Volume 133 — Wisconsin Reports

C. Ludwig, Circuit Judge. Hugo 0. Frohbach sued out, before Julius E. Roehr, a writ of habeas, corpus to obtain custody from Lauren W. Potter of his two minor children. His wife was divorced from him, she being awarded custody of the children. She subsequently died leaving such children in the care of Laura W. Potter. He thereafter, on an ex parte application to the county court of Milwaukee county, was appointed general guardian of the children.

<p> Master and servant: Injuries to servant: Foreman’s negligence: Evidence: Instructions to jury: Incompetency of foreman: Prejudicial error: Burden of proof: Requested instructions: Proximate cause: Contributory negligence: Assumption of rislc. </p> <p>1. In an action by a servant for personal injuries alleged to have been caused by the negligence and incompetency of the master’s foreman, in setting a gin pole without sufficiently securing the pole at its base, evidence of different acts of the foreman, stated in the opinion, shown to be in the line of his duty as foreman and tending to throw light upon the question of his fitness and competency to perform them, was held properly submitted to the jury.</p> <p>2. In such case evidence that the master’s chief engineer and superintendent had observed how the foreman had performed his duties, including the acts stated in the opinion, and that they had power to remove him and fill his place as foreman, is held sufficient to charge those who had power to discharge the foreman with knowledge of his incompetency, and hence that the defendant was also chargeable with like knowledge.</p> <p>3. In an action by a servant for personal injuries alleged to have been caused by the negligence and incompetency of the master’s foreman, an instruction, “Incompetency in the law of negligence means want of ability suitable to the task, either as regards natural qualities or experience, or deficiency of disposition, or want of disposition to use one’s experience and abilities properly. Incompetency may exist not alone in physical or mental attributes, but in the disposition with which a person performs his duties. And though he may be physically and mentally able to do all that is required of him, his disposition toward his work, and toward his employer, and toward his fellow-servants, may make him an incompetent man,” is held applicable to the issues and to embody a correct statement of the law, and not open to the criticism of being misleading in that it was a mere general statement of an abstract proposition of law, and omitted to inform the jury what constituted incompetency in the law of negligence as applied to the facts adduced in evidence.</p> <p>4. Where, in an action by a servant for personal injuries alleged to have been caused by the negligence and incompetency of the master’s foreman, the jury find that defendant had actual knowledge of such incompetency, no prejudicial error can result from an instruction to the jury on the subject of defendant’s constructive notice of the foreman’s incompetency.</p> <p>5. In an action by a servant for personal injuries alleged to have been caused by the incompetency of the master’s foreman in setting a gin pole, the court instructed the jury that the plaintiff had the burden of establishing such incompetency and that it must be shown by a preponderance of the evidence, and fully explained what is meant by the preponderance of the evidence in the trial of cases. Held, that such instruction properly covered every element pertinent to the issue involved and embraced in a requested instruction, in substance that, if the evidence preponderated to the effect that the foreman knew how to set the gin pole properly on the occasion of the injury, then inquiry as to his competency must be answered in the affirmative.</p> <p>6. In such case a requested instruction, in substance, that knowledge by the defendant of one or two negligent acts of the foreman while engaged in similar work was not knowledge that he was incompetent to do the work in which he was engaged at the time of the accident, in that its phraseology included only negligent acts of the foreman and thus excluded acts due to incompetency respecting his duties, if submitted as requested, would erroneously have restricted the effect of the evidence tending to show that he imperiled the safety of those working under him to proof of his negligence instead of incompetency, and hence was properly refused.</p> <p>7. In an action by a servant for personal injuries alleged to have been caused by the negligence and incompetency of the master’s foreman, the court submitted as one question, of the special verdict an inquiry whether the failure of the foreman to exercise ordinary care, coupled with his incompetency, was the-proximate cause of plaintiff’s injury, and instructed the- jury that they would not he justified in answering affirmatively by merely finding that the foreman failed to exercise ordinary care, nor by the mere finding that he was incompetent, but that if they found that plaintiff’s injury was caused By an act of' the foreman, “an incompetent servant,” and that such injury was the result of such incompetency, then if they found that that was the proximate cause of the injury they should answer the question “Yes.” Held, that the question as framed and submitted was not open to the criticism of being too indefinite- and uncertain to determine the issue of proximate cause, since-an affirmative answer to the question, under the instruction of the court, could only follow upon the finding by the jury that the foreman’s incompetency was the proximate cause of plaintiff’s injury.</p> <p>8. In an action by a servant for personal injuries alleged to have-been caused by the negligence and incompetency of the master’s foreman, the evidence, stated in the opinion, is held to be sufficient to warrant the jury in finding such incompetency and the- . master’s knowledge thereof.</p> <p>9. In such case it was held that there was no evidence in the record to furnish the basis of a finding that plaintiff was guilty of contributory negligence, or that he assumed the risk incident, to the negligence charged.</p>

<p>Appeal from an order of the circuit court for Milwaukee •county: WaRbeu D. TaReawt, Circuit Judge.</p> <p>Appeal by defendants from order overruling demurrer to complaint charging defendants, publishers of the-Milwaukee Sentinel, with libel, in that on September 9, 1905, they, with intent to defame, maliciously published false and defamatory matter generally to the effect that the plaintiff, together with others, had been sued by the defendant Pfister; under headlines identifying-the various defendants in that .action, stating, “Are Sued for Conspiracy:” “Defamed and Libeled:” “Used Organ and Grand Jury in Effort to Ruin Plaintiff:” “Used Jury to Injure Him:” “Were Taken by ■Surprise:” “Papers Served on Defendants:” “Text of the ComplaintThese were followed by extracts from a complaint charging the several defendants, including the plaintiff in this action, with having conspired to injure the plaintiff in that action, C. F. P'jister, by instituting unfounded prosecutions against him and publishing defamatory matter in public prints and maliciously procuring to be issued an unfounded indictment against him, and otherwise; also, for a second cause of action, that on February 6, 1906, defendants caused to be published in the Sentinel another article asserting generally the dismissal of G. F. Pfister's former action and the institution of a new one of much the same character, various extracts from the complaint in which are quoted and contain similar defamatory matter as against plaintiff in this action.</p>

<p> Municipal corporations: Streets: Special assessments: Validity: Right of general taxpayer to attack: Preliminary injunction: Modification on motion to vacate: Pleading: dross-complaint: Subject matter: Reassessment for public improvements: Statutes: Retroactive provisions. </p> <p>1. General taxpayers, as such, have no interest in the question of the validity of special assessments, and are not entitled to an order which will prevent the collection of assessments which may he voluntarily paid or which the property owners have hy laches or consent harred themselves from contesting.</p> <p>2. In an action hy general taxpayers to declare void a contract for street improvements and enjoin the municipality from paying for any portion thereof out of its funds, they are fully protected by an order restraining the municipal officers from paying out any of its funds upon the contract; and if the order not only gives this relief, hut also prevents the municipal authorities from accepting the work, it is unwarranted, since acceptance of the work is in no way essential to the relief demanded.</p> <p>3. On the hearing of a motion to vacate a preliminary injunction the court may modify its previous order hy striking out any part thereof not warranted by the showing made.</p> <p>4. A cross-complaint may properly be interposed by a defendant when he is entitled to affirmative relief against a codefendant or against a co defendant and a plaintiff or other party, and such relief involves or affects the contract, transaction, or property which is the subject of the action.</p> <p>5. In an action by general taxpayers to declare void a contract for street improvements and enjoin the municipality from paying any portion thereof out of its funds, the defendant, by cross-complaint against the municipality, setting forth at length the entire proceedings, demanded judgment that, in case the proceedings be held invalid, the municipality be required to proceed to make a reassessment as provided in secs. 1210d et seg. Stats. (1898). Reid, that relief by way of reassessment was germane to the subject of the action.</p> <p>>6. In such case, although the original contract for the street improvement was void, the contract does not require validation in order that a reassessment may be valid, since the legislature could in the first instance have provided for the levying of special assessments for the improvement without previous contract, and what the legislature might have originally authorized it may retrospectively validate by providing for a reassessment.</p>

<p>Appeals from orders of the circuit court for Milwaukee county: Waeeeet D. TaeRANT, Circuit Judge.</p>

