Volume 134 — Wisconsin Reports

This appeal is from an order of the circuit court for Outa-gamie county denying the petitioners’ right to appeal from a judgment of the coiinty court after the time for appealing had expired.

(Appeal from a judgment of the circuit court for Outa-gamie county: Jomr Goodlaed, Circuit Judge. The appeal is from a judgment rendered in an action of ejectment brought to recover a strip of land about three feet wide and sixty feet long claimed hy the respondent to he a part of lot 1 in block H in the Eirst ward of the city of Appleton, and hy the appellants to he a part of lot 3 in the same block.

<p>Appeal from a judgment of tbe circuit court for Outa-gamie county: Johe G-oodlaND, Circuit Judge.</p>

TMs is an action of ejectment tried before the court and a jury. At the close of the testimony the court ordered a non-suit, and judgment was rendered in favor of the defendant dismissing the complaint with costs, from which this appeal was taken. The error assigned is in granting the nonsuit.

<p> Trial: Direction of verdict: Negotiable instruments: Evidence: Weight and sufficiency: Impeaching written instruments. </p> <p>1. In an action against an accommodation mater of a promissory note, pledged as collateral in violation of the agreement under wliicli it was signed, under the evidence, stated in the opinion, it is held that the trial court properly directed a verdict for plaintiff for the amount unpaid on the note.</p> <p>2. Mere evidence of an interested person as to an admission tending to impeach a written instrument (a promissory note), entirely uncorroborated and unequivocally denied by the person said to have made the admission, is not sufficient; the rule in that regard being nearly as strong as in case of á conveyance of realty.</p>

Action for conversion of certain logs. In and prior to the year 1904 the plaintiffs had been merchants dealing in supplies for lumbering, had transactions with a firm of Peters & McNinch, who owned a sawmill and were also engaged in general lumbering, selling them supplies and buying logs of them, of which some remnants remained in the mill yard at the times here involved.

<p> Appeal and error: Record: Exceptions: Manner of talcing. </p> <p>1. Written exceptions to findings are necessary to entitle a party to a review on appeal of the evidence on the issues covered by the court’s findings, and must he filed with the clerk as provided by sec. 2870, Stats. (1898).</p> <p>2, In an action tried by the court it appeared from the record that appellant proposed certain findings; that some of the court’s findings covered the proposed findings and were in effect as requested; that others were adverse to those proposed; while some of the proposed findings were not embraced in those of the court. Held, that an indorsement on the proposed find-mgs: “Findings proposed by plaintiff. Refused. To which refusal plaintiff duly excepted,” even if it could be treated as an exception to the findings of the court in conflict therewith, was too general to be available on appeal.</p> <p>8. The function of an exception is to point out specifically to the trial court some particular matter as erroneous, and this cannot be accomplished by requesting a finding which merely negatives the finding of the court.</p>

This is an appeal from a judgment dismissing the plaintiff’s complaint. Plaintiff is the widow of Michael Chopin, who was hilled January 30, 1906, while in the employ of the defendant. Deceased was employed as boss machine tender, having a general supervision of the operation of four paper machines located upon the second floor of defendant’s mill in Outagamie county, Wisconsin.

<p>Appeals from a judgment of tlie circuit court for Lang-lade county: Geo. W. BüRnell, Judge.</p> <p>appointed general guardian of the person and estate of Mary Deleglise-by the county court of Langlade county under sec. 3976, Stats. (1898), appeals from a judgment of the circuit court for Langlade county reversing the order of the county court appointing him such guardian, and the petitioners in the county court, Arma E. Morrissey and Sophia E. Leslie, appeal from that part of the same judgment imposing the costs of the guardianship proceedings upon said petitioners.</p>

<p> Parent and, child: Services rendered parent by child: Right to recover: Presumptions: Contracts. </p> <p>1. The rule that, when a child remains at home after his majority and renders ordinary services to his father, no contract to pay therefor will he implied, hut an express contract must he proven by direct and positive evidence or by circumstantial evidence equivalent thereto, is subject to the exception that where the services are rendered in reliance upon an express oral contract to deed or devise real estate, although the prom- ' ise is not enforceable because not in writing, still a contract to pay the reasonable value of the services may he implied and recovery had, provided the express promise he satisfactorily proven.</p> <p>2. In such case the effect of the void contract is to remove the otherwise conclusive presumption that the services were rendered gratuitously.</p> <p>3. In an action by a son to recover for services performed after the son’? majority in working on the father’s farm under an express promise, testified to by the son but denied by the father, to deed the son the home farm, the mere fact that the duration of the services was indefinite would not prevent a recovery.</p>

<p>Appeal from a judgment of the circuit court for Outa-gamie county: John Goodlattd, Circuit Judge.</p> <p>Action to recover on a commission contract respecting the sale of real estate.</p> <p>The claim of the plaintiff was that under contract with defendant he procured a person ready, willing, and able to purchase the latter’s farm and personal property thereon for $7,000, paying therefor in part, at an agreed valuation, a brick building and the land on which it was situated in Uew London, Wisconsin, the agreed compensation for the services being three per cent, of the selling price of the farm and personalty, and that defendant refused upon due demand being made to pay plaintiff such compensation.</p> <p>The claim of the defendant was that the proposed purchaser was not able to carry out the contract for exchange of properties, because be did not have or control a full title to tbe brick store and land on wbicb it was situated, therefore that plaintiff failed.to earn his commission.</p> <p>The evidence was to this effect: The proposed purchaser, M. C. Trayser, agreed to transfer to defendant, in part payment of the farm and personalty, “a brick store and lot 4, block 4, in Millard and Taft’s plat of the city of New London, except five feet off of the east side sold to J. Logan & Co., and ten feet off of the west side sold to W. A. Sterling.” The brick building was twenty-eight feet wide. The west wall was one half on the land conveyed to Sterling, while the east wall, and so much of the building as to leave only about twenty-three feet and nine inches in width, was located on the five feet conveyed to J. Logan & Co.</p> <p>There was a stairway and hall five feet wide running the whole length of the building, immediately east of the east wall. One half of such stairway and hall was on that part of the lot proposed to be conveyed to the defendant. The owner of the five-foot strip possessed an equal right with the owner of the building to use such stairs and hallway. In short, that part of the lot, lying west of the center of the stairway, proposed to be conveyed to the defendant was incumbered with the easement mentioned, possessed by the owner of the five-foot strip, while the Trayser ownership of the building was subject to such easement and the right of the owner of that part of the lot west of the building to use the wall on that side as a party wall and the owner of that part of the lot east of the building to likewise use the wall on that side. Trayser and those associated with him, whose rights he offered to transfer to defendant, had been in possession of the building for some thirty years. The proposed purchaser never offered to convey to defendant, nor was he able to convey the brick building and the land on which it was situated, except subject to the rights of others as aforesaid.</p> <p>On the facts stated the trial court directed a verdict in favor of the defendant.</p>

'Appeal from a judgment of the circuit court for Outa-gamie county: Johe Goodland, Circuit Judge. Suit in equity to cancel and satisfy of record a certain real-estate mortgage from the bankrupt Wason to defendant B. H. Hackett and assigned to the defendant bank, on the ground that the same has been fully satisfied.

In November, 1906, the city of Appleton voted Herman Bach a license to sell intoxicating liquors for the remainder of the year ending the first Tuesday in July, 1907, he paying therefor $133.33.. On December 5, 1906, application was made to the common council for the revocation of his license for the selling of a glass of beer to a minor on that day.

circuit court for Langlade county: Joror Goodland, Circuit Judge. The appeal is from a judgment rendered in a suit in equity brought to enjoin the defendant from repeated trespasses in going upon and traveling over a piece of land formerly a highway, but prior to such trespasses discontinued by order of the town board.

This is an action in equity brought by the plaintiffs, who are aged persons, to set aside a conveyance of their homestead farm made October 23, 1897, to the defendant Herman Warmer, their son, in consideration of the son’s notes for $1,000 and a bond for support in the penal sum of $1,000 secured by mortgage upon the land.

Mandamus action against the supervisors and clerk of the town of Eolling, Langlade county, to compel the issuance to the relator of a town order for $58.23. There was a petition upon which an alternative writ of mandamus was issued, stating this in substance: The petitioner having a claim against the town of Eolling duly presented the same to the town board of audit of such town for allowance at the regular’meeting of such board in March, 1902, and it was disallowed.

<p>Appeal from a judgment of the municipal court of Outa-gamie county: Thomas H. Ryaw, Judge.</p> <p>Action of replevin of a cash register seized by tbe defendant by virtue of a writ of attachment against one Goetzke. Plaintiff claimed under a bill of sale, conceded to be a mortgage, made about one year before the attachment and covering the entire fixtures, liquors, and other stock in trade of a saloon owned by Alexander & Goetzke, and,' apparently, later by Goetzke alone, who ran it with aid of a bartender.. The bill of sale was never recorded, but about a week before the attachment, Goetzke having absconded, leaving his wife in occupation of the saloon over which they resided, the plaintiff’s officers made a formal attempt to take possession under its bill of sale. The action was tried to the court, without a jury, and formal findings were made that the plaintiff was the owner and entitled to the possession of the property at the date of the attachment; that its value was $100, and the damages six cents. Accordingly, judgment was rendered in favor of the plaintiff for possession, from which the defendant appeals.</p>

<p> Counties: Claims: Verification; Statutes: Construction: Pleading: Demurrer. </p> <p>1. Under sec. 677, Stats. (1898), — providing for the presentation of claims against counties, and requiring a statement thereof in. writing in the form prescribed, that such statement shall be verified by the affidavit of the claimant, his agent or attorney, and filed with the county clerk, and that no such claim against any county shall be acted upon or considered by the county board unless such statement shall have been made and filed,— an omission of the affidavit to show that the affiant is the claimant, his agent or attorney, is a' substantial defect, and the county board acquires no jurisdiction to act upon or consider such claim.</p> <p>2. Where a county board disregards such defect and considers the claim, allowing some of the items and disallowing others, and thereafter the same claim is presented, properly verified, and disallowed because of such prior action, on appeal to the circuit court from such disallowance of the whole claim it is error to overrule a demurrer to an answer of the county board setting up as the sole defense its previous action and that no appeal had been taken therefrom.</p>

Eepobted from the municipal court of Brown county: N. J. MoNAHAN, Judge. Eeports in two prosecutions under sec. 1636p, Stats. (Laws of 1907, eh. 266). The first action was for a violation of such chapter September 5, 1907, and the second for a violation thereof August 26, 1907. The person whose rights under such law were violated in the latter was a passenger between points within the state, and the one in the former was an interstate passenger.

'Appeal from a judgment of the circuit court for Grant county: Geoege CleMENtsoN, Circuit Judge. This is an' action in equity to set aside an award of arbitrators rendered upon a common-law agreement of arbitration.

J. Eeuit, Circuit Judge. This is an appeal by defendant, Monroe county, from a judgment of tbe circuit court in favor of plaintiff. Respondent performed services at a post-mortem examination, and filed tbe following bill witb tbe county board: “Sparta, Wisconsin, November 23, 1905. “Tbe Oounly of Monroe to O. E. Quigg, M. D., Dr. Nov. 21-22, 190'5.

<p>Appeal from an order, of the circuit court for Juneau county: J. J. Eeuit, Circuit Judge.</p> <p>A petition with 109 signatures for a drainage district having been duly filed with the clerk of the circuit court for Juneau county, Wisconsin, such proceedings were duly had that the facts herein alleged were found to exist warranting the appointment of commissioners as provided by law. An order was entered accordingly. The commissioners in due time filed their report showing the existence of facts requisite to the creation of the district and that the aggregate costs of the enterprise would be about $90,000, or some over $3 per acre on all land situated therein.</p> <p>During the proceedings for a confirmation of the report a large majority of the petitioners duly remonstrated against it, and asked leave to withdraw their support and have the petition dismissed. No objection was made thereto, except by the commissioners, though so far as appears by the record the petitioners who did not join in such requests were willing to have the report confirmed. One ground of the requests was that the probable cost of the work would exceed the probable benefits and was so great that in the judgment of the remonstrants the petition should be dismissed.</p> <p>The court, as a result of the hearing on the requests aforesaid, held that the proceedings up to the time of the making thereof were preliminary to the formation of a drainage district, and that at any time before the confirmation of the report petitioners had a right to withdraw under the circumstances of the case, subject to a proper adjustment of the costs and expenses incurred, protecting other parties concerned ’ from being prejudiced; that petitioners could not withdraw and leave their co-petitioners “without standing by and taking care of every expense that has been incurred up to this time, any more than one or more co-plaintiffs could withdraw in an ordinary lawsuit without paying the costs incurred up to that time.” A decision to that effect conpled with one that all the petitioners were equally liable to the commissioners for the costs and expenses of the proceedings was orally announced from the bench, and an order was directed to be drawn in accordance therewith and presented for signature. In response thereto' an order was prepared on behalf of the remonstrating petitioners and was signed. It was to this effect: The total acreage within the boundaries of the proposed district, as shown by the petition, is 30,440, and as recommended by the commissioners is 28,930, owned by 212 persons. Ninety-six adult landowners signed the petition, owning 19,353 acres of land. One hundred and twenty owners duly remonstrated against the creation of the district. They represented 17,320 acres of land in. the proposed district. Of the ninety-sis who signed the petition, sisty-five, owning 11,000 acres of land, are opposed to the creation of the district and to the confirmation of the commissioners’ report. After the withdrawal of the sixty-five petitioners the petition contains the signatures of only thirty-one adnlt owners of land within the boundaries of the proposed district, who are the owners of 8,353 acres of land and not enough to justify creating it. Owing to the facts stated the court is without jurisdiction to confirm the commissioners’ report. The proceedings are accordingly dismissed and discontinued. Judgment should he rendered in favor of the commissioners against the petitioners for expenses and liabilities incurred according to law in the proceedings. A judgment was accordingly entered.</p> <p>The order dismissing the proceedings was entered October 17, 1906. On October 22d, thereafter, there was served upon the attorneys for the commissioners a notice of the entry of such order, specifying the matters of law determined thereby in the language thereof. The notice did not contain a copy of the order, nor was there any served therewith. Such attorneys in writing admitted service of the notice. Within thirty days thereafter, there was an ineffectual attempt made to appeal from the order. Eebruary 4th, thereafter, due service was made of a notice of the entry of the order together with a copy thereof and within the succeeding thirty days this appeal was taken.</p>

'J. Eruit, Circuit Judge. Tbe plaintiff, as administrator of tbe estate of Samuel H. Smith, deceased, brings this action to recover the damages caused to his widow by the alleged wrongful acts of the defendant which are alleged to have caused decedent’s death.

Bat Steveus, Circuit Judge. Appeal from order sustaining demurrer to the complaint.

<p>EheoR to review a judgment of the circuit court for Jefferson county: Georgs Grimm, Circuit Judge.</p> <p>Error to review tbe conviction of tbe plaintiffs in error. Tbe information charged tbat tbe plaintiffs in error (hereinafter called defendants) at tbe county of Jefferson did unlawfully, by themselves, their agents and servants, have in their possession with intent to sell, and did offer and expose for sale, and did sell, a certain article, product, and compound which was made partly out of fat oil and oleaginous substances and partly out of a compound thereof, and neither the said article, product, or compound, nor the said fat oil and oleaginous substance, nor the said compound thereof was produced from unadulterated milt or from cream and unadulterated milk, and said article, product, and compound and said substance of said compound contained the admixture and addition of fat foreign to unadulterated milk and foreign to unadulterated cream, and said article, product, or compound was then and there in imitation of yellow butter, with or without the coloring matter, such butter being produced from said unadulterated milk or cream from the same, etc.; that said article was in fact oleomargarine and in imitation of yellow butter, etc. There was a verdict of guilty, and certain specific errors hereinafter noted are assigned in the reception and 'rejection of evidence, in refusing to direct a verdict of not guilty, and in instructing the jury.</p> <p>Among other references plaintiffs in error cited the following: State ex rel. S. B. & L. M. 8. 0. & H. Oo. v. Oomm’rs, 34 Wis. 162; Minis v. U. 8. 15 Pet. 423, 4 Rose’s Notes, 121; Olijf v. U. 8. 195 U. S. 159, 25 Sup. Ct. 1; Brown v. 0. & N. W. B. Oo. 102 Wis. 137, 77 N. W. 748, 78 N. W. 771; Plumley v. Massachusetts, 155 U. S. 461, 15 Sup. Ct. 154; sec. 4607d, Stats. (1898); Louisville & N. B. Oo. v. Comm. 99 Ky. 132, 35 S. W. 129, 33 L. R. A. 209; L. & N. B. Oo. v, B. B. Oomm’n> 19 Eed. 679; B. B. Comm’n Cases, 116 U. S. 307, 336, 6 Sup. Ct. 334, 388, 1191; Tozer v. U. 8. 52 Eed. 917; YicJc Wo v. Hoplcins, 118 U. S. 356, 6 Sup. Ct. 1064; Slate ex rel. Miliuaulcee Med. Coll. v. Chittenden, 127 Wis. 468, 107 N. W. 500; Wis. Keeley Inst. Co. v. Milwaukee Co. 95 Wis. 153, 70 N. W. 68; C., B. & Q. B. Co. y. People ex rel. Drainage Comm’rs, 200 U. S. 561, 26 Sup. Ct. 341'; McCray v. U. S. 195 U. S. 27, 24 Sup. Ct. 769; Schollenberger v. Pennsylvania, 171 U. S. 1, 18 Sup. Ct. 757; Powell v. Pennsylvania, 127 U. S. 678, 8 Sup. Ct. 992; Lochner v. New York, 198 U. S. 45, 25 Sup. Ct. 539; Mugler v. Kansas, 123 U. S. 623, 8 Sup. Ct. 273; Collms v. New Hampshire, 171 U. S. 30, 18 Sup.-Ot. 768; Tiedeman, Police Power, 510; Lawton v. Steele, 152 U. S. 133, 14 Sup. Ct. 499; Holden v. Hardy, 169 U. S. 366, 18 Sup. Ct. 383; sec. 4607e, Stats. (1898).</p> <p>Among other references defendant in error cited the following: Sec. 4607c, Stats. (1898) ; Leisy v. Hardin, 135 U. S. 100, 10 Sup. Ct. 681; Capital City D. Co. v. Ohio, 183 U. S. 238, 22 Sup. Ct. 12Ó; In re Bahrer, 140 U. S. 545, 11 Sup. Ct. 865; Act May 9, 1902, ch. 784, 32 Stats, at Large, 193 [U. S. Comp. Stats. Supp. 1907, p. 636] ; Harrington v. Smith, 28 Wis. 43; State v. Shove, 96 Wis. 1, 70 N. W. 312; Chippewa B. Co. v. Durand, 122 Wis. 85, 99 N. W. 603; Canterbury v. N. W. Mut. L. Ins. Co. 124 Wis. 169, 102 N. W. 1096; Lehmann v. Parwell, 95 Wis. 185, 70 N. W. 170; Yon Bueden v. State, 96 Wis. 671, 71 N. W. 1048; Brown v. C. & N. W. B. Co. 102 Wis. 137, 77 N. W. 748, 78 N. W. 771; State v Hartfiel, 24 Wis. 60; Clark, Crim. Law, 68, 70; U. S. v. Anthony, 11 Blatchf." 200; Douglass v. State, 4 Wis. 387; Harmon v. State, 70 Wis. 448, 36 N. W. 1; Barnard v. State, 88 Wis. 656, 60 N. W. 1058; Spear v. Sweeney, 88 Wis. 545, 60 N. W. 1060.</p>

