead, and left it because of ill bealtb, and intended to return and occupy the-same as a homestead when George Bartle’s health would permit; that when George Bartle and defendant left said hotel they reserved two rooms for storage purposes and kept the key, and stored in said rooms articles of household furniture,, pictures, and their marriage certificate; that there was a mortgage on said hotel property, and the interest of George-Bartle was liable for half of said mortgage debt; that the-interest of said George Bartle in said hotel property at the-time he transferred it to defendant was about $2,800; that on. March 1, 1905, defendant sold the undivided half of said hotel property, being the interest conveyed to her by said’ George Bartle, and received about $2,800 net proceeds therefor. The evidence shows defendant intends to invest the proceeds received from sale of the hotel property in a homestead.</p> <p>Plaintiff appealed from that part of the judgment which provided that she take nothing by her action so far as her-complaint seeks to subject to the claims of creditors of George-Bartle, deceased, any part of the moneys received by the defendant from the sale of the Hotel Grand property, and confirming the defendant in her right to the proceeds of the-sale of said premises.</p>

<p>Appeals from judgments of tlie circuit court for Clark county: James O’Neill, Circuit Judge.</p> <p>These are ejectment actions brought by the plaintiffs, respectively, to recover two parcels of land in the village of Abbotsford, Clark county, which are claimed by the defendant to be parts of its right of way. The parcels involved are each marked “Disputed parcel” and surrounded by dotted lines upon the map on p. 403, the southern parcel being claimed by Meyers and Ghase and the northern parcel by Young.</p> <p>The cases are substantially identical in their material facts and were tried upon the same testimony. Both the plaintiffs and the defendant claim under the same original grantor, one Berg, who in 1879 owned the entire quarter-section on which the village of Abbotsford was subsequently laid out and built. In that year the Wisconsin Central Railroad was laid out through said quarter-section, crossing the same in a general north and south course, but slightly curving to the west. The map shows sufficient of the line of the main track as so laid out to show its relation to the disputed tracts. On December 26, 1819, Berg deeded to the Wisconsin Central Railroad Company, to whose rights the defendant has succeeded, a strip of land 150 feet wide for a right of way, being seventy-five feet in width on each side of the center line of the main track as laid out. The east line of this strip is marked “75-foot line” on the map. May 17, 1880, Frederick Abbot became the owner in fee through mesne conveyances from Berg of the entire quarter-section, except the right of way aforesaid. In October of the same year Abbot made and recorded a plat of the village of Abbotsford. By this plat he laid out nearly all of the quarter-section lying east of the railroad right of way into lots and blocks. The west line of the plat, however, did not coincide with the-east line of the right of way, but left a strip between. While the map on p. 403 does not show the whole plat, but only the southwest part thereof, sufficient is shown to make clear the relation of the platted lands to the right of way. The west line of the'platted lands was shown on the plat as a continuous straight line running northwesterly and constituting the west line of Hirst street, being the line marked “West line of plat of Abbotsford” on the map given above. West of this line of the platted land was drawn a dotted line which (according to the scale of the plat) was 150 feet east of and parallel witi the center line of the defendant’s right of way. This line was not explained by any lettering on the recorded plat, by it is marked “150-foot line” on the map here given for convenience of identification and reference. No 75-foot lino was marked on the recorded plat, but the main track of the defendant’s railroad was shown, as also its depot and depot grounds, and a dotted line 100 feet west of the main track. There was thus left a strip 150 feet wide east of the main track, and between this strip and the west line of the plat a long triangular piece of land about 100 feet wide on the south and tapering to a point north of Oak street, where the west line of the plat became tangent to the 150-foot line. No distances were marked on the recorded plat outside of the land actually platted, nor was there any lettering except the words “Depot Grounds,” “Hotel,” “Platform,” and the letters “W. C. R. 17.,” indicating the main track of the railroad. Apparently the lines outside of the platted lands were intended simply to delineate the position of the railroad with reference to the proposed village.</p> <p>Oak St. n a JAjsrn (Worth) W K' CD o: á 4-St. First -150_Fopj__UNE_ WEST UNE OF PLAT OF ABBOTSFORD 76_FO.OT LINE I “-tj O'SPUTEO 1 ~l ; S|t parcel 1 «^<2 CgiyKijV-jg-^--Hf - JrTujEr-""- - DEFENDANT'S MAiTXrIJX Second St.</p> <p>In October, 1882, Abbot deeded to one Maguire a piece of land outside of the plat and between the west line of Hirst street and the railroad right of way which was described as beginning on the west line of Hirst street on a continuation of the southern boundary line of lot 5 in block A of the plat, running westerly along said continued lot line to the right of, way of the Wisconsin Central Railroad, thence southerly, along said right of way, to the south line of the section, thence easterly to tbe west line of Eirst street, tb.en.ce northerly, along said Eirst street, to the place of beginning. In March, 1883, Abbot deeded to said Maguire a piece immediately north of the last-named parcel and bounded on the north by a continuation of the southerly line of lot 6, of the plat, on the south by the land previously deeded, on the west by the railroad right of way, and on the east by Eirst street. In 1888 or 1884 Maguire built a store on the southerly “disputed parcel,” which extended easterly, so that a small portion of it stood on the parcel marked “Meyers & Chase.” In June, 1885, Maguire deeded both parcels to one Boter, who thereafter conducted the store until it was burned a few months later. The description in Boter’s deed was substantially the same as in the deeds to Maguire, the western boundary being the line of the railroad right of way. In 1886 Boter built a new store, but located it entirely on the parcel marked “Meyers & Chase,” except that at the southwest corner it projected over on the “disputed parcel” about a foot and a half. Boter occupied this store until September, 1897, when he sold and deeded a parcel of land intended to include the store to the plaintiff Chase. This parcel-was described as beginning at the southeast corner of the parcel marked “Meyers & Chase,” running northwesterly along, the west line of Eirst street sixty-nine feet; thence west to the “right of way of the "Wisconsin Central Bailroad as the same is now located and oper-atedthence south, along said right of way, to Spruce street; thence east, along the north line of Spruce street, to the place of beginning. In July, 1900, Chase deeded to the plaintiff Meyers an undivided one-half of the same parcel under the same description.</p> <p>It will be observed that if the right of way of the defendant as then “located and operated” was at the 75-foot line, the parcel deeded to Meyers included the disputed parcel in the Chase and Meyers action, while if said right of way was- at the “150-foot line” it did not.</p> <p>In March, .1899, Boter deeded to the plaintiff Young a parcel north of the Glvase and Meyers parcel, which included the parcel marked “Young” on the map, describing its westerly line as the east line of the right of way of the Wisconsin Central Bailroad “as the same is now located and operatedM. This deed included the north “disputed parcel” if the right of way was at the 150-foot line, but did not include it if at the “75-foot line.” In October, 1897, Abbot deeded to the defendant all of the “150-foot strip” east of the center line of the main track of the railroad.</p> <p>Other facts in evidence relating to the use of the disputed parcels will be stated in the opinion. The court made general findings in each case to the effect that the plaintiffs were the owners in fee of the disputed parcels claimed by them respectively; that the defendant for more than a year prior to the commencement of the action had exercised acts of ownership over them and claimed title to them; that they were never occupied for railroad purposes; that the defendant had not adversely occupied them for ten years; and that the plaintiffs were entitled to recover possession. Judgments for the plaintiffs in accordance with these findings were rendered, and the defendant appealed in each case.</p>