<p>Appeals from a judgment of tbe circuit court for Milwaukee county: J. 0. Ludwig, Circuit Judge.</p> <p>Tbis action was brought in tbe circuit court for Milwaukee county to construe the will of Frederick Pabst, late of tbe city of Milwaukee, Wisconsin. Tbe action was commenced by Gustave G. Pabst and Frederick Pabst, Jr., individually and as surviving executors under tbe last will and testament of Frederick Pabst, deceased, against Maria Goodrich, Fmma Soehnlein, Fdith Soehnlein, and Beatñce Soehnlein, children of Emma, Soehnlein, and Maria Pabst, commonly called Els-beth Pabst. Tbe complaint sets out tbe death of Frederick Pabst January 1, 1904, and tbe execution of bis will July 17, 1903; that letters testamentary thereon were issued February 3, 1904, to tbe plaintiffs Gustave G. Pabst, Frederick Pabst, Jr., and Maria Pabst; that Erederick Pabst left, him surviving, next of kin, Maria Pabst, his widow, who died ■October 3, 1906, Gustave G. Pabst and Frederick Pabst, Jr., his only sons, Maria Goodrich, his daughter, who at the time of the testator’s death had issue living, Fmma Soehnlein, his daughter, who at the time of testator’s death had issue living, to wit, Edith Soehnlein and Beatrice Soehnlein, and Emma Maria Pabst, granddaughter, commonly called Elsbeth Pabst, and only issue of deceased daughter, Elsa Von Ernst. The complaint further alleges that after providing for gifts made to Maria Pabst, widow of testator, there remained in the hands of the plaintiffs, as surviving executors, a large amount •of real and personal property held under the trusts of said will, and that the following questions have arisen touching the proper construction of the will:</p> <p>First. Whether, since the death of Maria Pabst, widow of said deceased, the annual income of the remaining part of testator’s estate, mentioned in the sixth article of his will, shall be paid to said Elsbeth Pabst during her life, and to her issue in case of her death, as provided in the sixth article of said will, or divided in equal shares among the testator’s children, Gustave G. Pabst, Maria Goodrich, Frederick Pabst, Jr., and Emma Soehnlein, or their respective. issue, until said Elsbeth Pabst shall arrive at the age of twenty-one years, •as provided in the third article of said will. Second. What number of shares of the capital stock of the Pabst Brewing Company represents a book value of $1,000,000, according to the regularly kept books of said Pabst Brewing Company, as provided in the fourth article of said will ? Third. Whether the stock dividend hereinafter mentioned is principal or income of the trust estates created by said will respectively. Fourth. Whether the executors, under the authority to invest conferred by the ninth article of said will, have power to make the investments hereinafter mentioned.</p> <p>The first and second items of the will gave the widow certain property and the annual sum of $50,000 to be paid to her during her life. The will further provides:</p> <p>“Third. Subject to the above provisions, I give, devise, and bequeath all the property which I may have at the time of my decease, or be in any way interested in, to my executors, in trust, during the life of my said wife, the trustees out of the income of said property to pay her said sum of fifty thousand dollars ($50,000) per annum; and also out of said income or said property to them conveyed to pay all proper expenses for the suitable support and education of my granddaughter and adopted daughter, Emma, Maria Pabst, commonly called Els-beth Pabst, until she shall arrive at the age of twenty-one years, and to divide the net income of said property after said payments, annually or at such times as may be convenient, in equal shares, among my children Oustave G. Pabst, Maria Goodrich, Frederick Pabst, Jr., and Emma Soehnleiru, or their respective issue; in case of the death of any of them, such issue to take a parent’s share by right of representation. In ease any of my said children shall die without leaving issue, such income shall be divided among the remaining children or their issue.</p> <p>“At her arrival at the age of twenty-one years said Elsbeth shall take an equal share with the other of said children in said distribution of income, subject to the same conditions above provided.</p> <p>“Fourth. Upon the decease of my said wife the entire estate shall be divided into as many parts as there are children then living, counting the living descendants of any deceased child as the representative of its parent in case of the latter’s decease. Said parts shall be equal, except that there shall be transferred to one of said parts, designed for the benefit of my granddaughter, Elsbeth, as provided in paragraph sixth of this instrument, such number of shares of the capital stock of the Pabst Brewing Company as shall represent a book value of one million dollars, according to the regularly kept books of said Pabst Brewing Company, so that said part shall exceed each of the other parts by the amount of said shares of stock. The reason for this discrimination is that I transfer, by way of gift, a like amount in book value of said stock for the benefit of each of my children, Gustave G. Pabst, Maria Goodrich, Frederick Pabst, Jr., and Emma Soehnlein., contemporaneously with tbe making of tbis will.</p> <p>“One of said equal parts shall be paid over and transferred to my son, Gusime G. Pabst, or bis heirs; one to my daughter, Maria Goodrich, or her heirs; and one to my son, Frederick Pabst, Jr., or his heirs.</p> <p>“Fifth. In case my said daughter, Fmma Soehnlein, shall, at the time of the decease of my wife, have a child or children living, such child or the oldest of such children being not less-than ten years of' age, then and in such case said Emma Soehn-lein shall also be entitled to and receive one of said equal parts-of my estate.</p> <p>“If at the time of the decease of my wife said Emma Soehnlein shall have no living issue, or her issue shall not have attained the aforesaid age, then said part of my estate shall continue to be held in trust by my executors and trustees,. said Emma receiving the income thereof until a child of said Emma, either living at the time of my wife’s decease or thereafter born to her, shall arrive at the age of ten years, whereupon, such child being living, said Emma shall become entitled to and receive said one part of my estate.</p> <p>“In case said Emma shall not have a child of said age at the time of my wife’s death, and no child of hers shall, after that time, reach said age, then said part of my estate shall continue to be held in trust by my executors and trustees during the life of said Emma, and the income thereof annually paid to' her, and the body or principal of said part shall, in such case, upon her decease, go in equal shares to my other-children or their respective issue in the same manner and subject to the same conditions herein provided in reference to-the other parts of my estate.</p> <p>“In case said Emma shall die leaving a child or children before the transfer to her of said part of my estate pursuant to the provisions hereof, the net income of said part shall thereafter be paid to such child or children in equal shares until the oldest thereof shall attain the age of twenty-one years, whereupon said part shall be transferred and paid over to such child or children in equal shares. In case all of said children shall die before reaching said age and without leaving lawful issue, said part of my estate shall be disposed of in the same manner as if said Emma had died without leaving surviving issue. If issue o-f any child survive it shall take by representation what its parent would have taken if living.</p> <p>“Sixth. The remaining part of my estate, being the one increased by the transfer thereto of shares of stock as herein-before provided, shall, upon the decease of my wife, continue to be held in trust by my executors and trustees, provided said Elsbeth be living at that time; and the ánnual income thereof shall be paid to said Elsbeth during her life.</p> <p>“In case of said Elsbeth’s death without leaving issue surviving her, said part of my estate shall be added in equal shares to the remaining shares thereof and disposed of as parts thereof as hereinbefore directed.</p> <p>“If said Elsbeth shall have died prior to the decease of my wife, leaving a child or children who shall survive my wife; or if she shall die after my wife’s death, leaving a child or children, — then also said part of my estate shall continue to be held in trust by my executors and trustees, and the annual income thereof shall be paid to such issue in equal parts for the term of twenty-one years after the death of said Elsbeth, and shall thereupon be paid to such child or children and the issue of any of them who may have died, according to the rule of representation.</p> <p>“In case of the death of said Elsbeth without leaving issue surviving her, or the extinction of her issue prior to the expiration of twenty-one years from the time of her decease, said part of my estate shall he added in equal shares to the other parts as herein directed and pass to my other said children or their respective issue or heirs, subject to the same conditions and limitations herein prescribed as to said other parts.</p> <p>“In ease said Elsbeth shall attain the age of forty-five years and shall then have living a child or children, the whole of said part of my estate shall pass and be transferred to her.</p> <p>“Seventh. In making distribution both of the income and the principal of my estate as above directed, advancements heretofore made by me to any of my children and charged against them on my private books shall be taken into account and charged respectively against the share of the child to whom they were made, reducing such share by the amount thereof. This provision, however, shall not apply to certain shares of stock of the Pabst Brewing Company which I have heretofore made over by way of gift to my sons, Gustave G. Pabst and Frederick Pabst, Jr.</p> <p>“Eighth. I give to my wife, at her option, in lieu of the aforesaid fifty thousand dollars ($50,000) per annum, an equal one-sixth share of my entire estate, such option to be exercised by her in writing within one year from the time of my death. In case she shall so exercise this option my executors and trustees shall, instead of paying to her said fifty thousand dollars ($50,000) per annum, pay to her the income of such one-sixth of my estate and transfer and make over to her the body or part thereof whenever she may so request. This my will to remain in other respects unaltered, and such portions of such one-sixth share as she may not have requested to be transferred to her to pass as part of my estate as herein provided.</p> <p>“Ninth. I nominate and appoint my beloved wife, .Maria Pabst, and my sons, Gustave G. Pabst and Frederick Pabst, Jr., executors of this my will and trustees of the trusts thereby created; and I hereby confer upon said executors and trustees full power and authority to manage and control said property according to their judgment and discretion, and to sell and dispose of any portions thereof, including any real estate, also said homestead, during the life of my wife if she shall desire it and consent thereto. And I give them full authority to invest the trust properties in such manner as they shall deem best, with no responsibility for losses, provided they act honestly and in good faith.</p> <p>“In case any of said executors or trustees shall die, the surviving two shall have authority to nominate a successor, who shall he clothed with the same authority as was enjoyed by the deceased executor or trustee; provided, that until the legal appointment of such third executor or trustee, the survivors shall have full power and authority in all respects to act under the provisions of this will.</p> <p>“I request that no bonds be required from my said executors or trustees. And I direct that no inventory of my estate shall be required to be filed in the county court or any public office; but it shall be the duty of said trustees to keep, for the benefit of all parties interested in my estate, full and accurate books of account of my said estate and all their dealings therewith.”</p> <p>The court found, substantially: That after the payment of the gifts and bequests mentioned in the will there remained in the hands of' the executors a large amount of property of the estate, including 1,918 shares of the capital stock of the Pabst Brewing Company, each share being of the par value of $1,000, and the total authorized capital stock being 10,000 shares. That 2,840 shares had been transferred by deed of gift dated July 17, 1903, to trustees for the benefit of plaintiffs Gustave G. Pabst, Frederick Pabst, and defendants Maria Goodn-ich and Emma Soelmlein, one fourth to each, with remainder of share of Emma Soelmlein to go in certain contingencies to her children, Edith and Beatrice Soelmlein, the deed expressing that the gift to each was substantially $1,000,000. That Emma Maria Pabst was born December 25, 1890, and was regularly adopted by testator and his wife as their child, and lived with Maria Pabst until her death, and has since lived in the family of plaintiff Gustave G. Pabst. That on October 3, 1906, the assets of the Pabst Brewing Company, deducting debts but not capital stock, were $15,098,345.12, which included 3,322 shares of the Pabst Brewing Company stock which had been purchased prior to that date and paid for out of the assets of the corporation or secured by obligations of the corporation and a mortgage upon certain of its property, and said 3,322 shares were figured in the assets at par, so that on said date, apart- from the 3,322 shares, its net assets were $11,776,345.12. That the shares were purchased at a premium over par, the aggregate amount of purchase price being $4,495,624.89, which was less than the net book value of said shares, but exceeded its par value by $1,173,642.89. That on October 3, 1906, the book value of each share of said stock was as follows: If the whole 10,000 shares were to be treated as outstanding, and said premium so paid for the shares so purchased by the company is added to its assets, $1,627.1989; and 614.5502 shares would equal book value of $1,000,000. If only 6,678 shares were to be treated as outstanding, $1,763.4540; and 567.0689 sharea would equal boob value of $1,000,000. Tbat ou December 11, 1906, the 3,322 shares of stock purchased by the Pabst Brewing Company were distributed as stock dividend pursuant to a resolution of the company. That such dividend was not distribution of profits so as to be a dividend strictly so called as between tenant for life of any of the shares of the stock and remaindermen, but was a redistribution of the purchased shares of stock as representing permanent capital of the corporation. That the 3,322 shares of stock purchased and retained by the Pabst Brewing Company on October 3, 190.6, had been acquired and held as follows: 280 shares thereof had been purchased for cash prior to- the death of the testator, Frederick Pabst, and prior to July 17, 1903, at a price aggregating $313,132.89, which was less than the book value thereof. Prior to July 11, 1903, and when the purchase of such stock was commenced, an account was opened on the books of the Pabst Brewing Company denominated “treasury stock account,” to which from time to time, as stock was purchased, $359,310.08 was charged, being the purchase infice of all of said 280 shares, excepting ten shares thereof purchased January 14, 1901, of Louis W. Falk, at $14,422.81, which amount was charged to an account denominated “Frederick Pabst, trustee;” and credits were made to the appropriate accounts on the books of the Pabst Brewing Company to offset such debits, and to represent the cash paid for the acquisition of said 280 shares, and the outstanding-certificates for such shares of stock were surrendered by the vendors thereof and canceled, and certificates in lieu thereof in the usual form issued for said 280 shares, as follows: For 261 shares to the testator, Frederick Pabst, as trustee, and for the remainder to- Gustave Pabst as trustee, and said certificates were in turn indorsed in blank by said Frederick Pabst as trustee and Gustave Pabst as trustee, and deposited with said corporation. That twenty-four shares of its stock were purchased by the corporation on April 19, 1906, at $1,355 per share, and on June 29, 1906, 3,018 shares of stock were purchased at $1,355 per share, and the certificates for said 3,042 shares were surrendered and canceled by the vendors thereof, and in lieu certificates fo-r the same issued by the corporation under its seal and signed by its proper officers to said Gustave Pabst as trustee, and indorsed by Gustave Pabst as trustee and deposited by him with the corporation; and the purchase price of said twenty-four shares was paid in cash, and the purchase price of said 3,018 shares was paid by said Pabst Brewing Company, $600,000 in real estate of said corporation conveyed to the vendor, and the remainder by the proceeds of a loan made upon bonds issued by the corporation, secured by a mortgage incumbering all of its real estate, plant, and fixtures, including real estate in the states of Connecticut, Illinois, Iowa, Kentucky, Massachusetts, Michigan, Minnesota, Missouri, Eebraska, Kew York, Ohm, territory of Oklahoma, Virginia, and West Virginia. Such mortgage provided that upon the contingency of default in payment it might become a lien upon all the other property and assets of the corporation in addition. And such bonds were in the aggregate amount of $3,500,000, of ivhich $500,000 bear interest at five per cent, per annum, and $3,000,000 at the rate of four per cent, per annum, which bonds: are still outstanding and unpaid. That in its system of bookkeeping the Pabst Brewing Company at all times kept upon its books an account denominated “surplus account,” to which was credited the value of its accumulations in the form of real estate, machinery, supplies, additions to its plant, and other assets, in excess of the amount of its capital stock; and the total amounts credited to such account upon the dates hereinafter set forth were as follows:</p> <p>January 1, 1904. $4,810,728 60 January 1, 1905. 4,347,634 46 January 1, 1906. 5,753,386 36</p> <p>That this surplus, though it represented earnings and accumulations of the corporation over and above the amount of the capital stock, was never in the form of accumulated earnings in cash, but in tbe form of extensions and increase of tbe property and assets of tbe corporation actively used as part of tbe capital of its business and in tbe prosecution of its business. That tbe purchase price of tbe twenty-four shares bought April 9, 1906, namely, $32,520, was on such date charged to the aforesaid treasury stock account; and on June 29, 1906, the amount of the par value of the 3,018 shares purchased on such date, namely, $3,018,000, was charged to said treasury stock account, and appropriate credits were made to other accounts to offset such debits of April 9, 1906, and June 29, 1906, and tbe premium paid upon such purchase of 3,018 shares, namely, $1,071,390, was charged, instead of to treasury stock account, to the aforesaid surplus account; and on tbe same date, June 29, 1906, the treasury stock account was credited and the surplus account debited with $87,830.08, being all, except $14,422.81, of the price over and above par which had been paid for the 280 shares purchased prior to the death of the testator, and for the twenty-four shares purchased April 9, 1906, leaving tbe treasury stock account from and after June 29, 1906, and on . October 3, 1906, and down to and until December 11, 1906, debited, with $3,322,000, the par value of the stock theretofore purchased. That on October 1, 1906, there was further charged to surplus account and credited to the account of ‘Erederick Pabst, trustee, the sum of $14,422.81, being the amount paid for ten shares purchased of Louis W. Ealk on January 14, 1901. On October 3, 1906, tbe net amount credited to tbe surplus account was $5,098,346.12, which was the net amount credited to such account after such account bad been debited with the $1,173,642.89 premium paid upon tbe 3,322 shares of stock purchased as aforesaid. That said Pabst Brewing Company at all times, by its method of treatment of the 3,322 shares of purchased stock, regarded and held the same as part of its assets, and at all times prior to December 11, 1906, elected to treat the same as in force and effect and as outstanding, and, if such purchased shares be regarded as outstanding and as among the assets of the corporation, its entire capital and surplus, according to its books, would, upon October 3, 1906, amount to the sum of $16,271,989.01. That said testator was for many years prior to his death an officer, to wit, president, of the Pabst Brewing Company. That the Pabst Brewing Company from and after January 1, 1903, declared and paid dividends in cash upon its stock, which dividends were debited to the surplus account, and such dividends aggregating ten per cent, were declared in each year during the period from Jan-uáry 1, 1904, to October 3, 1906, upon the full amount of 10,000 shares of stock of the company as outstanding, and such dividends, in the aggregate amount of $1,000,000, were charged to the surplus account, and each dividend was actually paid to the proper stockholder upon the stock other than that which had been at the time of the dividend purchased by the Pabst Brewing Company as aforesaid. That though in the resolution of the directors of the company adopted December 26, 1906, it is recited that profits to the amount of $1,990,578.56 had been earned and retained by the company since January 1, 1904, the amount of profits earned and retained by the company since January 1, 1904, and up to and including October 3, 1906, was in reality only $1,590,578.56, and the increase of surplus over and above dividends paid was in each year from January 1, 1904, as follows:</p> <p>1904 . $536,[ XXX XX XXXX ] . 405,751 90 From January 1, 1906, to October 3, 1906. 647,920 80 $1,590,578 56</p> <p>That at all times after January 1, 1904, and prior to October 3, 1906, Gustave G. Pabst, Frederich Pabst, Jr., and Maria Pabst, as trustees under the aforesaid deed of gift, and Gustave G. Pabst, Frederick Pabst, Jr., and Maria Pabst, as executors of tbe last will of Frederick Pabst, deceased, and Gustave G. Pabst, Frederick Pabst, Jr., Manda Goodrich, and Emma Soehnlein, individually, together held more than a majority of the stock of the Pabst Brewing Company, and that at all times after October 3, 1906, said persons, with the exception of Maria Pabst as trustee and Maria ■ ■ Pabst as executor, held together more than a majority of the stock of said company, and that after January 1, 1904, the directors of said company were Gustave Pabst, president; Frederick Pabst, Jr., AY. 0. Goodrich, husband of Manda Goodrich, C. W. Henning, vice-president, and H. J. Stark, secretary. That it was the intent of the testator, as manifested by the will, that his granddaughter, Emma Maria Pabst, commonly called Elsbeth Pabst, should take and have upon the death of her grandmother, Maria Pabst, stock of said corporation of the book value of $1,000,000, and this amount should neither be increased nor diminished by any redistribution of the stock. That it was the intent of the testator that during the lifetime of his widow, Maria Pabst, Elsbeth should receive only suitable support and education, and that after the arrival of Elsbeth at the age of twenty-one years she should thereafter share equally in the income of ■ said estate with Gustave G. Pabst, Maria Goodrich, Frederick Pabst, Jr., and Emma Soehnlein; but upon the death of Maria Pabst, either before or after the attainment of her majority by said Elsbeth, the annual income upon the portion left by said will to or for the benefit of her should be paid during her life, subject to the other provisions for the contingencies contained in the will. That the allegations'of the complaint as to request of Emma Soehnlein for the loan to her and investment for her benefit of a portion of the trust estate held under the will in trust for the benefit of her and her children, and the security proposed to be given for such loan, are true.</p> <p>The court concluded as follows: That the annual income of the portion of tlie estate bequeathed for the. benefit of Emma Maria Pabst should be from the 3d day of October, 1906, the date of the death of Maria Pabst, set apart and paid to said Emma Maria Pabst during her life, as provided in article 6 of said will. That the number of shares of the stock of the Pabst Brewing Company to which the said ■ Emma Maria Pabst is entitled to make the amount of ■$1,000,000 book value of said stock is 614.5502 shares. That the stock dividend declared by the Pabst Brewing Company December 11, 1906, must be taken as principal of the several trust estates created by said will, and must be issued to the trustees representing the trust estates as part of the principal of said trusts. That in the judgment of the court the plaintiffs, as trustees of Emma Soehnlein and her children, ought not to make the loan or investment described in the fourth paragraph of the complaint, but that the court does not declare as matter of law that said trustees have not the power to make such investment or loan, that question being expressly left undecided.</p> <p>Judgment construing the will was entered in accordance with the findings. Due exceptions were filed, the ease brought here by appeal, and the following errors assigned: (1) The court erred in directing that the income from the share given to the trustees for the benefit of Elsbeth Pabst accruing after October 3, 1906, should be paid to Elsbeth, and in refusing to find that such income should be distributed among the appellants during the minority of said Elsbeth. ■(2) The court erred in determining that there would be required 614.5502 shares of the Pabst Brewing Company stock to make $1,000,000 of book value, the correct number being 567.0689 shares. (3) The court erred in determining that the stock dividend was to be taken as principal of the trust estate created for the benefit of Elsbeth Pabst, at least in so far as this dividend upon the excess over the shares necessary to make $1,000,000 was concerned. (4) The court erred in adjudging that the stock dividend should be taken as part of the principal of. the trust estate left for the benefit of the appellant Emma Soehnlein and her children. (5) The court erred in finding that the trustees of Emma Soehnlein and her children ought not to make the loan or investment described in the complaint.</p> <p>as individuals, there was a brief by Quarles, Spence & Quarles, attorneys, and Charles Quarles, of counsel, and oral argument by Charles Quarles. They contended, inter alia, that the question whether a stock dividend is to be considered as profit and go to the life tenant or as capital and go to the remainderman is a question as yet undecided in this state. The decisions of other states and of England lay down substantially four different rules, which are called from their place of origin, respectively, the Massachusetts rule, the Maine rule, the English rule, and the Pennsylvania rule. The Massachusetts rule holds that money dividends are income and go to the life tenant, but that stock dividends are capital and go to the remainderman. This rule is followed by the courts of Massachusetts, Rhode Island, Illinois, Connecticut, and the United States. Minot v. Paine, 99 Mass. 101; Ealomd v. Williams, 101 Mass. 571; Leland v. Hayden, 102 Mass. 542; Heard v. Eldredge, 109 Mass. 258; Band v. Hubbell, 115 Mass. 461, 474; Adams v. Adams, 139 Mass. 449; Davis v. Jackson, 152 Mass. 58; Gibbons v. Mahon, 136 U. S. 549; In re Brown, 14 R. I. 371, 51 Am. Rep. 397; Greene v. Smith, -17 R. I. 28; DeXoven v. Alsop, 205 Ill. 309, 63 L. R. A. 587 — 590; Terry v. Eagle L. Co-. 47 Conn. 141; Brin-ley v. Grow, 50 Conn. 66, 47 Am. Rep. 618; Spooner v. Phillips, 62 Conn. 62, 24 Atl. 524, 16 L. R. A. 461; Mills v. Britton, 64 Conn. 4, 29 Atl. 231, 24 L. R. A. 536; Hotch-kiss v. Brainerd Q. Co. 58 Conn. 120, 29 Atl. 521. The Maine rule is that stock dividends, like money dividends, are income, and must go to tbe life tenant. Tbat is, tbat a dividend is a dividend whether in stock or in money. This rule obtains in Maine, New York, and Maryland. Gilkey v. Paine, 80 Me. 319, 323; Richardson v. Richardson, 75 Me. 570, 46 Am. Rep. 428; Thomas v. Gregg, 78 Md. 545; Quinn v. Safe D. & T. Go. 93 Md. 285, 53 L. R. A. 169 ; Mc-Louth v. Sunt, 154 N. Y. 179; Lowry v. Farmers’ L. & T., Go. 172 N. Y. 137, 64 N. E. 796 ;.In re Warren’s Estate, 13 N. Y. Snpp. 787; Williams v. W. U. Tel. Go. 93 N. Y. 162. Tbe English rule makes tbe question depend entirely upon tbe intention of tbe corporation as manifested by tbe action of its board of directors. Pouch v. Sproule, L. R. 12 App. Gas. 385. Under tbe Pennsylvania rule tbe criterion is tbe origin of tbe property out of which the dividend is declared. If this was earned before tbe creation of tbe trust, tbe stock dividend is to be taken as capital; if it was earned after tbe creation of tbe trust, it is to be taken as income; and if it was made up of earnings earned partly before and partly after tbe creation of tbe trust, tbe dividend is to be apportioned between the life tenant and tbe remainderman. This rule obtains in Pennsylvania, New Jersey, South Carolina, Kentucky, Tennessee, and New Hampshire. Farp’s Appeal, 28 Pa. St. 368, 373, 374; Wiltbcmk’s Appeal, 64 Pa. St. 256, 260, 3 Am. Rep. 587; Biddle’s Appeal, 99 Pa. St. 278, 282; Vinton’s Appeal, 99 Pa. St. 434, 440, 44 Am. Rep. 116; Oliver’s Estate, 136 Pa. St. 43; Smith’s Estate, 140 Pa. St. 344, 352; Van Doren v. Olden, 19 N. J. Eq. 176; Gobb v. Rant, 36 S. O. 1; Site v. Site, 93 Ky.- 357, 19 L. R. A. 173; Pritchitt v. Nashville T. Go. 96 Tenn. 472, 486, 36 S. W. 1064, 33 L. R. A. 856.</p> <p>He contended, inter alia, that the Pabst Brewing Company having purchased its own stock, whether or not the stock so purchased was thereby extinguished and canceled so as to diminish the number of outstanding shares, or is held as an asset of the corporation subject to future sale, depends upon the intent on the part of the corporation as shown by its conduct. Porter v. Plymouth G. ill. Go. 29 Mont. 347, 74 Pae. 938; Western Imp. Go. v. Des Moines Nat. Panic, 103 Iowa, 455, 72 N. W. 657; Nx parte Holmes, 5 Cowen, 426 (see p. 435) ; Dacovich v. Carnizas (Ala.) 44 South. 473; Knickerbocker Imp. Go. v. Stale Board (N. J. Eq.) 65 Atl. 913; Gomm. u. B. & A. B. Go. 142 Mass. 146 (see p. 155) ; Ral-ston ¶. Bank of California, 112 Oal. 208 ; State Bank v. Fox, 3 Blatch. 431. The question whether a stock dividend should be assigned to principal, to income, or apportioned between them may be classified under two general lines of authorities: (1) those holding that dividends, whether of stock or cash, are capable of .apportionment; and (2) those holding that there can be no apportionment of the dividend and it must go wholly either to principal or income. The doctrine under the first head is commonly called the Pennsylvania rule. Farp’s Appeal, 28 Pa. St. 368; Ymtons Appeal, 99 Pa. St. 434; Appeal of Phila. T., S. D. & Ins. Go. (Pa. St.) 16 Atl. 734; Appeal of Smith, 140 Pa. St. 344, 21 Atl. 438; Van Doren v. Olden, 19 N. J. Eq. 176; Lang’s Fx’r v. Lang, 56 N. J. Eq. 603, 40 Atl. 278; Brown ,v. Brown (N. J. Eq.) 65 Atl. 739; Lister v. Weeks, 61 N. J. Eq. 215, 46 Atl. 558. However, under this rule a profit made by the trustee by selling the right to subscribe to an increased issue of stock ordered by the corporation after the creation of the trust is held to go to capital and not to income. Moss’s Appeal, 83 Pa. St. 264; Biddle’s Appeal, 99 Pa. St. 278; In re Thomson’s Estate, 153 Pa. St. 332, 26 Atl: 652; In re Eisner’s Estate, 175 Pa. St. 143, 34 Atl. 577; Brown v. Brown (N. J. Eq.) 65 Atl. 739; Peirce v. Burroughs, 58 N. IT. 302; Law v. Alley, 67 N. IT. 93, 29 Atl. 636; Walker v. Walker, 68 N. IT. 407, 39 Atl. 432. So zealous are tbe courts adopting tbe Pennsylvania rule to preserve tbe capital fund as it existed at tbe time of tbe creation of tbe trust-that they bold that a profit arising from appreciation in tbe value of tbe assets in tbe bands of tbe trustee will go to capital and not to income. In re Boyer’s Estate, 174 Pa. St. 16, 34 Atl. 239; In re Graham’s Estate, 198 Pa. St. 216, 47 Atl. 110S; In re Park’s Estate, 173 Pa. St. 190, 33 Atl. S84; Van Blarcom v. Pager, 31 N. J. Eq. 783; In re Com noUy’s Estate, 198 Pa. St. 137, 47 Atl. 1125; Quinn v. Mad-igan, 65 N. H. 8, 17 Atl. 976. All authorities with tbe exception of those in Pennsylvania, New Jersey, and New Hampshire agree that corporate dividends, whether of stock or cash, are nonapportionable. Tbe conflict arises upon tbe question as to when dividends should be assigned to tbe principal and when to income. It was held in Massachusetts at an early date that when a corporation accumulates surplus estate over and above its capitalization and devotes such surplus assets to tbe uses of its business as working capital, and as against such accumulated surplus declares a stock dividend, such stock dividend should be held to be principal and not income. Minot v. Paine, 99 Mass. 101; Poland v. Williams, 101 Mass. 571; Band v. Hubbell, 115 Mass. 461; P’Ooge v. Leeds, 176 Mass. 558, 57 N. E. 1025. Tbe Massachusetts rule has been adopted in Connecticut, tbe United States, Georgia, and Maine. Spooner v. Phillips, 62 Conn. 62, 24 Atl. 524; Mills v. Britton, 64 Conn. 4, 29 Atl. 231; Atkin v. Albree, 12 Allen, 359; Brinley v. Grou, 50 Conn, 66; Gibbons v. Mahon, 136 U. S. 549, 10 Sup. Ct. 1057; In re Brown, 14 R. I. 371; Greene v. Smith, 17 R. I. 28,19 Atl. 1081; PeEoven v. Alsop, 205 Ill. 309, 68 N. E. 930; Billings v. Warrens 216 Ill. 281, 74 N. E. 1050; Blinn v. Gil-lett, 208 Ill. 473, 70 N. E. 704; Millen v. Guerrard, 67 Ga. 284; Mann v. Anderson, 106 Ga. 818, 32 S. E. 810. The New York rule, settled by the later cases, is,that money realized from the sale of corporate stock belonging to a trust estate is all capital, though there is received from the stock sold what represents, in part, the interest of the stock in the accumulated earnings of the corporation; and that a cash dividend declared after the creation of a trust out of surplus earnings is nonapportionable and goes to the life tenant, even though the greater part' of the earnings upon which the dividend is based were accumulated before the creation of the trust. In re Kernochan, 104 N. Y. 618, 11 N. E. 149; McLouih v. Hunt, 154 N. Y. 119, 48 N. E. 548; Lowry v. Farmers’ L. & T. Go. 172 N. Y. 137, 64 N. E. 796; Bol-ertson v. Be Brulatour (N. Y.) 80 N. E. 938; Chester v. Buffalo Car Mfg. Co. 70 App. Div. 443, 75 N. Y. Supp. 428. The rule adopted in Maryland is substantially like that in New York, except that even greater weight is given to the expression of corporate intent in the resolution declaring the dividend. Quinn v. Safe D. & T. Co. 93 Md. 285, 48 Atl. 835, 53 L. R. A. 169; Safe D. é T. Co. v. White, 102 Md. 73, 61 Atl. 295; Thomas v. Gregg, 78 Md. 545, 28 Atl. 565. In Kentucky it is held-that stock dividends are nonapportionable and that a stock dividend based on earnings and declared during the life tenancy goes in its entirety to the life tenant. Hite’s Devisees v. Hite’s Bx’r, 93 Ky. 257,20 S. W. 778, 19 L. R. A. 173. The Tennessee court adopts the reasoning of the later New York cases. Pritchitt v. Nashville T. Co. 96 Tenn. 472, 36 S. W. 1064. The early English decisions give no assistance. Those decisions will be found reviewed in the opinion in Van Doren v. Olden, 19 N. J. Eq. 17 6; later cases in the opinion in Pritchitt v. Nashville T. Co. 96 Tenn. 472, 36 S. W. 1064.</p>