<p> Instructions to jury: Construction as a whole: Assignments of error; Application of instructions to case: Gas: Leahs: Injuries from escape of gas: Negligence: Trial: Failure to request instructions. </p> <p>1. Instructions must be considered as a whole, and a clause in an instruction separated from its context is not to be condemned because considered by itself it is incorrect.</p> <p>2j An instruction, for the purpose of testing its correctness, must not be viewed independently of the situation actually dealt with thereby.</p> <p>3. The existence of a defect in a gas company’s pipe, allowing a dangerous escape and accumulation of gas, is evidence, unexplained, of negligence.</p> <p>4. In an action for loss by fire alleged to have been caused by defendant’s negligence in failing to repair a defect in a pipe, thereby allowing a dangerous escape and accumulation of gas, the evidence showed, among other things, that the gas piping was originally free from defects, and that before the fire there was discovered a slight leak at a meter connection, caused by a shrinking of a gasket, which leak was not sufficient to maintain combustion until extinguished. Held, that while a clause of the instructions given: “The mere fact that a leak occurs in defendant’s pipes is not in itself evidence of negligence on its part,” when applied to some conditions might constitute harmful error, it was not erroneous when considered in connection with the facts presented in evidence, and the further instruction that as to small ordinary leaks there was only the duty of reasonable inspection and ordinary diligence to make necessary repairs.</p> <p>6. Error cannot be predicated upon failure of the trial court to Instruct upon a subject in respect to which no request for instructions was made.</p>

<p> Dogs and logging: Contract for logging: Construction: Compensation: Evidence: Ambiguity: Parol evidence: Appeal and error: Admission of evidence. </p> <p>1. Plaintiff brought an action on a contract providing that in consideration of bis cutting and delivering timber from a certain tract of land the defendant would, upon receipt of the logs at its yard, scale such logs and pay the plaintiff a certain sum per thousand log scale, and, if the parties were unable to agree upon the scale, that the scale should be made by a person to be mutually chosen, otherwise the scale was to be made by the district scaler. Held, that the logs were to be paid for upon a scale thereof and not according to the true quantity otherwise ascertained, and that such scale, being properly made, was conclusive upon both parties.</p> <p>2. In such case it appeared that at the time plaintiff expressed dissatisfaction with the scale made by the defendant the delivery of the logs had been practically completed; that it was impossible to rescale the logs already delivered owing to the fact that as delivered and scaled they had been immediately mixed with defendant’s other logs in its mill yard, and that the logs cut by plaintiff had no distinguishing marks. Held, that the scale made by defendant as the logs were delivered was conclusive and the measure of plaintiff’s right to compensation.</p> <p>3. In such case the provision relating to the scale to be made after a change of scalers is held to apply only to future deliveries.</p> <p>4. A contract providing that plaintiff shall cut and deliver timber from defendant’s lands, the service to be compensated at a specified sum “per thousand log scale,” and stipulating that defendant shall have the logs scaled as delivered, that if the parties are unable to agree upon the scale it shall be made by one mutually chosen, and, if the parties cannot agree in such choice, then by the district scaler, is ambiguous as to whether logs already scaled shall be rescaled, and entitles either party to offer such evidence as may aid the court in its construction.</p> <p>6. In such case it is error to admit evidence of the negotiations and oral agreements between the parties -prior to the signing of the written contract, and to construe the contract in accordance therewith, or to interpolate them into the contract.</p> <p>6. Where parties reduce their agreements upon both sides to writing, that is the final and conclusive evidence of what they have agreed, and verbal proposals or stipulations, on which at any time in the negotiations their minds have apparently met, are deemed to have been abandoned or merged into the writing, and cannot be considered.</p> <p>7. Such rule does not exclude facts, circumstances, and knowledge of the parties existing at the time of entering into the agreement which may aid in giving meaning to the words that are written therein.</p>

J. ViNJE, Circuit Judge. This is an action whereby plaintiff seeks to restrain the defendant from, digging a trench and laying a steam pipe therein across a lot in the unincorporated village of Shell Lake, Washburn, county. The plaintiff alleges that he is in the possession of a lot owned by such town under a contract with the town authorities to occupy this lot and the buildings thereon.

<p> Municipal corporations: Authority to devote municipal property to private use: Injunction. </p> <p>1. In, bolding and owning real estate for public use the authorities of a municipality act as trustees for the public, and as such trustees, in exercising the public functions of the municipality, they can only deal with public property by devoting it to public use.</p> <p>2. Such restriction upon the power of municipal authorities forbids them from conferring upon any one, for his private use or benefit, any right in or to any property of the municipality which is entirely unrelated to any of its governmental functions.</p> <p>3. Any grant by a municipality attempting to confer on private persons any interest or right in public property amounts to a diversion of such property from its rightful use and is unauthorized and unlawful.</p> <p>4. The action of a municipality in attempting to grant a right to a private person to lay and maintain a steam pipe across a lot owned by the municipality attempts to confer a right in the nature of an easement and to devote the lot to a merely private purpose wholly unrelated to any municipal purpose and is void.</p> <p>6. In such case the grantee of the municipality cannot enjoin one who hinders and delays such grantee in laying a steam pipe across the lot.</p>

<p>'Appeal from a judgment of the circuit court for Polk county: A. J. Yxuje, Circuit Judge.</p> <p>This is an appeal from an order sustaining an objection to any evidence under tbe complaint for want of facts sufficient to constitute a cause of action. Tbe action was brought by one of tbe beirs of tbe mortgagor against tbe mortgagee and bis assigns in possession for an accounting for rents and waste and to redeem. Tbe complaint states in substance that plaintiff is a son of A. W. Gerbardt, wbo died intestate August 6, 1888, leaving bim surviving bis widow, A. W. Gerbardt, Jr., and tbe plaintiff; that deceased owned in fee at tbe time of bis death .tbe lands in question and that tbe same descended to bis heirs; that plaintiff has purchased tbe interests of tbe widow and A. W. Gerbardt, Jr., in said lands; that in March, 1888, deceased and wife executed a mortgage on said lands to defendant Ellis to secure an indebtedness of $50 with interest at eight per cent., which indebtedness became due December 16, 1888; that between February 11, 1892, and June 4, 1895, tbe defendant Ellis attempted to foreclose said mortgage, and on June 4, 1895, caused tbe lands to be sold to himself for tbe sum of $210, which was but a small portion of their fair value, and that such pretended sale and report of referee who made tbe same has never been confirmed nor passed upon by any court; that tbe plaintiff is entitled to redeem said lands from said sale and mortgage; that on June 26, 1895, defendant Ellis caused to be executed to himself a referee’s deed of said premises and had the same recorded without the permission or consent of said heirs or any of them, and without right, on November 1, 1896, entered into possession and thereafter retained and enjoyed the rents and profits of the same and cut and removed therefrom and converted to his own use a large amount of timber, logs, and ties of the value of over $600, and so remained in possession until May 10, 1901, at which time he executed to the defendant Garlson a warranty deed and delivered the possession of said premises to him, who thereafter held and enjoyed the use, rents, and profits of the same until April 29, 1904, at which time he executed and delivered a warranty deed of the premises to defendant Hanson, and Hanson took possession and has since held the use, rents, and profits thereof, and that Hanson has recently re-deeded the premises to defendant Garlson, who is now in possession; that plaintiff is not yet twenty-two years of age; that he never knew that his father owned said lands or that he was the owner of an equity of redemption therein until about the time lie arrived at the age of twenty-one years, and never learned of the facts entitling him to redeem until a short time before he commenced this action; that he does not know and has no account of the value of the use, rents, and' profits of the premises which have been received and enjoyed by defendants, but is informed and believes that such use, rents, and profits amount to more than the indebtedness secured by said mortgage; that plaintiff has made due demand upon the defendants and each of them for an accounting and that they have refused to account and have refused to allow plaintiff to redeem j that the value of the lands is $1,500; and that the pretended sale to defendant Ellis was unfair, fraudulent, and void, and greatly disproportionate to the value of the premises, and without notice to the plaintiff. The prayer is for an accounting for the rents and profits of the mortgaged premises, for the value of the timber cut and removed, that the court determine the amount, if any, which shall remain due the defendants or either of them after applying the value of the rents and profits and timber, and that plaintiff be allowed to redeem; that if the court shall find the amount due plaintiff for rents, profits, and timber is more than is due defendants on the note and mortgage and for taxes the plaintiff have judgment for the excess and for general relief. After sustaining the defendants’ objection to any evidence under the complaint the court ordered that the defendants have judgment dismissing the plaintiff’s complaint, with costs. Judgment was entered accordingly, from which this appeal was taken.</p>

<p>Appeal and error: Questions considered: Demurrer: Joinder of causes of action: Taxation: Railroads: Land-grant lands: Beneficial ownership: Action to set aside tax deeds: Estoppel against the state. . , , „ ,</p> <p>1. On review of an order overruling a demurrer because several causes of action are improperly united in the complaint, the underlying question is whether the complaint states a cause of action, since, before it can be determined whether or not causes of action are improperly united, it must be determined whether a cause of action is stated and then whether there is more than one cause of action.</p> <p>■2. In an action by a railroad company to set aside tax deeds issued on lands lying within a land grant made by Congress to the state, and by it granted to the predecessors of plaintiff, the allegations of the complaint, stated in the opinion, are held to show that plaintiff was the beneficial owner of the lands in question and that such lands were subject to taxation, unless the state was estopped from levying, assessing, and enforcing the payment of taxes against such lands.</p> <p>3. Where a state makes itself a party to an action or a contract or a grant in its proprietary capacity, it is subject to the law of estoppel as other litigant or contracting parties.</p> <p>4. A state cannot by acts in pais be estopped to exercise its taxing or police power.</p> <p>5. The taxing power of the state may by regular action of the state, through its law-making power and for a consideration, be suspended as to a particular piece of property or a particular person, and such formal action of the state will bind it ex con-tractu under the clause of the federal constitution forbidding the state to enact laws impairing the obligation of contracts, provided there is an obligation of contract independent of the constitutional provision.</p> <p>6. A state is not estopped to exercise its power of assessment and , taxation with reference to certain lands merely because it may have made or continues to make wrongful claim to own such lands.</p> <p>7. In an action hy a railroad company to set aside tax deeds issued on lands lying within a land grant made by Congress to the state and by it granted to the predecessors of plaintiff, brought against the counties in which the lands lay and their grantees (assuming, hut not deciding, that the plaintiff can raise the question of estoppel in such suit in which the state is not expressly a party), the complaint, stated in the opinion, is held to show that the lands in question were subject to taxation, and that there could be no estoppel in pais asserted against the exercise by the state of its taxing powers.</p>

<p>Appeal from a judgment of tlie circuit court for Douglas county: A. J. Vinje, Circuit Judge.</p> <p>This is an appeal from a judgment quashing a -writ of certiorari brought to reverse the action of the board of review of tbe city of Superior in placing on tbe assessment roll for taxation in tbe year 1906 a large quantity of grain belonging to tbe relator and contained in certain elevators in said city operated by the relator. By tbe return to tbe ■writ it appeared that tbe testimony before tbe board of review showed tbe material facts to be as follows: Tbe relator is a foreign corporation, whose officers all reside outside of tbe state, tbe secretary, who bad chief management of tbe company’s business, residing in Duluth. Tbe relator owns tbe grain which it receives into its elevators and such grain comes from tbe Dakotas and Minnesota by rail. It ships to tbe East by lake such grain when sold, and during winter large quantities accumulate in tbe elevators to be loaded on boats and sent to purchasers in tbe East as rapidly as possible after navigation opens. One Ericke was tbe agent of tbe relator who bad physical charge of tbe elevators and of tbe handling of tbe grain during 1906. He did not purchase or sell grain, but superintended its receipt from cars and its shipment by boat, receiving bis orders from tbe secretary in Duluth.. Ericke did not live in tbe city of Superior, but in tbe town of Nebagamon, in Douglas county. No question was raised as to tbe amount of tbe grain assessed or as to its ownership by tbe relator.</p>

<p> Bills and notes: negotiable instrument law: Construction: Checks: Drafts: negotiation: Liability of payee: Presentment for payment: Delay: “Business hours" of a bank: Evidence: Usage and Custom: “Reasonable hours:" Judicial notice:• Presumptions. </p> <p>1. The negotiable instrument law — secs. 1675 to 1684 — 6, Stats. (Supp. 1906; Laws of 1899, ch. 356) — was enacted for the purpose of furnishing, in itself, a certain guide for the determination of all questions covered thereby relating to commercial paper, and, so far as it speaks without ambiguity as to any such question, reference to case law as it existed prior to the enactment is not only unnecessary but liable to be misleading.</p> <p>2. Such statute is not merely a legislative codification of judicial rules previously existing, but is, so far as it goes, an incorporation into the written law of the law merchant as recognized in Wisconsin, with such changes or modifications and additions as to make a system harmonizing, so far as practicable, with that prevailing in other states.</p> <p>3. The negotiable instrument law — secs. 1675 to 1684 — 6, Stats. (Supp. 1906; Laws of 1899, ch. 356) — defines a bill of exchange as an unconditional order in writing addressed by one person to another, signed by the person giving it, requiring the person to whom it is addressed to pay on demand or at a fixed or determinable future time a sum certain in money to order or bearer. Sec. 1684 — 1 defines a check as a bill of exchange drawn on a bank, payable on demand, and provides that, except as in the act otherwise provided, the provisions applicable to a bill of exchange payable on demand apply to a check. Sec. 1684 — 2 declares that a check must be presented for payment within a reasonable time after its issue or the drawer will be discharged from liability thereon to the extent of the loss caused by the delay. And sec. 1678 — 1 provides as to a bill of exchange payable on demand, which includes by force of the statute a check or draft on a bank, that presentment for payment will be sufficient if made within a reasonable time after the last negotiation thereof. Defendant, payee of a draft drawn by a bank on a correspondent bank, put the draft into circulation with his unqualified indorsement. The draft was dated June 10th, and was forwarded by mail to defendant’s immediate indorsee at Spokane, Washington, where he was temporarily, and was received by him on June 20th. On July 4th the indorsee negotiated the draft to plaintiff at San Francisco, California, and received its face. On the latter day plaintiff forwarded the draft by mail to its correspondent, who received it.on July 18th, and on that day, after due presentment and re-, fusal of payment, its nonpayment was duly protested. Held:</p> <p>(1) The delay in presenting the draft for payment between its date and the negotiation to the bank in San Francisco was immaterial.</p> <p>(2) Under the evidence, stated in the opinion, the circulating character of the draft had been preserved, warranting a finding that the plaintiff came into possession of the draft in due course.</p> <p>4. Under sec. 1678' — 2, Stats. (Supp. 1906; Laws of 1899, ch. 356)— providing that presentment for payment, to be sufficient, must be made at a reasonable hour on a business day, — evidence that a bank draft, after taking its course through the clearing house, was presented to the drawee for payment on the afternoon of the same day between the hours of 3 and 6 o’clock, and that such was the customary way' of doing business in the place where the drawee was located, satisfies the statute.</p> <p>5. What constitutes business hours of a bank, within the meaning of sec. 1678 — 2, Stats. (Supp. 1906; Laws of 1899, ch. 356), has reference to the general custom at the place of the particular transaction in question.</p> <p>6. In case presentment for payment of a negotiable instrument occurs in a foreign jurisdiction, the courts of Wisconsin cannot take judicial notice of what constitutes reasonable hours on a business day in the foreign jurisdiction.</p> <p>7. Whether a negotiable instrument was presented for payment at a reasonable hour on a business day is a matter of proof; but a notarial certificate of the transaction, if regular and furnishing 'prima facie proof that the instrument was duly presented for payment, raises a presumption that the presentment was made at a proper time.</p>

J. Viuje, Circuit Judge. Action against tbe city of Supeiior upon a bond, known as an improvement bond, issued for tbe expense of improving certain streets under tbe' authority of tbe city charter of 1891 (Laws of 1891, ch. 124), the bond being in the same form and under the same provisions of law as that considered and described in Fowler v. Superior, 85 Wis. 411, 54 E. W. 800, snob bond being dated July 29, 1892, and purchased by plaintiff in good faith and for value in…