<p>Appeal from an order of the circuit court for Eau Claire county: Chestee A. FowleR, Judge.'</p> <p>This is an action in equity to restrain defendants from proceeding to enforce an alleged right to purchase plaintiff’s waterworks plant under the provisions of an ordinance of the city of Eau Glaire adopted February 18, 1885. The ordinance was one granting to Fairbanks, Morse & Co., their successors and assigns, the right “to construct, maintain, and operate waterworks to supply the city and citizens of Eau Glaire, Wisconsin, with water, and defining their rights, privileges, and powers.” The complaint alleges that plaintiff is now the owner of this franchise and the property constituting the waterworks system and plant of the city. Sec. 13 of the ordinance granting the right and authority to construct, maintain, and operate the waterworks is as follows:</p> <p>“Sec. 13. This ordinance is passed upon the express condition and reservation that the city of Eau Glaire reserves to itself the right to acquire of said grantees, their heirs and assigns, the said waterworks, and all lands, machinery, pipes, mains, hydrants, and appurtenances thereunto belonging: and the said grantees, their heirs and assigns, in accepting this ordinance, expressly covenant and agree that they will sell and convey to the said city of Eau Glaire the said waterworks and all lands, machinery, pipes, mains, hydrants, and appurtenances thereunto belonging, or in any manner appertaining thereto, at the expiration of five years from the completion of said works and at intervals of five years thereafter, at an appraised value for said works to be determined as follows:</p> <p>“Whenever the city shall determine or desire to purchase said works, the mayor thereof shall give written notice to said grantees, their heirs and assigns, to appoint and select two persons to act as arbitrators in fixing and appraising the value' of such -waterworks, without taking into consideration the property and rights leased or hereinbefore granted by the said city to the said grantees, their heirs and assigns, by this ordinance, or any hydrants and connections which may have been located on said main pipes at the expense of the city; which said notice may be served upon any one of said grantees, their heirs and assigns, or upon the chief officer in charge of the said waterworks at Bau Claire.</p> <p>“Within thirty days after the service of said notice, the said grantees, their heirs and assigns, and the said city, shall each select two persons as appraisers, but in case of the failure of said city to appoint such two arbitrators, such arbitration shall be thereby ended; and the four thus chosen shall, within ten days thereafter, select a fifth, which five persons thus selected shall, within thirty days thereafter, determine the value of .such waterworks, without taking into consideration the property and rights leased or hereinbefore granted by the said city to the said grantees, their heirs and assigns, by this ordinance. And in case said grantees, their heirs and assigns, shall fail or neglect to select such two arbitrators within the time hereinbefore required} or in case the four arbitrators should neglect or refuse to choose a fifth arbitrator within the time hereinbefore required, then, in either or both cases, as may be, the two arbitrators or the fifth arbitrator may be appointed by the judge of the circuit court of the judicial district in which said city shall be situated, on the application by the mayor of said city, on ten days’ notice in writing to said grantees, their heirs and assigns, or to the chief officer in charge of said waterworks at Bern Claire. The persons selected as arbitrators shall not be residents of the city of Bau Claire or persons in the employ or interest of the said city or of the said grantees, their heirs and assigns.</p> <p>“Said five persons or their majority, at a meeting of which all said arbitrators shall have had a personal notice, may and shall, as arbitrators, on examination and evidence, fix and determine the actual value of said waterworks, exclusive of the property and rights leased or hereinbefore granted by the said city to the said grantees, their heirs and assigns, by the second section of this ordinance, and without reference to the franchise therewith connected, but including all improvements, buildings, betterments, machinery, or other appliances placed by the said grantees, their heirs and assigns, upon or connected with the property so' leased or granted to them by the said city, and constituting a part of the said waterworks, excepting the hydrants which may have been located on the said main pipes at the expense of the said city at the time such appraisal is made, such appraisal not to exceed what it would cost to build and construct such works at that time. And said appraisers shall make their award in writing, in duplicate, and shall deliver one duplicate to the said grantees, their heirs and assigns, or to the chief officer in charge of the said waterworks at Éau Claire, and shall file the other with the city clerk of the said city within ten days after the same is made.</p> <p>“And the said city shall thereupon have the right then and there to exercise the option to take the said, waterworks, and all property, rights, and appurtenances connected therewith, or in any manner appertaining thereto, at the price so fixed; which purchase money shall be payable to the grantees, their heirs and assigns, within six months from the time the said city shall so elect to purchase.</p> <p>“But in case the city elect to purchase, each party shall pay their own expenses so incurred, and the expense of the fifth arbitrator shall be paid equally by the. said city and the said grantees.</p> <p>“And in case the said city of Eau Claire shall, after such award, fail or refuse to purchase, it shall’ pay the expenses of the arbitrators.”</p> <p>Under this grant waterworks were constructed and completed and accepted by the city December 15, 1885. The plaintiff and its predecessors have since this acceptance and completion of the waterworks plant operated it and furnished water to the city and its inhabitants. In the year 1900 the city, under sec. 13 of this ordinance, instituted proceedings for an appraisal of the property of the plaintiff with a view to exercising, the right of purchase, as provided in the provisions of this ordinance. An appraisal was duly made in the manner agreed upon in the ordinance by five arbitrators selected by the city and the company then owning the waterworks and franchise. On July 20, 1900, they reported an appraisal in writing, a copy of which was filed with the city clerk as required; hut the city refused to exercise the right to purchase the property so appraised, and the waterworks company continued in the ownership, control, and operation of the plant.</p> <p>After this proceeding and prior to February 11, 1902, differences under the requirements of the ordinance had arisen between the city and the owners of the waterworks respecting the sufficiency of the plant and the service rendered for furnishing water to the city and citizens. An action had also been commenced in the federal court by the holders of the waterworks company’s bonds, wherein a receiver had been appointed and had taken possession of the waterworks for the court. Under these circumstances it was agreed between' the city and the company operating the plant, in order to adjust these differences and to remove the difficulties involved in the controversy, that the water service should be improved by increasing the water supply and by adding new works to furnish the amount of water required daily, without taking any water from the Chippewa river or Half Moon Lake, and that the reservoir from which water had formerly been taken should only be used in case of emergency. It was also agreed that the company should improve the waterworks system at its cost and expense by laying and connecting with the existing plant, in specified streets of the city, a large amount of new water pipe, and that no hydrant should be placed on the new extensions unless directed by the city; but, if so directed, the charge should be $50 per hydrant per annum. The company was also to so improve its pumping station and power plant as to enable it to carry out the contemplated enlargement and improvement. All of the changes and improvements were to be completed by November 1, 1902. It is alleged that the improvements were made as agreed, that the receiver of the court assented thereto and co-operated with the owners of the waterworks in completing them, that the cost of these improvements and extensions amounted to about $60,000,- and that they were completed about November 1, 1902.</p> <p>It is further alleged that on August 4, 1905, the city caused a notice to be served on the plaintiff of the city’s desire to take the steps necessary for an appraisal of plaintiff’s waterworks for the purpose of acquiring it by purchase under the provisions of the ordinance, and, pursuant to the ordinance, demanded that plaintiff select two arbitrators to fix the value- of this property. Thereafter the common council of the city -of Eau Claire selected William Bowe and L. P. Wolff as arbitrators. Plaintiff, on September 2, 1905, selected John W. Alvord of Chicago and Charles B. Salmon of Beloit, Wisconsin, as arbitrators. Plaintiff at this time, by notice served on the city, protested, and claimed that the city had no right to purchase the waterworks or to acquire it as proposed pursuant to the notice given plaintiff, declared such notice to be insufficient and ineffectual, and named such arbitrators only tentatively, without waiving any of its rights in the matter. The four arbitrators thus designated have had no meeting and have made no selection of the fifth arbitrator provided for by the ordinance. On September 16, 1905, the mayor of the defendant city gave notice to the plaintiff that he would on September 26, 1905, apply to Hon. James O’Neill, the judge of the judicial district wherein the city of Eau Claire is situate, for the appointment of the fifth arbitrator. Plaintiff alleges that this notice and the proceeding attempted to be taken pursuant thereto “is not taken in good faith, and in that behalf alleges that said city, by said proceeding, in no way binds itself to make such purchase when an appraisal shall be had. That said city has no funds at command with which to pay for said waterworks within the time prescribed by said sec. 13, after an appraisal shall have been made.” The complaint also charges that the city bas no power to incur an indebtedness above tbe sum of $150,000 in addition to its present subsisting indebtedness at tbe present assessed valuation of tbe property witbin tbe city, and tbat sueb sum is wholly inadequate to pay tbe present value of tbe waterworks property so sought to be acquired.</p> <p>Upon tbe facts plaintiff demands tbat defendants be restrained from enforcing tbe arbitration to acquire tbe waterworks property under tbe ordinance. Tbe defendants demurred to the complaint, alleging tbat it did not state facts sufficient to constitute a cause of action. The court by order sustained tbe demurrer. This is an appeal from such order.</p>

Tbe defendant, a dealer in wood at Eau Claire, having learned about April 7th that tbe plaintiff, residing at Durand, had maple wood for sale, and that his price was “$5.25 per cord, f. o. b. Durand, Wisconsin, cash with order,” and having at intervals of a few days ordered and received two carloads of such wood, the last shipped about April 22d and preceded by letter of April 21st from plaintiff, explaining that his shipments were dependent upon ability to get cars, and…

<p>Appeal from an order of the circuit court for Fond du Lac county: Chester A. Fowler, Circuit Judge.</p> <p>The appeal is from an order overruling a demurrer to the counterclaim, and also overruling a demurrer to a certain portion of defendant’s answer designated in the demurrer as a plea in abatement.</p>

<p> Life insurance: Forfeiture: Benefit societies: False statements in application. </p> <p>1. A benefit certificate was issued by defendant to an applicant for insurance on the faith, of his written application in which he stated that he had never had rheumatism, that he had never been sick, that no facts affecting his life risk were withheld, and that he warranted such statements to be true and agreed that any false statements or suppression of facts in the application should forfeit all rights of himself or his beneficiaries to all benefits. The application was made part of the contract. There was evidence that he had stated to the examining physician that he had had one attack of rheumatism, hut it was proved that he had had three severe attacks of inflammatory rheumatism in different years before applying for the insurance, of which the examiner had no knowledge; that if this fact had been known the certificate would not have been issued; and that inflammatory rheumatism was the indirect cause of death. Held, that all rights under the certificate were forfeited.</p> <p>2. Even if there was a waiver in respect to the illness of which the examiner was informed, it could not extend to other facts of which no agent of defendant had any knowledge.</p>