<p>Appeal from a judgment of tbe circuit court for Milwaukee county: Joi-iN K. Paeish, Judge.</p> <p>This action was brought to recover for personal injuries. Tbe complaint alleges, in substance, that tbe defendant was tbe owner of tbe steamer Ered Pabst, and tbat on tbe 21st day of December, 1904, at Milwaukee, Wisconsin, plaintiff was in tbe employ of tbe defendant for tbe purpose of removing certain batch covers from tbe hatchways of the steamer; tbat tbe defendant negligently permitted tbe deck of tbe steamer to be covered with ice and become slippery and unsafe, and permitted ice to form under the batch cover so as to make it dangerous to remove tbe same; tbat defendant failed to provide proper and usual poles to use in lifting tbe covers; tbat because of such negligence plaintiff was drawn into tbe bold of tbe steamer through tbe hatchway and was injured. Tbe answer put in issue tbe allegations of tbe complaint and set up contributory negligence on tbe part of plaintiff, and further alleged tbat tbe complaint states grounds of negligence not included in tbe notice of injury, namely, tbe allegations concerning batch poles, and that plaintiff is barred from claiming such grounds of negligence by par. 5, see. 4222, Stats. (1898). Upon tbe trial tbe complaint was amended, against tbe defendant’s objections, by adding tbe further ground of negligence tbat tbe defendant negligently failed to provide a sufficient number of men to assist in removing tbe batch covers, and negligently furnished a man of insufficient strength and incompetent to assist in removing the hatch covers. This amendment was ■objected to by defendant’s counsel for the reason that it was not embraced in the notice of injury given and that the time for giving notice had expired before the present action was ■commenced. Motions for nonsuit and directed verdict were made, overruled, and due exceptions taken. The jury returned a special verdict finding negligence of defendant and no negligence on the part of plaintiff and assessing plaintiff’s ■damages at $3,000. Judgment was entered upon the verdict, from which this appeal was taken.</p>

<p> 'Trial: Questions for jury: Intent: Gambling contracts: Delivery: Evidence: Relevancy: Sufficiency. </p> <p>1. Ordinarily in an action at law, and in those cases in which the law does not, from the act in.question, conclusively infer the intent, the question of intention is one of fact for the jury.</p> <p>2. Contracts in form for the sale or purchase of commodities, where neither party intends to deliver or accept the property nominally sold, hut where it is intended hy both parties that the transaction shall he settled hy the payment of the difference in prices according to the rise and fall of the market, are gambling contracts and void.</p> <p>3. In an action on a contract for the sale or purchase of commodities for future delivery, express evidence hy a party that delivery was intended or was not intended may he overborne by inferences from facts and circumstances.</p> <p>4. An intention to “settle by the payment of differences,” “betting on future prices,” or “closing up without delivery by the payment of differences,” is equivalent to and means an intention by one who has sold for future delivery to buy for the same delivery, and to offset the purchase against the sale and receive or pay the difference.</p> <p>5. In an action on a contract for the sale or purchase on the board of trade through brokers of commodities for future delivery, the intention as to actual delivery which is the object of judicial investigation is the intention which existed between both parties to the litigation, and not the intention which might have existed between the two brokers who made the actual contract, although such latter intention is not wholly irrelevant.</p> <p>G. Such intention may be established not merely by the assertions of the parties, but from all the circumstances attending the transaction, and is a question to be determined by the jury, or by the court in trials without a jury.</p> <p>7. In an action for the balance claimed to be owing as the result of transactions had on a board of trade by plaintiffs as brokers for defendant, evidence of the fact that the transactions were board of trade contracts and that defendant had made prior purchases which were closed out, not by deliveries, but by making sales against the purchase before the day of delivery and by offsetting one against the other, is relevant as tending in some degree to indicate an intention that no delivery was contemplated.</p> <p>8. In an action for the balance claimed to be owing as the result of transactions had on a board of trade by plaintiffs as brokers for defendant, the evidence; stated in the opinion, is held sufficient to take the case to the jury on the question of the intention of both parties to the transaction, notwithstanding the direct testimony of plaintiffs of their intention to make actual deliveries.</p> <p>9. In an action involving transactions had on a board of trade by plaintiffs as brokers for defendant, it is held that it was not inconsistent with a gambling intention on the part of the plaintiffs and defendant that transactions on the board of trade may have been perfectly, legitimate as between the brokers, the immediate parties to the transactions.</p>

<p>Appeal from a judgment of tbe circuit court for Milwaukee county: Waekew D. TarraNt, Circuit Judge.</p> <p>This action was commenced January 23, 1904. The original complaint, verified February 18, 1904, alleged in effect, that the defendant is a Wisconsin corporation; that September 10, 1897, the defendant entered into a written contract with the American Copper, Brass & Iron Works, an-Illinois corporation, wherein and whereby that corporation agreed to manufacture, erect, and deliver in the brewhouse-of the defendant “one complete ideal countercurrent wort cooling plant or apparatus,” therein fully described; also-“one steel hop-jack,” therein described; also “one copper false bottom 10 feet wide and 12 feet long with brass frames;” also “85 feet of copper wort pipe;” also “one 12-foot steel beam support weighing 3,500 pounds.” The original complaint further alleged</p> <p>“that for all of the apparatuses and material manufactured,, sold, and delivered by said American Copper, Brass & Iron Works to said defendant, and for tbe work performed in and about tbe erection and completion of said several apparatuses, tbe said defendant agreed to pay to said American Oopper, Brass & Iron Works tbe sum of $2,500 at tbe time of tbe completion of said contract, and further agreed to deliver to said American Oopper, Brass & Iron Works a certain Baudelot cooler and connections, then in their possession, of the value of upward $475, at the same time. This plaintiff further alleges that- said American Copper, Brass & Iron Works did, pursuant to said contract, manufacture, deliver, and erect in tbe brewery of said defendant the aforesaid wort, cooler, steel bop-jack, steel I-beam, copper false bottom, and copper wort pipes, etc., and in every and all respects fully completed and performed all things required by it to be done under and by virtue of said contract; that said apparatuses and material were delivered and said work was completed on or about 12th day of March, A. D. 1898. This plaintiff further alleges that although said American Copper, Brass & Iron Works delivered all of the apparatuses and material, and performed all things required by reason of said contract, yet nevertheless the defendant refused and neglected to pay to said American Oopper, Brass & Iron Works the whole or any part of the contract price, to wit, $2,500, and also failed and neglected to deliver to said American Copper, Brass .& Iron Works the Baudelot cooler and connections, of the value of upward $475, as required by its said contract; that by reason of the premises there became due and owing from said defendant, the A. Getielman Brewing Company, to said American Copper, Brass & Iron Works, the sum of $2,975, together with interest thereon from March 12, 1898, no part of which has ever been paid.”</p> <p>The original complaint further alleged, in effect, that July 2, 1902, the American Copper, Brass & Iron Works was adjudged an involuntary bankrupt; that April 1, 1903, William T. Eenton was appointed trustee in bankruptcy thereof; that November 9, 1903, the said trustee in bankruptcy, pursuant to an order in bankruptcy, sold and assigned said claim of said bankrupt to one George II. Mein-shausen, who November 10, 1903, sold and assigned said claim to this plaintiff as the owner and holder thereof, and demanded judgment therein for $2,975, with interest thereon from March 12, 1898, with costs and disbursements.</p> <p>On March 7, 1904, the defendant answered such original complaint by way of admissions, denials, and counter allegations to the effect that the things so contracted for were to be all completed for the sum of $2,500 and the delivery of the defendant’s Baudelot cooler mentioned; that the cooling apparatus so furnished did not work perfectly; that the entire apparatus was to be so furnished, delivered, and sold to the defendant on sixty days’ approval, and, if the same failed to do its work properly, the same should be removed at the expense of said manufacturer; that all the work, labor, machinery, apparatus, and materials specified or referred to in said complaint were included in and to be furnished under such contract or agreement, and not otherwise; that the wort cooler, steel hop-jack, steel I-beam, copper false bottom, and copper wort pipes, etc., did not conform with the agreement or contract, in that the same did not work perfectly; that within sixty days after the erection and delivery of what was represented to be the things contracted for, the defendant disapproved of and rejected the same, for the reason that they did not conform to the agreement or contract, did not work perfectly, and within the time the defendant informed and notified the American Copper, Brass & Iron Works of such disapproval and rejection, and directed it to take away and remove the same from the defendant’s premises.</p> <p>Upon the trial of the action, and on December 17, 1906, the plaintiff, by leave of the court, filed an amended complaint verified December 12, 1906, by changing it from a complaint upon express contract to one on quantum meruit, and annexed the written contract thereto as a part thereof, which declares that all the things therein mentioned should be so furnished all complete for the sum of $2,500 and the Baudelot cooler mentioned, and contained these agreements:</p> <p>.“It is further agreed and understood that this cooling apparatus shall do its work perfectly. A hop-straining and aerating apparatus shall also be furnished in connection with the same, all included in the purchase price. This cooling apparatus is sold oh sixty days’ trial. Should the same fail to do its work properly, the same shall be removed at the expense of the manufacturer.”</p> <p>. Such amended complaint alleges that said cooling apparatus was reasonably worth $1,600, and that all the rest and residue of the apparatus, goods described in the contract, and the work necessarily performed under the contract at the defendant’s instance and request were reasonably worth $1,375, and alleged a reasonable value of the respective parts thereof. The defendant’s objection to the allowance of such amendment- being overruled by the court, to which the defendant excepted, thereupon the trial court stated that “the original answer to the original complaint may be permitted to stand, and, in addition thereto, the defendant alleges as follows, as and for a further defense to the action: That the cause of action set forth in the plaintiff’s amended complaint accrued, if at all, more than six years prior to the commencement of this action, and is barred by subd. 3, sec. 4222, Stats. (1898).”</p> <p>At the close of the trial of the issues made by such amended complaint and the original answer as so amended, the jury returned a special verdict to the effect (1) that the last date of performance of the so-called extra work and labor was March 24, 1898; (2) that the reasonable value of the so-called extra work and labor at such date was $98; (3) that it was understood that the so-called extra work and labor was to be included in the original contract between the parties; .(4) that the defendant accepted the so-called hop-jack and accompanying appliances; (5) that the defendant on or about April 1, 1898,. notified the American Copper, Brass & Iron Works to remove the hop-jack and accompanying appliances; (6) that the reasonable value of the hop-jack and accompanying appliances on December 1, 1897, was $1,278. Upon such verdict, and pursuant to the order of the court, judgment was entered in favor of the plaintiff and against the defendant for $1,218, and interest thereon from December 17, 1906. From the judgment so entei’ed the defendant appeals.</p>

<p> Appeal and error: Review: Questions of fact: Findings, when disturbed. </p> <p>1. A clear preponderance of evidence against a finding of the trial court is a preponderance so decided as to leave but little room for reasonable doubt upon the question.</p> <p>2. In an action to enforce a mechanic’s lien, upon all the evidence in the record bearing upon the controversy in question it is held that there was not such a clear preponderance thereof against the trial court’s decision as to warrant a reversal.</p>

A-ppv.at, from a judgment of the circuit court for Milwaukee county: ObREU T. Williams, Circuit Judge. Action to foreclose mechanic’s lieu for work in painting defendant’s house. Plaintiff entered into a contract to paint the outside of defendant’s house for $87, to do a first-class jok, including the removal of the old paint where necessary to accomplish the result.

Halsey, Circuit Judge. Plaintiff is an Ohio corporation engaged in the manufacture of glass bottles. The defendant Alipeter was a manufacturer of soda water and weiss beer in Milwaukee, and some time before July 28, 1896, ordered from plaintiff “one hundred gross \ pint soda bottles” and other bottles, to be delivered at Milwaukee. The bottles were shipped to Milwaukee, but the plaintiff refused to deliver them before payment.

Williams, Circuit Judge. The respondent filed his claim against the estate of Elizabeth Ilappel-Bossi on account of services alleged to have been performed for tlie deceased between April, 1896, and April, 1901, at ber special instance and request, in managing certain properties belonging to ber, and setting forth that tbe services were reasonably worth $3,900, and that no part bad been paid except tbe sum of $30 received April 3, 1901, and that there was due and owing from…

<p> Appeal and, error: Appeal from order: Sufficiency of certification of records: Homestead: Exemption from execution: Alimony: Judgment in divorce action: Liens: Enforcement on homestead of husband: “Any real estate of the party liable:” Rights of execution purchaser: Writ of assistance. </p> <p>1. An order allowing a writ of assistance recited that it came om to he heard upon the petition of plaintiff, the filing of an affidavit of prejudice, the calling in of another judge, the appearance of the parties, the filing of a reply to the petition, and an answer to such reply, hut did not refer to any other papers nor specifically recite that the order for the writ was made upon, the several papers described. The certificate of the clerk, attached to the record, was to the effect that the annexed papers, were the original notice of appeal and undertaking, the original order mentioned in the notice of appeal, and all the original papers used by each party on the application for the order appealed from. On the hearing of the motion for the writ reference was made in the affidavits used to all the records, files, and proceedings 'in a divorce action between the parties, and proceedings to enforce the judgment in that action, but none of these were recited in the order appealed from nor transmitted with the appeal papers.' No motion was made to dismiss the-appeal for informality. Held, that the order appealed from and the certification to the supreme court were not so informal as to require that court to dismiss the appeal on its own motion for lack of jurisdiction.</p> <p>2. Sec. 2983, Stats. (1898), exempts a homestead from seizure or sale on execution, from the lien of every judgment, and from liability in any form for the debts of the owner, “except as-otherwise provided in these statutes,” and sec. 2367 provides in . actions for divorce, where alimony or other allowance is made for wife or children, that the court “may impose the same as a charge upon any specific real estate of the party liable.” Held, that the phrase “any real estate of the party liable” includes a homestead.</p> <p>3. Where, in an action by the wife for divorce, the court adjudged that the husband pay a certain sum to the wife “as a just and equitable share of their property both real and personal,” such sum may lawfully be charged as a lien upon real estate Constituting the homestead of the husband, to he enforced in such manner as the court shall direct.</p> <p>4. In such case the court’s action in ordering the issue of a general execution to enforce such judgment was proper, did not release the specific lien decreed by the judgment, and a sale thereunder was valid.</p> <p>•'5. The purchaser at such execution sale haying applied for a writ of assistance, and the husband having shown no legal cause against the granting of the writ, the writ was properly granted.</p>

Tarrant, Circuit Judge. This action was commenced January 25, 1905, to recover damages for failure to procure insurance on a building in process of erection as agreed.

TaeeaNt, Circuit Judge. Tbis is an action brought by Durbin June 15, 1903, upon a promissory note for $1,300 alleged to have been executed by the defendant April 7, 1900, payable three years after date to the order of Henry Herman, and transferred by him to the plaintiff December 12, 1901. The defendant by answer specifically denied that he ever executed the note in suit.

Halsey, Circuit Judge. Appeal from a judgment allowing a claim against the' estate of Margaret Hanlin. The facts of the case are these: B. Bruce Douglas is the-owner of lot 14, block 223, Cambridge’s subdivision Ho. 2, in the Eighteenth ward of the city of Milwaukee, Wisconsin. He obtained his title by deed with full covenants from Mary Jane Hayes and Thomas E. Hayes, her husband, September-3, 1898, the deed being duly recorded September 6, 1898.

G. Ludwig, Circuit Judge. Appeal by plaintiff from order sustaining general demurrer to tbe complaint, which alleges that plaintiff and testator were married December 16, 1894, and lived as husband and wife until about October 1, 1895, when, having had difficulties, they entered into articles of voluntary separation, whereby $1,500 was paid by testator to the plaintiff and agreed to be in complete satisfaction of any claims by way of alimony or interest in his property,…

<p> Appeal and, error: Decisions reviewable: Appealable orders: Discovery: Examination before trial: Second examination: “Former employee:” Constitutional law: Equal protection of law: Remedies: Witnesses. </p> <p>1. Orders — one requiring a witness subpoenaed under sec. 4096, Stats. (1898), to answer the questions put to him and to submit to examination, the other refusing to stay and restrain the taking of the depositions of witnesses under such section, are held to come within subd. 3, sec. 3069, Stats. (1898), continuing a provisional remedy, and appealable.</p> <p>2. Under sec. 4096, Stats.'(1898), as amended by ch. 244, Raws of 1901, providing for the “examination of the party, his or its . . . employee, or, in case a private corporation be a party, in addition to the foregoing, the examination of . . . the person who was such . . . employee at the time of the occurrence of the facts made the subject of the examination,” the former employee specified is a former employee of a corporation and not of an individual.</p> <p>■ 3. Where by statute a person, natural or artificial, is denied an equal remedy in the law or equal protection in the courts, such statute is void, unless it comes under the circumstances of proper classification, which must be reasonable and based on rules which bear a just relation to the act in respect to which the classification is made.</p> <p>4. In so far as sec. 4096, Stats. (1898), allows the examination of the former employee in the case of a corporation, but denies such right in the case of an individual, it presents no such differences in the situation and circumstances between the classes as to suggest propriety of the discrimination, and is in, violation of the fourteenth amendment of the United States, constitution and sec. 1, art. I, of the state constitution.</p> <p>5. Sec. 4096, Stats. (1898), contemplates primarily but one examination of a party after issue joined unless upon leave of the court, granted upon notice and cause shown.</p> <p>6. In proceedings under sec. 4096, Stats. (1898), the right of a party (a corporation) to appeal from orders requiring its employee to submit to examination, and refusing to restrain the taking of the deposition, is not affected by the right of the moving party to take such deposition under sec. 4101, Stats. (1898)— providing for taking depositions where the witness lives more than thirty miles from the place of trial, — since the proceeding is not to take the deposition of the employee as a witness, but to examine him under sec. 4096.</p>

<p> 'Wills: Construction of residuary clause: Residue, how ascertainedi Indebtedness to testator: “Charge” on legacy: Appeal and error: Errors considered. </p> <p>1. Testator by tbe clause of bis will disposing of tbe residue of bis estate provided that sucb residue “be divided into three parts; one thereof” to M. R. and A. E. M., “sucb one part to be divided as follows: M. R. two thirds of said part and A. E. M. one third of said part . . . ; one of said three parts to M. M.;” “one part to C. D. . . . to W. C. B. one part.” Meld, that there was no uncertainty, ambiguity, or contradiction in the provisions of the will, and that the testator’s Intention, as disclosed by the words of the will itself, was to dispose of the residue of his estate by giving two ninths to M. It., one ninth to A. E. M., one third to M. M., one sixth to C. D., and one sixth to W. C. B.</p> <p>2. The will further made certain indebtedness of G. B. to the testator a “charge” upon the bequest to W. C. B. Held, for the purpose of division among the beneficiaries that the indebtedness of C. B. should be considered part of the residuum of the estate.</p> <p>3. In such case it was held that the testator used the word “charge” as affecting the bequest to W. C. B. in the sense of debiting such indebtedness against the one sixth of the residue bequeathed to W. C. B. for the purpose of malting up such one sixth, and -the executor was directed to assign and transfer the same to W. C. B.</p> <p>4. On appeal from a Judgment construing a will, error assigned, that the judgment permitted the executor to make application to the court for allowance for his disbursements and counsel fees to be paid out of the estate, cannot be considered, since it is not in the nature of a final determination of the lower court.</p>

<p>Appeal from a judgment of tbe circuit court for Winnebago county: Geo. W. BubNell, Circuit Judge.</p> <p>Tbis action was commenced March 5, 1897, to recover $380.83 overdrafts made by tbe Goldberg Live Stock Company, L. D. Goldberg as manager, between April 13, 1896, and June 1, 1896, and interest thereon from said last-named date, and tbe complaint seeks to bold tbe appellant, Matilda Goldberg, liable therefor by reason, as alleged, that March 10, 1896, she authorized tbe plaintiff in writing to let said L. D. Goldberg make overdrafts on tbe plaintiff’s bank on her account under tbe name of tbe Goldberg Live Stock Company to tbe amount of $800. Matilda Goldberg bad refused to pay any part thereof. Said defendant answered and admitted that she delivered to tbe plaintiff a contract of guaranty in writing dated March 10, 1896, and therein authorized tbe plaintiff to let her son, L. D. Goldberg, make-overdrafts on said bank not to exceed $800, but alleged that tbe same was without consideration and that there was no-acceptance thereof by tbe plaintiff nor notice thereof to the defendant, and no notice to her of any alleged advances made-under such contract, and the defendant alleges and insists that said contract was and is wholly void; that at the time of the delivery of said contract of guaranty to the plaintiff tbe account of said L. D. Goldberg at said bank was overdrawn in the sum of $500,- and alleges that neither L. D.. Goldberg nor said company was indebted to tbe plaintiff at the time of tbe commencement of tbis action, and that if' they were the same bad been fully paid and discharged prior to tbe commencement of tbis action.</p> <p>A jury trial having been, waived, the cause was tried by the court, and after the close of the trial the court found as matters of fact, in effect, that the plaintiff now is, and ever since January 1, 1896, has been, a banking corporation located at Paola, Kansas; that the said company was doing business in Kansas buying live stock on and for a long time prior to March 10, 1896, and continued such business up to and including June 1, 1896; that the said L. D. Goldberg was, during all of said times, the agent and manager of said company, and did business with the plaintiff at such bank; that prior to March 10, 1896, the plaintiff advanced moneys to that company for the purchase of live stock and carrying on its business, taking as security therefor bills of lading of each shipment with a draft on the consignee attached in favor of the plaintiff; that shortly prior to March 10, 1896, the plaintiff refused to extend further credit by way of such advancements; that March 10, 1896, the defendant wrote to the plaintiff a letter, which was received by the plaintiff March 13, 1896, of which the following is a copy:</p> <p>“Marion, Wis., March 10, 1896.</p> <p>"Miami County National Bank, Paola, Kansas:</p> <p>“Gentlemen: Tou kindly let L. D. Goldberg, my son, manager for the Goldberg Live Stock Company, make overdrafts in your bank to the amount of $800 to buy live stock with. He has no doubt explained to you that he has always to wait for returns on stock which is all right. Hope you will accommodate him and also me. I remain,</p> <p>“Kespectfully yours,</p> <p>“Matilda Goedbebg, Prop.</p> <p>“L. B. Goldberg, Manager.”</p> <p>That upon the receipt of that letter and relying thereon, and from time to time as requested by said agent and manager of said company, the plaintiff permitted said agent and company to make overdrafts on account of said company at said bank and paid out and advanced to that company in such overdrafts from time to time various sums of money to be 1186(1 in said business in tbe purchase of live stock, and that at tbe time of tbe commencement of tbis action there was due and unpaid to tbe plaintiff from tbe defendant on account of sucb overdrafts and advancements $380.83, which tbe defendant refused to pay, though duly demanded.</p> <p>As conclusions of law tbe court found, in effect, that tbe plaintiff was entitled to recover from the defendant $380.83, with interest thereon from June 1, 1896, and costs. Erom tbe judgment entered thereon for tbe amount stated, with interest and costs, tbe defendant appeals.</p>

D. Cleveland, Jndge. This is an action to recover a balance of $169 alleged to be dne on tbe purchase price of 425 yards of crushed stone at fifty-eight cents per cubic yard. The defendants counterclaimed for an alleged breach of the contract under which the stone was sold. It appeared that the plaintiff owned a stone quarry and the defendants were building contractors.