<p>Appeal from a judgment of the superior court of Douglas county: Csajkles Smith, Judge.</p> <p>This is an action for the specific performance of an alleged contract for the sale of certain lands, made by the plaintiff through her husband as her agent and by the defendant H. P. Merrill in behalf of himself and the other defendants. The defendants are residents of Portland, Maine. L. E. Waterman is a real-estate agent at Superior, Wisconsin, and negotiated the sale for the defendants. About the middle of September, 1903, Waterman wrote to’ Merrill respecting the sale of some lands owned by Merrill and asking for descriptions and the lowest prices. Merrill replied stating that the lands belonged to four persons, that they would like to sell the lands for cash, that they did not ex-jDeet to get what they had paid for the lands, but that they would like some offer. Waterman again wrote to Merrill, describing the condition of the real-estate market in Superior, and stating that he had a party to whom he thought he could sell a forty of MerrilTs at $15 per acre. Merrill’s answer to Waterman stated that the lands comprised 213 acres, that they belonged to four persons, and that if any of the lands were sold they wished to dispose of it all. He asked Waterman whether he could dispose of it all for cash and promised to submit Waterman’s best offer to the othej: owners. Waterman’s next letter to Merrill asked for a more correct description. Merrill replied giving descriptions and stating that the correct acreage of the land owned by the four parties was 207.55 acres. He also stated that the parties wished to sell the land as a whole and as soon as possible. On November 25, 1903, Waterman wrote Merrill to the effect that he had a party who thought he could use the land and who had made him an offer of $10 per acre for the whole tract, and saying: “If you cannot take this price, please let me know the very lowest price you will take, so I will be able to close up witb a party wbeu I get one.” To this letter of Waterman, Merrill replied as follows:</p> <p>“Portland, Me., Nov. 27, 1903.</p> <p>“Mr. L. B. Waterman — My Dear Sir: Your letter received this morning, and in reply would say that the tract belongs, as I told you, to four parties. It will be necessary to see them all in regard to the matter, and, as some axe away for Thanksgiving, cannot do so until Monday. Of course the purchaser will pay the taxes any time before the 1st of March. Ten dollars is a very small price. We refused eighteen last fall. I will let you know as soon as I can see the parties. We don’t want to give it away, as we seem to be doing. As I say, will let you know as soon as possible. Herry P. Merrill,</p> <p>“By M. E. MERRILL.”</p> <p>On November 30, 1903, Merrill sent the following telegram and letter:</p> <p>“Portland, Me., Nov. 30.</p> <p>“L. B. Waterman, W. Supr., Wis. Accept offer subject to condition in letter. EL P. Merrill.”</p> <p>“Portland, Nov. 30.</p> <p>“Mr. Waterman — -Dear Sir: Your letter, which I received, and to which I replied last Saturday, is before me. Have seen the parties, and they wish very much you could get more for the property. Will you not try to do so. As I understand it, you offer $10 an acre cash for the whole tract. We insist the parties buying should pay taxes. If you cannot get any more, we will sell, and refer you to Little & Nolte, who have charge of the property, to make out papers, etc. Very truly yours,</p> <p>“HeNry P. Merrill.”</p> <p>On December 5, 1903, Waterman wrote Merrill asking for the abstract, so as to have it in case he should be able to close up the deal. To this Merrill replied as follows:</p> <p>“Portland, Dec. 7.</p> <p>“Mr. L. B. Waterman — Dear Sir: We wired you last Monday, and hoped by this time to have heard from you. We notified Little & Nolte that sucb a deal was in progress, and received a letter from them this morning expressing great surprise tbat sucb a price was tbougbt of for a moment. They say it is a very low price even at tbe low state of tbe market. We should like to know as soon as possible bow tbe sale is progressing, for if there is to be any difficulty about it we would like to know. Tbe taxes must be paid; otherwise, we do« not wish to sell at any sucb figure. Kindly advise us, and get more if you can, even by waiting.</p> <p>“Yours very truly, HeNry P. Merrill,</p> <p>“By M. E. M.”</p> <p>On December 11, 1903, tbe following instrument was executed :</p> <p>“Tbe Wisconsin Investment Company, 914 Tower Avenue, West Superior, Wis., Dec. 11th, 1903. Beceived from A. K. Smith tbe sum of twenty-five dollars as earnest money and part payment on the following piece or parcel of land in Douglas county, Wisconsin, viz.: [Description.] The consideration and purchase price to be ten dollars ($10.00) per acre and taxes for tbe year 1903, - dollars, payable in tbe manner following: Tbe sum of $25.00 on tbe delivery of this receipt and taxes for year (1903). Tbe sum of $2,045.55 on or before 12 o’clock noon, the 15th day of January, A. D. 1904, at - per cent, per annum from tbe date thereof until paid. Accrued interest on any in-cumbrance on said property to be deducted from above cash payment. Abstract showing title to said property to be in -, free and clear from all legal liens and incumbrances, to be furnished said purchaser on or before 12 o’clock noon, tbe 11th day of January,'A. D. 1904; but, in case said abstract cannot be furnished by said hour and day, said purchaser to have one day extra extension to make the payment due-in for each and every day said abstract is delayed. In case tbe abstract to said property should prove to be defective and so tbat it cannot be perfected within a reasonable time, then this receipt to be void, and money herein paid to be refunded; but in case tbe title should prove to be good, and said purchaser or bis assigns should refuse to take tbe property, or should fail to make tbe payment due and payable on or before 12 o’clock noon, the 15th day of January, A. D. 1904, delays in furnishing abstract alone excepted, and then only for a time equal to the delay, then this receipt to be utterly, entirely, and shall remain forever void, and said money herein receipted for shall he forever forfeited to L. E. Waterman for consideration of this agreement, and said purchaser shall neither have any rights to said property by virtue of this receipt or any right of action for recovery of said money,. nor any cause for considering himself aggrieved or for claiming damages by virtue of such forfeiture. It is hereby expressly stipulated, understood, and agreed that, if said payment of $2,045.55 and taxes for year 1903 is paid on or before 12 o’clock at noon the 15th day of January, 1904, extension on account of delay furnishing abstract alone excepted, and then only for a time equal to such delay, I will, after said payment, deliver to said purchaser a warranty deed. The abstract to be delivered to said purchaser at L. E. Waterman’s office in Superior, at which place payments must be made to L. E. Waterman, and deed will be delivered to said purchaser when entitled thereto, according to the terms herein stated. It is further agreed that the said L. E. Waterman shall he held to no further responsibility concerning this transaction than to act intelligently and in absolute good faith with such purchaser.</p> <p>“L. E. WateemaN, Agent.</p> <p>“Accepted: A. K. Smith.</p> <p>“Eor value received I hereby sell, assign, and transfer to May H. Smith, her heirs and assigns, the within contract, and all my right, title, and interest.therein.</p> <p>“Witness my hand this 11th day of Dec. 1903.”</p> <p>After the execution of this instrument, on the same day, Waterman telegraphed Merrill: “Land sold, waiting for abstract. Answer quick.” Merrill replied by telegraph: “Will send abstract at once;” and on December 14, 1903, wrote Waterman that he was unable to find the abstract; that he had a better offer for the land and had closed the deal. Plaintiff commenced this action December 19, 1903.</p> <p>The court found the facts above given, and from the evidence adduced also found that all the parties to the transaction had acted in good faith; that Waterman had not fraudulently misrepresented the value of the property, hut that he had diligently endeavored to make a sale ; that the defendant Merrill, the defendant Frye consenting, had authorized Waterman to sell the lands for the sum of $10 per acre, the purchaser to pay the taxes for the year 1903, and to make a binding contract in writing for the sale of the lands at that price for cash; that the principals to' the transaction had had no dealings directly with each other; that the other defendants did not know of the transaction until the commencement of the action; that they had not authorized Merrill to act for them in accepting the offer or in making ■or directing the sale of their interests in the lands; and that the fair value of the lands was $18 per acre. Plaintiff made no claim in circuit court for a transfer of any of the interests of the defendants except those of Merrill and Frye, but demanded damages against Merrill because of his inability to comply with the contract for the transfer of the interests of the other defendants. This is an appeal from the judgment of the court dismissing the complaint and awarding defendants their costs and disbursements.</p>

J. ViNJE, Circuit Judge. Tbis is an action to recover $75 as damages for breach of a; contract of employment. It wa& commenced in justice’s court, where the plaintiff recovered/ a judgment, from which defendant appealed and the actioyt was tried de novo in circuit court, in which court a nonsuit was granted at the dose of the plaintiff’s evidence.

<p>'Appeal from a judgment of tbe circuit court for Douglas county: A. J. ViNJE, Circuit Judge.</p> <p>Quo warranto action involving tbe right to tbe office of alderman of tbe Tenth ward of tbe city of Superior. Tbe relator by tbe official canvass was defeated by a small majority of tbe votes cast, given to tbe defendant. Tbe former duly qualified and entered upon tbe duties of tbe office. Tbe cause was tried by tbe court, resulting in a decision that tbe relator was elected by one majority of tbe legal votes cast. Tbe decision turned on tbe question of whether tbe vote of Frank Allman and that of Paul Peck, given as was found for tbe defendant, were legal. At tbe close of tbe evidence a motion was made on behalf of tbe defendant, supported by bis affidavit, for an adjournment of tbe court for one week to enable him to obtain tbe attendance of one Norton as a witness, it being claimed that be would testify that Allman resided for several years in tbe state of Wisconsin and fox more than thirty days in tbe 'Tenth ward of tbe city of Superior before April 1, 1906. Tbe affidavit stated that appellant had used due diligence to secure Norton’s attendance at the trial, but that he did not know his whereabouts until after the trial began and that he knew of no other witness by whom he could prove the facts he could prove by Horton. It did not inform the court of the nature and kind of diligence used to obtain the attendance of the witness, nor what efforts had been made to obtain evidence in respect to the matter it was supposed Horton would testify to. As the case stood the proof as to Allman’s residence and for whom he voted rested largely on the testimony of one Ely, and particularly on his evidence of what Allman said to him respecting the person for whom he voted. The motion for a continuance was denied upon the ground that it did not appear' appellant had made any preparation for the trial, or that if the testimony of Horton of the character indicated in the affidavit were before the court it would change the result. Judgment of ouster was rendered as prayed for.</p>

<p>'Appeal from a judgment of the circuit court for Douglas-county: A. J. ViNje, Circuit Judge.</p> <p>The defendant maintained a coal dock at the city of Superior about 900 feet in length and 300 feet in width, in the center whereof were three longitudinal railroad tracks-for the loading and moving of railroad cars, upon which cars-were frequently in motion, usually moved by attaching a hook to them and gripping unto a moving cable beside each track. It was necessary and customary for the workmen on the dock to pass frequently across these tracks, which were in a depression about four feet deep. The plaintiff was a common laborer and had, with sis other men, just completed the loading of a car on one of these tracks, when the gang were ordered by the foreman to cross the tracks to the other side of the dock. One after another they jumped down and started across in front of this car, which plaintiff’s testimony tends to show was stationary, with nothing to- indicate that it was about to be moved. As plaintiff passed in front off it, somewhat diagonally across the track, having seen it stationary as he started, it was put in motion and overtook him just as he reached the furthest or west rail of the track, knocked him down, and passed over one of his legs. There was evidence that no rule had been promulgated by the defendant in any wise tending to guard against the running-down of employees by these cars; that the gripman who had charge of moving them was accustomed indiscriminately to fasten on either the front or bach end; that under some circumstances there would be a man on top of the cars to set the brakes, at other times not; that the gripman’s habit was irregular; that sometimes he looked in front of the car or shouted warning of its approach and sometimes he did not, ■and that in the present instance he had fastened his grip to the rear end of the car, had not looked in front, and gave no warning. The negligence alleged in the complaint was the failure on the part of the defendant to promulgate any rule or regulation or to give any instruction tending in any wise to protect its employees from the peril of these moving cars, either by requiring signal and warning or the presence of any person in front of the car when moved; also in employing the plaintiff in an unsafe place without any such regulations, and in ordering him to cross the track after having directed the gripman to start the car. At the close of the plaintiff’s ■evidence the trial court granted a nonsuit, from judgment in accordance with which the plaintiff brings this appeal.</p>

<p>Appeal from an order of the circuit court for Douglas county: A. J. Viuje, Circuit Judge.</p> <p>On October 1, 1904, the plaintiff was driving upon Fifty-eighth street, one of the public streets of the city of Superior. He was going toward his home and was run into by a team and wagon of the city fire department driven by one of the city’s firemen, Larry Strong, and as a result of tbe collision the plaintiff’s horse was killed, his buggy destroyed, and his leg was crushed and broken so that he has entirely and permanently lost the use of it, and he has sustained other injuries.' It is alleged that the driver of the city team had been employed by the defendant and placed in charge of the city team about one year prior to the time of the accident, and that to the knowledge of the defendant he “was addicted to the use of intoxicating liquors and habitually intoxicated, wholly and entirely incompetent for service as a fireman and in the driving and handling of said team, and he was wholly and entirely unfit for said service, habitually reckless, careless, and negligent, and unsafe and dangerous to public travelers upon said streets.” It is also alleged that “the defendant was careless and negligent in employing said Larry Strong, in placing him in its service as a fireman, and in placing him in charge of, giving him authority and control over, said team and the driving and handling of the same.” It is also alleged that, having knowledge of these facts and the negligent manner in which such driver handled the team and used the public streets,</p> <p>“the defendant carelessly and negligently failed and neglected to discharge the said Larry Strong, its said fireman, or to take him out of the defendant’s service, but on the contrary carelessly and negligently retained him in its service, and continued him in charge of its said team and wagon until after the accident and injury to the plaintiff; and the defendant, and its officers, agents, and servants having charge and control of its streets, carelessly and negligently failed and neglected to take any steps or means to prevent the said Larry Strong from so driving and handling said team on said Fifty-eighth street, or to prevent him from so obstructing, endangering, and impeding public travel thereon, . . . said fireman thereby, and through defendant’s carelessness and negligence, creating and becoming a public nuisance upon said streets and endangering and obstructing the public use and travel on said streets.”</p> <p>Snob conduct and negligence of tbe city officers in not removing bim and in not preventing such use of tbe street is charged to have constituted an obstruction and a nuisance and to have been tbe cause of plaintiff’s injuries. Damages are demanded in tbe sum of $12,000. Defendant’s demurrer to tbe complaint on tbe ground that it did not state facts sufficient to constitute a cause of action was sustained. This is an appeal from tbe order sustaining tbe demurrer.</p>

J. Viuje, Circuit Judge. This action was brought to recover for the value of a horse alleged to have been killed by going upon defendant’s road where the same runs through the N. W. J of section 20, town 47, range 12, in Douglas county, Wisconsin, on account of failure to fence as required by sec. 1810, Stats. (1898).

<p>Appeal from a judgment of tbe circuit court for Douglas county: A. J. ViNje, Circuit Judge.</p> <p>This is an action by the plaintiff, as administratrix, to recover damages for the death of one Bernard Zoesch, her husband, an employee of the defendant, which death is alleged to have been caused by the negligence of the defendant in not furnishing him a safe place to work and not instructing him or warning him of the danger to be apprehended. At the time of his death the intestate was a common laborer about thirty years of age and had been employed for a year by the defendant in its paper mill at Park Palls, Price county, as size maker and general utility man. He had no experience as an engineer, but had c n several occasions worked in the fire room assisting the firemen in putting fuel in the furnace, but had not assisted in discharging a boiler. The defendant’s mill was operated by steam produced by a battery of six large boilers standing side by side and inclosed with, brickwork in the boiler room. At the east or rear end of this row of boilers there was a passageway about five feet in width and forty-five feet in length, formed by the east wall of the boiler room on one side and the brick wall inclosing the- boilers at the other. This passageway was inclosed by a brick wall at the north end, and had two windows and a door leading ont of doors on the east side, the door being nineteen feet south of the north wall. Each boiler was fitted with a four-inch discharge pipe about two feet above the floor and extending into the passageway at right angles about two and one-half feet, and having a straightaway or gate blow-off valve at the end. These pipes were used for the purpose of discharging the steam and hot water from the boilers, and two of the boilers were discharged and cleaned every Sunday. In discharging a boiler an iron elbow was screwed into the discharge pipe, its mouth, being a foot or so from the floor when in position and immediately above a wooden trough running along the floor of the five-foot passage next to the outside wall. This trough was usually covered with long boards, but when a boiler was discharged the board was taken off, a tin pipe two feet or so in length was slipped loosely over the mouth of the elbow and inserted in a slantiúg position into the trough, the valve was then opened, and the contents of the boiler thus allowed to run into the trough, which extended out of the mill and discharged into the river. These were the only means and appliances furnished for the purpose of discharging the boilers. The work of discharging the boilers was always done by the firing crew, which ordinarily consisted of four men, viz., one head fireman, a second fireman, and two helpers. There were two firing crews or shifts, one going on duty at 6 o’clock p. m. and the other at 7 o’clock a. m.; but on Sunday the night crew staid on duty until noon (except one helper), and it was their duty to prepare the boilers which were to be cleaned and to actually discharge them if tbe contents were sufficiently cooled before tbe shift ended; otherwise the other crew, which went on duty at noon Sunday, took np the work and completed it. -In discharging the boilers after drawing the fires the custom was to draw off some of tbe contents, then pump cold water into the boiler, and by this alternate process cool it off and discharge it gradually.</p> <p>On Saturday, October 24, 1903, the deceased worked all day at his usual work. Some time in the afternoon he applied to Mr. Boulton, the superintendent of the mill, for extra work, and was told that he could go to work at midnight in the fire room and help fire. The night shift was one man short that night, and the testimony tended to show that one Meyers, the head fireman, was the man who- was not on duty. Plaintiff’s claim was that the deceased was hired to take Meyers’ place, and that his duties as a fireman did not end until noon on Sunday; but defendant’s claim was that he was only employed until 7 o’clock a. m., when his duties und$r that employment ceased. The deceased went to work at midnight in the fire room with one Belter, who was second fireman, and both worked until 7 a. m. At that time deceased went home and got breakfast and returned at about 8 o’clock. Boulton claims that when deceased came back at 8 o’clock he met him in the boiler room and told him to go to work cleaning out a pulley on the dynamo, and after that to help about- some pipe fitting. It is claimed by plaintiff that Belter’s evidence tends to contradict this testimony, and the testimony on the subject will be fully stated in the opinion. Belter was at work cleaning the grates when deceased came back. BA testified that the deceased turned on the steam hose used to blow out the flues, and, further, that at about 9 o’clock, or somewhat later, he and Zoesch went into the passageway where the discharge pipes are, and that he (Belter)' screwed on the elbow, adjusted the tin pipe, and turned on the valve of boiler ETo. 6 (which is the boiler at the extreme north end) about half, and the water and steam commenced to discharge; that he told Zoesch the valve was open far enough, and that he and Zoesch then went up on a platform where the water gauges were, and he told Zoesch to watch the glass till it got down to one inch and then go down and close the valve; that he (Belter) then went down below to his work in front of the boilers, and in three or four minutes Zoesch hollered to him to come up1 and see how fast the water was going down, and he hollered back to watch until it went down to one inch; that in- a few moments he heard Zoesch hollering for help-, and he (Belter) ran around into the five-foot passage and found Zoesch crawling out on hands and knees, with much hot water running on the floor and much steam escaping; that he and one Retloff helped Zoesch out of doors and in ten or fifteen minutes he went back into the passageway and found the valve turned wide open, the elbow tight, and the loose pipe lying beside the boiler. One Russell testified that he was present when Belter and Retloff brought Zoesch out of the boiler room, and that he said to Zoesch: “Good God, Ben! "What’s the matter ? What’s happened to you?” and Zoesch moaned and said: “The thing stopped running and I opened it up a little bit, and the whole end blowed out on me.” Zoesch died of his injuries on the evening of the same day. At the conclusion of the plaintiff’s evidence the court allowed several amendments to be made to the complaint so- as to conform to the proofs, and then granted defendant’s motion for a nonsuit and entered judgment of dismissal of the complaint, from which plaintiff appeals.</p>

J. Yin je, Circuit Judge. Plaintiff declared on a promissory note and there was found due thereon $207.30.

Action of mandamus. Tbe petition alleged tbe petitioners to bave been aldermen of tbe city of Janesville; that on February 5, 1906; tbe common council by due vote adopted as an amendment to tbe special charter of Janesville sec. 925 — 30, Stats.

Plaintiff is a junk dealer in the city of Obicago. Defendants are collectors of and dealers in junk in the city of Beloit.

<p> Appeal and error: Conflicting evidence: Findings: Conclusiveness: Deeds: Mental incapacity. </p> <p>Where on conflicting evidence the trial court has set aside a deed because of the mental incompetency of the grantor, and it cannot be said that the court failed in any way to give the evidence its proper weight or reached a wrong conclusion, the judgment will be affirmed.</p>

Tbe appeal is from a judgment given in an action brought by tbe plaintiff upon a promissory note as transferee of one A. Lorenze. Tbe latter was payee in tbe note. Tbe respondent was maker. Lorenze indorsed tbe note to one Snyder, wbo recovered judgment tbereon against tbe maker and in-dorser. Tbe indorser paid this judgment and it was assigned to bim.