<p>Appeal from a judgment of the circuit court for Eond du Lac county: Chestee A. EowleR, Circuit Judge.</p> <p>This is an action to recover agent’s commissions upon the sale of a farm. The case was here before upon defendants’ appeal and a previous judgment was reversed. Bowe v. Gage, 121 Wis. 245, 106 N. W. 1074. The principal essential facts will he found there stated. A new trial has now been had and a verdict returned which finds the facts to he as follows: (1) The plaintiffs were the procuring cause in effecting the sale of the farm by the defendants to Eerber; (2) the original agreement between the parties was that plaintiffs should receive a commission of two per cent in case they procured a purchaser at & price acceptable to defendants; (3) prior to the settlement on February 20th the plaintiffs consented to a modification of the agreement whereby they were to receive no commission unless a sale of the farm and personal property for $18,000 was effected; (4) Gage represented to plaintiffs, at the time he induced them to give the receipt in full for their services (viz., February 20, 1003), that he was going to keep the place himself and that it would not he sold to others; (5) at this time he intended to try to sell the farm to Eerber, and (6) made said representations to induce plaintiffs to give the settlement receipt; (7) plaintiffs believed the representation and relied thereon when they gave the receipt, and (8) would not have given the same had they not so believed and relied.</p> <p>The evidence upon the second trial was substantially the same as upon the first, and the only essential difference between the verdicts lies in the fact that an additional fact now appears, namely, that prior to the settlement the agreement was changed so that plaintiffs were to receive no commission unless they effected a sale of the farm and personal property for $18,000. The trial court deemed this fact conclusive against the plaintiffs’ claim, and rendered judgment on the verdict for the defendants, from which judgment the plaintiffs appeal.</p> <p>To the point that plaintiffs were entitled to their commission, they cited Dono-hue v. Padden, 93 Wis. 20; Bowe v. Gage, 127 Wis. 245; Martin v. Billiman, 53 1ST. Y. 615; Stewart v. Mather, 32 Wis. 344; Briggs v. Boyd, 56 N. Y. 289, 294; Dexter v. Campbell, 137 Mass. 198; Botvin v. Curran, 13 Neb. 302; Levy v. Coogam,, 16 Daly, 137; Batts v. Shepherd, 37 Kan. 20; Smith v. Anderson, 2 Idaho, 537; Plant v. Thompson, 42 Kan. 664; Lincoln v. McClatchie, 36 Conn. 136; Arring-ton v. Cary, 5 Bast. (Tenn.) 609; Lane v. Albright, 49 Ind. 275; Nesbitt v. Helser, 49 Mo. 383; Bicha/rds v. Jackson, 31 Md. 250; Jones v. Adler, 34 Md. 440; Lawrence v. Atwood, 1 Bradw. (Ill. App.) 217; Beynolds v. Tompkins, 23 W. Va. 229; Terry v. Beynolds, 111 Wis. 124; Bdward II. Everett Co. v. Cumberland G. Mfg. Co. 112 Wis. 544.</p>

<p> Master and, servant: Negligence: Killing of lineman "by electrie current: Assumption of rislc. </p> <p>A lineman in the employ of an electric lighting company who was killed by a high potential current while replacing cross-arms which had been burned, on one of which were the wires carrying such current, and who knew that the current was on at the time, is held to have assumed the risk, so that there could be no recovery of damages for his death.</p>

<p> Brokers: Unauthorized contract for sale of land: Vendee’s knowledge of lack of authority: Appeal: Review: Findings: Undisputed facts. </p> <p>1. A broker, to whom plaintiff had 'given written authority to procure a purchaser for her land on certain specified terms or on such terms as she might thereafter accept or declare to he satisfactory to her, reported to her an offer as coming from defendant, and she accepted it, but defendant afterwards repudiated it as unauthorized by him. Defendant then made a different offer, which plaintiff rejected, and she then notified the broker that slie would not sell to defendant on any terms. The broker, without further communicating with plaintiff, proceeded to make a contract for the sale of the land to defendant on terms differing from those specified in the written authority and from, those which plaintiff had once accepted. Meld, that such contract was void, especially if defendant knew that it was unauthorized.</p> <p>2. A finding by the trial court that defendant knew, when he made the contract with the broker, that the latter had been notified of plaintiff’s decision not to sell the land to defendant on any terms, is helé not to tie clearly against the preponderance oí the evidence although there was no direct testimony supporting it and the positive testimony of defendant was to the contrary.</p> <p>3. Undisputed facts appearing in the record should be considered in support of the judgment even though they are not specifically covered by the findings.</p>

<p>Constitutional law: Local self-government: “County officers:” Appointment of jury commissioners: Judiciary exercising executive functions: Public office: Qualifications: Quo warranto: Who may maintain action.</p> <p>1. In the absence of any constitutional restrictions of tbe power to modify or diminish, the scope of local self-government, the legislature may locate where it deems best such governmental functions as are not essential to the existence of counties, cities, villages, and towns, or to their efficiency to accomplish those purposes for which the constitution employs them, or such powers as are not essentially characteristic of specific local officers named in the constitution and by it required to exist and persist.</p> <p>2. The selection of jurors is not a function essential to the existence or efficiency of a county and may therefore be imposed upon some other subdivision of the state, such as the judicial circuit; and when it is made a duty of the circuit judge, to be performed through commissioners to be selected by him in each county, such commissioners, though acting only in their respective counties, are not county officers.</p> <p>3. The provision of sec. 9, art. XIII, Const., that all officers whose offices may hereafter be created by law may be appointed as the legislature may direct, is limited to such offices as are not mere substitutes or equivalents for offices existing at the adoption of the constitution.</p> <p>4. Sec. 2533a, Stats. (1898), providing for jury commissioners to be appointed by circuit judges and imposing on them the selection of jurors, does not impair or embarrass any function essential to counties, and the office thus created being a new one within the meaning of sec. 9, art. XIII, Const., the incumbents thereof may be appointed in such manner as the legislature shall deem best.</p> <p>5. Jury commissioners not being county officers, sec. 2533a, Stats. (1898), providing for their appointment by circuit judges, does not violate sec. 4, art.- VI, Const.</p> <p>6. While sec. 2533a, Stats. (1898), authorizing circuit judges to appoint jury commissioners, does confer upon judicial officers a function which generally pertains to the executive, it comes within the exception that within both the judicial and legislative branches of the government are certain administrative acts in aid and execution of the judicial and legislative functions which need to be performed by assistants, and, as the legislature or judiciary might constitutionally perform such acts, they may select those who are to aid them in such performance.</p> <p>7. Sec. 2533a, Stats. (1898), prescribing certain qualifications for jury commissioners, does not impose unconstitutional tests, such qualifications being reasonably germane to the duties which the officers are required to perform.</p> <p>8. The office of jury commissioner, provided for by sec. 2533a, Stats. (1898), not being an office pertaining to a county, a private person cannot, under sec. 3466, bring an action of quo war-ranto in' the name of the state for the usurpation of such office, without first applying to the attorney general.</p>

This action was commenced June 9, 1904, to recover damages sustained by the plaintiff December 2, 1903, while riding in the defendant’s elevator. At the time of the injury the plaintiff was thirteen years and nine months of age.

Paeish, Circuit Judge. This action was brought to recover for legal services performed by the plaintiff as attorney for defendant in certain taxpayers’ actions known as the Craig, Arpin, and Carpenter suits.