<p>Appeal from a judgment of tbe circuit court for Winnebago county: Geo. W. BueNell, Circuit Judge.</p> <p>Action to recover for alleged violations of plaintiff’s rights under sees. 1810 and 1813, Stats. (1898).</p> <p>The statutes referred to, at the time of the wrong complained of, required every railroad corporation operating a railroad in this state to construct and maintain suitable and ■convenient farm crossings of the road for the use of the occupants of the adjoining lands, and provided that “whenever any railroad corporation shall operate a railroad over or through inclosed lands and shall fail to construct the . . . farm crossings . . . required . . . proper for the use of such lands, the owner or occupant thereof may give notice in writing signed by him to such corporation, to be served as a summons in a court of record is required to be served •on such corporation, to . . . construct the necessary farm •crossings . . . and if such company, after being so notified, shall neglect for three months so to construct such . . . farm crossings ... it shall be liable to pay to such owner •or occupant ten dollars -for each and every locomotive that may thereafter pass through such lands until so constructed. . . .”•</p> <p>Plaintiff alleged and proved ownership and occupancy by him of certain land specified, satisfying as to defendant the ■calls of the statute entitling him to a farm crossing and to the benefit of the penalty feature of the, statute to vindicate such right in case of its having been violated, if such lands were inclosed, within the meaning of the statute. The complaint stated all facts requisite to a recovery for 2,102 violations of such right, upon the hypothesis that each time a locomotive passed over the land constituted a distinct violation giving rise to a cause of action to recover $10. There was a controversy on the evidence as to whether the notice to set the time running within which the corporation was required to construct the crossing was properly served. It was not controverted but that after the alleged service the statutory period for building the crossing expired, and that thereafter between the 2d day of April, 1905, and the commencement of this action, if plaintiff’s evidence was competent to prove the facts, there were 2,102 instances of the defendant operating a locomotive over and through the land. There was a further controversy on the evidence as to whether plaintiff’s land was inclosed, within the meaning of the statute. The evidence on that subject was to this effect: The tract consisted of eighty acres; eighty rods wide north and south and ICO rods wide east and west. The right of way was a strip of land of the usual width, commencing about the center of the tract on the south side and running in a northwesterly direction through it. The west side of the east portion of the tract was bounded by the right-of-way fence. It was bounded on the north by Mr. Deacy’s fence, there being a line fence running east from the right-of-way fence about one half of the distance to the northeast corner of the tract. Eor the balance of the distance there was an old brash fence, down in places, or practically so, enabling cattle to readily pass from such land to Mr. Deacy’s premises. There was no fence on the east boundary of the land. There was a fence substantially on the south side thereof running east from the right-of-way fence to a creek about ten or fifteen rods east of the southeast corner of the tract. The course of the creek was northwesterly to and beyond the northeasterly corner of such tract. The strip of land between the creek and the east boundary of plaintiff’s premises belonged to Mr. Knaup. It was low and marshy, yet cattle could pass over the same from plaintiff’s land to the creek, but that formed a substantial barrier to their going further. At the close of the evidence the court directed a verdict in favor of the defendant upon the ground that it appeared conclusively that plaintiff’s land was not inclosed, within the meaning of the statute. Judgment was rendered accordingly, from which this appeal was taken.</p>

<p>■ Appear from an order of the circuit court for Winnebago ■county: Geo. W. Bubhell, Circuit Judge.</p> <p>On October 10, 1906, plaintiff procured to be entered up and signed by the county judge judgment on cognovit in -circuit court for Winnebago county upon two certain judgment notes due December 1, 1906, each embodying a warrant •of attorney to confess judgment at any time whether the note be due or is to become due at that time, also to release all errors and consent to the immediate issuing of the execution. 'The judgment was in the usual form for an indebtedness already due, and contained no suggestion that any part was mot so due or as to when it would become due. On February 12, 1907, defendant procured order to show cause why the judgment should not be set aside, accompanied by his affidavit showing good defense, and that he had no knowledge of its ■entry .until long thereafter, whereupon he immediately eon-suited attorney and took steps to prepare defense and to pre.sent the motion. The court ordered the judgment set aside without costs to either party, from which order the plaintiff .appeals.</p>

<p> Infants: Contracts: Mobility: Guaranty: Failure to express consideration: Statute of frauds: Foreign corporations: Conditions precedent to transaction of business. </p> <p>1. Where an infant had contracted in writing for a course of instruction with plaintiff, but had concluded not to take the course and had turned over to the representative of plaintiff the books, papers, and appliances he had received, the plaintiff has no claim against the infant, because nothing had been received by him upon which an implied liability could be based.</p> <p>2. An infant contracted in writing with a correspondence school for a course of instruction, made a first payment thereon, and received an outfit of books and other matter, but subsequently rescinded the contract and returned the outfit. Attached to the contract was a writing signed by the infant’s father: “I hereby guarantee the payment of the price of the scholarship taken.” Held, that the father’s agreement was one whereby he undertook to answer for the debt or default of his son, and came within that provision of the statute of frauds declaring such agreements void if they fail to express the consideration.</p> <p>[3. Whether plaintiff, a foreign corporation, could enforce its contract, in view of the provisions of sec. 17706, Stats. (1898), not decided.]</p>

<p> Electricity: Negligence: Personal injuries: Special verdict: Duplicity: Instructions to jury: Evidence: Admissibility. </p> <p>1. Plaintiff, while working on the roof of a building, was injured by a current of electricity from defendant’s wires, one of which, a neutral wire not carrying a heavy charge, was located eleven inches, and the other, a phase wire carrying 2,300 volts, thirty-five inches, outside the edge of the roof. When plaintiff was found, one hand was clasping the neutral wire and the other the phase wire, both hands being badly burned. Plaintiffs testimony was to the effect that he was injured by contact with the neutral wire, and that he could not have brought his hand in contact with the phase wire in the first instance, while the . defendant’s evidence was that the neutral wire could not have caused the injury. Held, that it was error to submit the case to the jury by a special verdict and' instructions in such manner that the jury were at liberty to refer plaintiff’s injuries to contact with either wire.</p> <p>2. Where the insulation on a high potential electric wire carrying an alternating current, with which plaintiff came in contact and was injured, was not intended for the protection of persons coming in contact with such wire, but merely to preserve and protect the wire, it is error to permit the jury to find that the insulation on such wire was so old, weatherworn, broken, and out of repair as to afford no protection against the electric current thereon to a person coming in contact therewith.</p> <p>3. In such case defendant should have been permitted to show what kind of wire and insulation was in common use in similar alternating current systems.</p> <p>4. Where plaintiff was injured by contact with electric wires, evidence as to the correctness of a witness’s report of the manner in which defendant’s plant was operated on the day tests were made is admissible.</p>

<p>Appeal from a judgment of tbe circuit court for Price county: Jorra K. Pakisji, Circuit Judge.</p> <p>At tbe annual meeting of tbe county board of Price county beginning on November 13, 1906, tbat body received certain petitions in favor of and against changing tbe boundaries of certain towns in tbe county. On November 19, 1906, tbe county board passed two ordinances making tbe following changes in tbe territory of the towns named therein: Ordinance No. 385 was adopted by a vote of twelve for to seven against. It detached certain territory from tbe town of Ogema and attached this territory to tbe town of Catawba, and determined tbat the town of Catawba should receive ld^/o' of tbe credits of tbe town of Ogema. Ordinance .386 was adopted by a vote of fifteen for to four against. It detached certain territory from tbe town of Ogema and attached it to the town of Kennan, and determined tbat the town of Kennan should receive 19-,^%- of tbe credits of tbe town of Ogema. Provision was made in both of the ordinances for their publication and tbe notification of tbe clerks of tbe various towns affected. A petition for a writ of certiorari for a review of the action of the county board in passing these two ordinances was presented to the circuit court for Price county and the writ was is.sued. The petition alleged that the ordinances were void and invalid because no vote had been taken of the electors of ■any of the towns or any parts of the towns affected by the ordinances as to whether such action should be taken by the ■county board, because the ordinances were not passed by the affirmative vote of all the members of the county board, and because of the unconstitutionality and invalidity of subd. 1 of see. 670, Stats. (3 898), under which the county board was proceeding. On May 21, 1907, judgment was rendered 'by the court affirming the action of the county board' and awarding costs against the relators. This is an appeal from ■such judgment.</p>

<p>ERROR to review a judgment of the municipal court of Milwaukee county: A. J". Vinje, Circuit Judge, sitting for A. 0. Brazee, Judge.</p> <p>They contended, inter alia, that under sec. 2533ar Stats-. (1898), and ch. 90, Laws of 1903, the participation of the clerk of the court in the deliberations of the jury commission selecting the names of persons to serve as grand jurors was a violation of tbe spirit and letter of the statutes. State v. Newhouse, 29 La. Ann. 824; State v. Taylor, 43 La. Ann. 1131; Barton ¶. State, 12 Neb. 260; Glare v. State, 30 Md. 163; Avirett v. State, 76 Md. 510; State v. Glough, 49 Me. 573; State v. Flemming, 66 Me. 142; Gott v. Brigham, 45 Mich. 424; Fornia v. Wayne Circuit Judge, 140 Mich. 631; Gomm. v. Freeman, 166 Pa. St. 332; Brown v. Comm. 73 Pa. St. 321; McQannv. Hamilton, 58 Conn. 69; Steele v. State, 111 Ala. 32; Wells v. State, 94 Ala. 1; State v. McNamara, 3 Nev. 70. It not being charged that the county owned the real estate, land, or site, the indictment failed to allege the pendency of any question or matter over which the county board had jurisdiction, and consequently any offer or promise of money, or other thing of value, to a supervisor to influence his action in relation to the matter of selling the real estate described in the indictment, then pending, would not constitute bribery. Murphy v. State, 124 Wis. 635; Gunning v. People, 189 Ill. 165; State v. Butler, 178 Mo. 272; People v. Jackson, 95 N.'Y. Supp. 286. The repeated attempts of the district attorney, contrary to the repeated rulings of the court, to introduce incompetent, irrelevant, and improper testimony were highly prejudicial to the defendant and deprived him of the right of a fair and impartial trial upon the offense charged against him. Barton v. Bruley, 119 Wis. 326, 329 ; McNamara v. McNamara, 108 Wis. 613; Goodwin v. State, 114 Wis. 318, 323; Speliopoulos v. Schick, 129 Wis. 556, 561; Hughes v. O., St. P., M. & O. B. Co. 122 Wis. 258, 271; Sullivan v. Collins, 107 AYis. 291, 295 — 299; Schillinger v. Verona, 88 Wis. 317, 323; Brown v. Siuineford, 44 Wis. 282, 292; Buel v. State, 104 Wis. 132, 145. The admission of testimony as to defendant’s reputation for being a lobbyist and corruptionist was error, the state being confined strictly to rebuttal testimony, and its inquiry should have been limited strictly to the question, of meeting defendant’s testimony as to his general reputation for honesty and integrity. State v. Vis-coma, 78 Yt. 485, 63 Atl. 877; Brown v. Siate, 46 Ala. 175, 184; Lea v. State, 94 Term. 495; Griffith v. Slate, 90 Ala. 583, 589.</p>

Eeeoe to review a judgment of tbe circuit court for MiU waukee county: J. 0. Ludwig, Circuit Judge. The judgment in question is one refusing to discharge the plaintiff, in error in habeas corpus proceedings.

<p>Furor, to review a judgment of tbe municipal court of Milwaukee county: A. 0. Beazee, Judge.</p> <p>Tbe plaintiff in error, hereinafter called tbe defendant, on March 11, 1907, sold to tbe prosecuting witnesses a tin box containing within what were marked and called “Between tbe Acts Little Cigars,” each a cylindrical roll of tobacco about two and three-fourths inches long by one-third of an inch in diameter, the exterior consisting of a section of wrapper leaf tobacco and the interior of cigar leaf tobacco, partly Wisconsin, partly New York and Pennsylvania, and partly Cuban, said leaves being cut in long strips, the length of the roll, for purposes of blending. The state rested irpon proof of the sale and introduction of the articles themselves. The defense proved, without dispute, that the material was the same as that used generally in cigars and differed radically from the kinds of tobacco used in the ordinary paper-bound cigarette; that they were manufactured in cigar factories as distinct from cigarette factories, it being necessary to separate such manufacture in order to prevent mingling of odors of the different kinds of tobacco to the detriment of both products. It was further proved that what are commonly known as cigars of all sizes are made sometimes of unbroken leaves, sometimes of scraps, and sometimes of ground and broken up tobacco; that they are made sometimes with one end closed to a point, and at other times cylindrical, with both ends open; that the article in question is made in the same manner as cigars, the wrapper leaf for each being cut separately, moistened, and rolled around the filler, while paper-bound cigarettes are ordinarily made by filling long cylinders of paper with tobacco and cutting them to the proper length; that cigarettes are made of mild and lighter color tobaccos, such as Turkish, bright Virginia, and North Carolina, and that they are made indiscriminately of granulated, ground, or long-cut shreds tobacco; that they are never made of Cuban, Wisconsin, Pennsylvania, or Connecticut tobacco ; that many paper-bound cigarettes are as large as large-size cigars and many of them cost more than such large cigars ; that the commodity in question has the distinctive odor and taste of a cigar, and wholly lacks such distinctive characteristics of cigarettes, significant among which are the flavor of the kind of tobacco used and of the paper wrapper consumed with such tobacco. Further, the defendant offered evidence, received by the court over objection, from a number of people intimately connected with the business of dealing in cigars and cigarettes, who testified that neither in the trade nor in the use of the terms by the public would the term “cigarettes” be understood as including an article made entirely of tobacco, especially tobacco of the kind used in the article sold by defendant. It appeared that small cigars of the general type of the article in question had been in well-known use continuously since 1891 or earlier. They all agreed that the recognized distinction between cigars and cigarettes in the trade and by the public was the tobacco wrapper as distinguished from paper or some equivalent and the different character of tobacco used in the manufacture; that for the making of cigars seed leaf tobacco is needed, which must go through a sweating process for approximately a couple of years and be otherwise carefully treated to eliminate some of the objectionable elements, while cigarette tobacco is used as it comes, thrown into the machine, and cut or ground up. A jury being waived, the trial court found the defendant guilty as charged in the complaint and duly sentenced him; to all of which rulings due exception was reserved, as also to the overruling of a motion for new trial, and to review such judgment the defendant sued out this writ of error.</p>

<p> Railroads: Depot grounds: Duty to friends of passenger: Court and jury: Negligence: Personal injuries: Contributory negligence: Special verdict: Exception to submission of questions: Indefiniteness: Sufficiency: Materiality: Instructions to jury: “General instructions:” Requested instructions: Appeal and error: Prejudicial error: Evidence: Admissibility: Competency: Harmless error: Trial: Reception of evidence: Correction of testimony: Excessive damages. </p> <p>1. A person coming upon tlie platform or depot grounds of a railroad company for the purpose of taking leave of a friend who is a passenger, or in good faith about to become a passenger, on its train, sustains toward the company the legal relation of a person upon its grounds by its invitation, to whom the company owes the duty of ordinary care.</p> <p>2. The extent of such duty is to keep in a safe condition all portions of its platforms and approaches thereto, to which the public do or would naturally resort, as well as all portions of their station grounds reasonably near to the platforms, where passengers, or those who have purchased tickets with a view to take passage on its cars, as well as their friends, would naturally or ordinarily be likely to go.</p> <p>3. Where plaintiff, accompanying a friend who was about to take passage on defendant’s train, in passing from the street to the depot stepped off the edge of the platform, crossed a grass plot on the depot grounds in going from one portion of the platform to another, and tripped over a wire there maintained by the defendant, it cannot be said as matter of law that such act was a trespass which relieved the defendant from all duty towards the plaintiff.</p> <p>4. In such case the questions whether the place of injury was reasonably near the defendant’s platforms, and whether one would naturally or ordinarily be likely to go in such place, are in most cases questions of fact for the jury.</p> <p>5. In an action against a railroad company for injuries sustained by plaintiff while walking on a grass plot adjacent to its depot platform, in being tripped by wires maintained by it and stretched on the line between the grass plot and its platform, the evidence, stated in the opinion, is held to support a verdict that defendant was negligent in maintaining such wires where and in the manner it did, and that plaintiff was not guilty of contributory negligence.</p> <p>C. Exception to the submission of a question of a special verdict calling for an answer as to whether plaintiff was injured upon defendant’s “depot grounds,” for the reasons that such question calls for a conclusion of law instead of facts, as being indefinite and uncertain, and as not covering the issues raised by the pleadings and testimony relative to plaintiff’s injuries, is too general to raise the question whether or not the words “depot grounds” were the most appropriate to be used in the question.</p> <p>7. In submitting a special verdict one question was: “Did the plaintiff sustain the injuries complained of upon defendant’s depot grounds by reason of being tripped by wires located and maintained by the defendant between the depot platform and the lawn to the north at the time and place alleged in the complaint?” and in reference thereto the court instructed the jury: “Observe that question simply calls upon you to answer whether or not this woman was injured at the time and place alleged. If you believe her testimony you will answer ‘Yes.’ ” The plaintiff’s testimony as to the manner of the injury was not contradicted. HelH, that the designation of the place of injury as “depot grounds” was only matter of identification or description generally of the place where the injury occurred and not a finding that the lawn was part of the depot grounds.</p> <p>8. In a sentence of instructions to the jury: “The plaintiff testifies that she went to the depot at that time for the purpose of seeing a friend off. . . . Now, if you believe that testimony, then the court instructs you as a matter of law that she was lawfully there,” given in reference to a question using the words “railroad premises,” the words “lawfully there” are held not to refer to a grass plot adjacent to the depot platform where plaintiff was injured, but that plaintiff was lawfully at the depot for the purpose of seeing her friend off on a train.</p> <p>9. In an action against a railroad company for injury caused by tripping over wires maintained between its platform and a grass plot adjacent thereto, questions of a special verdict inquiring whether the wires were in such condition as to be dangerous to persons having occasion to use the platform at night; whether such condition had existed for such a length of time that the defendant in the exercise of ordinary care and prudence ought to have known of and remedied such condition; whether defendant was guilty of want of ordinary care and prudence in locating and maintaining the wires in the position they were in at the time the plaintiff was injured; and whether the defendant was guilty of a want of ordinary care and prudence in not maintaining sufficient light in the place where such wires were strung, are material as bearing upon the negligence of defendant.</p> <p>10. It may be negligence to leave wires stretched across a dimly-lighted place, where persons lawfully using a railroad company’s platform might ordinarily or naturally be expected to go, where there would be no such negligence, or at least no such manifest negligence, in maintaining these wires in a well-lighted place.</p> <p>11. In an action for personal injuries, instructions following a definition of proximate cause, stated in the opinion, are held not open to the criticism that thereby the court informed the jury that the defendant was guilty of want of ordinary care.</p> <p>12. It is prejudicial error for the trial court by instruction to inform the jury expressly or by necessary implication of the effect of an answer or answers to a question or questions of the special verdict upon the ultimate right of either party litigant to recover or upon the ultimate liability of either party litigant.</p> <p>13. By the term “general instructions” is meant such instructions as are appropriate only to a general verdict, and which also inform the jury of the effect of their answers upon the final result.</p> <p>14. The giving to the jury of general rules of law appropriate to the particular question of the special verdict in connection with which such rules are given is not error.</p> <p>15. A charge otherwise proper is not erroneous merely because an intelligent juror might he able to infer therefrom the effect upon the final result of his answers to the special questions.</p> <p>16. All parts of the charge hearing upon a particular question of the special verdict, whether given by the court of its own motion or at the request of either party, should be given together in connection with the submission of that question to the jury, and the failure so to do will be considered error when it appears to the appellate court that the jury were misled thereby, but not otherwise.</p> <p>17. Requested instructions to the jury, stated in the opinion, are held appropriate, respectively, to questions of the special verdict submitted, and not such as informed the jury of the effect of their answers upon the final result.</p> <p>18. Failure to give portions of requested instructions, stated in the opinion, in connection with the remainder of the charge relating to special questions, or to designate expressly such questions therein, while irregular, is held not such a departure from correct practice as to mislead the jury.</p> <p>19. While it would have been proper to refuse several requested instructions, stated in the opinion, because they did not expressly designate the particular question of the special verdict to which they were directed, yet having been given, and each being appropriate to a particular question of the special verdict, in the absence of objection taken at the time, no sufficient ground for reversal is shown.</p> <p>20. In an action against a railroad company for injuries sustained by plaintiff while walking on a grass plot adjacent to its depot platform, in being tripped by wires maintained by it and stretched on the line between the grass plot and its platform, the use of the words “depot grounds” in a question addressed to a witness to identify the place of the injury is not prejudicial error.</p> <p>21. In such case evidence on the part of the plaintiff that there were at times four trucks on the platform, although there was at the time of plaintiff’s injury but one, is held competent as bearing upon the negligence of the defendant.</p> <p>22. In sucli case permitting a witness to testify that the wires were probably down more times than they were up, if error at all, was harmless.</p> <p>23. A party haying permitted a question and answer without objection cannot properly object to the correction of the answer.</p> <p>24. The evidence as to the injuries of an unmarried woman, aged twenty-five years, tended to show that her right arm was so seriously disabled as to make it impossible for her to dress without assistance and to disable her from work of any kind, and there seemed to be anchylosis of the elbow joint, the attending physician testifying that in his opinion that condition would continue and the disability remain permanent. Held, that it could not be said under such circumstances that a verdict of $4,750 was the result of passion, prejudice, or ignorance.</p>