<p> Witnesses: Competency: Transactions with persons since deceased: Trial: Instructions to jury: Burden of proof: Appeal and error: Prejudicial error: Bill of exceptions. </p> <p>1. In an action on a $200 promissory note by the trustee of a decedent’s estate, testimony of the defendant that he went into the store of the deceased with $400 in money and came out with the note and but $200 in money is inadmissible, since if it did not tend to prove that defendant paid the note to deceased, who surrendered the note upon such payment, it was immaterial; and if it did tend to prove those facts it was evidence of a transaction had by defendant personally with a person since deceased, through whom the plaintiff derived his title to the cause of action, and the defendant was an incompetent witness thereto under sec. 4069, Stats. (1898).</p> <p>2. An erroneous instruction on the question of the burden of proof is not corrected by a subsequent clause which places the burden of proof on both sides at once.</p> <p>3. Errors in the admission of evidence and in instructions to the jury, necessitating the reversal of a judgment, cannot be said to be nonprejudicial unless the appellate court can say that, without such errors, the verdict on which the judgment was founded could have been properly directed.</p> <p>4. Where neither the note sued upon, nor another note alleged to have been given in its place and afterwards paid, was before the supreme court by being made a part of the bill of exceptions, that court cannot examine the notes to determine a disputed question of handwriting.</p>

Mandamus to the Circuit Court for Eock County. Mandamus action to. compel the circuit judge for Eock county to change the venue of an action commenced in such court against the relator and the Chicago, Milwaukee & St. Paul Eailway Company to Milwaukee county.

EkeoR to review a judgment of tbe circuit court for Fond du Lac county: Chester A. Fowler, Circuit Judge. Plaintiff in error pleaded not guilty to an information charging him with abandonment of and failure to support his wife. A jury of twelve men was duly impaneled and sworn to try the case. When all the evidence had been received and the counsel had concluded their arguments the court adjourned until the following morning.

M. Webb, Circuit Judge. This is an action to recover damages for injuries sustained by the plaintiff in falling from an elevator in defendant’s pulp and paper mill. Plaintiff alleges that the injuries were due to the negligence of the defendant in failing to provide a safe place to work. For nine or ten years previous to January 31, 1905, plaintiff had been employed by the defendant in connection with the operation of a small wood saw located outside of defendant’s mill.

<p> Accident insurance: Notice of injury by insured: Same by beneficiary in case of death: “Immediate notice:” Knowledge of beneficiary: Defenses: “Suicide, sane or insane:” Evidence of health of insured: Relevancy: Warranty: Accident: “Local disease:” “Local affection:” Burden of proof. </p> <p>1. Sec. 1966 — 19a, Stats. (Supp. 1906; Laws of 1901, eh. 235), prohibiting any accident or casualty company from limiting the time for an insured person to serve notice of any injury for which he is entitled to make a claim to less than twenty days, and providing that a memorandum in respect to the matter shall be clearly and conspicuously placed on the face of the policy, and further providing that a specified manner of service shall be sufficient, does not relate to the claim of a beneficiary after the death of the insured person.</p> <p>2. An ineffective attempt to comply with the law aforesaid does not extend beyond the intent so as to relate to a beneficiary, unless the language of the memorandum is unmistakably to the contrary.</p> <p>3. The word “immediate,” in an insurance policy, in respect to giving notice of any accident or injury for which a claim is to be made, by settled judicial construction antedating the policy and so a part thereof, means as soon as practicable under the circumstances of the case, in the absence of some unmistakable limitation to the contrary.</p> <p>4. Under the foregoing rule service of notice by a beneficiary as soon as practicable after obtaining knowledge of the existence of the policy is sufficient.</p> <p>5. Evidence of the state of health of an insured person for a considerable period of time prior to his death, where it is claimed he died by suicide, is proper as bearing on whether the deceased came to his death as the result of a suicidal intent.</p> <p>6. The term “death by suicide, sane or insane,v does not include death by the act of the assured without any mental purpose of self-destruction.</p> <p>7. If one in a fit of delirium or other condition of irresponsibility, without intention to take his own life, does some act from which his death ensues, such death is by accident, not by suicide.</p> <p>8. The distinction between suicide by a sane person and suicide by an insane person, within the meaning of a policy clause “death by suicide, sane or insane,” lies in the mental capability in the one case and the absence of it in the other to appreciate the moral nature and quality of the purpose.</p> <p>9. A local affection is not a local disease within the meaning of a warranty in a policy of insurance, unless such affection has sufficiently developed to have some bearing on the general health.</p> <p>10.In case of the defense of death by suicide being interposed in an action on a life insurance policy, the burden of proof is on the defendant to establish such defense.</p> <p>[Syllabus by Mabshaiu, J.]</p>

<p>'Appeal from an order of the circuit court for Dane county: J. C. Ludwig, Judge.</p> <p>An action was commenced against defendant to recover $500 for an alleged violation of sec. 1791a — 1, Stats. (Supp. 1906; Laws of 1905, ch. 389), providing for a forfeiture for discriminating between localities of the same class as to telephone exchange rates.</p> <p>The complaint contains a statement of facts appropriate to the case.</p> <p>The answer put in issue all allegations as to the defendant’s having made any discriminating rates and raised the question of the constitutionality of the law.</p> <p>After issue joined, proceedings were commenced for an examination of the officers of the defendant under sec. 4096, Stats. (1898), the attorney general, James G. Elanders, and E. C. Grant appearing as attorneys for the plaintiff. Thereupon the defendant on a petition setting forth, among other things, that attorneys Grant and Flanders were employed by rival telephone companies to prosecute the action in their private interests and to participate in the examination under sec. 4096 with a view of obtaining information for private use, moved the court for an order excluding all privately employed attorneys from participating in the litigation on the part of the plaintiff.</p> <p>The plaintiff replied to the petition to this effect: Mr. Grant is not to participate as attorney in the proceedings in the action. Mr. Elanders is to participate under employment by the Milwaukee Independent Telephone Company, an alleged rival of the defendant. He was employed by such independent company specially to assist in establishing the constitutionality of the law. His appearance as attorney for the state is at the request, and by consent, of the plaintiff’s attorneys. The action is prosecuted and the examination sought in good faith and for the sole purpose of vindicating the law.</p> <p>A hearing was had before the court, evidence being taken in support of, and in opposition to, the motion, resulting in a decision denying such motion upon these grounds-, as specified in the form of finding substantially as in case of the determination of an action tried before the court.</p> <p>The action was commenced on information furnished by E. C. Grant. H. D. Critehfield, an officer of the Milwaukee Independent Telephone Company, which was interested in obtaining from the common council of the city of Milwaukee an ordinance in regard to using its streets for telephone purposes, being informed of the proposed examination under sec. 4096, employed James G. Elanders to assist the attorney general, intending to use the testimony which might be procured in aid of obtaining the privilege aforesaid, and to assist in establishing the validity of the law under which the action was brought. The attorney general had no knowledge when Mr. Elanders came into the case that his employer intended to use the information that might be obtained on the examination under sec. 4096 for its private benefit. Mr. Elanders’ employer and all other independent telephone companies mentioned in defendant’s petition are interested in the question of whether the law aforesaid is valid. Mr. Elanders was employed with the knowledge and consent of the attorney general by, and wholly at the expense of, the Milwaukee Independent Telephone Company. The action was not instituted and is not being prosecuted nor the examination sought under see. 4096 for any other purpose than that of collecting the penalty for violating the aforesaid law and to establish the constitutionality of such law. Under the circumstances the said Milwaukee Independent Telephone Company had a right to employ counsel at its own expense to assist the attorney general.</p> <p>A formal order was entered in the action in accordance with the aforesaid decision, from urhich this appeal was taken.</p> <p>They contended, inter alia, that the participation of private persons for their private ends in this suit is maintenance, and the issuance of the subpoena for an examination to be conducted by them was an abuse of process. Andrews v. Thayer, 30 Wis. 228, 233; Thallhimer v. Brinckerhoff, 3 Cow. 623, 648; Gilbert-Arnold L. Co. v. O'Hare, 93 Wis. 194, 200; Barker v. Barker, 14 Wis. 131. The evils of improper interference in this action by the private persons for their own ends are increased by the fact that the position of the prosecutor in this action is quasi-judicial. Biemel v. State, 71 Wis. 444; French v. State, 93 Wis. 325; State ex rel. Durner v. Huegin, 110 Wis. 189; State v. Zill-ma/nn, 121 Wis. 472; State v. Smith, 52 Wis. 134. The participation of the privately employed counsel here would be illegal as a delegation of public authority to an individual for a consideration. Shelby v. Miller, 114 Wis. 660; U. S. v. San Jacinto Tin Co. 125 U. S. 273; Attorney General v. Sheffield G. C. Co. 3 De Gex, MacN. & C. 304. The petitioner adopted the proper procedure in applying to exclude the privately employed counsel. Miles v. Mut. B. F. L. Asso. 108 Wis. 421, 434; Barker v. Barker, 14 Wis. 131; Davies v. Stowell, 78 Wis. 334; Kelly v. Kelly, 86 Wis. 170; U. S. v. Milwaukee B. T. Co. 145 Fed. 1007. The order is appeal-able. Witter v. Lyon, 34 Wis. 564; Ernst v. Steamer Brooklyn, 24 Wis. 616; Deuster v. Zillmer., 119 Wis. 402; Gamey v. Gleissner, 62 Wis. 493; Morgan v. Holladay, 38 N. Y. Super. Ot. 117; Hopton v. Swan, 50 Miss. 545; Loomis v. Lane, 29 Pa. St. 242; 8 Am. & Eng. Ency. of Law (2d ed.) 28, 29; Jones v. Walker, 22 Wis. 220; Allard v. Smith, 97 Wis. 534; Ellinger v. Equitable L. Assur. Soc. 125 Wis. 643 ; Security Bank v. Nat. Bank, 4 Thomp. & C. 518; Murphy v. Weil, 86 Wis. 643. The permitting of an examination in this case'would be a denial of the petitioner’s rights nnder the constitution' of Wisconsin and the constitution of the United States. Boyd v. U. 8. 116 U. S. 616; Hale v. Henkel, 201 U. S. 43; In re Jefferson, 96 Eed. 826; Permoyer v. Neff, 95 U. S. 714; Murray’s Lessee v. Hoboken L. I. Go. 18 How. 272; Hurtado v. California, 110 U. S. 516; Maxwell v. Dow, 176 U. S. 581; West v. State, 1 Wis. 209, 233.</p> <p>They contended, inter alia, that the order was not appealable. Bossiter v. Mtna L. Ins. Qo<. 96 Wis. 466; Noble v. Strachen, 32 Wis. 314; Parmalee v. Wheeler, 32 Wis. 429; Peeper v. Peeper, 53 Wis. 507; Maynard v. Greenfield, 103 Wis. 670; Flannigan v. Lindgren, 122 Wis. 445. It is not maintenance to employ counsel in an action where the party so employing counsel has an interest in the question at issue or even a bona fide belief that he has an interest. Allard v. Lamirande, 29 Wis. 502; Barker v. Barker, 14 Wis. 131; Andrews v. Thayer, 30 Wis. 228; Bree-den v. Frankfort M., A. '& P. G. Ins. Go. (Mo.) 85 S. W. 930; Davies v. Stowell, 78 Wis. 334; Williams v. Fowle, 132 Mass. 385, 389; Gilbert-Arnold L. Go. v. O’Hare, 93 Wis. 194; Millard v. Bichland Co. 13 Ill. App. 527; Goodspeed v. Fuller, 46 Me. 141; Oomm. v. Dupuy, 1 Brightly, 44. This action is civil in its character and the attorney general has1 an unquestionable right to have privately employed counsel to assist him if he desires. Oshkosh v. Schwartz, 55 Wis. 483; State v. Smith, 52 Wis. 134; State v. Hayden, 32 Wis. 663; Platteville v. Bell, 43 Wis. 488; State v. Grove, 77 Wis. 448; Ohafin v. Waukesha Go. 62 Wis. 463; State v. Zillmann, 121 Wis. 472; Biernel v. State, 71 Wis. 444; Gharlesworth v. Tinker, 18 Wis. 633; Bartell v. State, 106 Wis. 342; Mc-Curdy v. N. Y. L. Ins. Go. 115 Mich. 20; People ex rel. Lentz v. Gray, 49 Hun, 465; State ex rel. Durner v. Huegin, 110 Wis. 189. In tbis case' there is no delegation of authority. Shelby v. Miller, 114 Wis. 660; U. S. v. San Jacinto Tin Co. 125 U. S. 273; State ex rel. Atb’y Gen. v. Gleason, 12 Ela. 190; People ex rel. Woodward v. Bosendale, 142 N. T. 26; People ex rel. Peabody v. Att’y Gen. 22 Barb. 114; Gilbert-son v. Fuller, 40 Minn. 413.</p>

<p>Appeal from a judgment of the circuit court for Chippewa county; A. J. Vinje, Circuit Judge.</p> <p>The appeal is from a judgment of nonsuit given in a personal injury action based on the alleged negligence of both defendants. It appears from the complaint that at the time the plaintiff was injured on October 4, 1905, and before that time, he was in the employ of the defendant lumber company, and that a contract existed between the blower works and the lumber company whereby the former undertook to erect and put in place for the latter a sawdust or shavings blower," the erection of which involved the putting in of a large iron horizontal pipe and the erection and use of scaffolding for tbe purpose of lifting’ said horizontal pipe into place. The plaintiff, with some other employees of the lumber company, was directed by the lumber company to assist the agents and servants of the blower works in the erection and construction of the sawdust blower and shavings pipe. In doing this work it was necessary for all the servants and employees of each defendant assisting in the work to stand on a scaffold or stage used in said work. The plaintiff did so stand on a scaffold, which gave way and threw the plaintiff to the ground, injuring him. It was charged to be the duty of the defendants and each of them to' erect and construct the scaffolding and staging as aforesaid with reasonable safety and to furnish the plaintiff a reasonably safe place for the performance of his work, which the defendant failed to do> and in consequence of which plaintiff was injured by the fall of the scaffolding.</p> <p>The defendants answered separately, the lumber company denying all charges of negligence in the erection or construction- of the scaffolding and denying that it or its agents or servants had anything whatever to do with the erection or construction of the scaffold. This answer further showed that the blower works and the lumber company entered into a contract by which the latter agreed to put up and erect for the lumber company a sawdust blower and shavings pipe, which contract was made a part of the answer, and that the scaffolding in question was wholly erected and constructed by the blower works. The contract itself seems to make it the duty of the lumber company to furnish scaffolding, but the answer of which it is a part avers that all the men, including the plaintiff, employed in erecting and constructing the scaffolding were in the employ and under the sole and exclusive control, management, and direction of the blower works, and the lumber company exercised no' control, management, or direction in or about any of the work. The separate answer of the blower works pleaded the same agreement and tbat it was engaged in tbe erection of tbe blower in question on October 4, 1905, and prior, admitting, among other things, that tbe method employed and adopted by it in putting up said horizontal pipe was the construction of a scaffolding, describing it, and that its servants were required to stand on said scaffold during the process of elevating said pipe, and that the plaintiff, assisting in hoisting a section of said pipe, did go on the scaffold erected for that purpose, but denies that the scaffold broke down and that the plaintiff was thrown to the ground, and denies that by reason of any negligence on the part of its codefendants the plaintiff sustained an injury or damage.</p> <p>The evidence showed the mode of placing the pipe in position up to the last fourteen or sixteen foot section thereof, which evidence is not very material. When it came to> placing in position the last section of the pipe, a scaffold was erected at a height of from ten to fourteen feet, one end of which was supported on the boiler room and the remainder of the scaffold supported by two sets of posts six to eight feet apart, consisting of pieces of plank two by six inches and about fourteen feet long, set up on end and braced diagonally with other boards or plank from top to bottom, the braces crossing at the middle. There were cross-pieces nailed near the top of these posts to lay plank on, and upon these crosspieces at right angles thereto, extending in the direction of the length of the pipe, were placed the platform planks, and it appears from some of the evidence that there were short pieces of board or plank laid across these planks, at least in some places. This scaffold was used to lift the pipe from the ground into place by men with ropes, who stood on the scaffold, and, pulling on the ropes, rolled the pipe upon skids into place on the scaffold, where it was to be riveted to the other portion of the pipe already in place. All the work of putting the pipe in place, including the building and preparation of the scaffold, was under the charge of the foreman of tbe blower works, and all tbe men, including tbe plaintiff, assisting at sucb work were under bis direction while they were so assisting. Directed by sucb foreman tbe plaintiff collected from about 8,000 feet of old lumber in the yard probably belonging to tbe lumber company, and carried over to tbe place where tbe blower pipe was being elevated, material, boards and plank for tbe building of tbe scaffold. He was not directed to any particular place or pile of lumber, and there was old lumber around there, more than one pile, nearly all kinds from inch stuff up. Tbe plaintiff did carry over material for tbe scaffold, but bad nothing to do with building tbe scaffold and did not put any boards on tbe scaffold. In bis selection of material for tbe scaffold be was confined to tbe old boards and lumber, which bad theretofore formed part of some dismantled mill or bouse, by reason of an order given him by bis employer some time before not to take any of tbe hardwood lumber, because it was to go into tbe floor of tbe box factory. One of tbe plank described as resting upon tbe cross-pieces, a pine plank old and whitewashed, three inches thick and having an inch or three-quarter inch bole bored through it from edge to edge, broke at the place where tbe bole was bored through and caused tbe plaintiff’s fall and injury. This bole in tbe plank was visible, but tbe plaintiff did not see it before tbe plank broke. Tbe plaintiff denied that be selected or placed in position this particular plank, and tbe evidence tended strongly to show that tbe breaking of this defective plank was tbe cause of tbe fall of tbe scaffold and of plaintiff’s injury.</p> <p>Among other references cited upon tbe part of tbe appellant were tbe following: Bright v. Barnett & B. Go. 88 Wis. 299, 60 N. W. 418; Huset v. J. I. Gase T. M. Go. 120 Eed. 865, 61 L. R. A. 303; Oadden v. Am. S. B. Go. 88 Wis. 409, 60 N. W. 800; Phillips v. O., M. & Si. P. B. Go. 64 Wis. 475, 25 N. W. 544; MacCarthy v. Whitcomb, 110 Wis. 113, 85 N. W. 707; Brady v. O. & G. W. B. Go. 114 Eed. 100.</p> <p>Among other references cited upon the part of the respondents were the following: Van den Heuvel v. Nat. F. Co. 84 Wis. 636, 54 N. W. 1016; Johnson v. Ashland W. Go. 71 Wis. 553, 37 N. W. 823; 8. G. 77 Wis. 51, 45 N. W. 807; Peschel v. G., M. & St. P. B. Go. 62 Wis. 338, 21 N. W. 269 ; Peffer v. Cutler, 83 Wis. 281, 53 N. W. 508; Blazinshi v. Perhins, 77 Wis. 9, 45 N. W. 947; Steffen v. G. & N. W. B. Go. 46 Wis. 259, 50 N. W. 348; Hath v. Peters, 55 Wis. 405, 13 N. W. 219.</p>