<p>OeetioRARI to review a decision of tbe State Superintendent of Public Instruction.</p> <p>A writ of certiorari was issued August 21, 1906, under tbe original jurisdiction of tbis court to tbe Honorable G. P. Cary, state superintendent of public instruction, requiring tbe said state superintendent to return tbe papers, files, and decision in tbe matter of the creation of school district No. I of the town of Ackley, Langlade county, Wisconsin, upon errors assigned in said writ as follows:</p> <p>“(1) That there was no notice, either written or verbal, given or served by the clerks of said school districts Nos. 1, 2, and 5 (out of which said new district was created), or by any other person, to or upon the directors and treasurers of said districts, as provided by law.</p> <p>“(2) That no notice, either verbal or written, was given or served to or upon the freeholders or electors affected by the proposed alteration.</p> <p>“(3) That the notices served upon the clerks of said districts, if served at all, were not legal and did not conform to the statutes, in this, that they did hot state or show the contemplated alterations in said districts or the territory detached to form the proposed district No. 7.</p> <p>“ (4) That said town board failed to meet at the time and decide concerning the alteration of said district, pursuant, to notice.</p> <p>“(5) That there are no records in the town clerk’s office of the return of the service of notices on the several district clerks.</p> <p>“(6) That the petition to said town board for the alteration of said school districts and the formation of a new district is irregular and not in conformity with law, and conferred no jurisdiction on said board to act thereon.</p> <p>“(7) That the notice and appeal to said state superintendent from the decision of said board and the papers and proceedings connected therewith are irregular and void and do> not conform to law, and conferred no jurisdiction on said officers to act thereon, and are contrary to the affidavits, papers, and evidence in the case.”</p> <p>The superintendent of public instruction considered the appeal on its merits and reversed the order of the town board refusing to cfeate a new district No. 7, and created the school district in question, consisting of a strip of land nine and one-half miles long and one mile wide, except one and three-fourths miles of this length where it is one and one-fourth miles wide, and one-fourth mile of this length where it is one and one-balf miles wide. Tbe petition for tbe writ of cer-tiorari states that notice was served by tbe town board on tbe district clerks of school districts Nos. 1, 2, and 5, and tbe return of tbe state superintendent shows there was filed with him on tbe appeal statements or affidavits in tbe following form:</p> <p>“I, W. B. Heineman, hereby certify under oath that tbe above is a true copy of notice served on above school clerk at 3 p. m.</p> <p>“Dated this 2d day of June, 1906.</p> <p>“W. B. HeiNEMAN.</p> <p>“Subscribed and sworn to before me this 2d day of June, 1906. Charles W. Bruce, Notary Public.”</p> <p>No other proof of service upon any other person or officer appears in tbe return of tbe state superintendent. Tbe above proofs do not appear in tbe records of tbe town board of' supervisors. Tbe appeal from tbe decision of tbe town board of supervisors to tbe state superintendent was taken by one Heineman and answered by tbe chairman of tbe town board of supervisors, Nelson. Tbe school districts affected by tbe creation of tbe new district did not appear in tbe proceedings before tbe superintendent.</p> <p>They argued, among other things, that tbe town board was without jurisdiction to act because tbe clerks failed to notify tbe other officers of their respective districts. If tbe town board acquired no jurisdiction to deal with tbe matter originally, tbe state superintendent would have no jurisdiction on appeal. State ex rel. Bidgood. v>. Clifton, 113 Wis. 107; Stringham v. Wirmebago Go. 24 Wis. 594; Klaise v. State, 27 Wis. 462; Appeal of Boyston, 53 Wis. 612, 617. Tbe giving of tbe prescribed notices is a jurisdictional prerequisite to the making of tbe order. State ex rel. Graff v. Steele, 106 Wis. 475; State ex rel. Foster v. Graham, 60 Wis. 395 ; State ex rel. Bidgood v. Clifton, 113 Wis. 107; State ex rel. Moreland v. Whitf-ord, 54 Wis. 150; State p. Logue, 73 Wi& 598; Schroeder v. Klipp, 120 Wis. 245; Williams v. Giblin, 86 Wis. 147, 150; Buhland v. Hazel Green, 55 Wis. 664. The town board was without jurisdiction to act, for the reason that the records of the town board or of the town clerk failed to show that the town board gaye any notice to the clerks of the districts affected. State ex rel. Witte v. Curtis, 86 Wis. 140; McVichie v. Knight, 82 Wis. 137, 3*39 ; Muslcego v. Drainage Commfrs, 78 Wis. 40; Donnelly v. Declcer, 58 Wis. 461; State ex rel. Foster v. Graham, 60 Wis. 395; -Graves v. Joint Board, 102 Mich. 634, 61 N. W. 60; Fractional School Dist. v. Boards, 63 Mich. 611, 30 N. W. 198; Huyser v. Boards, 131 Mich. 568, 91 N. W. 1020; Dooley v. Meese, 31 Neb. 424, 48 N. W. 143; Blodgett p. Highway Comm’rs, 47 Mich. 469, 11 N. W. 275; Cardigan v. Page, 6 N. H. 182; Nelson v. Pierce, 6 N. H. 194. It is the record of the town hoard, and not Heineman’s petition on appeal, that must show the jurisdictional facts. Neither the notice to the clerks nor the proof of service thereof can be waived. State ex rel. Graff v. Steele, 106 Wis. 475; State ex rel. Bidgood p. Clifton, 113 Wis. 107; State ex rel. Foster v. Graham, 60 Wis. 395.</p>

<p>Error to review a judgment of the circuit court for Green Lake county: Chester A. Fowler, Circuit Judge.</p>

<p>ERROR to review a judgment of the circuit court for Rich-land county: George ClemeNtsoN, Circuit Judge.</p> <p>On September 14, 1900, plaintiff in error was convicted, in the circuit court for Richland county, of stealing a horse, a buggy, and a harness, the property of one Erotus Chandler. The information charges that he on June 30, 1906, committed this offense, in violation of sec. 4416, Stats. (1898). There was a motion for a new trial, and a motion in arrest of judgment for error committed on the trial. Both of these motions the court denied. The accused was sentenced to confinement in the state prison for two years.</p> <p>The evidence adduced shows that plaintiff in error is a man about twenty-five years of age, residing on a farm about six miles from the city of Richland Center. On June 30, 1906, he was at Richland Center during the greater part of the day and a part of the evening. Mr. Erotus Chandler was at Richland Center tbis evening. He drove bis bay mare, bitched to a single top buggy. When be arrived in tb© city be bitched tbe mare in a bitching yard back of one of tbe city stores. Tbis was about 8 o’clock in tbe evening. At about 11 o’clock be returned to tbis yard for bis rig, and then discovered that tbe mare and tbe buggy were gone. He bad given no permission nor authorized any one to take tbe mare and buggy. He notified tbe officers of tbe disappearance, and upon search by him, tbe officers, and others tbe buggy and harness were found in a highway about sis miles from tbe city. Tbe buggy was tipped over on its side and was somewhat broken. Tbe harness was near the. buggy, broken and cut. Tbe mare was found some distance from tbe buggy. Tbis was on tbe road leading from Richland Center to tbe home of tbe plaintiff in error. One witness testified that be bad known tbe plaintiff in error for eight or ten years; that about 10 o’clock tbe evening'tbis horse and buggy were taken, while standing at tbe side of bis horse adjusting a part of tbe harness of bis horse, which was bitched in tbis yard near Chandler’s rig, be saw tbe plaintiff in error come into tbe yard, pass by him at a short distance, step up to a rig consisting of a single top buggy, bitched next but one to' bis rig, and then drive it away; that be did not know whose horse and buggy it was; and that neither be nor tbe plaintiff in error spoke to tbe other. There is testimony that at about 11 o’clock that evening plaintiff in error, while on bis way home, met persons in tbe highway at a point beyond where the buggy and horse were found. Tbe sheriff and another testified that tbe accused stated after arrest that be took tbe horse and buggy. On trial be denied having made these statements and denied having taken tbe horse and buggy, and denied having been in tbe bitching yard at any time during tbis day and evening. His father and mother state that on bis way home be stopped at their home, some three miles from Richland Center, and had a drink of water and something to eat. They were contradicted by evidence tending-to show that they stated before the trial that he had not been there that evening. Plaintiff in error also testified that on*, his way home he met a Mr. Cook in the highway at a point beyond where the buggy and horse were found, but that he-had seen no buggy in the highway. He prosecutes this writ of error from this court, and avers that the judgment of’ conviction should be reversed because the vefdict is not sustained by the evidence and because of errors committed upom the trial.</p> <p>to the point that, the accused cannot waive his constitutional right to be present, at the taking of every essential or important step throughout the trial, cited Brine v. Comm. 18 Pa. St. 103 ; State v. Jenkins, 84 N.' 0. 812; Sneed v. State, 5 Ark. 431; Cook v. State,. 60 Ala. 39; State v. Smith, 90 Mo. 37; 'Andrews v. State,. 2 Sneed (34 Tenn.) 550; Hamilton v. Oomm. 16 Pa. St. 129; Clark, Grim. Proc. 424, 425, and cases there cited.</p> <p>To the point that the verdict, was properly received in the absence of the accused, they-cited 1 Bish. Crim. Proc. § 272; Fight v. State, 7 Ohio,. 180; State v. Wamire, 16 Ind. 357; Price v. State, 36 Miss. 531; Gales v. State, 64 Miss. 105, 107; Shular v. State, 105-Ind. 289, 300; Barton v. State, 67 Ga. 653. See, also, Me--Gorkle v. State, 14 Ind. 39. On questions of waiver by a defendant in a criminal case, see State v. Vogel, 22 Wis. 471 ;.. Williams v. State, 61 Wis. 281; In re Staff, 63 Wis. 285, 295; State v. Kaufman, 51 Iowa, 578; State v. Sackett,. 39 Minn. 69; In re Roszcynialla, 99 Wis. 534; Rowcm v. State, 30 AVis. 129; Bonneville v. State, 53 Wis. 680 ; Emery v. State, 101 Wis. 627, 645; Cornell v. State, 104 Wis. 527; Flynn v. State, 97 Wis. 44; Schwantes v. Stale, 127' Wis. 160, 174.</p>