<p>Appeal from a judgment of tbe circuit court for Mani-towoc county: Michael NibwaN, Circuit Judge.</p> <p>Tbis action was commenced by the plaintiff, who was engaged in the coal yards of the defendant in the city of Mani-towoc, Wisconsin, to recover damages for personal injuries sustained by him on Monday, July 18,1904. At the time of the injury the defendant was engaged in running cars of coal over its tracks in its yard upon a trestle some thirty feet above the place where plaintiff was at work, unloading soft coal from the steamer Siberia, and several cars were being operated along the tracks for that purpose. The plaintiff was a laborer and had been working around the coal docks for several years. He was at work on the ground level under the .track where the cars were being operated. There was a cable in constant motion, running from west to east, turning a loop at the end of the dock, and running thence on what was called track Ho. 4, along the south side of the dock, then coming to another loop or curve and turning toward the north until it came upon the straight track running east and called track Ho. 3. The cars are gripped on the cable, and the cable keeps turning around the loops and takes the cars all around the dock and around the curve or loop upon the trestlework. The rails on which the cars run are twenty-seven inches apart. The cars are made to a bevel; that is, the top is wider than the bottom. At each side of the car is a door and at each side of the door are two latches, and there are two hooks at the bottom of the car into which the latches go. There is a grip at the front of the car which grips the cable; also slides back of the car and levers. The slides go underneath the car and the hooks fasten into the slides below. When the slides work, the hooks work on the slides and release the door. There is a plank over the top of the door on which the hinges are placed, and also one hinge from the bottom of the car, through which is a bolt upon which the door swings. The purpose of the catches is to hold the door closed, and do hold it closed when the latch on the car door is in the hook. Underneath the car on each side is what is called a slide. Hooks are placed on this slide and are attached to the lever at the rear of the car. The door opens with the lever at the rear and also with the grip or tripper which is underneath the car. When the slide moves forward the catches move to the back end and thus release the door. When the slide is moved backward that throws the hooks ahead again and closes the door. Every twelve feet are two planks in which there are holes, also bolts, and when the tripper gets over this block it opens the car— releases the door. The cars are also provided with handles, the purpose of which is to dump the coal in case there are no dump planks. This handle is placed in the back end of the slot of the slide. It fits pretty tight, and is attached to the back of the car by a kind of clamp into which the handle fits with a bolt through it. The handle turns at a point where it connects with the car, and at the point where attached to the car it is bent off on an angle to regulate the slide so that the hook will catch well on the latches. At the time of the injury this handle was bent about one and one-half inches, and the actual bearing of the catches on the latches of the door was not more than about half an inch. The plaintiff was at work at the hard-coal shed at a point just beneath the trestle where the cars turned from track No. 4 to No. 3, and the door of the car, by reason of being improperly locked on account of the defective lever, opened and dumped the coal upon plaintiff, causing the injury complained of.</p> <p>The jury returned the following verdict:</p> <p>“(1) Was the falling or dumping of the coal from car No. 14 upon the plaintiff caused by the opening or release of the left-hand door of the car when it was passing above the place where plaintiff was then working ? A. (by the court). Tes. (2) At that time, was it the fact that the left handle or lever, which was at the back of the car and was used for dumping the car by hand, was not sufficiently bent at the point where it turns on a pivot so as to allow the slide to which the locks or catches are attached to spring back far enough, for the catches to grasp and hold with reasonable safety the iron projections on the left door of the car? A. Tes. (3) Was the car, in the usual operation thereof, subjected to some degree of jarring or straining in passing over the loop or curve in the track above the place where plaintiff was working when injured? A. Tes. (4) If your answer to the second question be 'Yes,’ then was the defective condition of the lever, which your answer to the second question finds to have then existed, the cause of the opening or release of the left door when the car passed, or soon after it passed, over the loop and onto the trade or trestle No. 3, and was just above the place where plaintiff was working when injured ? A. Yes. (5) If your answer to the fourth question be 'Yes,5 then, on the morning of the day on which plaintiff’s injury occurred, and before it occurred, was defendant’s assistant foreman, Adler, informed by defendant’s employee, Julius Biermann, that the lever was defective? A. No. (6) If your answer to the fourth question be 'Yes,’ then did defendant, through either of its proper representatives who were charged with the duty of inspecting and keeping the cars in proper condition and repair, have actual notice or knowledge of the defect in the lever in time to have repaired it or to have taken the car off from the track, in the exercise' of ordinary care and diligence and before the plaintiff was injured? A. No. (6-)~) If your answer to the sixth question be 'No,’ then if the defendant, through its said representatives, had exercised ordinary care and vigilance in such inspection, would said representatives or either of them have thereby learned of the defect in the lever in time to have repaired it or to have taken the car off'from the track, in the exercise of the aforesaid degree of care and diligence and before plaintiff was injured? A. Yes. (7) If your answer to either the sixth question or to question 6-| be 'Yes,’ then was the failure of the defendant, through its said representatives, to repair the defect in the lever, or to remove the car from the track before plaintiff was injured, the proximate cause of his injury? A. Yes. (8) If your answer to the fourth question be 'Yes,’ then (1) did the plaintiff know, or (2) by the exercise of ordinary care on his part would he have learned, of the defective condition of the lever before he was injured? A. (1) Plaintiff did not know. (2) By the exercise of ordinary care he would not have so learned. (9) Was plaintiff guilty of any want of ordinary care on his part which contributed to produce his injury? A. No. (10) If the court "shall be of the opinion that plaintiff is entitled to judgment in his favor, what sum will reasonably compensate him for his injury ? A. $1,350.”’</p> <p>Judgment for plaintiff upon the verdict was entered for the sum of $1,350, together with interest and costs. The defendant appeals and assigns error.</p>

<p> Foreign corporations: Contracts: Conditions of transacting business: Failure to comply: Interstate commerce: Statutes: Decisions of supreme court of United States. </p> <p>1. Plaintiff, a citizen of and domiciled in Pennsylvania, accepted, and to a great extent performed, in Pennsylvania a contract •with, the defendant, domiciled in Wisconsin, which included only incidentally the transfer of articles of property by the usual transportation agencies from Pennsylvania to Wisconsin, and consisted mainly in an obligation, for a promised consideration, to furnish, by such usual transportation agencies, the defendant in Wisconsin, from the domicile of the plaintiff in Pennsylvania, instruction or information continuously for a considerable period of time. The few and incidental articles of property furnished were not objects of sale, barter, or exchange, but instrumentalities through which the plaintiff imparted its instruction. Held, that the contract concerned that which was not a subject of trade or barter offered in the market as something having an existence and value independent of the parties to the contract, was not an instrumentality, of commerce, but a mere incident of commercial intercourse, was not an interstate transaction, and was in violation of sec. 17706, Stats. (1898), as amended, and hence void.</p> <p>2. Upon subjects of interstate commerce the state court is bound by the actual adjudications of the United States supreme court with the reasons given therefor, rather than the dicta found in other opinions of the same court.</p>

<p> Judgments of county court: Vacating: Fraud: Insane persons: Guardian and ward: Allowance of claims: Evidence: Admissions: Laches. </p> <p>1. An order or judgment of a county court may be set aside for fraud or fraudulent concealment on the part of the prevailing party.</p> <p>2. Fraud which can he made the basis of an attack upon a solemn judgment of a court of record must have directly induced the rendition of the judgment, not merely have induced or brought about a condition upon the real existence of which the court acted as the basis of its decree.</p> <p>3. On the rendition of judgment upon a claim filed against an incompetent’s estate, no objection was made by the general guardian. or guardian, ad litem, although the general guardian and his attorney had been informed that the claimant had repeatedly admitted full payment and that the incompetent did not owe anything. After the death of the incompetent the administrator brought proceedings to set aside the judgment allowing ’the.claim,.and the trial court on the evidence, stated in the opinion, .found the claimant guilty of fraud, the guardian negligent" and guilty of want of ordinary care in failing to investigate as to ‘the justice and - merits of the claim, and ordered judgment vacating and setting aside the judgment of the county court. Held., that the findings were sustained by the evidence, and the judgment by the facts admitted or found.</p> <p>4. While evidence of statements or admissions by a party, made in casual conversations and to disinterested persons, is very weak ■ testimony-,.yet, where the admission is deliberately made and precisely identified, the evidence it affords is of the most satisfactory nature.</p> <p>Í5. In a proceeding in the county court by an administrator to set aside.- a judgment allowing a claim against his intestate while under guardianship as an incompetent, it appeared that the administrator was a grandson of the incompetent and knew of the allowance of the claim and facts impeaching its validity nearly a year before the incompetent’s ■ death. Held, that the administrator could not be convicted of laches, since until the ■death of the grandfather he could not know whether he would get any interest in the estate or not, and upon the death he had promptly taken the requisite steps to set aside the judgment.</p>

This is an action for breach of a sheriff’s bond, brought-against the sheriff (the defendant Eggert) and his sureties..

<p>'Wills: Construction: Equitable conversion: “Put on interest:’" “The interest of my property shall be paid annually:” “The principal shall go:” Ambiguity: Life estates: Rights of life tenants in income: Vesting of remainder: Absence of express bequest of income after termination of life estate: Guardians ad litem: Compensation.</p> <p>1. Testator, whose estate was largely comprised of farm lands, directed that after the payment of debts and funeral expenses “all” his property should he “put on interest” by some one appointed by the county judge of G-. county; that “the interest” of his property should “be paid annually” to two sons “during their lives,” and that after the sons’ death “the principal” should “go to their living children, at the age of twenty-one.” Eeld, that the testator’s intention was that the one appointed by the court to administer the estate should convert the same into money, put the available funds out at interest, and act as trustee in the complete execution of the will.</p> <p>2. In construing a will tlie words “put on interest,” “tire interest of my property shall he paid annually,” “the principal shall go," relate, in their ordinary sense, to dealing with money, the value of the use of money, measured hy interest, and securities dischargeable by the payment of money.</p> <p>3. Judicial construction cannot properly commence except in the face of uncertainty of sense; some fair doubt as to which of two reasonable meanings, if there be such, was intended.</p> <p>4. A will is not to be read in the light of rules for judicial construction merely because its meaning is challenged, and the challenge supported by reasoning on the assumption that such meaning’ is obscure; but if the will as a whole, in the light of the subjects dealt with, is plain, there is no legitimate room for judicial construction, and none should be attempted.</p> <p>5. Testator by his will directed that all his property should be put on interest, and the interest paid annually to his two sons, B. and J., “during their lives, but none of the principal shall be paid to either one.” Held, that the income should be equally divided annually between the two sons while they both live, and after the death of one that all the income should be paid to the other so long as he survives.</p> <p>6. Testator by his will, after giving a life estate to two sons, provided that after their death “the principal shall go to their living children, at the age of twenty-one.” Held, that the grandchildren’s estate did not vest by an absolute title prior to the termination of the life estate, and the rule that, nothing appearing convincingly to the contrary, it is presumed that bequests take effect and vest absolutely in point of right at the death of the testator, was displaced by the rule that the bequests, being in the form of a direction to divide between and distribute to specified persons, vested in those in esse answering the description at the time appointed for division and distribution.</p> <p>7. Testator by his will, after providing for the annual payment of “the interest” of his property to two sons, declared that after the death of his sons “the principal shall go to their living children, at the age of twenty-one.” There was no express disposition of the interest after the termination of the life estates. The accumulation of the interest and postponement of time of payment to that of the principal was negatived by the express direction as to payment of the principal and silence as to payment of the income. Intention to leave the income as intestate property was negatived by the obvious scheme of testator to dispose of all his property. Held, that the testator’s purpose was to bequeath the principal to the grandchildren living at the termination of the life estates, share and share alike, payment to them, as to principal, to be made upon their severally arriving at the age of twenty-one years, and, as to income, annually for their use, and in case of the death of any child after the period of vesting and before the time of payment his share to go to his personal representatives instead of to the surviving grandchildren.</p> <p>8. In an action to construe a will it was ordered that no costs be taxed in favor of an infant respondent, but under ch. 267, Laws of 1907- — sec. 4041a, Stats., — an allowance of $75 was made to her guardian ad litem; and no allowance was made to the guardian ad litem of other infants, because no claim had been presented in respect thereto with proof as to what would be reasonable.</p>

<p>Appeal from a judgment of the circuit court for Grant county: Geobge Clementson, Circuit Judge.</p> <p>Defendants sold to plaintiffs a traction engine for $400 and an old horse power. By written agreement the purchasers were ’ accorded “ten days’ trial on this engine, and said engine must do good work and he in good shape. If engine wheels and pinions break this year 1906 by cause of defect, same will be sent new.” Plaintiffs received the engine, had used it in threshing on some six or seven different days, but during a period of more than ten days after its receipt. On August 27th they had ascertained, to their own satisfaction, that the engine would not do good work, and had determined absolutely that they would not accept or keep it, and about noon on that day sent word to the sellers’ agent to that effect. Thereafter on tire same day, and for about half of the following day, they continued to use the engine to run their threshing machine in order to finish up a job of threshing for a customer on which they were then engaged. Defendants, refusing to recognize the right of plaintiffs to rescind, got possession of the old horse power to which they were entitled under the terms of the trade. Plaintiffs, having demanded the same, brought replevin therefor. Upon trial the jury found a statutory verdict in replevin in favor of the plaintiffs, to the effect (1) that plaintiffs were entitled to the possession of the horse power; (2) that defendants unjustly took and unjustly detained the same; (3) $60 value; and (4) plaintiffs’ damage $8. But in response to two special questions submitted by the court of its own motion they found (1) that “the plaintiffs determined absolutely on August 27th that they would not accept and keep the traction engine;” (2) that “after they had thus determined they proceeded with the use of the engine to finish the threshing job at which they were then employed.” Upon this verdict the court denied plaintiffs’ motion for judgment, and rendered judgment in favor of defendants for the recovery of tbe borse power or for its value, from which judgment the plaintiffs appeal.</p>

<p>Appeal from an order of the circuit court for Iowa county: Qeoeg-e Clemeittsow, Circuit Judge.</p> <p>An action for damages brought by the plaintiff as adminis-tratrix of the estate of Harry Butteris, deceased, against the Mifflin and Linden Mining Company, a corporation existing under the laws of this state. Damages are claimed upon the ground that the defendant negligently caused the death of the decedent while he was in its employ. The defendant denied this charge of negligence and asserts that his death ■was caused, by bis -want of ordinary care. Tbe jury found that tbe decedent, while in defendant’s employ and while be was working in an inclined shaft of defendant’s mine, was injured on May 18, 1906, by being struck by an ore car which had become detached from a hoisting cable at the ■dumping place of the car on the surface of the ground at some distance from the mouth of the shaft and had run back through the shaft to the bottom of the mine, and that the car became detached by the breaking of the drawbar of the car. The bar is claimed to have been defective before it actually broke, in that it was cracked by being bent by the cable pulling down upon it while the car was being drawn up the incline to the dump, and that this downward pull was due to ■the fact that the pulley over which the cable passed was located back of the top end of the incline and about on a level with it. It was found that the defendant’s superintendent ■did not exercise ordinary care in permitting the car to be used at this time, and that such negligence proximately concurred in causing the death of Butteris, and that a want of ordinary care on the part of the deceased contributed to produce his death. The jury assessed the damages in the case ■at $2,500.</p> <p>After verdict plaintiff submitted to the court the affidavits ' of four of the jurors, and upon them moved the court for a ■new trial. These affidavits all state that:</p> <p>“Deponent did not intend to return a verdict finding the deceased . . . guilty of contributory negligence nor of want of ordinary care, and that the special verdict in that respect was not as this deponent intended it should be; that this deponent intended to return a verdict which would entitle the plaintiff to a judgment of $2,500, and this deponent did not ■discover his mistake until after the verdict was rendered; that this deponent supposed until after the verdict was rendered that the jury had returned a verdict which would entitle the plaintiff to $2,500 damages.” . v</p> <p>The court thereupon made an order, upon condition that plaintiff pay the taxable costs within ninety days, that the verdict be set aside and a new trial be granted,</p> <p>“upon the ground that the answer of the jury to question No. 1 was not as . . . four of said jurors before whom said action was tried intended it should be, and that said four jurors did not intend to return a verdict finding the deceased . . . guilty of contributory negligence nor of want of ordinary care, and that said four jurors did not discover the mistake until after the verdict was rendered.”</p> <p>The record discloses that when the jury delivered their verdict into court and before they were discharged it was read aloud as rendered, and that plaintiff’s counsel then requested that the answer to question I be changed from “Yes” to “No.” Thereupon the court read the question and the answer, and then addressed the jury, saying:</p> <p>“The Court: I understand by the answer to that question that you find that Harry Butteris . . . was negligent and that his negligence contributed to produce his death. Is that what you mean ? Juror: That’s it, I believe. Court: That is the understanding of all of you, is it ? Jurors: Yes, sir.”</p> <p>The court then suggested to plaintiff’s counsel that he could have the jury polled if he desired, and at the request of plaintiff’s counsel the jury was then polled by reading to each juror the seventh question and answer and propounding to each one the inquiry: “Is this your answer to that question?” To this each juror replied in the affirmative. Thereafter during the term and before a motion for a new trial had been made, defendant’s counsel moved for a judgment upon the special verdict dismissing the complaint. This motion was denied. This is an appeal from the order setting aside the verdict and granting a new trial.</p>