<p>Appeal from a judgment of tbe circuit court for Wauke-sha county: James J. Dice, Circuit Judge.</p> <p>It appears from tbe record that in 1897 tbe city of Wauke-sha granted to the Waukesha Electric Railway Company, its successors and assigns, authority to lay a single track for an electric street railway, with all necessary and convenient turnouts, side-tracks, and switches, on certain streets in the city of Waukesha, and to keep, use, and operate thereon railway cars upon conditions named in said franchise, and for and during the term of fifty years from the date of said franchise. By amendment duly passed March, 1898, the right to construct was extended on streets other than those named in the original franchise, including Madison street, upon which the real estate of appellant sought to he condemned in this action is situate. In pursuance of these franchises said single-track railway was constructed in 1898, but the same included two tracks over the land in question. Afterwards and in May, 1900, the city of Waukesha granted to said Waukesha Electric Railway Company, its successors and assigns, right and authority to lay a double track over certain streets in the city of Waukesha, including Madison street, and operate the same for a street railway, with all necessary cross-overs and switches for street railway purposes; that the two tracks and appliances constructed in 1898 over the land in question became and continued to be used and operated as a part of the double-track system; that from the time of the construction of said railway in 1898 and down to the time appellant acquired title said railroad was used for street railway and also for interurban purposes, although, the franchises only granted the right for street railway purposes. It further appears that prior to the 20th day of October, 1898, the land of the appellant sought to be condemned in this action was owned by one Frederick Dick, and that on that day the appellant, Wilbur Lumber Company, acquired title thereto, and ever since has been the owner thereof; that the respondent, assignee of the Wau-kesha Electric Railway Company, is an electric street and interurban railway company, and since 1898 has been operating interurban cars on Madison and other streets in the city of Waukesha over the tracks hereinbefore referred to; that in the month of September, 1904, the respondent filed a petition in the circuit court for Waukesha county praying for the appointment of commissioners to appraise the compensation to be paid to the appellant for the real estate in question, claimed to have been.taken by it for an interurban railroad right of way. The petition alleged the construction of a 'single-track railway in the .year 1898 and its operation until June, 1900, when a double-track system was installed, and that the line has been operated since first installed from the city of Milwaukee to the city of Wau-kesha over the land in question. The petition further states that it requires and that it is necessary to acquire so much of the lots and parcels of land fronting and abutting on several' streets, including Madison street, as lies within the said streets, including the common right in the free and unobstructed use of said streets to the extent of the full width thereof, for the construction of a double-track electric railway. It is further alleged, in substance, that it desires in the proceeding to condemn and permanently appropriate all that part of appellant’s land which lies within the street and all the rights of property, including the common right to the free and unobstructed use of said street, to the extent of the full width thereof. On January 10, 1905, said commissioners filed their award. Both parties appealed to the circuit court from said award. After tbe evidence was in cn tbe trial in tbe circuit court a verdict was directed in favor of tbe plaintiff for six cents, and tbe plaintiff’s motion to set tbe verdict aside and for judgment for $3,000 damages; and also motion for new trial on tbe minutes, were denied. Judgment was entered awarding tbe respondent costs, from wbicb this appeal was taken.</p>

<p>Appeal from a judgment of the circuit court for Wauke-sha county: James J. Dick, Circuit Judge.</p> <p>The appeal is from a judgment entered upon a verdict directed in favor of the appellant for six cents damages and awarding costs to the respondent in a condemnation proceeding. The appellant acquired title to lot 3 in block B of Had-field’s Second addition to Waukesha, abutting on Lincoln avenue, upon September J, 1903, from one Eugene Horr, who acquired title to the same premises in 1891. The respondent' is an electric street and interurban railway corporation, and' has been since about 1898 operating electric interurban cars on Lincoln avenue upon tracks laid in that street and with the necessary appliances of poles and wires. On March 3, 1904, the respondent filed in the circuit court for Waukesha county a petition for the appointment of commissioners for the condemnation of all the rights of property which would entitle the owners and persons interested in the lots fronting and abutting upon Lincoln avenue to damages by reason of the construction, maintenance, and operation on said Lincoln avenue of a double-track interurban railway, but subject to a franchise described or referred to in said petition. The commissioners appointed on this petition appraised the damages of the plaintiff at $128.20, and those of the plaintiff’s grantor, Horr, at six cents. The respondent appealed from the plaintiff’s award of damages, but did not include in said appeal the award to Horr. The plaintiff did not appeal to* the circuit' court. The plaintiff moved in the circuit court to dismiss the appeal of the respondent from the award because not taken from the gross award. This motion was denied and plaintiff excepted. The case was then tried on this appeal, and it appeared from the award appealed from that the damages were ascertained, appraised, and determined by the commissioners by reason of the respondent taking, condemning, and permanently appropriating so much of said lot as lies within Lincoln avenue for a right of way for the construction, maintenance, and operation thereon of the double-track interurban railway authorized by respondent’s articles of incorporation and its franchises from the city of Waukesha. It further appeared in evidence that the tracks were laid down in said street in 1898 and double-tracked in 1900 and that they were used for street railway purposes. When the interurban cars coming from Milwaukee and passing through Waukesha, or returning to Milwaukee passing through Waukesha, enter within the city boundaries, they do a street-car business, stopping at street crossings on signals to take on and let off passengers, but otherwise are engaged in interurban traffic.</p> <p>Among other references cited upon the part of the appellant were the following: Spaulding v. M., L. S. & W. R. Go. 57 Wis. 304, 14 1ST. W. 368, 15 1ST. W. 482; Morris v. Brewster, 60 Wis. 229, 19 R. W. 50; Ghinnock v. Stevens, 23 Wis. 396; Widner v. Wood, 19 Wis. 190; Watson v. M. <& M., It. Go. 57 Wis. 332; Washburn v. M. & L. W. B. Go. 59 Wis. 379, 18 R. W. 431; Sayles v. Davis, 20 Wis. 302; sec. 1849, Stats. (1898); Van Slyke v. Trempealeau Go. F. Mut. F. Ins. Go. 39 Wis. 390; Hays v. Lewis, 21 Wis. 663; Sharp v. Appleton, ante, p. 16, 113 1ST. W. 1090; Murray Hill L. Go. v. M. L., H. & T. Co. 126 Wis. 14, 104 R. W. 1003; La Grosse & M. B. Go. v. Seeger, 4 Wis. 268; State ex rel. Jenkins v. Harland, 74 Wis. 11, 41 R. W. 1060; Campbell v. Dick, 80 Wis. 42, 49 R. W. 120; Kaehler v. Dobberpuhl, 60 Wis. 256, 18 R. W. 841; Bigelow, Estoppel, p. 562, ch. 19; 2 Lewis, Em. Bom. (2d ed.) 1145.</p> <p>Among other references cited upon the part of the respondent were the following: Larson v. Superior S. L. B. Go. 64 Wis. 59; Allen v. McRae, 122 Wis. 246, 100 R. W. 12; Blesch v. G. & N. W. B. Go. 43 Wis. 183; Frey v. D., S. S. & A. B. Go. 91 Wis. 309, 64 R. W. 1038; Milwaukee & N. B. Go. v. Strange, 63 Wis. 178, 23 R. W. 432; Pomeroy v. G. & M. B. Go. 25 Wis. 641; ch. 465, Laws of 1901.</p>

<p> Eminent domain: Compensation: Special benefits: Transmutation of street railway trades into interurban trades by condemnation: Damages: Mitigation. </p> <p>1. In a proceeding to condemn and permanently appropriate all the rights of property which would entitle the owners and persons interested in lots fronting and abutting on a city street to damages by reason of the construction, maintenance, and operation thereon of a double-track interurban railway, it appeared, among other things, that prior to the filing of the petition the defendant’s roadbed, tracks, poles, and wires on said street were in use under a franchise authorizing a street railway business, although the defendant was also conducting an interurban business oyer the same track and with the same appliances. Held, that the roadbed, tracks, poles, and wires were street railway roadbed, tracks, poles, and wires, and lawfully in the street, and only their use for interurban trafile was unlawful</p> <p>2. In such case it was error to refuse a requested instruction: “You are instructed that there is nothing in the evidence in this case that shows the existence of any special benefits to the property in question, and you are not to allow or consider as an offset against plaintiff’s damages, if any, any benefits whatever,” and to give as part of the general charge: “It is for you to determine from the evidence in this case, under the instructions given you, whether or not there wetre [at the date of the award by the commissioners] any special -benefits flowing from the operation of a street railway by the defendant company affecting the market value of such property, if you find from the evidence that a railway was operated at such time as a street railway along and in front of said property appreciably affecting the market value of said property.”</p> <p>3. The special benefits mentioned in sec. 1848, Stats. (1898), which may be offset against damages to the landowner on condemning land for an interurban railway are such as are caused by the construction of the public work for the installation of which it is sought to condemn the land. Specific benefits which •have no causal connection with such public work are not the special benefits referred to in the statute.</p> <p>4. Where the right to place street railway tracks, poles, wires, and appliances in a street exists by virtue of a fifty-year franchise for the use of such street, granted prior to the time of taking the same for interurban purposes sought to be accomplished by condemnation proceedings, the duty to continue street railway service under such franchise for the remainder of the franchise term survives the condemnation proceedings and continues, notwithstanding the tracks and appliances which were formerly street railway tracks and appliances will become interurban in character by virtue of such condemnation.</p> <p>5. In «ondemnation proceedings to transmute street railway tracks and appliances into interurban tracks and appliances, in estimating the abutting owners’ damages the existence of the street railway with its roadbed and appliances, and that the street was subject to that burden without compensation to the lot-owner, and to other like burdens which the municipal authorities might in their discretion impose, are to be considered as conditions existing at the time of the taking for the interurban service, but not as special benefits.</p> <p>6. In such situation the fact that by the limited estate or interest taken by the condemnation proceedings the obligation to continue the street railway service for some years will remain is proper to be considered in mitigaiion of damages, since the condemnation takes a less estate or interest than would be taken were the proceedings initiated to take the whole use of the street and extinguish the street railway franchise.</p> <p>7. In such case the perpetual nature of the right acquired by the condemnation, extending indefinitely beyond the time when the street railway franchise must expire, should be considered.</p>

Dick, Circuit Judge. The appeal is from a judgment rendered upon a verdict-in favor of the appellant upon appeal to the circuit- court from an award of commissioners in a condemnation proceeding. The respondent filed its petition March 3, 1904, for the appointment of commissioners. The commissioners awarded the plaintiff $206 damages, and to his grantor, Mary E. Peffer, six cents damages.

<p> Eminent domain: Persons entitled to compensation: Leaseholds: Appeal and error: Direction of verdict: Prejudicial error: Damages: Release by landlord: Tenant’s rights: Remedies: Trespass. </p> <p>1. Where, in proceedings to condemn the rights of owners fronting or abutting on a city street for an interurban railway, it appears that the plaintiff never had more than a leasehold interest, which had expired before the petition for the appointment of commissioners was filed, plaintiff has no estate or interest to be. condemned or taken.</p> <p>2. Where, in such case, on appeal to the circuit court, that court directs a verdict in plaintiffs favor for nominal damages, it is not an error of which plaintiff, on appeal to the supreme court, , can complain, it not being entitled to any damages whatever proper to he assessed in a condemnation proceeding.</p> <p>3. In condemnation proceedings the release of damages by a landlord does not affect the tenant’s right to recover.</p> <p>4. In condemnation proceedings instituted to acquire the estate or interest of a tenant, the fact that there had been a breach of covenant of the lease by an assignment without the consent of the landlord .does not affect the tenant’s right to recover damages, since the defendant cannot challenge the validity of such assignment.</p> <p>5. Where the plaintiff in condemnation proceedings is precluded from recovery therein because his title had expired before the institution of the proceedings, such proceedings cannot be used for the recovery of damages for past trespasses not associated with the taking of the land.</p> <p>6. Plaintiff in condemnation proceedings was shown to have occupied a store fronting and abutting on a city street as a tenant, but it also appeared that at the time the condemnation proceedings were instituted the leasehold interest had expir'ed. Held, that for any wrongs inflicted upon plaintiff or his leasehold interest prior to the filing of the petition in the condemnation proceedings the remedy was an action for the trespass.</p> <p>7. In such situation the fact that in the condemnation proceedings nominal damages were awarded plaintiff would be no bar to an action for past trespasses, since such damages are not within the issues upon the condemnation proceedings.</p>

<p> Eminent domain: Nature and, extent of right taicen "by interurhan railway in city street: Existing street railway franchise: Statutes: Construction: Instructions to jury: Prejudicial error: Damages: Rule: Measure. </p> <p>1. A railroad or other public or quasi-public corporation in the condemnation of land is not required in every case to assert its full power of condemnation given it by statute, but may lessen or limit within a reasonable degree the estate or right in the land taken by the condemnation.</p> <p>2. Sec. 1863a, Stats. (1898), authorizes electric railroad corporations to exercise the power of eminent domain and in the same manner as ordinary commercial railways, but excepts from this authority the condemnation of rights in city streets. By amendment (ch. 306, Laws of 1899; eh. 466, Laws of 1901; and ch. 497, Laws of 1905) the restriction as to streets was so modified that, where the use of such street had been first duly granted to the electric railway company by a franchise duly passed by the common council of the city, the power of condemnation was not restricted. Defendant, an electric interurhan railway, after it had, for several years, carried on its interurhan business over a street x'ailway system owned by it, filed its petition for the condemnation of so much of the right, title, and interest of the abutting owners as was sufficient for the construction, maintenance, and operation of its interurhan system, the averments of the petition being stated in the opinion. Held:</p> <p>(1) The averments of the petition relieved the court from determining whether, under such statutes, the interurhan railway corporation had power to condemn a mere right to run electric interurhan cars over the tracks of an ordinary street railway and have the damages of the abutting owners assessed accordingly.</p> <p>(2) The averments of the petition, together with the power given by such statutes, amply showed that the interurhan railway corporation had by such petition condemned and taken, subject to the appraisal of damages and the special provisions of sec. 1836, Stats. (1898) — recognizing that the exclusive use and possession of a highway is not acquired by condemnation, but that other public uses continue unimpaired, or only impaired so far as absolutely necessary, — a right of way in the street for its roadbed and appliances, not during the life of the street railway franchise, but permanently.</p> <p>(3) The defendant railway haying in its petition recognized the franchise under which the street railway was operated on the same roadbed and with the same appliances with which it was operating its interurban traffic and made it one of the bases of such petition, acquired by the condemnation in question a right to construct and maintain its interurban railway, subject to the duty to continue the operation of street railway cars during the life of such franchise.</p> <p>S. In such case it was error to limit plaintiffs damages to those sustained by the mere maintenance and operation of interurban railway cars ove1’ street railway tracks in front of her premises.</p> <p>4. In such case it was error for the court to instruct the jury as stated in the opinion and to refuse requested instructions, also stated in the opinion.</p> <p>5. In a proceeding to condemn so much of the right, title, and interest in a city street of the abutting owners as is sufficient for the construction, maintenance, and operation of an interurban railway, the street already being occupied by street railway tracks and appliances in use for both urban and interurban traffic, it is held that the damages should be estimated with reference to conditions lawfully existing at the time of filing the award of the commissioners, including the existence and operation of the street railway in the street in front of the plaintiff’s premises, and with reference to the change made by the taking when completed, including the substitution of an interurban railway roadbed, track, and appliances permanently upon the street, but with the duty on the part of the railway company to continue the street railway service; such damages to be measured by the difference, if any, between the market value of the property in its former condition and its market value with the condemnation completed.</p>

Dick, Circuit Judge. The appeal is from a judgment rendered upon a verdict for the appellant upon an appeal to the circuit court from the award of commissioners in a condemnation proceeding.

<p> Appeals from county court: Persons entitled to appeal: “Person aggrieved:” Review: Findings, when disturbed. </p> <p>1. The petitioner for the appointment of a guardian of his father, an alleged incompetent, was the only child, and, under sec. 1502, Stats. (1898), would he legally hound to relieve and support his father should he dissipate his property so as to be unable • to maintain himself. Held, that such liability gave petitioner such a substantial interest in the proceeding that he should properly be considered a “person aggrieved” within the meaning of the appeal statutes.</p> <p>' 2. In such case it was not error for the circuit court to deny a motion to dismiss an appeal from an order refusing to appoint a guardian, on the ground that the petitioner was not an aggrieved person within the calls of sec. 4031, Stats. (1898), regulating appeals from county to circuit court.</p> <p>[3. Whether a mere friend or relative or other person not under such liability who makes such a petition — as under sec. 3978, Stats. (1898), he may — can properly be considered as aggrieved by its denial, doubted, but not determined.]</p> <p>4. Findings of fact having ample support cannot be reversed on appeal.</p>

<p> Discovery: Order for inspection of writings: When order should he vacated: Evidence: Burden of proof. </p> <p>1. In proceedings under sec. 4183, Stats. (1898), authorizing compulsory permission of one party to an action to insnect and take copies of “hooks, papers and documents in” the “possession or under” the “control” of the adverse party “relating to the merits of the action or of the defense therein,” an unqualified denial of the allegations of a petition, praying such permission, as to such possession and control constitutes a full answer thereto, and calls for the vacation of an order for such inspection theretofore made.</p> <p>2. In such case, however, if it appears that the hooks, papers, and documents inspection of which is sought-have been in the possession of the adverse party, especially where such party is unquestionably the proper custodian thereof, the proof that they are so no longer must he very clear to require an order for their production to he vacated.</p> <p>3. In proceedings under sec. 4183, Stats. (1898), for the compulsory inspection of hooks, papers, and' documents in the possession or under the control of the adverse party, the burden of proof is on the party seeking to have his adversary coerced, and an affidavit that such adversary has control of the papers (which may he properly made without personal knowledge because of the presumption arising from the fact that rightly they should he in such control) makes a prima facie case.</p> <p>4. When, however, such presumption is rebutted by the positive denial by such adversary, an order nevertheless requiring their production, based on mere suspicion that the denial is false, or that the papers are where he might gain control of them, is improper.</p> <p>5. Proceedings under said sec. 4183, Stats. (1898), cannot be extended so as to compel the adverse party to assert his right to possession of papers and obtain them, from one who would resist efforts in that regard, for the purpose of producing them for inspection of the petitioner.</p> <p>6. In proceedings under said sec. 4183, Stats. (1898), under the facts, stated in the opinion, it is held error for the trial court to refuse to vacate an order requiring the adverse party to submit to petitioner the papers and documents named in the petition.</p>

<p>Appeal from a judgment of tlie circuit court for Door county: S. D. Hastings, Circuit Judge.</p> <p>Plaintiff, a married man, his wife residing with him, carried on a small jewelry, bicycle, and gun store at Sturgeon Bay, Wisconsin, and also a repair shop for such articles containing the tools of his trade. On July 13, 1905, he took out a policy of insurance for $250 on the personal property in said building, described as a stock of .bicycles, tools for the same, work bench, and all hand tools pertaining to bicycles and gun repairs, and included additional insurance, by an amendment, on typewriter and typewriter repairs. It was a standard Wisconsin policy and contained a clause providing that the entire policy should be void if the property be or become incumbered by a chattel mortgage. After fire and proofs of loss it appeared that on July 5th, eight days before the date of the policy, plaintiff and his wife executed a chattel mortgage, without witnesses, on his stock in trade and fixtures according to a schedule specifying them by items, which mortgage covered all of said stock and fixtures, including the jewelry. This was set up as a defense. The court held that, as said chattel mortgage covered exempt property and was not witnessed, it was void as to the exempt property, and also void as to the nonexempt property because the latter was not ascertained at the time of its execution and delivery, and therefore the mortgage failed to convey any specific property. He accordingly directed a verdict and rendered judgment for the plaintiff for the amount of the insurance, from which judgment the defendant appeals.</p>

D. Hastings, Circuit Judge. On December 14, 1905, the following note was executed: “$450.00. 90579. “Green Bay, Wis., Dee. 14, 1905. “Twelve days after date, for value received, we promise to pay to E. McIntyre & Co. or bearer, at the Citizens’ Nca tional Bank of Green Bay, four hundred and fifty dollars, with interest at the rate of six per cent, per annum until paid. Jacob .Habtee. “Mike Bbatjn. “Due Dec. 26, 1905.