<p> ‘Criminal law: When verdict disturbed: Rape: Evidence: Arguments of counsel: Failure of defendant to call witnesses: Exceptions. </p> <p>1. In a criminal case if there is any credible evidence which in any reasonable view supports the verdict it will not be disturbed on appeal.</p> <p>2. The decision of the trial court that there is credible evidence in support of the verdict will not be overruled unless it is clearly wrong, reasonable doubts being resolved in favor of the decision.</p> <p>3. A conviction of rape is held in this case to he sustained by tbe testimony of tbe prosecuting witness, corroborated by both direct and circumstantial evidence.</p> <p>4. A ruling by the trial court to tbe effect that it was legitimate for tbe district attorney to claim,'in argument to tbe jury, that if tbe testimony of tbe prosecuting witness was true and tbe testimony also true as to her being afflicted with a venereal disease soon'after tbe time at which she testified tbe defendant abused her, tbe jury might infer that defendant was afflicted with that disease at tbe time of such abuse, is held not to have been erroneous, in view of tbe evidence in tbe case.</p> <p>5. It was not error to permit tbe district attorney to comment on tbe failure of defendant to call witnesses to prove that be was not afflicted with tbe disease mentioned at tbe time of tbe alleged assault</p> <p>6. When defendant might readily have produced witnesses to disprove incriminating circumstances which tbe testimony of tbe prosecution, tends to prove, bis failure to do so may properly be commented upon in tbe argument to tbe jury.</p> <p>7. Remarks made by tbe district attorney in argument to tbe court as to the competency of a witness cannot be held error where no exception thereto was taken at tbe trial and there was no request to instruct tbe jury on tbe subject, especially where tbe testimony was rejected and tbe court admonished tbe jury that what was said should have no effect upon their minds.</p>

Halsey, Circuit Judge. This is an appeal from an order denying a motion to set aside an order of a court commissioner adjudging the defendants McGovern, Goff, and Cochems to be in contempt and directing their commitment for their refusal to answer questions propounded to them in an examination before the court-commissioner under sec. 4096, Stats. (1898).

<p>Waters: Navigability of river: Judicial notice: Quo warranto: Nature of action: Extent of relief: Forfeiture of franchises: Pleading:. Demurrer: Limitation of actions.</p> <p>1. Where a complaint alleges that a river is navigable in fact for-some public purposes the court cannot, on demurrer, take judicial notice that the river is not so navigable.</p> <p>2. The decision of the supreme court in State v. Carpenter, 68 Wis. 165, as to the nonnavigability of Rock river and as to judicial notice thereof, does not justify a court in holding that the non-navigability of that river for any public purpose or any kind of navigation, at all points of the river and for all time, is such a matter of judicial knowledge that the state will not be heard' to aver or offer evidence of its navigability.</p> <p>3. An action of quo warranto under sec. 3466, Stats. (1898), is a. civil action, to redress a public wrong or enforce a public right.</p> <p>[4. Whether in such civil action the state may- have the remedy of' seizure or forfeiture of a valid franchise because of abuse or-misuser thereof in claiming or exercising greater rights thereunder than were really granted, not determined.]</p> <p>5. In quo warranto, where there has been usurpation, under a lawful franchise, of powers in excess of those granted, although the-state may claim forfeiture of tire whole franchise judgment may he only of ouster of the excess unlawfully usurped.</p> <p>6. A complaint Is good on demurrer if it state a good cause of action for some relief, although less than that demanded.</p> <p>7. Authority granted to certain persons hy act of the legislature to build and maintain a dam across Rock river upon lands owned hy them and to use, or to sell or lease the right to use, the water of the river for power, with limitations and conditions as to the height of the dam, etc., is a “franchise” within the meaning of sec. 3466, Stats. (1898).</p> <p>8. In an action of quo warranto a complaint alleging that the successor of the grantees of such authority is unlawfully maintaining the dam in violation of the limitations and conditions prescribed hy the granting act, that he claims the right so to do, and that he has thereby usurped powers and franchises which he has no right to exercise, and praying that the whole franchise granted he forfeited, is held to state a good cause of action, at least of ouster from the exercise. of the power or franchise wrongfully claimed.</p> <p>9. A demurrer on the ground that the cause of action is barred by the statute of limitations will not be sustained unless the whole right of action appears to be so barred.</p>

<p>Appeal from a judgment of the circuit court for Eau Claire county: James O’Neill, Circuit Judge.</p> <p>Action for an accounting under a contract of which the following is a copy:</p> <p>“Eau Claire, Wis., Sept. 13, 1892.</p> <p>“Whereas, May 23, A. D. 1889, a contract was made between the Eau Claire Lumber Co., of first part, and E. L. Williams and H. L. Hinckley, of Ithaca, N. Y., and D. Fiiz~ Tmgh, of Eau Claire, Wis., parties of tbe second part, for about 8,080 acres of land in townships 27 and 28, ranges 3 and 4 west, in Clark county, and in 27, range 5 west, in Eau Claire county, and 28 and 29, range 5 west, in Chippewa county, for the sum of $10,000, and since this said May 23d aforesaid deeds to most of said lands hare been executed and delivered to E. L. Williams. The respective interests in said contract and lands are E. L. Williams and H. L. Hinck-ley each one fourth and said D. 'Eitzhugh one half undivided. Now, in consideration of one dollar to me in hand paid, receipt whereof is hereby confessed and acknowledged, I hereby agree to account for and pay over to' W. A. Eust, his heirs or assigns, the one-fourth (J) of the net proceeds derived from the sale of said lands above referred to. By net proceeds, are meant all payments of principal and interest for said lands, taxes thereon and expenses connected with the care and sale of the same to be first deducted from the amounts received as principal and interest from the sales of said lands, and the balance remaining being the net profits, one fourth of the same to be paid by me to said Eust.</p> <p>“[Signed] Daet’l Eitzhugh.”</p> <p>The defendant answered admitting the death of W. A. Eust; that plaintiffs were the duly authorized executors of his last will and testament; that a contract was made between E. L. Williams, H. L. Hinckley, and defendant as recited in the agreement upon which the accounting was sought, and that lands were conveyed to said Williams to be held for the benefit of the three persons as therein stated, and putting in issue the allegations of the complaint as to the making of the contract with Eust. Defendant further answered counterclaiming for $26,000 and interest, alleged as due him from the estate of the deceased on account of one half the proceeds of lands in which the two were equally interested, all of which proceeds upon a sale of the lands were alleged to have been received by said Eust and retained by him. There were no allegations showing that such claim at the time of answering was allowable by the county court. Plaintiffs replied to the counterclaim putting in issue the material issues in. respect thereto and stating, in effect, that defendant’s demand, if it ever had any foundation, by reason of its- not haying been filed with the county court having jurisdiction of the settlement of Rust’s estate and the expiration of the time limited and duly noticed for the filing of claims in the matter, was extinguished before the action was commenced.</p> <p>Upon the trial objection to any evidence in support of the counterclaim was sustained because of its not appearing by the answer that when it was interposed defendant’s demand was unaffected by the nonclaim statute and proceedings in respect to limiting the time to file claims for allowance by the county court having jurisdiction of the settlement of Rust’s estate and that he had an option to woi’k out such demand through such court or by proceedings in the action.</p> <p>The admissions in the pleadings and the evidence proved, or tended to prove, the following: May 23, 1889, E. L. Williams, H. L. Hinckley, and defendant contracted with the Eau Claire Lumber Company for the purchase of 8,080 acres of land mentioned in the complaint for $10,000. Such proceedings were had in relation thereto that the consideration for the land was paid and the same was deeded to said Williams to be held, one quarter for himself, one quarter for Hinckley, and one half for defendant, the same to be conveyed to purchasers as sales should be made. September 13, 1892, after the land was conveyed to Williams, defendant and W. A. Rust made the contract upon which plaintiffs seek an accounting. Rust repeatedly demanded of defendant an accounting under said contract which was refused. Neither Rust nor plaintiffs had knowledge before the commencement of the action of the receipts and disbursements on account of said lands. All of the accounts were kept by defendant and his associates, and the former did substantially all the business of making sales and collections. The land was sold to a large number of purchasers and the business in respect to the matter covered a period of several years. At the time of the commencement of this action all the land had been sold, the original purchase price realized, and all stuns on account of sales collected except $17 5 for one forty, which is still due, and a small sum on land sold to one McPhail not yet paid, but plaintiffs have waived any right to any share of such sums. The total amount of principal and interest paid by defendant for the land was $5,412.50. The total amount received by him in excess of expenses connected with the sale and care of the property was $27,824.67, leaving him as net profits $22,412.19, one half of which belongs to plaintiffs as the personal representatives of W. A. Eust. All receipts from the land sales subsequent to May 1, 1900, were profits. The personal services of defendant in looking after and selling the land were reasonably worth $6,000. In the settlement between defendant, Williams, and Hinckley no deduction from the proceeds of sales, in order to arrive at net profits to be divided, was made for personal services. In arriving at the net profits realized by defendant as aforesaid all expenses were deducted which were considered as between him, Williams, and Hinckley.</p> <p>The court found in accordance with the foregoing, and the following: The recital in the contract between defendant and Eust of one dollar as a consideration raises a presumption of a good and valuable consideration which is not rebutted by any evidence produced. Since the personal services of defendant were not considered as a subject for compensation in money in the transaction between him, Williams, and Hinck-ley, the term “expenses” in the contract with Eust should not be construed as including such subject. The plaintiffs are entitled to judgment for $11,206.09, with interest at the rate of six per cent, per annum from July 13, 1904, the time of the commencement of the action, with costs.</p> <p>To the point that the contract was void for •uncertainty, they cited 1 Beach, Modern Law of Cont. §§ 72, 80; Pulliam v. 8 chimp f, 109 Ala. 179,19 South. 428; Davie v. Lumbermen’s M. Qo. 93 Mich. 491, 53 N. W. 625 Faulkner v. Des Moines D. Go. 117 Iowa, 120, 90 N. W. 585 ; Leonard v. Garter, 16 Wis. 607; Hoffman v. Maffioli, 104 Wis. 630; Teipel v. Meyer, 106 Wis. 41. The word “expenses” has been construed to include services as well as moneys disbursed. Matthews & W. Mfg. Go. v. Trenton L. Go. 73 Eed. 212, 215; Hall v. Vi. & Mass. B. Go. 28 Vt. 400; Gatawissa B. Go. v. Titus, 49 Pa. St. 277; Emerson v. Durand, 64 Wis. 111.</p>