<p> Executors and administrators: Recovery of assets fraudulently conveyed by decedent: Future creditors: Estoppel: Evidence: Burden of proof: Gifts: Husband and wife: Consideration: Preference: Married women: Earnings. </p> <p>1. Language in tlie opinion in Eclclor v. Wolcott, 115 Wis. 19, to the ■ effect that it must appear, in order to entitle an administrator to maintain an action under sec. 3832, Stats. (1898), to set aside a conveyance hy his decedent made in fraud of creditors, that there will he a deficiency of assets to pay the creditors existing at the time of the transfer, is held to have been used inadvertently, not necessary to the decision of the case, and not a correct statement of the law.</p> <p>2. Where there is a deficiency of assets an administrator may, under sec. 3832, Stats. (1898), attack his decedent’s transfer in •fraud of creditors, for the purpose of satisfying claims allowed which were not in existence at the time the conveyance sought to he set aside was made.</p> <p>•3. In an action hy an administrator under sec. 3832, Stats. (1898), to set aside a deed given hy the decedent to his wife, alleged to be in fraud of creditors, it appeared, among other things, that at that time decedent owed nothing and had other property aggregating $1,900; that none of the creditors in whose favor the action was prosecuted became such until sixteen months after the transfer; that the conveyance was made to the wife in payment of moneys advanced to decedent by way of loan; and that his indebtedness to his wife was about the value of the land. It also appeared that decedent retained no interest in the property conveyed, and there was no evidence tending to show any intent by either the husband or wife to defraud creditors. Held, that a judgment dismissing the action should be affirmed.</p> <p>4. In such case testimony that the husband, after the conveyance, had represented that he owned the land, such representations not being shown to have been known to the wife except in one instance to one not a creditor, which she denied and wherein her testimony was corroborated, is held to have established no estoppel against her.</p> <p>•5. In an action by an administrator under sec. 3832, Stats. (1898), to set aside a deed given by the decedent to his wife, alleged to be in fraud of creditors, the burden of proof is on the plaintiff to establish an estoppel against the wife, as also to show that the conveyance was fraudulent, where it appeared that the husband had no debts at the time the conveyance was executed except a debt to his wife, and the conveyance was upon a valuable consideration moving from the wife.</p> <p>■6. A husband may make a valid gift to his wife at a time when he is not indebted, if the transaction is in good faith; and in a contest with subsequent creditors the wife is not bound to show that she paid a valuable consideration.</p> <p>7. Where the husband is, at the time of a conveyance to his wife, free from debt except to his wife, and the conveyance is made in payment of that debt which is substantially equal to the value of the property conveyed, he has a lawful right to prefer his wife to creditors on subsequently contracted debts.</p> <p>■8. A husband, when free from debt, has a right to give to his wife her earnings which otherwise might belong to him, and they thereupon become her property to all intents and purposes.</p>

<p>Appeal from a judgment of tbe circuit court for Ricbland county: Geoege ClemeNtsoN, Circuit Judge.</p> <p>The appeal is from a judgment in an action upon a contract of insurance.</p> <p>Tbe plaintiff requested one Moody, an insurance agent, on January 2, 1905, to procure for bim fire insurance upon two certain buildings, $650 upon one and $350 upon tbe other, and Moody thereupon filled out an application for such insurance in tbe Wisconsin Mutual Eire Association of Lancaster for tbe term of one year from tbe 2d day of January, 1905, dated tbe application on January 2, 1905, and tbe same was signed by tbe plaintiff. This application was forwarded by Moody to tbe secretary of tbe Wisconsin Mutual Eire Association of Lancaster, tbe risk was rejected by bim, and application returned. Moody thereupon and without consulting tbe plaintiff, and on or about January 5, 1905, forwarded this application to tbe secretary of tbe defendant company, and the defendant accepted tbe application on January 10th. Tbe property sought to be covered by tbe insur- . anee burned on January lltin The defendant claims that on January 10, 1905, it accepted this application, tbe insurance to take effect January 12, 1905, and run three years from that date, and that with reference to tbe term of commencement of risk the application so read at the time it reached the defendant’s office. The policy was unaccountably delayed in transmission and did not reach the insured until January 17, 1905.</p> <p>The whole contest turned upon the question whether or not the defendant accepted this risk to begin on January 2, as described in the application originally, or whether the defendant accepted the risk to begin January 12, 1905. Upon conflicting evidence the jury returned a special verdict finding that the application at the time it was received by defendant’s secretary was for insurance “for the term of one year from the 2d day of January, 1905,” and that it did not then read for the term of one year from the 12th day of January, 1905, as it was found thereafter to read; that the secretary and president of the defendant insurance company accepted said application for insurance as it was written at the time it was received; that Moody was an agent of the defendant company at the time he mailed to defendant’s secretary the application for insurance; that the plaintiff applied to Moody as an insurance agent to insure the property that was burned in some company of which Moody was agent; and the court added a finding based on uncontroverted evidence that the secretary and president of the defendant company did accept the application on January 10, 1905, and before the fire. The plaintiff first began a suit in equity to reform the application for insurance and the policy of insurance issued thereon so that the term of insurance should begin January 6, 1905, instead of January 12, 1905, and, to recover upon the policy so reformed, averred a mistake of ' the secretary of the defendant company who wrote the policy in so dating it as to take effect January 12, 1905. This was determined against the plaintiff, and one of the findings of fact was that the application asked for such insurance for the term of one year from the 12th day of January, 1905. Within one year after entry of judgment in the equity suit the plaintiff, upon canse shown, made application to the court in which findings were made, and thereupon the court struck out the foregoing’ item of the findings and also struck out the eleventh finding, which seemed to pass upon the merits of the case, and substituted instead a finding as follows : “The testimony in this case is insufficient to sustain the demand of the plaintiff’s complaint that the application for the policy and the insurance policy should be amended as prayed for.” By the amendment this appeared to he the ground for dismissing the complaint.</p>

<p> Wills: Construction: Devise on contingency: “Death:” “Widow:” Presumptions: Intestacy. </p> <p>1. The intentions of a testator, in so far as they are expressed in, his will, must prevail, and no construction can be indulged", which is in conflict with such intentions.</p> <p>2. Where a testator by his will gave the residue of his estate to his son “for him and his use during his natural life, and in case of his death" to others, the word “death” contemplates the death of the son after the death of the testator, since the will could: not go into effect until the death of the testator, and to hold that it referred to the death of the beneficiary prior to the-death of the testator would frustrate the whole scheme of the-will.</p> <p>3. A testator, after giving his son a life estate in the residue of his. estate, declared that in case his son died without issue and leaving a widow him surviving, one third of the residue was given-to said “widow” and two thirds to nephews, and provided that if the son should die leaving issue of his body him surviving, then such residue should go to such issue, without otherwise-making disposition of the residue. At the time of the execution, as well as the probate, of the will the son had a wife who subsequently died, and at the time of proceedings involving the-construction of such will the son was living, unmarried, and without issue. Held:</p> <p>(1) The disposition of the residue of testator’s estate was> dependent on two alternatives, the happening of neither of which could presently be ascertained; one the death of the son leaving issue him surviving, the other death without issue and. leaving a widow him surviving.</p> <p>(2) The testator must be presumed to have known and used, the term “widow” as commonly understood.</p> <p>(3) It was error for the trial court to hold that the term “widow” referred to the son’s wife living at the execution of the will and excluded a possible wife who might survive him.</p> <p>(4) In case the son died “without issue” and without leaving, a “widow" the residue necessarily became intestate property.</p>

'Appeal from a judgment of tlie circuit court for Grant county: Geoege Clemewtsou, Circuit Judge. The facts as found indicate clearly the nature of the action and the issue.

<p>Appeal from a judgment of the circuit court for Juneau county: J. J. Eeuit, Circuit Judge.</p> <p>On August 24, 1904, one Clarence Boorman, being indebted to tbe Velie Carriage Company, amongst others, sold bis stock of farm implements, vehicles, etc., inventorying $668, to the plaintiff, Seivert, for $490, whereupon the Velie Carriage Company procured to be issued a writ of attachment, by virtue of which the defendant sheriff seized, and at the time of this action, in defiance of demand, continued to hold, all of said property then remaining undisposed of. Plaintiff brought this action in trover. On the trial there was some conflict of, evidence as to the extent to which ao-tual possession had been delivered by Boorman to Seivert. All the evidence tended to establish that $490 was adequate consideration for tbe property. There was some dispute in evidence as to whether Seivert had knowledge of the existence of creditors of Boorman and as to the sufficiency of inquiry made by him to ascertain. It was conceded that no notice to creditors was given in compliance with sec. 231 lb, Stats. (Laws of 1901, ch. 463). On trial of the issue of fraudulent character of the transfer from Boorman to Seivert in this action, the jury-found for the plaintiff, fixing the value of the property at $490, together with interest, for which amount judgment was rendered in his favor, from which the defendant appeals.</p>

<p>Appeal from a judgment o-f the circuit court for La Crosse county: J. J. Fbuit, Circuit Judge.</p> <p>This is an action by the special administratrix of the estate of Mary Doherty, deceased. The complaint states that Mary Doherty died in La Crosse county on the 19th day of April, 1905, and that the plaintiff has been duly appointed administratrix of her estate.</p> <p>“That the defendant, William Doherty, had in his possession at the time of her death the sum of $8,000, as plaintiff is informed and believes, the property of the said Mary Do-' herty.”</p> <p>“That said William Doherty refuses to pay or deliver the same to this, plaintiff, although often requested so to do, but retains same in his possession, and, as plaintiff is informed and believes, has converted the same to his own use, wherefore she asks judgment against this defendant for the sum of $8,000 and interest thereon from June 1, 1905, besides the costs of this action.”</p> <p>The defendant answered by a general denial, except as to the sum of $460; $260 of which he claims to have paid out for debts and for the funeral expenses of Mary Doherty. On the trial there was evidence tending to show that the deceased was in her eighty-eighth year at the time of her death; that for some time previous to her death she had lived with the defendant; that when she came to live with the defendant she had two bank books showing deposits of $3,607.40; that the defendant drew these deposits from the bank on four checks signed by the deceased by her mark; that she had an income of $25 per month; that she had deeded her house and farm to the defendant seven years before her death; that she left six children surviving her; and that the $460 described in the answer was found by the defendant in her trunk after her death. Questions were asked of the defendant tending to prove the character of his relationship to' his mother and that he claimed as owner all of the property his mother had owned. The court excluded evidence offered by the plaintiff tending to show:</p> <p>“That for three years previous to her . . . death she [Mary Doherty] was absolutely senile and incapable of doing any business whatever; that she constantly mistook this defendant, William Doherty, for her deceased husband; that she called him husband,- and sent for him and talked with him as her husband, who had been dead for twenty years; that she did not know the difference between her own children and her husband; that she did not know her own children and did not know their names; that she did not know that her son John was dead; and that she was an absolute imbecile and incompetent to do any kind of business.”</p> <p>The court also refused to allow evidence offered tending to show:</p> <p>“That she lived alone; that no one visited her except this son William and his children, who visited her daily; and that . . . when [plaintiff, who- is a daughter of the deceased] visited her mother [she] was not known by her mother the last three years of her life.”</p> <p>On a motion that tlie action be dismissed because tbe evidence did not sustain any cause of action, tbe court in substance stated tbat under tbe facts adduced and tbe proposed offer tbe proper action to bring was an equitable one. Tbis is an appeal from tbe judgment granting a nonsuit.</p>

<p>(1) Appeal and error: Exclusion of evidence. (1, 9, 10) Immaterial error. (1, 2, 6, 7, 10) 'Waters and watercourses: Alteration of channel: Negligence in construction and maintenance. (3-5, 11, 14) Assignments of error: Briefs. (6) Evidence sustaining finding. (8, 9, 12) Instructions to jury. (8, 9) Instructions appropriate to questions of special verdict. (11) Special verdict: Questions submitted: Questions requested. (12) Same: Amendment of questions after argument: After the jury had retired. (13, 14) Exceptions: Form and effect. (15-17) Misconduct of counsel: Improper argument: New trial.</p> <p>1. In an action for damages to land caused by tbe negligent construction and maintenance of a cut-off in a river channel, the exclusion of evidence tending to show that plaintiff’s husband, instead of plaintiff, was the owner of the land upon which the cut-off was made, and of a parol license from plaintiff’s husband to dig the cut-off, becomes immaterial where the jury-have found that the cut-off was made by the defendant solely upon his own land, hut was negligently constructed and maintained.</p> <p>2. An owner of land is answerable for the negligent construction and maintenance of a cut-off, where such negligent construction and maintenance occurred in the changing of the channel of a river on his land so as to cast the waters thereof with the excavated material upon contiguous land in greater volume and with more injurious consequences than formerly.</p> <p>3. Supreme Court Rule 10 requires questions submitted to that court to he presented by separate, clean-cut assignments of error relied upon, each followed by the leading facts or conclusions applicable thereto, the principles of law applicable, and the authorities in support thereof.</p> <p>4. A subdivision of a brief not directed to any specific assignment of error, and which, after a rambling and discursive review of nearly the whole case, closed with the statement: “We submit that the evidence of negligence does not sustain the findings and that the findings do not sustain the judgment, and, that being the case, the court should not have granted the defendant’s motion for a judgment,” does not comply with Supreme Court Rule 10, especially where there was no such error assigned as refusal to grant the defendant’s motion for judgment, although the record showed there was such a motion denied.</p> <p>5. Where the record showed that appellant had moved to set aside the answers to specific questions of a special verdict, an assignment charging error in refusing to strike out the answers to “several” questions is insufficient.</p> <p>6. In an action for damages to land caused by the negligent construction and maintenance of a cut-off in a river channel, the evidence, stated in the opinion, is held to sustain findings in favor of the plaintiff.</p> <p>7. In such case, while it was a close question of fact whether the damage to plaintiff’s land was caused by the negligent construction and maintenance of the cut-off or by freshets, it was held that the trial court properly denied the defendant’s motion to set aside answers to questions of the special verdict, in view of the evidence, stated in the opinion.</p> <p>8. Where instructions to the jury, although applicable to other questions of a special verdict, were not applicable to the particular questions in connection with the reading of which they were given, but were not incorrect as legal propositions nor inapplicable to other phases of the case, it was held that the Jury were not misled thereby to appellant’s prejudice.</p> <p>9.Where the record showed that a question of a special verdict to which a given instruction was applicable was re-read to the jury after reading a question to which the instruction was inapplicable and just before the giving of the instruction, appellant was held not to be prejudiced thereby.</p> <p>10. In an action for damages to land by the negligent construction and maintenance of a cut-off in a river channel, one question of the special verdict inquired whether the cut-off was constructed or maintained with ordinary care and prudence, and another question whether the damages were occasioned by reason of such construction and maintenance. Held, that an instruction to the jury given in connection with the latter question, stated in the opinion, was not misleading to appellant’s prejudice by the use of the words “by means of the cut-off,” and “attributable solely to the construction and action of the cut-off,” instead of the words “caused by the negligent construction or maintenance of the cut-off.”</p> <p>11. An assignment of error that the court “erred in submitting questions in special verdict and in refusing to submit questions asked” by appellant cannot be considered, where of twenty-one questions submitted some were conceded to be correct, and of fifteen questions requested some were identical with questions submitted, some clearly improper, and some covered or included in, although not identical with, questions submitted.</p> <p>12. In an action for damages to land caused by the negligent construction and maintenance of a cut-off in a river channel resulting' in flooding plaintiff’s land, the court instructed the jury, in substance, that any other damages by the deposit of sediment of any kind from extensive floods not coming from the cut-off or attributable to it, or from any and all natural causes, were not to be considered upon the question of damages, and that if the damages were aggravated and increased by back waters from other streams or from other flood waters independent and apart from the cut-off, or from unusual rains, or anything in the nature of natural, causes, then those were not to be taken into consideration, but that they were to determine how much, if any, the overflow waters from the cut-off contributed or caused existing conditions. Held, under the circumstances, stated in the opinion, that it was not error to strike out the word “alone” from questions of the special verdict interrogating the jury as to whether the lands were permanently damaged by the overflow of waters from the cut-off alone, and whether the lands were damaged by reason of the overflow waters caused by such cut-off alone.</p> <p>13. Exceptions raise questions of law, not of fact, and the facts on which the exception is based should appear as a statement or recital of fact in the bill of exceptions in some form other than by embodying that recital in an exception.</p> <p>14. An assignment of error on the ground that the court communicated with the jury and gave them instructions in the absence of appellant’s counsel, where neither the record nor brief of counsel clearly shows this to have been done, is insufficient, the ’ only foundation for such assignment being in an exception to the instructions “because given in the absence of defendant’s counsel.”</p> <p>15. Statements of plaintiff’s counsel in argument to the jury that defendant could spend $1,000 to plaintiff’s $100; that half the money spent on the litigation would heal the wound defendant had made in the financial standing and position of plaintiff; that defendant would not pay plaintiff, but would rather spend it on lawyers; that the time might come when the jury would be up against the power of money, and that the only hope of a man situated like plaintiff was in a jury of twelve men selected from the ordinary walks of life, is held not to be argument, but rather insinuation pregnant with unfair suggestion, and that the use of such language to the jury could not be too severely censured.</p> <p>16. In such case the trial court would have been justified in granting a new trial if it believed the language had its intended effect upon the jury.</p> <p>17. In such case, although disapproval of counsel’s remarks, by instruction of the trial court to the jury to disregard the language, might have been more vigorous and clear, yet, that court having disapproved the language and refused to grant a new trial, the appellate court declines to reverse the judgment on that ground.</p>

<p> Master and servant: Injuries by servant to third persons: Evidence: Scope of employment: Appeal and error: Affirmance and reversal: Damages: Proximate cause: Excessive damages. </p> <p>1. In an action by a minor for injuries alleged to have been caused by a kick administered by defendant’s servant, while the evidence, stated in the opinion, tended to cast doubt upon plaintiff’s testimony as to being kicked by such servant while acting within the scope of his employment, a verdict for plaintiff is held to be so supported by credible evidence as to facts not intrinsically improbable as to prevent a reversal.</p> <p>2. In an action by a minor for injuries alleged to have been caused by a kick administered by defendant’s servant, the evidence, stated in the opinion, is held to be sufficient to sustain a finding that the kick was the proximate cause of plaintiff’s condition complained of.</p> <p>3. In an action by a minor for injuries alleged to have been caused by a kick administered by defendant’s servant, while the evidence failed to show with certainty any serious permanent injury, the court upon the whole evidence was unable to say that $3,266.66, the damages assessed by the jury, were excessive.</p>

<p>Appeal from an order of the circuit court for Monroe county: J. J. Eeuit, Circuit Judge.</p> <p>This is an appeal from an order overruling a general demurrer to the complaint. The complaint, after alleging that the defendant was and is an Illinois corporation located at Chicago and engaged in the business of manufacturing jewelry and mounting precious stones, charges that on November 7, 1905, the plaintiff owned certain diamond rings and other jewelry of the value of $367.50, and on that day, at the request of the defendant and believing that the defendant would exercise care and diligence in handling the same, sent them by express to the defendant for the purpose of having them repaired and remounted by the defendant, and that defendant received the same knowing their value and became a bailee thereof for hire. The complaint then proceeds as follows:</p> <p>“That at the time of the sending and delivery of said goods to the defendant, as aforesaid, it was and for a long time has been and now is tbe custom in tbe jewelry trade to bave packages of such value marked and valued at the sum of $50 or more, and at a sum approximating true value, in order to insure greater care and vigilance in the transportation, handling, and carrying of such packages by express companies, and in order to insure reimbursement to tbe owner for tbe value thereof in case of loss or destruction in transit, all of ■which custom and usage defendant well knew and understood and was bound to observe, and that defendant well knew, as the fact is, that it is a rule of express companies that, when packages are so valued, to take greater care in the carriage of the same and for the safe and prompt delivery thereof, and that when so valued the express companies are insurers of the safe delivery thereof, and, in case of loss or destruction in transit, are bound to reimburse the owner for the value so placed thereon, and that this defendant at the time of soliciting the business impliedly represented and agreed to and with plaintiff (and that it was a part of the contract or terms of said bailment) that it would, through its officers, employees, or servants, mark and value all returned packages at their just and reasonable value, and that this plaintiff in sending said goods to and intrusting the defendant with the possession of said goods relied upon said representation and agreement, and that it then and there became and was the duty of the defendant, when attempting to return or redeliver said goods to the plaintiff after repairing and mounting the same, to cause the package containing the same to be valued at its just and true value and to mark the same accordingly, and to communicate its true value to the express company when delivered to such company for carriage, and to take from said express company its written receipt, wherein said value would be truly stated, and to use care, diligence, and precaution in securing and insuring the safe return of said goods to the plaintiff. But the plaintiff alleges, upon information and belief, that the defendant, wholly neglecting and disregarding his duty, obligation, and agreement in that behalf, on or about the 11th day of November, 1905, carelessly and negligently, and in violation .of its said representations and agreement with plaintiff and without plaintiff’s knowledge, delivered the package containing and inclosing all of said articles of rings, jewelry, and gems to the United States Express Company, at Chicago, Illinois, for carriage and delivery to- the plaintiff at Viroqua, Wisconsin, without causing the same to be marked or valued at any sum whatever and without communicating to said express company, its officers, messengers, or agents, the true value thereof, or any value. That by reason of said defendant’s negligence and breach of duty in such respect the said articles were never at any time delivered to or received by the plaintiff, but that the same were lost, to the damage of the plaintiff in the sum of $367.50.”</p>