D. HastiNG-s, Circuit Judge. Tbis action was brought to recover for tbe pecuniary injury resulting to tbe widow from tbe death of plaintiff’s intestate, employed by defendant as brakeman.

D. Hastings, Circuit Judge. The appeal is from a judgment rendered in an action for negligent injury to an employee. Among other references cited upon the part of the appellant were the following: Both v. S. E. Barrett Mfg.

This is an appeal from a judgment in an action for trespass in which statutory damages were awarded. The respondent claimed title to the land from which the timber was cut by tbe appellant. Tbe appellant admitted tbe cutting and removing of tbe timber, but denied tbe plaintiff’s title and that tbe amount cut was as alleged in tbe complaint.

D. Hastings, Circuit Judge. The appellant, Edward Ryan, filed a claim in the county court against the estate of his deceased wife, Eliza Ryan,, for care, support, and nursing of said wife from the time of their marriage, August 4, 1900, up to the time of her death, February 28, 1905. The complaint as filed in county court was substantially upon quantum meruit, and the claim was allowed in that court at the sum of $1,000.

<p> Words and phrases: “Ditto marhs:" Abbreviations: Tax deeds: Record. </p> <p>1. When “ditto marts” are used in general writing and legal documents and records they are to he read as a representation of what appears written above them and as meaning “the same as above.”</p> <p>2. On the occasion of receiving for record a tax deed, the register of Bayfield county did not write out in the general index book of his office the words “Bayfield county” as .the grantor in the deed, but inserted in their place in the column headed “Grantors” what the trial court, from actual inspection of the original entry, declared to be ditto marks, the same being immediately under the words “Bayfield county,” written on the line above that on which the abbreviation was inserted. In an action of ejectment plaintiff relied for his title on the record of such tax deed, the lands being and remaining vacant and unoccupied and the tax deed having been issued and recorded more than three years before the commencement of the action. Held, that no error was committed in awarding judgment in plaintiff’s favor on the pleadings and findings stated in the opinion.</p> <p>3. Abbreviations commonly in use in the English language may be used in general writing and legal documents and records as part of the English language.</p>

<p>Apeeal from an order of the circuit court for Price county: John E. Parish, Circuit Judge.</p> <p>Mandamus against the mayor, common council, and street committee of Phillips. The petition sets forth, in effect, that petitioner is a citizen, resident, property owner, and taxpayer of the city of Phillips; that said, city is a city of the fourth class, organized and existing under ch. 40 a, Stats. (189S) ; that by vote duly taken the city dispensed with the board of public works, and their duties devolved upon and are exercised by a committee of the common council known as the street committee; that prior to 1906 said city was divided into sewerage districts and a system of sewerage adopted and partially constructed; that the sewerage system constructed is in use to the north line of the block in which the property of the petitioner is situated; that petitioner is engaged in the erection of a hotel building on lot 5, block 4, fronting on Lake street, which is the principal business street of the city, to be equipped with modern appliances and conveniences for supplying the same with light, heat, water, and drainage; that before commencing said building operations petitioner was assured by all the members of the common council that a petition of the property owners in said block for a sewer would be granted; that relying upon such assurances he has partially completed such hotel building; that he has been delayed and prevented from completing it by reason of water accumulating therein, with no means or facilities for draining the same; that at a regular meeting of the common council held on June 18, 1906, a petition signed by the owners of property in said block 4 fronting on Lake street petitioning for the extension of sewerage along Lake street was presented, whereupon on motion made and carried it was determined to extend sewerage of the city south on Lake street to Maple street in accordance with the prayer of the petition; that the mayor and chairman of the street committee are opposed to such extension, and each of them is giving out that the city has no legal authority to construct said sewer; that the mayor is threatening to institute legal proceedings to restrain the construction of said sewer, and by other unlawful and arbitrary means is doing all in his power to prevent the construction of said sewer; that the street committee has unreasonably and negligently refused, and still wilfully, unreasonably, persistently, and negligently refuses, to taire steps to give effect to tbe determination of tbe common council of June 18, 1906, to tbe damage of petitioner and also to tbe citizens of tbe city of Phillips, especially to tbe property owners of block 4. Tbe petitioner,prays tbat sucb proceedings may be bad in due form; tbat peremptory writ of mandamus may issue requiring tbe street committee of tbe common council to proceed to give effect to tbe determination of tbe common council of June 18, 1906, in reference to extending and constructing a sewer south on Lake street to Maple street in said city, and for sucb other order as may be proper. TJpon this petition an alternative writ of mandamus was issued requiring tbe defendants to give effect to tbe determination of tbe common council of June 18, 1906, in reference to tbe extension of a sewer on Lake street south to Maple street, or show cause to tbe contrary.</p> <p>Tbe mayor, common council, and street committee made return to tbe writ as follows: ¡'</p> <p>“Tbat on tbe 2d day of August, 1904, an attempt was made by tbe then city council of tbe city of Phillips to install a system of sewerage therein, and when an ordinance as follows appears to have been adopted, to wit:</p> <p>“ ‘The common council of tbe city of Phillips do ordain as follows: Tbat all tbe territory within tbe limits of tbe said city shall hereafter constitute one sewerage district. This ordinance shall take effect and be in force from and after its passage and publication. Dated this 2d day of August, A. D. 1904. Approved by O. O. Kelleher, Mayor. Countersigned by Geo. E. Sackett, City Clerk.’</p> <p>“That no other or further steps were taken in tbe premises. Tbat no provision has ever been made by said city for tbe payment for the construction of sewers in said city, whether to be paid by tbe city, tbe sewerage district, or abutting property owners. Tbat no plan has ever been prepared by said city, or its board of public works, or street committee, showing tbe lots and parcels of land, tbe main sewers, minor sewers, maullóles, catch-basins, and all other matters pertaining to the system, and as provided for and required by see. 925 — 209 of subch. XX of ch. 40a of Wisconsin Statutes of 1898, and that no notice has ever been given of the completion of any such plan as required by sec. 925 — 210 of said chapter, and no such plan has ever been adopted by said city. That so far as records of said city show and so far as we are advised and know, except as hereinafter particularly set forth, the foregoing record comprises all that has been done by said city, its council, or street committee in installing or establishing a sewerage system therein. That in the month of June, 1905, as we are informed and believe, the city council, in conjunction with the .board of education of said city, caused a certain plan and profile to be made of a sewer to extend from the school building in block 14, in said city, to a point on Lake street to connect with a certain sewer therein laid. That on the 1st day of August, 1905, the said city council passed the following ordinance, to wit:</p> <p> “ ‘Ordinance. </p> <p>i{The common council of the city of Phillips do ordain as follows: That the plan ior the proposed extension of the sewerage system of the said city as shown by the certain plat of a sewer to be constructed from the southeasterly basement wall of the high school building diagonally to the intersection of the said line with the center line of Chestnut street and from thence along the said center line of Chestnut street to the center line of Lake street, all in the said city, and by the profile map of the same hereto attached and submitted to the said council at its regular meeting held on the day of the date hereof, together with a report of the street committee of the said city, in relation thereto, is hereby approved, adopted, and established, and the city clerk of the city is hereby directed to file such plat and profiles as provided by law. This ordinance should take effect and be in force from and after its passage and publication. Dated this 1st day of August, A. D. 1905. Approved by C. C. Kelleher, Mayor. Countersigned by Geo. E. Saclcett, City Clerk.’</p> <p>“That said plan of sewer was never submitted tc« the owners of or those interested in the real estate in said city and af-feeted by said plan by wbicb proper objections could be made or filed and as required by sec. 925 — 210, aforesaid. That no provision was made for tbe payment of said sewerage, excepting only as appears by tbe certificate of tbe then common council of said city appended to tbe contract made between tbe said city and one J. E. Dickman that there were sufficient funds ‘in tbe treasury of tbe city to meet all sueb expenses as tbe city may incur for tbe materials and work therein provided for,’ but that, as tbe fact is, tbe said board of education paid $1,000 of the contract price of said sewer, tbe city of Phillips paying only tbe balance thereof, to wit, tbe sum of $1,253.95. That tbe notice for bids for tbe construction for said sewer was given jointly by street committee and board of education of said city of Phillips.</p> <p>“We further beg leave to show that no plan for any sewerage district has ever been finally determined and no completed diagram of tbe same has ever been prepared in duplicate or otherwise, certified to be correct by the board of public works or street committee, and filed as required by sec. 925— 212 of said subcb. NX, as aforesaid. We further represent and allege that in tbe acceptance so called of tbe petition of tbe relator herein tbe council were not advised in the premises, and that tbe whole matter was referred to tbe city attorney for bis advice as to tbe exact status of tbe city with reference to sewerage, and especially as to who should be legally chargeable with the cost of sewer prayed for in said petition. That before any report was made by said city attorney this proceeding was instituted. We further represent and show that no tax has been raised and no funds are now in tbe treasury of said city for tbe construction of sewers therein nor any moneys set aside and appropriated for such purposes. That by reason of tbe premises, and as we have been advised, we have no power to proceed in tbe immediate preparation of plans for or tbe construction of any sewer in said city at this time. All of wbicb is respectfully submitted. Wherefore we respectfully pray tbe judgment of tbe court that tbe petition be dismissed and the rule to show cause why a peremptory writ should not issue be discharged, and for such other rule, order, or relief as may be proper in tbe premises, and for costs.”</p> <p>Tte petitioner demurred to the return for want of facts sufficient to constitute a defense and that the return does not show any cause or excuse for not obeying the writ. The court sustained the demurrer, with permission to amend the return on payment of $10 costs. Erom the order sustaining the demurrer this appeal was taken.</p>

<p>Appeal from a judgment of the circuit court for Price county: JohN K. Pabish, Circuit Judge.</p> <p>Among other references cited upon the part of the appellant were the following: Dells v. Stollenwerh, 18 Wis. 339, '47 N. W. 431; Olarh v. Slaughter, 129 Wis. 642, 109 N. W. 556; Thompson v: Brennan, 104 Wis. 564, 80 N. W. 947; Adams v. Snow, 106 Wis. 152, 81 N. W. 983.</p> <p>Among other references cited upon the part of the respondent were the following: Matthews v. Baraboo, 39 Wis. 674; Bowman v. Van Kuren, 29 Wis. 209; Bussell v. Loomis, 43 Wis. 545; Gardinier v. Kellogg, 14 Wis. 605; Forcy v. Leonard, 63 Wis. 353, 24 N. W. 78; Stewart v. Mather, 32 Wis. 344; Orton v. Scofield, 61 Wis. 382, 21 N. W. 261.</p>

Pabish, Circuit Judge. This action was brought to recover from the respondent the balance due on account for merchandise, and the answer set up payment and a counterclaim for a balance due upon the purchase price of pulp wood sold and delivered to the appellant.

Pabish, Circuit Judge. Tbe action was commenced in justice’s court. Judgment was there rendered in favor of defendant. Plaintiff duly appealed to tbe second municipal court of Bayfield county. Tbe judge of said court being incompetent to preside at tbe trial by reason of having acted as attorney for plaintiff in tbe justice’s court, in conformity to law made an order calling in J. W. Fowler, a justice of tbe peace, to act as municipal judge.

Paeish, Circuit Judge. Tbe appeal is from order overruling general demurrer to complaint attempting to set forth two causes of action on successive official bonds of tbe defendant 'Nelson as village treasurer.

<p> Taxation: Assessment of personal property: Pledged chattels: Person liable for tax: Bight to review assessment: Statutes: Construction: Assessment of money and credits: 'Notice to taxpayers: “Other omission of duty on part of the assessor or said board." </p> <p>1. Under sec. 1044, Stats. (Supp. 1906; Laws of 1899, cli. 229, and' Laws of 1903, oh. 417), shares of stock of a corporation, pledged as collateral security for the repayment of loans outstanding at the time of their assessment, are properly assessed to the pledgee. The pledgee is the person liable to the municipality for the tax and has his remedy against the pledgor.</p> <p>2. Under sec. 1061, Stats. (1898), as amended by sec. 2, ch. 284, Laws of 1903 (providing that no person shall be allowed in any action or proceeding to question the amount or valuation of personal property assessed- to him unless in person or by an agent he shall have first presented his objections to and made full disclosure before the board of review, under oath, of all his personal property liable to assessment in the district and the value thereof, except when prevented from making such presentation and disclosure by a failure to give the ■ notice required by sec. 1056 or by other omission of duty on the part of the assessor or such board), and sec. 1056 (requiring notice to the taxpayer only when assessed a greater sum by the assessor than the amount shown in his sworn statement), where the only omission of duty claimed by a taxpayer was omission to give the notice required by sec. 1056, the taxpayer cannot question a tax levied in the absence of affirmative showing that he made the statutory sworn statement to the assessor and appeared before the board of review and submitted to examination, and that the assessment on which the tax was levied was greater than the value of the property thus shown, even though it affirmatively appears that the taxpayer had no personal property subject to taxation.</p> <p>[3. Statements in a former opinion as to the validity of sec. 1061, Stats. (1898), as amended by ch. 284, Laws of 1903, withdrawn, without, however, intimating any opinion upon the question of constitutionality one way or the other.]</p> <p>4. Sec. 1061, Stats. (1898), as amended by eh. 284, Laws of 1903, is a drastic statute, and should be given no broader scope than its terms with certainty demand.</p> <p>5. The word “prevented” as used in sec. 1056, Stats. (1898), is not used in its exact sense, and has the meaning stated in the opinion.</p> <p>6. In order to determine the amount of money and credits (except real-estate mortgages) for which any person should he assessed, sec. 1056, Stats. (1898), provides that the taxpayer “shall be required” by the assessor to make a statement thereof under oath. The preceding clause of the section provides that, in order to determine the amount of personal property other than money or credits for which such person should be assessed, the assessor “may” examine such person under oath as to such property. Held, that the difference in the two clauses is not accidental but intentional, that the words “shall be required” arc mandatory, placing upon the assessor a statutory duty to require of the taxpayer a statement under oath of the amount o! money and credits for which he should be assessed, and, if tb<? assessor fails in such duty, that the situation as to money and credits falls within the clause of sec. 1061, Stats. (1898), as amended by ch. 284, Laws of 1903, providing that the taxpayer may in an action question the amount or valuation of personal property assessed to him.</p> <p>7. In such case, if the assessor fails to perform his statutory duty, the taxpayer is justified in believing that no assessment of money or credits is contemplated, and if, under that belief, he fails to present himself before the board of review, he is “prevented.” from so doing by “other omission of duty on the part of the assessor or of such board,” within the calls of sec. 1061, Stats. (1898), as amended by ch. 284, Laws of 1903.</p> <p>8. In an action attempting to enforce an unpaid personal property tax against the defendant it appeared, among other things, that defendant owned shares of stock in a corporation which he had pledged as collateral for loans; that the assessor had this stock in mind when he made his assessment and intended to cover it by his entry on the assessment roll; and that no notice required by sec. 1056 was given defendant nor was defendant required to make a statement under oath of the money and credits for which he should be assessed. Held, that a judgment for defendant was right.</p>

<p>Appeal from, a judgment of the circuit court for Milwaukee county: WabREF D. TaeRaht, Circuit Judge.</p> <p>This is an action in equity to set aside and enjoin the collection, of special assessments against forty-four lots owned by the plaintiff in a platted subdivision called Morgandale in the town of Lake, Milwaukee county, which assessments were attempted to be levied by the town to pay the expense of rebuilding and repairing sidewalks in front of said lots. The action was originally brought against the county of Milwaukee, its treasurer, the town of Lake, and one Ollmann, the contractor who repaired the walk and for whose benefit the assessments were to be collected. The circuit court set aside the assessments and perpetually enjoined their collection, from which judgment the town of Lake appeals.</p> <p>The sidewalks were attempted to be repaired and the assessments levied under the provisions of sec. 1346a., Stats. (Supp. 1906; Laws of 1901, eh. 278), and the plaintiff claimed that the proceedings were invalid because (1) the town board took no view of the premises and held no legal meetings at which the work was ordered and the contract let; (2) that the public convenience or safety did not require the work; (3) that the contract price was exorbitant and unjust; (4) that the town board fraudulently conspired with the contractor; and (5) that no notice to the owner was served or posted as required by the section named prior to the doing of the work. The allegations of the complaint were, in substance, denied by the answer, and it was alleged that the material requirements of the statute had been complied with. The court, after trial of the action, found: (1) That the plaintiff was the owner of the lots in question and that they were not within any city or village; (2) that the grantors of the plaintiff in 1892 laid out a tract of land including said lots into lots, blocks, streets, and alleys, recorded the plat, and laid wooden sidewalks in front of the lots in order to induce purchasers to buy, and sold a number of lots; that the town board had never formally accepted the plat or declared the streets thereon public highways, but that a number of such streets had for ten years been recognized by the town officers as highways, and that such officers had assumed control of them, and that they were much traveled by the public; (3) that in the year 1902 the town board ordered said sidewalks in front of the lots described in the complaint to be taken up and relaid and caused the .expense thereof to be charged to the lots and included in the tax roll, and made a contract therefor with the defendant Ollmann, who did the work of repairing the walks under the direction of the town board; (4) that during the year 1901 the sidewalks in question became out of repair in many places and the plaintiff • neglected to repair the same; (5) that the town board claimed to have acted under the provisions of see. 1346a- aforesaid, but that said board never held any legal meetings at which any of the proceedings for doing the work were had or the tax levied, and the town records contain no minutes of any proper notice having been given; (6) that no proper notice to the plaintiff, as required by said sec. 1346a-, was ever given or posted; (7) that Ollmann’s bid for the work was not the lowest bid therefor, but that the contract was awarded to him at the price named by the lowest bidder, and that he commenced with the work November 5, 1902, and continued until completed under a pretended contract with the town board, which contract was void and unauthorized; (8) that the total amount charged and assessed against plaintiff’s lots is $460.59 ; (9) that the amounts assessed against the lots have been placed upon the tax roll and returned as delinquent, and that the county treasurer was about to collect the same by sale of the lots when restrained by the temporary injuno-tional order herein; (10.) that the town board left the determination whether any, and if so what, sidewalks in front of plaintiff’s lots needed repairs, to the defendant Ollmann; (11) that plaintiff had no notice or knowledge that such work was required or done until the amounts assessed were placed in the tax roll and sought to be collected; that neither plaintiff nor its grantors were ever residents of the town of Lake, and tbat the town board neither at the time of awarding the contract, nor at tbe time of auditing the contractor’s claim, had any proof before it that notice requiring the work to be done had been given the plaintiff; (12) that no fraud had been proven. From these facts the court concluded that tire assessments should be set aside and their collection restrained without prejudice to the right of the defendant Ollmann to proceed against the town to enforce any claim which he may have upon his contract. Judgment was entered in accordance with these findings.</p>