<p>Appeal from a judgment of the circuit court for Wood county: Chas. M. Webb, Circuit Judge.</p> <p>The 'appeal is from a judgment against the city of Appleton for $8,532.54 damages and costs.</p> <p>Appellant on '.November 4, 1881, enacted, dated, and published an ordinance granting to the Wiley Construction Company, a corporation of Connecticut, “the exclusive privilege of constructing and operating a system of waterworks within the limits of the city of Appleton, Wisconsin, for supplying said city and its inhabitants with water for protection against fire and for domestic purposes for and during the term of twenty years from the date of this ordinance.” The foregoing grant was expressly subject to the terms, restrictions, and conditions found in the ordinance, which were very numerous. Only those bearing upon the questions herein involved will be noticed. Wholesome water from artesian wells was to be furnished for fire protection and domestic use, except for fire use in an emergency, when other water might he supplied. The number of hydrants, the kind and size of pipe, the manner of laying the pipe, the kind and capacity of pumps, were provided for with more or less completeness of detail. The grantee was required to furnish, free of charge, water for sprinkling streets, for schoolhouses, city buildings, for drinking fountains, and to some extent for flushing gutters and sewers. Sec. 13 was as follows:</p> <p>“For the use of fire hydrants the city shall pay to the said Wiley Construction Company, its successors or assigns, an annual rental as follows: For the eighty (80) first located hydrants an annual rental for each hydrant of seventy-five ($75) dollars; for the ten (10) hydrants next located an annual rental of seventy ($70) dollars is to be paid for each hydrant. For all hydrants thereafter located on new mains an annual rental of seventy ($70) dollars is to be paid for each hydrant. After there shall be ninety (90) hydrants placed upon the mains that the said eighty first located hydrants are upon, then and thereafter any and all hydrants placed upon said mains by the said city shall be supplied with •water by the said company without expense to the said city; the city shall pay an annual rental upon all hydrants additional to eighty, subject to the conditions and exceptions hereinbefore provided, from and after the date at which the same shall have been placed and equipped and ready for use. Above provided for rentals shall be paid in semi-annual in-stalments upon the first Monday in February and August of each year, upon which days all past-due rentals shall be paid.”</p> <p>All breakages and repairs resulting from ordinary use were to be made good by the company. There was no time fixed during which the rental should be in force, otherwise than as may be inferred from the use of' the word “annual,” as above indicated, and from the limitation of the said exclusive grant to twenty years. In case of default by the company the city was authorized to assume and have charge of the waterworks system, and continue in charge and control until repaid its disbursements incurred in bringing the waterworks to tit© required condition. The system was required to be constructed and ready for use before January 1, 1883. The company was also granted the exclusive right to enter upon, dig up, and lay pipe in any and all public highways, streets, lanes, alleys, and public squares, grounds, and places, subject to the control of the mayor and common council. Provisions for appraisal and purchase by the city were made; but, in case the city did not exercise its option to purchase, “then said city shall give the said company, its successors or assigns, an equal right with any and all other persons for a renewal and grant of all the rights and privileges and franchises herein granted which shall be necessary for the establishing and operating a complete system of waterworks in said city of Appleton/’’ The power of the city to’ grant the right to others or itself construct a system of waterworks not to be operated prior to the expiration of the said franchises is recognized.</p> <p>“But in no instance shall said Wiley Construction Company, its successors and assigns, be required to remove or to determine the use of any part or portion of the said waterworks system by them constructed.”</p> <p>Provisions relating to the charges to be mad© to private consumers of water, and for the acceptance of the ordinance by the company in writing, were followed by this declaration:</p> <p>“This ordinance shall be a contract by and between the city of Appleton and the said Wiley Construction Company, its successors and assigns, and shall be binding upon both parties thereto when said company, its successors or assigns,, shall file an acceptance of the same as hereinbefore provided.”</p> <p>The acceptance filed was in the words following:</p> <p>“The Wiley Construction Company, for itself and its successors and assigns, hereby accepts the terms and conditions, of a certain ordinance passed on the 4th day of November, A. D. 1881: An ordinance to provide for and secure to the city of Appleton a system of waterworks in said city wbicb shall at any and all times furnish to said city and the citizens thereof an ample supply of artesian well water for protection against fire and domestic purposes; and in evidence thereof hereby make and execute the written acceptance and file the same as in said ordinance required.</p> <p>“The Wiley CoNsteuotioN CompaNy,</p> <p>“By L. Wiley, President.”</p> <p>It appears by recital in the ordinance that the Wiley Construction Company was a foreign corporation, but how or under what statute organized, or what were its charter powers, does not appear. It does appear that the respondent was incorporated under the laws of the state of Wisconsin on February 29, 1892, for the purpose of operating a system of waterworks in-the city of Appleton and for supplying said city and its inhabitants with water for protection against fire, and water for domestic and other purposes. Kespondent, Appleton Waterworks Company, appears to claim under a deed or instrument of grant dated July 25, 1892, in which the Appleton Waterworks, a corporation of Wisconsin, is grantor and the respondent is grantee. There is no transfer in evidence from the Wiley Construction Company to either the Appleton Waterworks or the Appleton Waterworks Comr pany. But it does appear that on May 21, 1890, an ordinance was enacted by the appellant recognizing the Appleton Waterworks as then furnishing water under the ordinance first, mentioned of November 4, 1881, and at the same time a contract was entered into' between the Appleton Waterworks and the appellant providing for the extension of pipe lines, the furnishing of nine additional hydrants and one fire hydrant, and that the city should not be required to take any additional hydrants on said extensions, and otherwise recognizing as in force the provisions of the original ordinance of 1881. After November 4, 1901, and until March 1, 1904, the respondent continued to furnish to the appellant the use of hydrants and also the free water specified in said ordinance of 1881 and the ordinance and contract of 1890 at a rental of $75 per annum per hydrant for 80 hydrants, $70 per annum per hydrant for 89 hydrants, and 76 hydrants gratis, in all 245 hydrants for $12,230 per annum, and this continued until Eebruary 20, 1904, when the respondent served upon appellant notice that “pending the consummation of a new contract, and as a temporary measure, the company will continue until further notice to furnish water for fire and other municipal purposes the same as now, but at a rate of $1,500 per month, payable monthly from and after March 1, 1904.” The appellant made no immediate reply to this, but continued the use of water as theretofore, and when the respondent presented its first monthly bill for $1;500 pursuant to the notice aforesaid to-the common council, as required by appellant’s charter, tibe council disallowed the same on April 6, 1904, and appropriated a sum of money to pay said bill at the old rate existing prior to said notice of Eebruary 20, 1904; and substantially the same proceedings were had with bills for $1,500 per month presented and filed with the appellant’s common council for the months of April, 1904, to October, 1904, inclusive. The respondent appealed from the disallowance of these claims by eight separate appeals, which were consolidated into one action by order of the circuit court, and in that action the judgment appealed from was rendered against the appellant. Taxes for the year 1904 due from the respondent, amounting to $4,942.08, were by stipulation allowed as an offset. The respondent claimed in the court below, and claims in this court, (a) that the acceptance by the appellant of respondent’s water service after receipt of the notice of Eebruary 20, 1904, created a contract to pay $1,500 per month therefor; (b) that, if this is not correct, respondent was entitled to recover quantum meruit; (c) that the amount the respondent deserves to recover may be established by computing a reasonable rate of interest upon the value of the property employed in rendition of the services. The trial court beld against tbe respondent on proposition (a)' and with the respondent on propositions (b) and (c). The appellant assigns error, and contends that the court below erred in its mode of arriving at the amount the respondent deserves to recover, and that the contract contained in the ordinance of 1881 continued in force and governs the amount of recovery. The appellant recognized the respondent as the successor of the Wiley Construction Company, and entered into an appraisal for the purpose of purchasing from the respondent, but after appraisal made did not purchase.</p>