<p>Appeal from a judgment of tbe circuit court for La Crosse county: J. J. Feuit, Circuit Judge.</p> <p>On March 6, 1905, tbe defendant -Schallert, being indebted to tbe plaintiff as indorser or guarantor on a note of tbe Market Grocery Company, of which be was tbe principal owner, entered into an agreement to purchase from one Bunting certain real estate with certain personal property thereon for the sum of $7,100, to be paid: $3,000 thereof by transferring a note due to Schallert from the Central Electric Company; $2,900 by transferring Schallert’s twenty-nine shares of stock in said Market Grocery Company; $200 by transferring an undivided half interest in an automobile; and $1,000 by assuming a mortgage on tbe land. About March lOtb tbe land was conveyed by Bunting, at tbe request of Scballert, to tbe defendant Bienfang, and tbe former was paid tbe twenty-nine shares of stock in tbe Market Grocery Company and tbe half interest in tbe automobile, but, instead of tbe $3,000 note of tbe Central Electric Company, be was paid casb $1,451, and a second mortgage of $1,300 on tbe land was assumed by tbe grantee in addition to tbe $1,000 originally agreed upon. Tbe $1,451 of casb was realized by Scballert by selling to tbe bank tbe $3,000 note of tbe Central Electric Company, wbicb was payable to him, but which, it was claimed by tbe defendants, was for money of tbe defendant Bienfang, loaned by Scballert to said Central Electric Company with ber approval, and for wbicb Scballert bad given ber bis own note. There is no evidence as to any transfer of the personal property, except that-it remained npon tbe farm and was in tbe mixed possession of both tbe defendants, who seemed to have mutually exercised possession over tbe farm after tbe deed. On July 7, 1905, plaintiff recovered judgment in La Crosse county, where both tbe defendants resided, against Scballert and tbe Market Grocery Company, and on July 27th execution was issued and returned unsatisfied. This action, wherein tbe summons was served on defendant Bienfang July 29, 1905, and on tbe defendant Scballert July 31, 1905, was brought on behalf of tbe plaintiff “and all other judgment creditors of said defendant Scballert whose executions shall have been returned unsatisfied, and who shall hereafter come in and seek relief by contributing to bear tbe expense of this action tbe prayer being that tbe conveyance from Bunting to Bien-fang shall be adjudged void against tbe creditors of said Scballert, and particularly this plaintiff, that plaintiff’s judgment be adjudged to be a lien upon tbe premises superior' to the conveyance or to any conveyance or incumbrance at tbe commencement of tbe suit, and that said judgment be satisfied out of said property; also for general relief. An incorrect transcript of the judgment was filed with the clerk of the circuit court for Vernon county, where the Bunting land was situated, on July 30th. The court found, in addition to the facts above stated, that the whole consideration for the conveyance from Bunting was paid by Schallert, and such conveyance was taken in secret trust for him and with intent on his part to hinder, delay, and defraud his creditors, which intent was known to, and participated in by, Bienfang, who acted in collusion with said Schallert to carry out the same; whereupon judgment was entered that the conveyance of the land to Bienfang be set aside as against the plaintiff, and that it be at liberty to proceed upon execution upon its judgment and to levy upon and sell said described land as the property of Schallert, and that said Bienfang deliver to the sheriff all property transferred by Bunting to either of said defendants, or subsequently transferred by Schallert to her, to be sold by said sheriff upon execution, from which judgment the defendant Bienfang appeals.</p>

Mandamus to the Circuit Court for Eock County. This is an action of mandamus brought in this court to compel the defendant court to dismiss an action brought therein because the summons had never been served. An alternative writ was issued, return was made thereto, and an answer to the return was filed.

L Eetjit, Circuit Judge. W. 0. Bussell, of La Crosse, Wisconsin, made bis will d.ated June 13, 1896, and codicil dated August 15, 1896, and died November 13, 1896. By said will be disposed of a large amount of property in tbe form of legacies and trusts. Tbe specific legacies bave been paid and some of tbe trusts executed.

Parish, Circuit Judge. The plaintiff in error was found guilty in a bastardy proceeding. The facts are sufficiently stated in the opinion.

<p>Mandamus to Honorable Geoege Clementson, Judge of the circuit court for Grant county.</p> <p>This is a proceeding hy mandamus to compel the judge of the circuit court for Grant county to change the venue in a case pending in that court, wherein the relator was and is plaintiff and Grant county and others defendants, hy reason of the alleged prejudice of said judge. The defendant made return to the writ and the relator demurred to the return. The following facts appear and are undisputed:</p> <p>The affidavit of prejudice therein was filed by the relator with the clerk of said court October 13, 1903, but said judge remained ignorant of the fact that said affidavit of prejudice was so on file until October 29, 1903, when Judge Dun-widdie, who had been called in to try another case, was told by the attorney for the relator in the presence of the defendant that such affidavit had been filed and suggested that he might take jurisdiction of the case. The defendant then informed Judge Dunwiddie in open court that no such application had been made to him and that he had not before heard of such affidavit. Judge Dunwiddie declined to consider the suggestion. November 3, 1903, the attorneys of the respective parties in the action signed and filed with the clerk a stipulation that the hearing for the change of venue be deferred until the following February term of the court. December 4, 1903, the trial court ordered that said affidavit be and the same was thereby stricken from the files of the clerk and returned to the relator’s attorney on the ground that no application upon said affidavit bad ever been made to tbe court or the judge thereof.</p> <p>On May 3, 1905, the relator moved the circuit court for a change of the place of trial to some other circuit as provided by statute, basing such motion on an affidavit of the relator made May 1, 1905, in which the affidavit of October 13, 1903, was reiterated, and stated that such affidavit “was then and still is true, and that he had reason to and does believe that he cannot have a fair trial of said action on account of the prejudice of Hon. G-eoege ClemeNtsoN, judge of said court, and. upon all the facts aforesaid he makes application for a change of the place of trial of said action as by the statutes of Wisconsin in such case made and provided.” Affidavits of attorneys for the respective parties in the action showing the history of the proceedings therein were also hied. Thereupon and on October 6, 1905, the same being the last day of the Eebruary term of said court for 1905, the defendant by order entered therein denied said application for the change of the place of trial of said action, for the reason that the same was “not a substantial compliance with” see. 2625, Stats. (1898), as amended by ch. 101, Laws of 1901, and especially as it failed to state that the affiant had “good reason to believe.”</p> <p>On October 26, 1905, the relator made a new affidavit of prejudice in compliance with the-statutes, and filed the same November 1, 1905, and applied to said court upon such new affidavit for a change of the place of trial of said action. The defendant as such judge, in the exercise of his discretion given by said statute, retained said action in said court for the purpose of calling in another judge to try the same, and by an order dated Eebruary 1, 1906, reciting the facts, called in Hon. J. J. Eeuit of the Sixth circuit to attend and hold court during the then current term thereof for the purpose of exercising jurisdiction in the said action. Eebruary 5, 1906, Judge Eeuit acknowledged said call and duly notified the clerk of said court, in pursuance of tbe statute cited, that he should attend at the courthouse at Lancaster, February 15, 1906, at 2 p. m. for the purpose of assuming and exercising jurisdiction in said case. The October, 1905, term of said circuit court for said county was in regular session February 15, 1906, at 2 o’clock p. m., and the defendant then and there took the bench as the presiding judge of said court and announced that the matters to be heard before him would be suspended; that affidavits of prejudice had been filed against him in the case mentioned and another case, and that Judge Feuit had been called upon by him to attend and assume jurisdiction in said cases and that he was then present in the court room, and thereupon called upon Judge Feuit to take the bench, which he then and there did and so assumed jurisdiction of both of said cases. All of the attorneys in both of said cases were present and the defendant at once left- the court room. Immediately after Judge Feuit took the bench and assumed jurisdiction of said cases the attorneys for the relator made to the court and filed with the clerk thereof a written motion for an order for a change of the place of trial of the action to some other circuit, based upon the said several affidavits of the relator theretofore, made and filed by him and for and on his behalf in said action, and on all the records and files in the action, which motion, after argument of the respective attorneys, was denied by Judge Feuit.</p> <p>As the case was not then ready for trial no further proceedings were hád therein at that term. Judge Feuit has been ready and is now ready to try said case a.t any term of said court at which it might have been or may be noticed for trial, but it' has not been noticed for trial by either party since the February term, 1905.</p> <p>It is also claimed on behalf of the defendant that the relator’s application made November 1, 1905, for a change of the venue based upon such new affidavit was a waiver of whatever errors might have been made in the action or nonaction of the court upon previous affidavits, and that the action of the defendant thereon by calling in another judge and his acceptance and assuming jurisdiction left the defendant without jurisdiction for any purpose unless reversed by appellate proceedings, and that mandamus will not lie to review such determination by him made therein.</p>

<p>Appeal from a judgment of the circnit court for Dane county: E. Eat Stevens, Circuit Judge.</p>

Appeal front a judgment of the circuit court for Waushara county: Chas. M. Webb, Circuit Judge. Action to recover a forfeiture under see. 1326, Stats. (1898). The action was commenced in justice’s court and certified to the circuit court upon a plea of disputed title to real estate. The action was instituted in the name of the state by the chairman of the board of supervisors of the town of Aurora, where the land was situated.

M. Webb, Circuit Judge. Action for assault and battery alleged to have been committed by the three defendants jointly. They answered separately by mere general denial. The evidence disclosed, substantially without dispute, a severe beating of plaintiff by defendant Swendrzynslci, and there was some evidence of an attack by each of the other defendants. There was also •some attempt to prove a previous agreement amongst the three •defendants to assault plaintiff.

<p>Appeal from a judgment of the circuit court for Waupaca county: Chas. M. Webb, Circuit Judge.</p> <p>This action was brought by Wm. 1ST. Martin, district attorney of Waupaca county, in the name of the state of Wisconsin and Charles F. Crane, against the defendant, under secs. 1809, 1819, Stats. (1898), and particularly under that portion of see. 1809 which relates to rate of speed of trains and locomotives within incorporated cities and villages before having passed all the traveled streets thereof. The case was here before on appeal from an order overruling a demurrer to the complaint, and the order of the court below was sustained. State v. W'is. Cent. H. Co. 128 Wis. 79, 107 1ST. W. 295. The complaint charges several violations of the statute by defendant in running its trains at a speed exceeding six miles per hour through the village of Weyauwega between April 11th and 14th, inclusive, 1905, as follows: One violation on April 11th, three on April 12th, four on April 13th, and three on April 14th. The defendant denied the material allegations of the complaint. The jury found one violation on April 11th, two on April 12th, three on April 13th, two on April 14th, making eight violations in all between April 11th and 14th, inclusive, and for each violation assessed damages against the defendant at $75, aggregating $600, for which sum judgment was rendered in favor of the plaintiff and against the defendant, together with costs, from which judgment this appeal was taken.</p>

<p>Appeal from a judgment of tlie circuit court for Wood eounty: Chas. M. Webb, Circuit Judge.</p> <p>About March 16, 1906, plaintiff was approached by defendant Johnston, special agent for the defendant insurance company, with reference to life insurance. Plaintiff declared his wish for a ten-year endowment policy, was dissatisfied with the price, demanded by J ohnston, who promised to make further investigation as to rates, and appointed a meeting for Sunday, March 18th. At that time certain rates were named, with some indefiniteness as to the first year’s premium, and Johnston wrote out an application, which plaintiff signed, but the contents of which is not in evidence. On March 20th they reached an agreement whereby, as plaintiff claims and the trial court finds, he was to have a ten-year endowment policy for $50,000, to be paid him in cash at the end of the ten years, or to the beneficiary named in case of his prior death, for a premium of $400 in cash at the time of its delivery, and his note, payable one year thereafter, for $4,244.68, and a like amount annually thereafter. They went to plaintiff’s bank in order that, as J ohnston demanded, the cash part of the premium and the note for the first year’s premium should be delivered in escrow, and there they declared their agreement to the cashier of the hank, whereby it was provided that $400 of money and a $4,244.68 promissory note, then delivered by the plaintiff to the cashier, were to become the property of the defendant Johnston upon delivery to plaintiff of a policy which provided for $50,000 to be paid in cash to plaintiff at the end of ten years, or to tbe beneficiary in ease of bis prior death, wbieb Johnston stated was properly designated as a “$50,000 ten-year endowment;” tbe note to remain in possession of tbe bank for defendant until its maturity a year later. On April 16tb Johnston again appeared witb wbat purported to be a $50,000 ten-year endowment policy of life insurance and delivered tbe same to tbé plaintiff. The circumstances of sucb delivery are in dispute, but, as found by tbe court, consisted in an assurance by Johnston that it corresponded witb tbeir agreement, confirmed by exhibition of tbe indorsement, “Fifty thousand dollars,” “Ten-year endowment,” and of certain prominent lines in tbe policy suggesting that idea, accompanied by urgent insistence that plaintiff forego submission of tbe policy to any one for examination, as Johnston was in great baste and wanted to catch a train; whereupon tbe plaintiff gave Johnston $400, and went witb him to tbe bank and acknowledged receipt of tbe policy in compliance witb tbe escrow contract, and' tbe bank gave Johnston an acknowledgment that it held tbe note for delivery to him at tbe end of tbe year. J ohnston went away and immediately remitted to tbe company $350 of tbe $400 cash payment. After Johnston’s departure tbe cashier suggested to the plaintiff that be ought to have some one familiar witb insurance look at bis policy, whereupon plaintiff brought it to tbe cashier, who found it ambiguous, but apparently not in accordance witb tbe terms above stated, and advised him to submit it to a lawyer, which be did. He, after studying its peculiar terms and ambiguities, reached tbe conclusion that, instead of providing for $50,000 to be paid at tbe end of ten years, or at plaintiff's prior death, it provided only for a payment of $37,000 in such events, under tbe guise of providing for payment of $50,000 in fifteen annual instalments . of $2,000 each, and in a gross payment of $20,000 at tbe end of fifteen years after tbe expiration of tbe ten-year term, as its terms in fact were. Plaintiff immediately bunted up Johnston, notified bim tbat the policy was not as agreed upon, demanded return of the $400, and tendered delivery of the policy. Johnston’s attitude is involved in conflict of evidence, hut he appears to have at first contended that the policy was such as the plaintiff claimed he was to receive, and, upon being confronted with its language, to have re- , luctantly admitted the contrary and promised to secure a satisfactory policy within a week. Plaintiff wrote the general office, reiterating his dissatisfaction with the policy, and insisting that either they give him one in accordance with his agreement or give him back his money, which defendant company refused to do, and on May 28th this action was brought seeking rescission of the transaction and return to plaintiff of his $400 and of the note deposited in the bank, which, by the way, Johnston had almost immediately attempted to negotiate upon the strength of the bank’s written receipt therefor. The court found substantially the facts above stated, that the contract accompanying the deposit with' the bank was as the plaintiff claimed, that his receipt of the policy and payment over of the money was induced by fraud of the defendant Johnston and was without negligence on plaintiff’s part, and that he had been duly diligent in ascertaining the discrepancy and in seeking to reject the policy which had been tendered to him, and accordingly rendered judgment declaring the note in the hands of the bank null and void, and ordering cancellation and delivery thereof to the plaintiff, and enjoining the bank from delivering it to J ohnston or the defendant company, and for recovery of the $400 from J ohnston and the company, and directing delivery up and cancellation of the policy of insurance, from which judgment the defendant J ohnston and the insurance company bring this appeal.</p>

M. Webb, Circuit Judge. It appears that on the 14th day of March, 1904, Elizabeth Bowman, now deceased, made and executed a paper writing in the form of a will.

<p> Cemeteries: Location: Statutes: Construction. </p> <p>Under sec. 1454, Stats. (1898), providing: “No person, association or corporation shall lay out or establish any cemetery grounds or use any lot or grounds for burial purposes (except such as are now in use for such purposes) within the limits of any recorded plat of any city or village or of any recorded addition thereto, when such cemetery, lot or grounds shall he within one mile of any lot or block therein on which any building may then be erected; and no person, association or corpora^ tion shall lay out or establish any cemetery grounds or use any grounds for burial purposes except such as are now in use for such purposes without the limits of such plat or addition thereto and within two hundred rods of any inhabited dwelling standing on any lot or block in such city or village or addition thereto without first obtaining the consent of the municipal authorities thereof. . . . Any violation hereof shall be deemed a nuisance and may be restrained by injunction at the suit of any person,” held:</p> <p>(1) The establishment of cemetery grounds within the limits of the platted portion of a city or village and within one mile of any lot or block in such platted portion of such city or village upon which is erected any building is prohibited.</p> <p>(2) The use of any grounds not in use at the time of the passage of the statute for burial of the dead, within any recorded city or village plat, although such plat contains two or more additions, is prohibited, if there be a building situated upon any lot or block within one mile of such proposed burial grounds and within the limits of any recorded plat .or addition in such city or village.</p> <p>(3) The statute provides for two classes, the first respecting the establishment of cemeteries for burial of the dead “within the limits of any recorded plat of any city or village or of any addition thereto,” and the other respecting grounds for burial of the dead without the limits of the plat or addition but within the prohibited distance stated.</p> <p>(4) These two classes within and without the plats are separate and distinct, the prohibition as to each is independent of the other, and the prohibition under the first class is absolute, while that under the second class is subject to the will of the municipal authorities.</p>

<p>Appeal from a judgment of tbe circuit court for St. Croix county: E. W. Helms, Circuit Judge.</p> <p>Tbe appeal is from a judgment dismissing tbe complaint-in an action brought upon a judgment of tbe municipal court of Stillwater, Minnesota.</p>

W. Helms, Circuit Judge. Tbe testator, a Norwegian, resident in- tbis state, of advanced age, on November 24, 1903, executed in due form a writing admitted to probate as a will.

<p>Justices’ courts: Pleading: Title to land: Failure to give bond and remove case: Effect on trial de novo on appeal: Witnesses: Competency: Transaction with person since deceased: Limitation of actions: Adverse possession: Evidence: Sufficiency: Appeal: Prejudicial error: Deferred ruling on demurrer.</p> <p>1. "Where, in an action in justice’s court, title to land was put in issue "by a pleading, and there was failure to give the bond required by sec. 3620, Stats. (1898), and to procure the removal of the cause to the circuit court, on a trial de novo on appeal, from a judgment in such action it is not error to receive evidence of adverse possession and submit the issue of title to the jury.</p> <p>2. Where the subject of inquiry from plaintiff’s witness through whom plaintiff traced title related to the question of title to land and pertained to communications with persons then deceased from whom the opposite party derived title or sustained some liability to the cause of action, the witness is incompetent under sec. 4069, Stats. (1898).</p> <p>3. In an action involving the title to a strip of land, evidence that defendant’s predecessor in title and possession occupied the strip for more than twenty years, had cleared parts of it and cultivated portions, and treated a line fence as the division line between his own and plaintiff’s farm, establishes such open and notorious occupancy of the strip as to be adverse to the whole world, and, when continued for twenty years, such as ripened into an absolute title.</p> <p>4. In an action brought in justice’s court a demurrer was interposed to counterclaims. After the cause had been appealed to the circuit court the demurrer was not disposed of before the case was called for trial, and the issues thus raised, while brought to the court’s attention at the trial, were not passed * upon until after a special verdict, when the court ruled that no issue raised by the counterclaims was properly in the case, and changed the answer to the question in the special verdict which was based on the counterclaims. The evidence on the •counterclaims was distinct from that bearing on issues of fact establishing title to land, which was the real issue in the case. Held,, that there was nothing in the conduct of the trial court that could have operated to mislead the jury upon the •other issues raised by the complaint and answer and actually determined by the jury.</p>

<p> Specific performance: Pleading: Complaint: Defect of parties: Demurrer: Indefiniteness: Remedy by motion: Laches. </p> <p>1. A complaint for specific performance of a contract for tlie conveyance of real estate, which alleges the death of the purchaser and that plaintiffs are his heirs, is defective and demurrable if it fails to specify whether or not plaintiffs are all the heirs and .are all the parties interested in the land embraced in the alleged contract of sale.</p> <p>2. Such defect goes to the question of a defect of parties and is not reached by a demurrer specifying only “a nonjoinder of necessary parties plaintiff,” and under sec. 2651, Stats. (1898), is insufficient.</p> <p>3. Indeñniteness and uncertainty in a pleading cannot properly tie reached by demurrer, hut must be reached by motion in that behalf.</p> <p>4. In an action for specific performance of a contract for the conveyance of real estate, on demurrer it was held there was nothing in the complaint to show that the action was commenced within an unreasonable time after the vendee had performed the contract on his part.</p>

<p> Landlord and tenant: Tenancy at will or sufferance created by operation of law: Remedies of landlord: Ejectment: Forcible entry and detainer. </p> <p>1. Pending negotiations for a contract for the purchase of land, to be paid for in personal care and attention to the vendor during the lifetime of the latter, the vendees entered into possession, but the parties were never able to agree upon the terms of the contract. Dissatisfaction having arisen the vendor brought an action of unlawful detainer to remove the vendees from the land. Held, that a tenancy at will or hy sufferance by implication of law was created from the relations of the parties, terminable by ejectment rather than by unlawful.de-tainer, and hence that plaintiff mistook her remedy. Buel v. Buel, 76 Wis. 413, followed.</p> <p>2. Statutes authorizing an action of unlawful detainer against any tenant or lessee at will or by sufferance do not apply where that relation is created by operation of law, but are limited to cases where the conventional relation of landlord and tenant exists.</p>

Eay Stevehs, Circuit Judge. Action to recover on contract commenced in justice’s court. There were formal pleadings, plaintiff seeking to recover $27.50 with interest and costs, and defendant to defeat the plaintiff’s claim and recover on a counter demand $27.25. The defendant recovered judgment in the justice’s court for $11.66 costs. Plaintiff appealed to the circuit court, the notice of appeal being signed in its behalf by its attorneys.