<p>Appeal from a judgment of tbe circuit court for Rock county: B. F. Dukwtddie, Circuit Judge.</p> <p>This action was brought against the Chicago, Milwaukee & St. Paul Railway Company, Thomas P. Bums, Katherine Burns, his wife, and Timothy E. Ludden, to remove an alleged cloud upon the title of plaintiff to lots 2, 4, 5, and 6 of Behrendt’s- subdivision of block 35 of the original plat of the city of Janesville. The defendant Thomas P. Burns claims a right of way over lots 2 and 5 upon the ground of dedication, easement as appurtenant to lot 3, and as assignee of a mortgage on lot 3 covering a right of way over lots 2 and 5. He sets up the facts by way of counterclaim and prays foreclosure of his mortgage. The court found substantially as follows:</p> <p>That on October 30, 1888, one Anton Behrendt, being the owner of lots 1, Y, and 8, block 35, of the original plat of Janesville, executed a mortgage for $Y,000 on said lots to Henry Palmer, and on June 2Y, 1S89, executed a second mortgage on said lots to said Palmer for $2,19Y, and on September 3, 1890, executed a third mortgage to John S. Munich for $2,500, Mary N. Behrendt, his wife, the plaintiff, having no interest except an inchoate right of dower in the premises, joining him in said mortgages; that lots 1, 2, 3, and 4 front easterly on North Bluff street and comprise the east half of said block, and are numbered from the southeast corner of said block from 1 to 4; that lots 5, 6, Y, and 8 front westerly on North Main ■ street and comprise the west half of said block, and are numbered from 5 to 8, commencing at the northwest corner of said block; and said block is bounded on the north by North Second street, on the east by North Bluff street, on the south by North First street, and on the west by North Main street; that on July 30, 1892, judgments of foreclosure were entered on the two Palmer mortgages, Behrendt and wife and Munich being made defendants in said foreclosure actions, and notice of tbe pendency of tbe action duly filed on tbe 8tb day of July, 1892; that in eacb of said judgments it was ordered and decreed that tbe defendants, tbeir beirs, respectively, and all persons claiming under them, subsequent to tbe filing of tbe notice of the pendency of said action, be forever barred and foreclosed of all right, title, interest, and equity of redemption in tbe mortgaged premises, except tbe right to redeem as provided by statute; that no sale was bad under the judgment of foreclosure on tbe senior mortgage, but a sale was bad under tbe judgment of foreclosure upon tbe junior mortgage on tbe 20th day of June, 1894; that at said sale lots 7 and 8 and west half of lot 1 were sold to one Stanley B. Smith subject to the foreclosure judgment under the senior mortgage; that the east half of lot 1 bad been theretofore sold to one Godden by Anton Behrendt subject to tbe foreclosure judgments; that a sheriff’s deed of said lands bid off by Smith was issued by the sheriff to him, and said sale was duly confirmed on the 20th day of June, 1894; that prior to said sale and on the 10th day of January, 1894, Anton Behrendt, being unable to redeem said premises from the judgments of foreclosure, for the consideration of $500 made an agreement with Stanley B. Smith and Arnold E. Shumway to purchase both said judgments in favor of Palmer in order to prevent a sale and to extend the time to redeem from both judgments; that pursuant to this agreement Smith and Shumway purchased the judgments and took assignments from Palmer for the purpose of securing themselves for the money paid to Palmer, and postponed the sale until June 20, 1894; that subsequent to such assignment and prior to the sale aforesaid Anton Behrendt caused lots 1, 7, and 8 in said block 85 to be replatted and subdivided into seven lots, numbered from 1 to 7, and designated as “Behrendt’s Subdivision of lots 1, 7, and 8, Block 35, Original Plat,” which plat was recorded on the 22d day of March, 1894; that lots 2 and 5 were platted twelve feet wide, with the intention that Behrendt might convey, if he saw fit, rights of way over said lots to abutting owners on either of said lots 2 and 5; that after the assignment of said judgments Behrendt sold lot 7 to one Godden for $1,170 and lot 1 to one Ludden for $2,176, with the knowledge and consent of Smith and Shuraway, who received and applied said sums in part payment of the amount paid to Palmer; that on April 6, 1894, Behrendt and wife conveyed by warranty deed to Ludden lot 1, “together with a right of way in common with others over lots 2 and 5 of said subdivision, reserving to the grantors and their heirs the right to construct a building at a height of not less than ten feet above the ground over and across lots 2 and 5;” that Ludden went into possession of the premises and so remained in possession until October 23, 1894, -when he conveyed his interest in lots 1, 2, and 5 to Lienau, and on October 23, 1894, Lineau quit-claimed to Anton Behrendt lot 5; that subsequently by mesne conveyances there was conveyed to the defendant Chicago, Milwaukee & St. Paul Railway Company lot 1 and a right of way over lot 2; that on June 20, 1894, Smith and wife conveyed to Prank E. Behrendt, son of Anton and Ma/ry N. Behrendt, lots 4, 5, and 6, and on July 20, 1894, lot 3, and on September 27, 1894, lot 2; that on April 6, 1894, Ludden and wife mortgaged to Stanley B. Smith the premises conveyed to him by Anton Behrendt to secure the payment of $1,500, the personal loan of Smith to Ludden; that said mortgage was foreclosed and judgment entered on December 30, 1899, which judgment was subsequently assigned to and is still owned by the Chicago, Milwaukee & St. Paul Railway Company; that prior to the 20th day of October, 1894, there was paid to Smith and Shum-way, assignees of the foreclosure judgments in Palmer v. Behrendt et al., upon which no sale was had, the amount of said judgment and also $500 compensation to Smith and Shumway for their services; that on the 26th day of October, 1894, said Smith and Shumway executed and delivered to Timothy E. I/udden a quitclaim deed to release any interest of the grantors to lots 1, 2, and 5 acquired by said Palmer’s ■foreclosure judgments; that on December 27, 1897, for the expressed consideration of $4,200, Erank E. Behrendt and wife conveyed to plaintiff, Mary N. Behrendt, by quitclaim deed, lots 2, 3, 4, 5, and 6; that on the 21st day of July, 1894, Erank E. Behrendt executed and delivered to one xlllen E. Eich a mortgage upon lot 3 to secure the payment of $4,200, which amount was paid to Smith and applied on the amount remaining unpaid to him; that on September 18, 1894, Erank E. Behrendt executed to John E. Munich a second mortgage upon lot 3, “together with a right of way in common with others over lots 2 and 5 of said subdivision” to secure $2,500, which mortgage was given to take the place of a prior mortgage given by Anton Behrendt to Munich, which had been cut off by sale under the Palmer judgment of foreclosure and also released of record, which second mortgage to Munich was assigned to Shumway on August 13, 1895; that on Eovember 30, 1896, an action to foreclose the Eich mortgage was commenced, Frank E. Behrendt and wife and Shumway being made defendants, it being alleged that Shumway had a subsequent mortgage; that a foreclosure sale pursuant to a judgment in said action was made of lot 3 and a sheriff’s deed executed and delivered to Eich, purchaser at the sale on April 30, 1898, which sale was confirmed; that said judgment decreed and adjudged that defendants and all persons claiming under them he barred and foreclosed of all right, title, interest, and equity in the premises; that on April 10, 1898, and prior to the sale, Shumway procured from Eich an option for ninety days to purchase lot 3 for the sum of $5,494.03, with interest, and that in case such option should not he exercised within said time all the rights to purchase should he at an end, which option was extended to September 1, 1898; that said option was procured under tbe belief on the part of Shumway that he would thereby protect his second mortgage, being the Munich mortgage on lot 3 and covering the right of way over lot 2; that said Shumway induced James H. Bums and Thomas P. Burns to purchase said lot 3; that said Eich by warranty deed dated August 31, 1898, conveyed said lot 3 to said James H. and Thomas P. Burns; that subsequently said James H. Burns conveyed his interest in said lot 3 to defendant Thomas P. Bums, who is now the owner and in possession thereof and the brick hotel thereon; that in November, 1903, said Shumway assigned said Munich mortgage to said Thomas P. Burns, having previously delivered to him the note described therein; that defendant Chicago, Milwaukee & St. Paul Eailway Company, prior to the commencement of this action and in November, 1900, purchased lot 1 of said Behrendt’s subdivision, and erected thereon and on lots 5 and 6 of block 35, original plat, a freight depot, extending from the sidewalk on the south side of North Second street south to within about eight feet of the north line of lot 2 in said subdivision; that lot 3, except a small rectangular area in the northeast comer thereof, was at the time of the commencement of this action occupied by a three-story brick hotel owned by defendant Thomas P. Bums; that lot 4 was at the time of the commencement of this action occupied in part by the Union Hotel; that lot 2 was wholly unoccupied by any building except a small frame outbuilding at the rear; that lot 5 had across the south end a board fence with a large gate therein, which had been there for many years and was used in connection with the Union Hotel and had been for many years; that there has been no adverse user of either of lots 2 or 5 by any of the defendants or their grantors, and that any use of said lots by said defendants or their grantors has been by and with the permission and consent of the plaintiff herein or her grantors; that there has been no dedication by the plaintiff or any of her grantors of said lots 2 and 5 to the public for use by tbe public as an alley, and tbat said lots 2 and 5 are not so located with reference to said lots 1 and 3 as to make a right of way oyer them necessary to the enjoyment of said lots 1 and 3; that plaintiff at all times has resided on lot 4 of said Behrendt’s subdivision of block 35 of the original plat of Janesville, and said Anton Behrendt and plaintiff have during all of said time lived together as husband and wife.</p> <p>The court found, as conclusions of law, that the said defendant Chicago, Milwaukee & St. Paul Railway Company, under the conveyances to said Ludden by said Anton Behrendt and wife and by mesne conveyances from said Ludden to said defendant Chicago, Milwaukee & St. Paul Railway Company, has and is entitled to a right of way in common with others over said lot 2, with the right of the plaintiff, her heirs and grantors, to construct over said lot 2 a building of not less than ten feet - in height above the ground; that said defendant railway company has no right, title, or interest in and to said lot 5 of said subdivision; that the mortgage given by said Erank E. Behrendt and wife to John E. Munich and by said Munich assigned to Shumway was cut off and barred as a lien or claim upon said lot 3 by the said judgment of foreclosure of the mortgage for $4,200 given by Erank E. Behrendt to Allen E. Rich; that the right of way over said lots 2; and 5 conveyed in said mortgage to said Munich was appurtenant to such interest as said mortgage conveyed in and to said lot 3, and was cut off and barred by said foreclosure judgment and sale thereunder in the case of Rich v. Behrendt et at.; and said defendant Thomas P. Burns and Katherine Bums, his wife, have no right, title, or interest in or to; or lien or claim upon, either of said lots 2 and 5 of said Behrendt’s subdivision of ^said block 35 of the original plat of Janesville by virtue of said Munich mortgage, nor under any other claim by them made thereto.</p> <p>Judgment was entered in accordance with the findings of fact and tbe conclusions of law, adjudging, among other things, the plaintiff’s ownership in fee and right of possession of the lands in question and that her right be established against any and all claims of defendant Thomas P. Bums and Katherine Burns and Timothy E. Ludden, and that they be barred against having any right, title, or interest in said lands adverse to the plaintiff. The defendant Thomas P. Bums appealed.</p>

<p> Cancellation and reformation of instruments: Absence of necessary parties: Judgments: Jurisdictional error: Witnesses: Competency: Transactions with persons since deceased: Trial: Reception of evidence subject to objection. </p> <p>1. In an action to set aside and cancel a deed it appeared, among otlier things, that pending the action the defendant died testate, and the action was revived in the name of her executor, hut the record was barren of information as to who were the persons in whom the title vested at the time of defendant’s death. Held, under sec. 2604, Stats. (1898), that such persons were necessary parties to determine the issues raised, and should have been made parties under the reauirements of see. 2610, Stats. (1898), so that there might be a complete determination of the controversies presented in the action.</p> <p>2. In such ease the interests of such absent parties are necessarily involved with those of the parties before the court, and a judgment rendered in their absence would constitute jurisdictional error, in the sense of inexcusably departing from established principles respecting the exercise of judicial power.</p> <p>3. In an action to set aside and cancel a deed and to reform a mortgage on the same lands, the plaintiff is held to have no standing to attack the mortgage.</p> <p>4. In an action to reform a mortgage on land of plaintiff’s wife, the title having duly passed to plaintiff, it appeared that both the wife and the mortgagee were dead. Held, that plaintiff was not a competent witness to communications and transactions with those deceased persons.</p> <p>5. It is not good practice to receive incompetent evidence subject to objection, where it is perfectly plain that it is objectionable on the ground stated, and there is no suggestion that it could become competent through circumstances not then disclosed, since it leads to confusion on the trial, casts the burden of meeting it on the opposite party, and is liable to entail useless expense of money and waste of time in fruitless inquiry.</p> <p>6. In an action to reform a mortgage, the evidence, stated in the opinion, is held to fail to sustain findings and judgment awarding the relief prayed.</p>

<p> Bail: Deposit in Hen of bond: Right to make deposit: Title to deposit: Statutes: Construction. </p> <p>1. Sec. 4816, Stats. (Supp. 1906; Laws of 1901, ch. 104) — providing that the person required to give hail with sureties may, in lieu of sureties, enter into his own personal recognizance without sureties, upon depositing with the court the amount thereof in money, and, in the case of a person accused of a crime, on conviction, that the deposit shall he applied in satisfaction of so much of the judgment as is required hy the payment of money, the surplus, if any, to he rendered to the person depositing the same — contemplates that the cash hail given hy an accused person must be deposited hy such person, and after application as directed hy the statute, the surplus, if any, must he returned to the accused.</p> <p>2. Sec. 4816, Stats. (Supp. 1906; Laws of 1901, ch. 104), confines the right of deposit of cash bail on the part of the accused to the accused himself, and the clause, "rendering the surplus money, if any there be, to the person depositing the same,” does not imply that a person other than the accused may make the deposit.</p> <p>3. Where the record in a criminal action shows that cash hail was deposited hy the defendant, and that it was afterwards withdrawn and disbursed hy E. on defendant’s authority, before a petition was filed hy a third person praying an order that E. he required to pay the amount of such cash hail into court, it was not error for the court to refuse the prayer of such petition, although it appeared that the petitioner himself furnished the money with which to make the deposit.</p>

<p> Pleading: General denial: Construction: Taco deeds: Statutes: “Purchaser:” Irregularities of taxing officers: County treasurer: Failure to re-offer lands on default of the bidder: Fraud: Limitation of actions: Admissions in -pleadings: Presumptions. </p> <p>1. There is a difference between denying each and every allegation in a pleading and denying that the party has "any knowledge or information sufficient to form a belief as to each and every allegation” in the pleading. The latter form of expression is consistent with the possession of knowledge or information sufficient to form a belief of every allegation in the pleading except one, and affirms the lack of knowledge or information, not as to each allegation, but as to “each and every allegation.”</p> <p>2. The word “purchaser” in sec. 1178, Stats. (1898), means one who has made a completed purchase, and not a mere bidder who has forfeited his bid by failing to pay for the tax certificate and who never obtained a delivery of the tax certificate,</p> <p>3. The failure of a county treasurer to re-offer land for sale after a bidder at a tax sale has defaulted on his bid, the erasure of such defaulting bidder’s name from the certificate of sale, and the insertion of the name of the county as bidder, do not constitute a fraud and are covered by the limitation of three years prescribed by sec. 1188, Stats. (1898).</p> <p>4. The mere averment of a pleader that acts and omissions are fraudulent adds nothing to the pleading, nor does it change the essential character of such acts- and omissions.</p> <p>6. In a statutory action to quiet title to land the defendant set up as a defense, and also by way of counterclaim, title under a tax deed, alleging both its due execution and recording, and therein pleaded the three-year statute of limitations in support of such tax deed. There was no specific denial in the reply to meet these averments, and the only formal defect alleged was a failure to state in the deed that the land was sold to one R. and that the grantee in the deed was the assignee of R. It was further alleged that R. was the purchaser at the tax sale, had defaulted, and that the county treasurer, without re-offering the land for sale, erased R.’s name and inserted the county’s name in the tax certificate. Held:</p> <p>(1) Such alleged defect was in fact no defect.</p> <p>(2) Under the presumptions oí law created by statute and attending the tax deed it is presumed that the tax deed declared the county to he the purchaser at the tax sale, and that the grantee therein was the assignee of the county.</p> <p>(3) After three years from the time of recording the tax deed was not open to attack on the ground of the omissions of the county treasurer, nor on the ground of the alteration of the tax certificate.</p> <p>6. In such case a general demurrer to the reply was properly sustained, the reply admitting that more than three years had elapsed since the recording of the tax deed and that the land was vacant and unoccupied, and failing to allege that the tax deed was void on its face, or to take issue with the averment of the counterclaim that the tax deed was fair on its face and drafted and executed in accordance with the statute.</p>

<p>Sales: When completed: Affirmance: Rescission: Election of remedies: Fraud: Damages: Right to stoppage in transitu.</p> <p>1. Where a hill of sale has been duly executed and delivered, the cash payment agreed upon and made, and the notes agreed upon delivered, so that the consideration has passed, nothing further is necessary to malee a complete transfer of title to the purchaser and entitle him to possession.</p> <p>2. A party to a contract cannot rescind and affirm in the same breath, and where a party to a sale seeks to hold the property as security for the payment of notes given for the purchase, he elects in the most unequivocal terms to affirm the sale.</p> <p>3. Where a party to a sale, with full knowledge of the facts, has elected to affirm the sale, he cannot afterwards rescind.</p> <p>4. There can be no recovery of damages against á plaintiff for an alleged fraud where the court has found on sufficient evidence that the transaction involved is entirely free from fraud.</p> <p>5. Where a representation, alleged to be fraudulent, consisted of a statement that the purchaser of a stock of goods proposed to continue the business at the old stand, it does not present a case of actionable fraud, since it is simply a statement of future intention and not of an existing fact, and, while reprehensible if untrue, it affords no basis for rescission.</p> <p>6. A promise or a representation, to be actionable, must have been relied upon or served as an inducement to the consummation of the contract.</p> <p>7. In order to give the right to stoppage in transitu there must in fact be a transit between buyer and seller — the goods must be in the possession of a carrier or middleman, — and the buyer must be shown to be actually insolvent.</p>