<p>Appeal from a judgment of the circuit court for Milwaukee county: WabbeN D. TabbaNt, Circuit Judge.</p> <p>This is an action to recover damages for personal injuries sustained by the plaintiff while in the employ of the defendant operating a head-splitting machine, so called, used in the process of tanning beef hides. Issue being joined and trial had, the jury at the close thereof returned a special verdict to the effect (1) that the plaintiff was injured on or about January 20, 1905, while at work on a head-splitting machine in the defendant’s tannery (by the court) ; (2) that such head-splitting machine was not at the time of the injury in a reasonably safe condition, considering the nature of the work in hand; (3) that there was a failure by the defendant to instruct the plaintiff as to the danger of getting his hand or hands caught between the hide and the cylinder while the machine was in operation; (4) that the failure of the defendant to instruct the plaintiff as to the danger of getting his hand or hands caught between the hide and the cylinder when the machine was in operation was the proximate cause of the plaintiff’s injuries; (5) that the absence of any guard of the treadle from above which should prevent a person injured from falling upon the treadle was not an open and obvious condition; (6) that the danger that the plaintiff while operating the machine should get his hand or fingers caught between the hide and the cylinder, thereby receiving injuries, was not an open and obvious risk; (7) that the defendant was guilty of a want of ordinary care which was the proximate cause of the plaintiff’s injuries; (8)-that the plaintiff was not guilty of any want of ordinary care which contributed to produce his injury; (9) that they assessed the plaintiff’s damages at $2,500.</p> <p>On the defendant’s motion to correct the verdict or to set it aside and grant a new trial, the court by order reduced the damages to $2,000 and ordered the verdict to stand for tbat amount in favor of tbe plaintiff and against tbe defendant. Tbereupon and on motion of tbe plaintiff judgment was entered in favor of tbe plaintiff and against tbe defendant for tbe amount of $2,000, witb costs. From tbat judgment tbe defendant appeals.</p>

<p>Aeebal from an. order of the circuit court for- Milwaukee ■ county: James J. .Dice, Judge.</p> <p>Tbis is an appeal from an order denying a motion to punish the respondent for contempt of court in violating an in-junctional order. The action was in equity to enjoin strikers, and labor unions from'interfering with the plaintiff’s business. The action was brought against certain unincorporated lodges of the Iron Moulders’ Union, as well as against certain individuals, including the respondent, alleged to be members of such unions. The plaintiff is a manufacturing corporation located at Milwaukee operating a large iron foundry, and it charges in its complaint, that the defendants con-, spired together to compel the plaintiff to grant certain demands of the union with regard to piece work, the employment of nonunion men and apprentices, weekly payment of wages, etc., and that on the plaintiff’s refusal to accede to such demands the defendants who were in the employ of the plaintiff struck on the 2d day of May, 1906; that after said strike, in furtherance of such conspiracy, the defendants, by picketing and congregating in large numbers around plaintiff’s shop, by threatening plaintiff’s remaining employees with violence, by persuasion, and by other means, have carried on the conspiracy to unlawfully compel plaintiff to grant such demands, to the great injury of plaintiff’s business; and a perpetual injunction against all acts tending or intended to compel the plaintiff to operate its plant upon the terms so demanded was prayed for.</p> <p>Upon this complaint and certain corroborating affidavits a temporary injunctional order was obtained from a court commissioner August 3, 1906, couched in very sweeping terms, restraining the defendants, among other things, from interfering in any way with the plaintiff’s business or property, from compelling, or attempting to compel, by threats, intimidation, fraud, persuasion, or violence, any of the plaintiff’s employees from leaving its employ or any other person from entering its employ, from congregating about the plaintiff’s shop or picketing or guarding the streets for such purpose, from assaulting employees, or going to their homes to -intimidate or coerce them, from persuading or inducing any person to join said conspiracy, and “from doing any act tending or intended to compel tbe plaintiff against its will or tbe will of its officers to operate its factory or employ or discharge any workmen in any manner or upon any terms prescribed by any association or union, or to refrain against its will or tbe will of its officers from operating its said factory in any lawful manner.”</p> <p>Tbe issuance of tbis injunction was known to tbe-respond-ent Humphrey. On tbe lOtb of October, 1906, an order to show cause, based upon affidavits charging violation of tbe injunction by tbe respondent, was issued, in which it was recited that it appeared “that such violation and misconduct were calculated to and actually did defeat, impede, and prejudice tbe rights and remedies of tbe plaintiff,” and respondent was required to show cause why be should not be punished for such alleged misconduct and violation of tbe order. Tbe affidavits on which the order was based charged tbe respondent with continuous picketing of tbe plaintiff’s premises since tbe service of tbe injunctional order upon him, also with several specific acts of verbal abuse of tbe plaintiff’s employees while on picket duty. Said affidavits further set forth other acts of abuse and violence on tbe part of tbe strikers, and alleged generally that tbe respondent and tbe other strikers committed such acts in furtherance of said conspiracy and for tbe purpose of intimidating and driving out of employment tbe plaintiff’s employees, and thereby caused a reign of fear and terror to exist among such employees, to tbe great damage of tbe plaintiff’s business.</p> <p>Upon tbe bearing of tbe order to show cause considerable oral testimony was taken, and upon tbe conclusion of the trial tbe court made an order denying tbe motion, on tbe ground tbe respondent bad “not committed any act in violation of the said temporary injunction, and that be is not in contempt for any violation of said order.”</p>

<p> Actions: Survival: Fraud: Wrongful obtaining and detention of. property: Recovery by administrator: Pleading: Rescission of contract: Accounting: Constructive trusts: Equity: Adequate remedy at law. </p> <p>1. Where a person wrongfully obtains property of another and wrongfully retains it either in specie or in a converted form, or to his enrichment, a cause of action to redress such wrong accrues to the owner, which is assignable and survives by the rule of the common law.</p> <p>2. Thus, where a son, through fraud and undue influence, obtained from his mother shortly before her death, she being then mentally incompetent, a contract conveying to him all her property, and has converted it into money and threatens to place the same beyond the reach of judicial proceedings, an action to rescind the contract and for an accounting and recovery of the proceeds of the property may be maintained by the administrator of the mother’s estate.</p> <p>3. In such action by the administrator the complaint need not show that creditors of his decedent are affected by the fraud, as would be required in an action under sec. 3832, Stats. (1898); and the action is to be distinguished from one upon a mere personal claim for damages, not aimed at a recovery of property in specie or in a converted form. Eclclor v. Wolcott, 115 Wis. 19, so far as it is out of harmony herewith, overruled.</p> <p>4. An action lies in ecpiity to establish a constructive trust and for an accounting, even though the property wrongfully obtained by defendant is personal and, in specie or in some new form into which it can be definitely traced, is within the reach of a plain remedy at law, where it is necessary, in order that complete justice may be done, for equity to deal with the situation.</p> <p>5. Where the result of a judicial rescission of a fraudulent contract which on its face evidences title to personal property would be to establish a constructive trust rendering defendant as trustee liable to account for the property, and it is clear that such property in some converted form is in defendant’s hands and can be judicially reached, or it appears that there are or may be equities in favor of defendant, diminishing that which he would otherwise be required to respond for, a proper situation for the exercise of equity jurisdiction exists.</p>

Appeal fro-m an. order of the circnit court for Milwaukee county: Wabbeb D. Tabeaht, Circnit Judge. The appeal is from an order in an action for divorce. Plaintiff and defendant were married at Eochester, Indiana, December 4, 1886, and lived together until 1901. This action was commenced March 21, 1906.

Williams, Circuit Judge. The action was for negligence against the defendant, a common carrier, in the carrying of sixteen boxes of plate glass, whereby it was claimed some of the glass was broken in transportation.

<p> Quieting title: Canceling tax certificate: Amendment of pleading: Change in cause of action: Disclaimer: Costs. </p> <p>1. In an action to cancel a pretended certificate of tax sale of plaintiff’s land, -where the complaint did not allege that the land was in plaintiff’s possession, hut there was no demurrer and his possession was proved without objection at the trial, the court had power in its discretion to allow the complaint to he amended so as to make it conform to the facts proven and meet the requirements of sec. 3186, Stats. (1898), and to grant relief under that section.</p> <p>2. To bring himself within the exception provided for in sec. 3186, Stats. (1898), entitling him to costs, defendant must release all claim to the land in controversy as well as disclaim title thereto.</p>

Williams, Circuit Judge. Action to recover on an alleged executed verbal contract for tbe sale of a quantity of lumber .at $22 per thousand feet, amounting to $275. Tbe issue was respecting whether a contract for a sale of lumber by plaintiff to defendant was made which was binding on the latter under the statute of frauds.