<p> Vendor and purchaser: Rescission of contract by purchaser: Mutual mistalce: Evidence: Damages: Laches. </p> <p>1. Where the minds of parties to a writing have met on the sale and purchase of a particular parcel of land and they sign the writing which both suppose describes that parcel, but which by clerical error describes some other, a case is presented for a court of equity to ascertain the true agreement and interpose to prevent the writing, as far as it is variant, being enforced as the contract of the parties, in the absence of negligence or acquiescence.</p> <p>2. In an action by a purchaser to rescind a written contract of purchase of land on the ground that it described a tract other than that agreed upon, under the evidence, stated in the opinion, the writing is held to declare that the vendee had purchased that which he never agreed to, by such a mistake as enabled a court of equity to look back of the writing to the real agreement.</p> <p>'3. In such case the vendors, without fault on their part and before the discovery of the mistake, having parted with the land agreed to be conveyed, and being disabled from specifically performing the real contract, it is held that merely relieving the parties from the apparent contract without attempting to enforce the contract they did make either by specific performance or award of damages was as far as a court of equity ought to go.</p> <p>4. In such case the court directed, judgment canceling the written instruments, and that the vendors refund the money payment and also cancel and surrender the unpaid promissory notes given to evidence the postponed instalments of the purchase price.</p> <p>5. In an action by a vendee to rescind a written contract of purchase of land, the vendee, under the evidence, stated in the opinion, is held not guilty of laches.</p>

<p> Judgments: Gorreetion on appeal: Jurisdiction: Boundaries: Agreement as to survey: Surveys: Oonelusiveness: Subdivision of section. </p> <p>1. A judgment which establishes the boundary between the W. % of the N. W. % and the K % of the N. W. % of section 6 as commencing 20.21 chains east of the northwest corner of the section and extending thence south to the quarter-post on the south line of the section, is incorrect, and such judgment cannot be corrected on the theory that the trial court by mistake used the words “quarter-post” as meaning “eighth-post,” where the record fails to locate the eighth-post with sufficient definiteness, and another conclusion is permissible.</p> <p>2. Where parties having a dispute concerning a boundary line agree to have the same located by a designated surveyor and to abide by the location so made, and it is sought to hold the parties to that agreement without reference to the correctness of the line so located, it should appear that some definite survey was made and made in a manner approximating the proper method of making a survey, that it was not a mere random or experimental line, and that the true line could not be readily located or ascertained, or else that the parties acquiesced in and recognized the line so located.</p> <p>3. If the survey made by the general government and the field-notes thereof afford sufficient means to enable a competent surveyor to locate a given line, that line cannot be said to be doubtful or uncertain.</p> <p>4. In an action for trespass to real property involving the location of a boundary line, the evidence, stated in the opinion, is held insufficient to establish an agreement to abide by a survey made by a designated surveyor whether right or wrong.</p> <p>5. The proper subdivision of section 6 of a government township is in conformity with the rules laid down by the General Land Office in its circular of March 14, 1901.</p>

<p> Electricity: Negligence: Personal injuries: Death of lineman from contact with charged wire: Questions for jury: Hazards of employment: Assumption of rish: Contributory negligence: Evidence: Admissibility: Custom: Excessive damages: Instructions to jury. </p> <p>1. In an action for tlie negligent killing of a lineman of a telephone company it appeared, among other things, that deceased was killed by contact with an electric light span wire; that, by reason of tlie negligent removal of a guy wire, one pole supporting the span was inclined towards a telephone pole, whereby the span wire became slack and sagged to such an extent that contact was formed with a feed wire, and the span wire thus became heavily charged with electricity and dangerous. Held:</p> <p>(1) The possibility of danger from the sagged wire was not so imminent as to become one of the hazards of deceased’s employment.</p> <p>(2) The evidence failed to establish as matter of law that deceased ought to have known or appreciated the danger.</p> <p>(3) Contact of deceased with the span wire was not an unnecessary and reckless act.</p> <p>(4) The question of contributory negligence was for the jury.</p> <p>2. While evidence of a custom obviously dangerous is not admissible, it is not error to admit evidence of a general custom of linemen to step on and make use of dead electric wires in climbing poles, notwithstanding evidence of a warning against usual dangers incident to the employment.</p> <p>3. In an action for the negligent killing of a telephone lineman it appeared, among other things, that deceased was between twenty-one and twenty-two years old; that his father was fifty-four, in fairly good health, and had no property; that his mother was forty-three and her physical condition was very poor; that there were three other children, two girls aged twenty and eighteen respectively, and a boy aged fifteen, the latter not self-supporting; that the father earned $40 per month, and that deceased earned $40 besides board and room, and had promised to take care of his parents and did not expect to marry, at least in the near future. Sec. 4256, Stats. (1898), permits the jury to award damages “as they shall deem fair and just in reference to the pecuniary injury resulting from such death to the relatives of the deceased specified in this section.” Held, that a verdict for $2,500 was not excessive.</p> <p>4. In an action for the negligent killing of a telephone lineman, requests for instructions, and instructions given to the jury on the question of warning, and also instructions given on the question of contributory negligence, are held not to be subject' to criticism.</p>

<p>Appeal from a judgment of the circuit court for Sauk county: E. Nay SteveNS, Circuit Judge.,</p> <p>Action in ejectment, the complaint being in the usual form. The answer put in issue plaintiff’s claim of title and pleaded title and right of possession in the defendants.</p> <p>Both parties claimed title under the same grantor. The evidence was to this effect: March 4, 1808, Julius R. Wood-ruff made a deed in due form and naming $1,000 as the consideration, purporting to convey lots 3 and 4, block 25, of the village of Baraboo, Sauk county, Wisconsin, to his daughter Jennie, a child by his second wife then about twelve years old, and 120 acres of land to his sons by his first wife, Frank R. and Charles T., who were then of age or nearly so. It contained this language: “The intention is to give my sons equally, the above described farming lands, and to Sarah Jennie the house and lots in the village of Baraboo.” The lot in question was vacant and so continued till Fra/nlc took possession thereof in 1905. The deed was in possession of Jennie for many years prior to her death, which occurred April 2, 1902. She left plaintiff, her husband, as her only heir at law, who obtained the deed as part of her effects and placed it on record March 8, 1906. When it was made the grantor'was a widower, but he married for the third time a few days thereafter. The third wife was living when this action was commenced. He died about two months before the deed was recorded. On April 19, 1905, he made a second deed of the property in question to Frank, who knew the first deed was outstanding. His deed was recorded May 5, 1905. Immediately after Frank got the1 deed he took possession of the lot, built a dwelling house thereon, and occupied the same. He enjoyed the use of the premises continuously for over a year. After Jennie died Frank inquired of' plaintiff as to the whereabouts of the first deed, and was told by the latter that he did not know where it was. Thereafter Frank and his father kept track of whether the old deed made its appearance of record.</p> <p>There was no evidence that the father left a will or that the property in question consisted of a homestead or a part of one, nor direct evidence as to when the first deed was delivered to Jennie. Frank testified, under objection, that he saw it in his father’s possession about 1874. He was called as a witness for plaintiff and allowed to testify that his father told him the 'deed was delivered to Jennie. Under objection, on cross-examination, he was allowed to testify to a declaration by the father, made at the time of the conversation testified to in chief, that the deed was given to Jennie for safe-keeping, because he did not wish to have it lie around the house. That evidence in deciding the case finally was held incompetent. Plaintiff did not endeavor to obtain possession of the lot or make any claim thereto till after Frcmk made his improvements. There was no evidence showing that Jennie made any claim to the property during her lifetime, or that she or her husband ever paid any taxes thereon, and no evidence as to whether the deed was relied on by Frank and his brother for title to the farm lands, nor any evidence that the deed was ever recognized by any one as affecting the title to any of the property described therein till it was placed on record as aforesaid. There was evidence undisputed that the use of the property as improved was worth from, $15 to $16 per month, and unimproved worth, possibly, $20 per year.</p> <p>At the close of the evidence both sides moved for a directed verdict. The defendant’s motion was denied. The plaintiff’s motion was granted upon the ground that there was no evidence to efficiently rebut the prima facie effect of possession of the deed by plaintiff’s wife for many years prior to her death, and that such prima facie effect could only be efficiently rebutted by evidence establishing nondelivery of the instrument for the purpose of having it take effect, beyond any reasonable controversy. Judgment was rendered accordingly, the court fixing the damages for the unlawful withholding of the property at $28.</p>

TarraNt, Circuit Judge. This action was brought in equity. All the defendants, except Valentine Zelin and wife, demurred on the following grounds: (1) That there is another action pending between the same parties for the same cause; (2) that several causes of action have been improperly united; (3) that the complaint does not state facts sufficient to constitute a cause of action. The demurrer was sustained and plaintiff appealed.

<p>-Appeal from a judgment of tbe circuit court for Milwaukee county: J. 0. Ludwig, Circuit Judge.</p> <p>It appears from the record that the plaintiffs are husband and wife; that September 25, 1905, as they were about to cross Grand avenue in Milwaukee, the wife was struck by an automobile owned and then operated by the defendant, and injured; that the plaintiffs thereupon commenced this action in a justice’s court in favor of both plaintiffs to recover damages for the injuries sustained; that the complaint filed therein alleged one cause of action in favor of the plaintiff Mary and against the defendant, claiming $100 damages therefor, and another and separate cause of action in favor of the plaintiff 'William and against the defendant, claiming $100 damages therefor. To such complaint the defendant demurred on the grounds: (1) That the court had no jurisdiction of the subject matter; (2) that there was a defect and misjoinder of the parties plaintiff; (3)- that the several causes of action had been improperly united; (4) that the complaint did not state facts sufficient to constitute a cause of action. The said demurrer was overruled by the justice. Thereupon the defendant answered by way of admissions, denials, and counter allegations, including contributory negligence. The cause being tried before the justice January 19, 1906, at the close thereof the justice found in favor of the plaintiffs and against the defendant, and assessed William's damages at $48.15 and Mary’s damages at $75, making in all $123.15, for which judgment was entered in favor of the plaintiffs and against the defendant for the amount stated and $59.85 costs and disbursements. On January 27, 1906, the defendant appealed from said judgment to the circuit court, and the papers were filed therein Eebruary 15, 1906. On October 2, 1906, the plaintiffs obtained an order to show cause, based upon affidavits and the record, why the appeal should not be dismissed for the reason that the defendant had failed to bring said cause to trial or hearing either at the April or July term of the circuit court. The defendant answered said order to show cause to the effect that he attempted to bring the cause to- a hearing July 5, 1906, by having his answer withdrawn and his demurrer reinstated, but was prevented from doing so- by the sudden and unexpected adjournment of the court; that for two and one-half months prior to October, 1906, the defendant’s attorney was prevented from bringing the cause to a hearing by continued and serious illness and subsequent death in his family; that by inadvertence and oversight the cause was not brought to a hearing in July, 1906; that no jury was called for that July term. On October 22, 1906, the circuit court denied the application to- dismiss the appeal and ordered the defendant to pay the attorneys for the plaintiffs $5 costs of motion, and upon payment thereof the cause was ordered to stand for trial in its regular order upon the then October, 1906, term, and further ordered that the defendant have leave to enter a demurrer to the complaint within ten days and payment of costs. Pursuant to the leave so given the defendant put in a demurrer substantially like the one filed in the justice’s court, except that it is more specific as to the plaintiffs being husband and wife and each having a separate and distinct cause of action. On November 12, 1906, the circuit court ordered that such demurrer be and the same was sustained, on the ground that there was a defect and misjoinder of parties plaintiff, alleging separate and distinct causes of action in favor of each, and also- on the ground that several causes of action had been improperly united, with leave to the plaintiffs within twenty days to serve an amended complaint. On February 23, 1907, the plaintiffs having failed to serve such amended complaint, it was adjudged that the complaint be and the same was thereby dismissed, with $66.05 costs. From that judgment the plaintiffs appeal.</p>

order of the circuit court for Milwaukee county: J. C. Ludwig, Circuit Judge. This is an action by the state of Wisconsin on the relation of Ernest E. Smythe to oust the defendant from exercising certain franchises and privileges. The relator is a resident, elector, and taxpayer of the city of Milwaukee. The defendant is a corporation organized under ch. 86, Stats.

Jackson county: James O’Neill, Circuit Judge. The plaintiff in error, hereinafter called the defendant,, was charged with the deliberate murder of one Jepson at the village of Merrillan, Jackson county, August 9, 1904, and! upon his trial was convicted of murder in the second degree, and brings his writ of error to reverse the judgment.

<p>Appeal from a judgment of the circuit court for Waupaca county: Chas. M. Webb, Circuit Judge.</p> <p>The appeal is from a judgment rendered in an action brought for a mandatory injunction requiring the defendant to close a ditch upon his land and for damages.</p>

<p>Appeal fro-m a judgment of the circuit court for Waupaca county: Ohas. M. Webb, Circuit Judge.</p> <p>Action for assault and battery committed by defendant-on plaintiff, in that he wilfully and maliciously pushed the-plaintiff over a porch railing, causing her to fall to the ground, whereby she suffered serious injuries. The answer-interposed contained merely a general denial. The contention of the plaintiff was that, having visited the defendant’s-, house on a matter of business and having been threateningly ordered to leave, he, as she reached the door, suddenly seized" her by the throat and threw her over the railing. The defendant’s theory of the transaction was that, as he held open, the door of the house for her to pass out, she suddenly struck him in the face and then seized him by the clothing about the throat, and that his only act was to use such force with his arm against hers as to break away that hold, and that,, as her hold was broken, she stepped backward and fell down the steps from the porch to the ground, and that his acts did not constitute an assault upon her. Verdict was found for the defendant, whereupon the plaintiff moved to set aside-that verdict and for a new trial, partly upon the ground that the jury had been allowed to roach their verdict upon justification of the assault. The defendant moved for leave to-amend his answer by setting up justification, in accordance with the evidence which had been introduced upon the trial,, over objection by the plaintiff upon the ground of inadmissibility under mere general denial. Tbe plaintiff admitted that there was no additional evidence which she could have introduced had there been a plea of justification and self-defense, and it was further made to appear that this trial constituted the third in which all the facts had been fully investigated, one of the earlier ones being in a criminal prosecution. The court entered an order allowing the amendment upon the condition that the defendant pay $10 costs to plaintiff’s attorney. Written exception was filed to this order, but plaintiff’s attorney received and retained the $10 paid as a condition of such amendment. Whereupon judgment was rendered for the defendant, from which the plaintiff appeals.</p>

<p> Appeal and error: Review: Prejudicial error: Highways: Insufficiency: Negligence: Personal injuries: Trial: Oral request for instructions: Permanent injuries: Evidence: Damages: Instructions to jury: Special verdict: Questions in disjunctive: Prejudicial misconduct of trial judge: Visiting jury room. </p> <p>1. In an action for personal injuries the evidence disclosed a case of a plaintiff lawfully using a highway, the existence of one of the ordinary defects common to highways, but serious enough to render it unsafe and insufficient for travel, and the plaintiff thrown out of a vehicle thereby, while in the exercise of ordinary care on her part. Held, that such evidence, while not conclusive, made a prima facie case against the defendant town, sufficient to take the case to the jury, and hence no error could be assigned in denying the defendant’s motions for a non-suit, to direct a verdict in its favor, for judgment notwithstanding the verdict, and to amend the special verdict by changing answers to the questions.</p> <p>2. Oral requests for instructions to the jury on the burden of proof are held properly refused because not in writing and because that subject was covered by the general charge in different words.</p> <p>3. In an action for personal injuries the bill of exceptions showed a request for an instruction on the subject of permanent injuries, its refusal and due exception thereto, and an instruction given to the effect that the jury might consider the extent and duration of the plaintiff’s injuries and whether permanent or not. To this instruction there was also an exception. Held,, that the evidence, stated in the opinion, neither upheld the refusal of the instruction requested nor authorized the instruction given.</p> <p>4. In such case, in view of the record, the supreme court was unahle to affirm a contention that the smallness of the verdict showed that the jury did not include any damages for permanent injuries.</p> <p>5. In an action for personal Injuries from a defective highway, the court, as part of the special verdict, submitted a question: “Bid the highway officers of the defendant town know, or in the exercise of ordinary care and diligence ought they to have known, that the highway was so insufficient and out of repair a sufficient length of time before the accident to have repaired the same, in the exercise of ordinary diligence?” From the evidence the jury might have found either actual or constructive notice, or might have negatived either one and affirmed the other. Held, that since it could not he said that the whole jury affirmed either disjunctive proposition, the submission of such question constituted error for which the judgment must be reversed.</p> <p>6. It is prejudicial error for the trial judge, after the jury had retired to deliberate upon their verdict, and in the absence of counsel, to go to the jury room for the purpose of announcing to the jury that the sheriff would take them out to supper, and, after making such announcement, cautioning them with reference to their conduct while at, going to, or returning from their meal, the official reporter attending and taking down all that was said.</p> <p>7. Such error requires reversal notwithstanding the fact that the probity of the trial judge is beyond question.</p>

W. Helms, Circuit Judge. This is an action to recover damages for the loss of a mare. The ground alleged for a recovery is the negligence of defendants’ servant. It is alleged that defendants’ servant in charge of the stallion of defendants was negligent in permitting a false entry by the stallion, in serving the mare and that this caused her an injury which resulted in her death.

Ray SteveNs, Circuit Judge. This action is brought to reform a written contract for tbe sale of real estate so tbat it may express tbe agreement of tbe parties. Plaintiff is tbe vendor, tbe defendant Smith is vendee, and tbe defendant Sticlcle bolds an assignment of tbe contract from tbe defendant Smith as collateral security for money loaned tbe defendant Smith upon tbe contract.

Eat SteveNS, Circuit Judge. This is an action of ejectment brought to recover certain real estate described in the complaint as follows: The northeast (N. E.) one-half (|-) of lot five (5) in block 153 of the city of Madison, Wisconsin.

Rat Stevens, Circuit Judge. This action was brought in equity to quiet title. The defendant demurred to the complaint on the following grounds: (1) That the court had no jurisdiction of the subject matter, for the reason that plaintiff had a complete remedy at law; (2) that the complaint did not state facts sufficient to constitute a cause of action. The demurrer was overruled and the defendant permitted to answer upon payment of $10 costs.

<p>Appeal from a judgment of tbe circuit court for Dane county: E. Eat Stevens, Circuit Judge.</p> <p>Tbe appeal is from a judgment rendered in an action brought to charge the appellant as garnishee of George Ken-ner.</p>

Action to recover damages alleged to have been caused by negligence on the part of defendant. Defendant, under contract to thresh plaintiff’s grain stored in a barn, set his machine at the north middle door and the engine to the west about sixty feet therefrom and forty feet from the northwest corner of the barn. There were spaces ■of considerable width between the boards of the barn against and in which lay unthreshed grain.

not defective in fact, and a large majority thereof were legal ballots cast and voted for relator and should have been counted and canvassed for him, and were sufficient in number and majority to have elected him; also, that a large number' of ballots properly marked in favor of relator were not counted or canvassed in bis favor but in favor of defendant, or were not counted and canvassed at all, whereas the same should have been counted for relator and would have resulted…

Tliis case is in all respects like the preceding case, State ex rel. Lochschmidt v. Raisler, ante, p. 672, 114 N. W. 118, except that the office involved is that of register of deeds for Outagamie county; that the total vote as canvassed was 3,469 for defendant as against 3,420 for relator, which included alleged illegal Indian votes canvassed and counted, 71 for defendant and 28 for relator. The same ■order was entered and appeal taken hy defendant.

This action was commenced in tbe county court of Oneida county by tbe filing’ of a claim against tbe estate of S. D'. Woodworth, deceased. Tbe claim was disallowed and an appeal taken to tbe circuit court, where upon trial a verdict was rendered against tbe plaintiff. Upon appeal to this court tbe judgment of tbe circuit court was reversed for want of presentation of tbe case by respondent.