- Appeal from an order of the circuit court for Milwaukee county: WabReet D. Tabeaut, Circuit Judge. The relator caused to he served alternative writ of martr damus upon the appellants, who, besides the city, comprise the aldermen, mayor, and the members of the board of public works of said city.

Williams, Circuit Judge. On October 15, 1903, defendant rented from the plaintiff, by written lease, the upper flat of the premises known as 1414 State street, in the city of Milwaukee, for the term of two years, six months, and fifteen days from that date, at a monthly rental of $30. On March 9, 1905, plaintifE wrote the following letter to the defendant: “Milwaukee, March 9th, 1905. Mr. John, Hoffmann, H1J¡.

Appeau from a judgment of the circnit court for Milwaukee county: J. 0. Ludwig, Circuit Judge. This is an action by a beneficiary on an accident insurance policy. The case was here on former appeal (Weidner v. Standard L. & A. Ins. Go. 130 Wis. 10, 110 U. W. 246), where a full statement of the facts will be found. On the former appeal the judgment below was reversed and the cause remanded for a new trial.

Taeeabt, Circuit Judge. .' The appeal is from an order overruling a demurrer to the complaint. to the point that the city was liable on the ground that it had created a nuisauce, cited Winchell v. Waukesha, 110 Wis. 101, 109; Milwaukee B. Works v. Wadhams 0. & C. Co. 126 Wis. 32, 37; Tilly v. Mitchell & L. Co. 121 Wis. 1, 6, 13; Velte v. U. 8. 76 Wis. 278, 282: Bunker v. Hudson, 122 Wis. 43, 54, and cases there cited; Damkoehler v. Milwaukee, 124 Wis. 144; Kittredge v.…

0. Ludwig, Circuit Judge. This is a proceeding by mandamus to compel the city comptroller of the city of Milwaukee to countersign a certain report of a judiciary committee upon a resolution to appropriate $100 to the relator in settlement of her claim against the city.

0. Ludwig, Circuit Judge. Action to- foreclose a mortgage. The allegation in the complaint as to the corporate existence of plaintiff is in these words: “Plaintiff ... is, and was at all times hereinafter mentioned, a Wisconsin corporation, doing business as such in the city of Milwaukee, county of Milwaukee, state of Wisconsin, and as such duly authorized to act as guardian.” The mortgage was given July 11, 1895, by defendant Franlc B. Van Valkenburgh rind his -wife to the…

Williams, Circuit Judge. The appeal is by defendants from order overruling demurrer to the complaint, which is to the general effect that they are members of the Evangelical Greed Congregation, organized in 1897, which had acquired by purchase certain real estate and had erected church buildings thereon of large value; that its property had been acquired for the purposes of that church as a member of the Wisconsin District of the-German Evangelical Synod of North America for…

<p>Appeal from an order of tbe circuit court for Milwaukee county: WaebeN D. TaeeaNt, Circuit Judge.</p> <p>This is an action to establish a trust respecting tbe estate of Olive Blake Stitt. Tbe complaint alleges that Olive Blake Stitt died intestate April 1, 1900, leaving ber husband as her sole heir at law; that she had no children.; that plaintiffs mother, though not related to the deceased, was brought up as a member of her family, and that the plaintiff was likewise a member of her family from infancy until he became of age; that on September 2, 1892, Olive Blake Stitt made her last will, by which she made disposition of her property, giving her husband one half of her estate and giving the remaining half in equal shares to her sister, to plaintiff, and another; that on October 6, 1896, the sister of the deceased, mentioned in the will as a beneficiary, died; “that subsequent to the death of said sister of said deceased, on or about the 26th day of October, 1896, at the instance and request of the defendant, the said deceased by a written instrument revoked her said last will and testament;” that deceased at the time of the execution of the will, its revocation, and until the time of her death was the owner of certain real estate of the value of about $9,000;</p> <p>“that subsequent to the revocation of said will as aforesaid the said deceased desired to make some disposition or arrangement of her property, including the said real estate, and certain personal property, at such time amounting to over one thousand ($1,000) dollars, so' that the same might be divided equally between said, defendant and the plaintiff upon the decease of said Olive Blake Stitt; that said deceased advised with the defendant with reference to such proposed disposition of her said property, and desired to make a deed of the real estate hereinbefore described to the plaintiff, but at the suggestion, advice, and request of the defendant did refrain from so executing said deed, and then, and for the purpose of conveying and assuring to this plaintiff a one-half interest in and to the real estate hereinbefore described, did sign a certain instrument in writing, the same having been drawn and prepared for her signature by the defendant, and which was in maimer and form as follows, to wit:</p> <p>“ ‘Milwaukee, Wisconsin, June 18th, 1897.</p> <p>“ ‘I promise to pay Robert D. 8. Tyler, or order, four thousand five hundred dollars, with 6 per cent, interest from this date, payable after my demise, out of my estate.’ ”</p> <p>It is alleged that this instrument was also signed by tbe defendant, and “that at the time of the signing of the instrument aforesaid the said defendant, for the purpose of assuring the said deceased and this plaintiff that his advice and suggestion to the deceased' was in good faith, and that he intended that the wishes of said deceased for the plaintiff should be carried out, executed a certain codicil to his own will and testament,” by which, in the event of his wife not surviving him, he bequeathed all of his property to the plaintiff, and, further, that at about the time of the execution of the note and the codicil to the will they were delivered to the plaintiff “for the purpose of effectuating and carrying out the intentions of the deceased for the plaintiff as aforesaid, and for the purpose of assuring and securing to the plaintiff as aforesaid a one-half interest in all the real property as aforesaid.” The complaint further states:</p> <p>“That relying upon the assurance and representations of the defendant to the deceased that the instrument as aforesaid so executed on or about June 16, 1897, and so delivered to the plaintiff, was a complete, full, and binding obligation, and would effectuate the intent of the said deceased to secure to this plaintiff an undivided one-half interest in and to the real estate heretofore described, said deceased failed and neglected to make any other different disposition of her property other than that until the time of her death.”</p> <p>The defendant now refuses to carry out the transfer of an interest in decedent’s property to plaintiff as was intended by her and prevented by the act of defendant. Upon the death of Olive Blake Stitt defendant was appointed administrator of her estate. Plaintiff demanded relief declaring and imposing a trust upon the real estate for an undivided one-half interest therein, and, in case of a disposition being made of the property, then that a trust in favor of plaintiff for his interest in the estate be imposed upon the funds which have come into the hands of the defendant as administrator of the estate of the deceased.</p> <p>This is an appeal from an order overruling a demurrer to the complaint.</p>

<p> Appeal: Court and jury: Carriers: Electric railways: When person becomes a passenger: Invitation to cross trades: Personal injury: Negligence: Contributory negligence. </p> <p>1. Refusal of the trial court to direct a verdict for defendant will not be held error if there was any credible evidence which, taken in its most favorable aspect to plaintiff, might directly or by proper inference sustain the judgment for plaintiff.</p> <p>2^ One who in good faith, intending to take passage, has signaled ' an approaching interurban car in the regular and recognized manner, to which signal the motorman has responded inu the usual way by whistling or by setting his brake, is a passenger. ?</p> <p>3. An. interurban railway maintained between its parallel tracks a device to enable prospective passengers to signal approaching cars at night, directing them, by a sign, to turn on the signal light by holding up a handle until the car came in sight. It was necessary to cross one track in order to operate the signal, and to reeross it to enter the car. Held, that prospective passengers were impliedly invited so to cross and reeross the track.</p> <p>4. After giving such signal, a passenger thus impliedly invited to reeross the track in order to enter the signaled car was chargeable only with the exercise of reasonable care in so doing and was not necessarily guilty of negligence in failing to look and listen before crossing.</p> <p>&. Whether in this case the defendant electric railway company was guilty of negligence in maintaining such a signal device and in the operation of its cars in connection therewith, and whether plaintiff was guilty of contributory negligence in attempting to reeross the track in front of the car which he had signaled, are field, upon the evidence, to have been questions for the jury.</p>

<p> Municipal corporations: Void special assessment: Failure to object or ask modification: Estoppel: Remedy in equity: Injunction. </p> <p>Where a special assessment for street improvement in Milwaukee is void because made arbitrarily and without authority the lotowner may maintain an action in equity to set aside such assessment and restrain the sale of his land for payment thereof, and is not limited to the remedy by appeal from confirmation of the assessment by the common council, provided for in secs. 11, 12, subch. VII, of the city charter, even though he did not avail himself of the opportunity, given to 'him pursuant to sec. 9 of that chapter, to appear before the board of public works or the common council and object to the assessment or ask that it be modified or corrected.</p>

Halsey, Circuit Judge. The appeal is by the plaintiff from an order overruling a demurrer to counterclaim of the corporate defendant, M. C. Gehl Company, which asserted, as one ground of demurrer, •the nonpleadability as a counterclaim of the cause of action attempted to be set forth. The complaint alleged the formation of the defendant company to continue a business theretofore conducted by defendant M. 0.