<p>Appeal from orders of tbe superior court of Lincoln county: AlmoN A. Helms, Judge.</p> <p>Action in equity to cancel alleged illegal taxes levied upon plaintiff’s property, and to restrain tbe collection thereof. The complaint is substantially as follows: The assessor for the defendant city in 1906 assessed the real property in said city, other than that owned by plaintiff, at approximately seventy per cent, of the full value which ordinarily could be obtained therefor at private sale, and, except as to logs, timber, lumber, and other manufacturer’s stock of the plaintiff, and like property owned by some others, he assessed the same upon substantially a like basis. On the 1st day of May, 1906, the real estate (describing the same) owned by plaintiff in the defendant city was of the value of not more than $35,500 on the basis of what could be obtained therefor ordinarily at private sale. Nevertheless the assessor assessed said real estate for said year at $76,000, knowing, or having good reason to know, that the same was not worth more than the amount aforesaid. Said real estate, upon the basis other real estate in said city was assessed at, should not have been valued at to exceed $25,350. On May 1, 1906, plaintiff owned personal property assessable in the city of Merrill of the value of not to exceed $188,175, which, on the basis other property was assessed at, should have been valued by the assessor at not to exceed $131,863, which fact the assessor either knew, or by the exercise of reasonable diligence might have known. The assessor intentionally and knowingly discriminated against the plaintiff in assessing its personal and real property, valuing the former at $282,005. The assessment roll with the valuation of plaintiff’s property in accordance with the assessment, as aforesaid, was in due time placed before the board of review for its action thereon. Plaintiff appeared before such board and made a full disclosure under oath of all of its taxable property situated in said city and produced evidence substantially showing conclusively that its real and personal property should have been assessed as before stated. The board disregarded such evidence and placed the value of plaintiff’s real estate at $60,150 and the value of its personal property at $226,905 for logs, lumber, ties, poles and posts, not manufacturer’s stock, and $15,048 for other personalty. The board included in the assessment 4,800,000 feet of lumber belonging to the plaintiff which on the 1st day of May, 1906, was located in the town of Scott, Lincoln county, Wisconsin. Said lumber consisted of manufacturer’s stock and was taxable in said town of Scott, and was actually so taxed. The facts in regard to such property were fully established before the board of review, but it nevertheless wilfully included such lumber in the assessment of property to the plaintiff. On said 1st day of May plaintiff did not own any saw logs or similar property assessable in said city of Merrill that was not either manufacturer’s or merchant’s stock and held for manufacture at plaintiff’s sawmill or for sale in the market, which fact it caused to appear to the board by clear and uncontradicted evidence. From the assessment roll, in due time the tax roll for said city for 1906 was made, there being extended as taxes against plaintiff’s real, estate $1,719.31 and against its personalty $7,083.21. The tax roll was duly delivered to the city treasurer with a warrant in due form for the collection of the taxes, and such collection, unless restrained by the court, will be enforced against the plaintiff by a levy upon and sale of its personal property. Plaintiff is ready and willing to pay its just proportion of the taxes levied in said city of Merrill for said year 1906, but is unable to ascertain the same without the aid of the court. The taxes extended against plaintiff’s real estate, as indicated, are a lien thereon. Plaintiff has no adequate remedy at law for relief against the illegal taxes and will be irreparably injured unless the wrongs done and threatened to it can be dealt with by a court of equity.</p> <p>There was a prayer for judgment declaring the assessment of plaintiff’s property for taxes of 1906 in said city and the taxes levied thereon illegal, and enjoining the defendant treasurer from collecting or returning the same as delinquent.</p> <p>A temporary injunction was granted restraining the treasurer, pending the action, from collecting the alleged illegal taxes.</p> <p>The defendants moved for an order dissolving the temporary injunction, and demurred to the complaint upon the ground of insufficiency. The demurrer was overruled. The temporary injunction was continued upon condition of plaintiff paying into court for the use of the defendant city $6,500.</p>

<p>'Appeal from an order of the superior court of Lincoln county: Almon A. Helms, Judge.</p> <p>The appeal is from an order setting aside a directed verdict and the judgment entered thereon in favor of the defendant and granting the plaintiff a new trial. The complaint of the plaintiff, by her guardian, sets forth, among other things, that she is an infant, and that on the 19th day of June, 1904, the defendant did carelessly and negligently strike her a severe blow in the face with a large, heavy beer glass, and thereby caused her injury. The defendant demurred to the complaint on the ground, among others, that the action was not commenced within the time limited by law, and pleaded secs. 4219 and 4222, Stats. (1898), and the amendments thereof. The demurrer was overruled, and the statute of limitations was set up in the answer and the fact that no notice of the injuries had been given until more than one year had elapsed. The testimony tended to show that the infant plaintiff was injured in the manner alleged in the complaint. At the close of the plaintiff’s testimony the defendant moved for nonsuit, and upon the close of the testimony moved for a verdict, stating the same grounds. The court granted the last motion upon the ground that there had been no notice given within a year, as required by law, and that the action had not been commenced and the complaint actually served within one year from the happening of the injury, and ordered the action dismissed, and judgment was entered accordingly. Thereafter, upon motion made by the plaintiff, said order dismissing the action and the judgment rendered in favor of the defendant were vacated and a new trial granted. The defendant appeals from this order.</p>

<p> Executors and administrators: Discovery of assets: Accounting: Equity jurisdiction: Circuit courts: Jurisdiction over estates of decedents: Multiplicity and circuity of actions: Judgments: Parties: Relief awarded: Prejudicial error: Witnesses: Transactions with decedents. </p> <p>1. During the pendency of the administration of an estate in the county court an action in equity in the circuit court may he instituted hy an administratrix for a discovery of property of the estate and an accounting, where it appears that the administra-trix is ignorant of the amount, the condition, and the nature of the estate and property claimed to be withheld by the defendant under claim of ownership.</p> <p>2. In such situation, although discovery in the county court may he had pursuant to see. 3825, Stats. (1898), yet the necessity of bringing an action, either at law or in equity, to enforce delivery or restoration to the estate of property discovered, results in such circuity and multiplicity of action that it is in itself sufficient grounds for suing in equity.</p> <p>3. During the pendency of the administration of an estate in the county court the administratrix instituted an action in the circuit court for a discovery of the property of the estate and an accounting. Eeld, that it was error to limit the relief awarded to an adjudication of the amount the defendants were found to have obtained from the estate of the deceased, without determining defendants’ right to credits for any sums which they claimed to have paid to the heirs of the deceased and upon debts and claims against the deceased and his estate.</p> <p>4. Such adjudication deprived the parties of the benefit sought to he gained by action in the circuit court, namely, the avoidance of a circuity and multiplicity of actions, and a final and complete settlement of the whole controversy between the parties having an interest in the subject matter of the action.</p> <p>Where, during the pendency of the administration of an estate in the county court, the administratrix institutes an action in the circuit court for a discovery of the property of the estate and for an accounting, the object of the action is to secure the custody of the assets of the estate so that they may be distributed among those rightfully entitled to them, and hence, where some of the heirs have released their rights to the defendants, it is appropriate that such releasing heirs should he made parties to the action, so that their right to any portion of the estate can he litigated, if controverted by any interested party, to the end that, upon the final accounting, the defendants may he required to pay over to the administratrix the amount of the estate required for its administration and the payment of the amounts found due the other distributees.</p> <p>6. In such case it is no objection to the adjudication of the rights of the parties that the administration of the estate in the county court is incomplete, since, if the administration in the county court has progressed to the stage where the amounts due have been ascertained, proof can be adduced in the circuit court to enable it to enter a judgment covering the situation, and, if time is required to carry the administration to that point, the circuit court can hold the proceeding in abeyance until such facts may be shown.</p> <p>7. During the pendency of the administration of an estate in the county court the administratrix instituted an action in the circuit court for a discovery of the property of the estate and for an accounting. The proof disclosed that the property for which recovery was sought was held separately by the two defendants. Held, that it was error to award judgment that the plaintiff recover from the defendants jointly an amount equal to the total amount of property that both defendants were found to have obtained from the.decedent.</p> <p>8. In such case the court must ascertain the separate liability of each defendant and award judgment as to each accordingly.</p> <p>9. Where, in an equitable action by an administratrix against an heir and her husband for discovery of property of a decedent’s estate and an accounting, defendants were examined as witnesses for plaintiff as to their course of dealing with the decedent, and were required to give evidence of communications and transactions through which they obtained possession of the property in question and of the repayment of specific sums collected by them, it is error to exclude defendants’ testimony covering the details of such transactions and communications.</p>

<p>Appeal from a judgment of the circuit court for Eau Claire county: James O’Neill, Circuit Judge.</p> <p>The appeal is from a judgment dismissing an appeal from a decision of the county board of JBau Claire county disallowing in part a claim filed with that board under sec. 1184, Stats. (1898).</p> <p>Among other references upon the part o-f the appellant were the following: Secs. 1133, 1140, 1184, Stats. (1898) ; Heller v. Milwaukee, 96 Wis. 134, 70 1ST. W. 1111; ch. 184, Laws of 1889.</p> <p>Among other references upon the part of the respondent were the following: Secs. 685, 1065, 1113, Stats. (1898); Sheboygan Co. v. Sheboygatn, 54 Wis. 415, 11 N. W. 598; Bitter v. Bitter, 100 Wis. 468, 76 N. W. 347.</p>

<p>Appeal from an order of tbe circuit court for Eau Claire county: Jaimes O’Neill, Circuit Judge.</p> <p>This is an appeal from, an order vacating a portion of an interlocutory injunction. The motion for such order was heard on the complaint, answer, and affidavits. The plaintiffs, among other things, seek to enjoin the defendant, pending the litigation and permanently, from effecting a forfeiture of their rights under a certain contract for the construction, maintenance, and operation of a dam across the Chippewa river in the city of Eau Claire during the term of ninety-nine years from Eebruary 17, 1877, and from interfering with their possession and use-of such dam and works; to be relieved from sucb grounds of forfeiture, if any, as may exist, before any forfeiture bas been declared; to bave opportunity given them to perform sucb contract in any respect wherein they may be found to be in default; and to bave certain disputed questions respecting tbe rights of the parties under said contract ascertained and determined. Tbe defendant seeks relief adjudging that snch contract was and is void and that tbe defendant is presently entitled to tbe possession and use of sucb dam and works. A temporary injunction in accordance with tbe prayer of tbe complaint having been granted, tbe defendant, upon tbe pleadings and an affidavit of tbe city attorney, obtained an order requiring plaintiffs to show cause why sucb injunction should not be wholly vacated. Tbe issues on sucb bearing were whether tbe complaint stated facts entitling tbe plaintiffs to tbe permanent relief which they seek, and whether tbe doing by the defendant pendente lite of any of tbe acts temporarily enjoined would injure tbe plaintiffs or tend to render such judgment as they were entitled to ineffectual. Upon tbe bearing tbe circuit court made an order vacating so much of sucb temporary injunction as restrained tbe defendant from declaring a forfeiture of tbe contract or lease described in tbe complaint, but continued in force tbe injunction restraining tbe defendant from enforcing any forfeiture that might be declared. Tbe. plaintiffs claim that tbe modification of tbe interlocutory in junctional order was erroneous.</p> <p>Tbe complaint, after describing tbe parties, makes reference to cb. 231, Laws of 1816, authorizing tbe construction of tbe dam, and the acts amendatory thereof. That act authorizes the city of Eau Olcdre to construct waterworks, and for that purpose to maintain a dam not exceeding sixteen feet in height above low-water mark across tbe Chippewa river; to construct aqueducts and mains; to acquire all machinery, works, and appendages necessary or proper for tbe successful construction and operation of sucb waterworks and of works to be constructed above and below suck dam for protecting and preserving tbe navigability of said river. Tbe act further provided that tbe dam should contain a lock for tbe passage of steamboats and rafts of lumber; that tbe same should be operated free from tolls; that tbe dam should contain separate and sufficient chutes and slides for tbe passage of logs, timber, etc.; that in case tbe dam authorized should create any water power not continuously needed to propel tbe machinery and to supply tbe mains connected with said waterworks, or to preserve tbe navigability of tbe river, the city might lease tbe same or any part thereof for manufacturing or other purposes', and also lease tbe piers and other structures for any use or purpose which should not materially obstruct tbe navigability of tbe river or interfere with tbe successful operation and maintenance of tbe dam and works authorized; that tbe city should be liable for damages sustained by reason of the insufficiency of any of the.works authorized or by reason of unreasonable delays or detentions suffered on account of tbe manner of operating the same, and for all damages suffered by reason of negligence of agents or employees of tbe city in operating tbe same. Tbe amenda-tory acts authorize the maintenance of tbe dam at a height not exceeding eighteen feet above low-water mark, and also authorize the city to grant by contract or ordinance to any person or corporation tbe right and authority to construct for themselves and own tbe waterworks provided for and to maintain and operate tbe same. Tbe complaint further alleges that on February 17, 1877, tbe city was and ever since has been unable to construct said dam, works, and improvements at its own expense, and that tbe only method by which this could be accomplished was by contracting with some person or corporation for the construction of the same, and that upon said date the city entered into a contract with one of the plaintiffs, which may be designated as the Improvement Company, which contract is set out in the complaint. By this contract the Improvement Company undertook to construct tlie dam, the lock and chutes and slides, and such piers and booms as should be requisite to protect and preserve the navigability of the river, as prescribed in the act of the legislature. The Improvement Company further undertook to construct and operate certain other works and facilities for the maintenance of power for the operation of the waterworks and to contribute certain money to aid in the purchase of machinery for waterworks. The city agreed, among other things, to turn over to the Improvement Company its bonds to the amount of $95,000, and further agreed, in consideration of the performance by the Improvement Company of its covenants, which were declared to be a condition precedent, to lease for a term of ninety-nine years, for the purposes mentioned, the interest of the city in the surplus water power created by the dam and not required for waterworks purposes for the nominal rental of one dollar per year, the lease to be executed and delivered within thirty days after the completion of the works and on demand of the company. The contract provided what the lease should contain with respect to the navigability of the fiver and the supply of water for the operation of the waterworks, and that it should “maintain and operate all of said works so constructed by it, in strict accordance as the same are authorized to be maintained and operated by said city by said act of the legislature and not otherwise,” and that it should not assign said lease or under-let the whole of the premises without the consent of the city. The provision of the contract under which the city claims the right to declare a forfeiture is as follows:</p> <p>“And it is further mutually covenanted and agreed, by .and between the parties hereto, that in case of the nonpayment of said rent whenever and as fast as it becomes due, or in case of the noncompliance with said conditions precedent, or in case of the nonperformance by said second party of any of the covenants or agreements hereinbefore contained on its part to be performed, then in tbat case the said city of Eau Claire, its attorney or assigns, shall, after giving thirty days’ notice of such default to said second party or any. of its principal officers, if such default then continues, have the full right to vacate this lease and declare all the provisions, terms, and conditions thereof null and void, whereupon the said lessee shall yield up to the said lessor, its attorney, agent, or assigns, full, quiet, peaceable, and immediate possession of the said premises and rights hereby leased, anything herein contained to the contrary notwithstanding.”</p> <p>It is alleged that the lease provided for in the contract was never executed, but that both parties have treated the contract as embodying the terms of the lease. It sets forth the construction and maintenance of the dam and works at an expense of over $200,000, all of which was paid by the Improve-' ment Company except the contribution by the city of $95,000 of bonds; that it has paid the annual rentals stipulated for; and that it has maintained the dam, works, and improvements at great cost and expense, and has recently - expended large sums of money in repairing and improving the same.</p> <p>The complaint alleges that at the time the construction of the dam was authorized and ever since it has been the general custom in this state to use flashboards on dams to control and regulate the water thereby accumulated, and that it was necessary for the proper -management of said dam and water power created thereby that such flashboards should be used, and that for more than twenty years prior to the commencement of this action such flashboards have been maintained at a height of from four to six feet above the crest of said dam, and for several years prior to the commencement of this action such flashboards have been maintained at the height of eight feet, and that it is necessary that the flash-boards now being used should be maintained in order to furnish the necessary supply of water for the operation of the waterworks for said city and to supply the necessary water for the other uses contemplated in the contract. Eaets are set forth which it is claimed show the consent and acquiescence of the city in the use of such dashboards. The complaint alleges that the Chippewa river is no longer used for the purposes of navigation, and that after the navigation of the river by steamboats and lumber rafts had ceased the Pulp Company, one of the plaintiffs, being an assignee of the Improvement Company, with the consent of the city constructed one of its mills over the lock at great expense, and has since maintained the same with the consent of said city. It is alleged that the use of said dashboards has not caused any injury to the city or to any person, and that their discontinuance would be of no benedt to anybody whatever, but on the contrary such discontinuance would cause great damage to the parties especially interested; that the use of said mill and machinery in and over said lock causes no damage to said city or to any other person, but that the removal of the same would cause great loss and damage to said Pulp Company; that it is not possible within the period of thirty days to build another lock in said dam, but that such lock could be constructed at great loss and expense, but that when constructed no use could be made thereof. It is further alleged that the city, by the construction of bridges below said dam, has effectually obstructed any navigation upon the stream which would render the lock necessary. The complaint charges the adoption by the common council on August 1, 1906, of a resolution, thereto attached, directing service upon the Improvem.ent Company and all claiming under it of a certain notice, which notice sets out the breach of the contract in substance as follows : That the dam has been maintained many feet above the authorized height; that the lock has been converted to- private use and its use for navigation destroyed; that sufficient chutes and slides have not been maintained; that the dam has been so changed and altered as to materially obstruct navigation; that the surplus water has been misapplied and appropriated to uses and to the benefit of persons not authorized by the contract; that tbe land of tbe city adjacent to tbe river bas been appropriated to private uses; tbat tbe Improvement Company bas become irresponsible and practically defunct. Tbe notice, in pursuance of tbe terms of tbe contract, after reciting tbe breaches complained of, contains tbe following language: “And tbat tbe continuance of such default for thirty days after this notice will give tbe said city tbe full rights in the said contract provided in such case, which will then be exercised and enforced.” Tbe complaint further charges tbe service of tbe above notice on August 4, 1906, tbat tbe regular meeting of tbe council would be held September 5, 1906, and tbat it was tbe intention of tbe common council at such meeting to adopt a resolution purporting to vacate the contract of Eebruary 17, 1877, and declare its provisions void and forfeiting tbe interest of tbe plaintiffs in tbe property. Tbe complaint alleges “tbat such action on tbe part of tbe officers of said city and its common council would greatly injure and impair tbe property, rights, and interests of tbe plaintiffs and each of them, would create a cloud upon their title to their respective properties, and would cause tbe plaintiffs irreparable loss, damage, and injury.”</p> <p>Tbe relief prayed in tbe complaint is in substance tbat tbe contract of Eebruary 17, 1877, be adjudged valid; tbat defendant be required to execute a formal lease pursuant to tbe contract as modified by subsequent agreements or acquiescence of tbe parties; tbat it be adjudged tbat tbe use of tbe flashboards and the closing of the lock were not a breach of tbe contract; tbat, if determined to be a breach, it be adjudged tbat tbe breach bas been waived; that, if adjudged that tbe breach has not been waived, “tbe plaintiffs be relieved from such forfeiture and grounds of forfeiture in such manner and subject to such conditions as tbe court shall determine;” “tbat tbe rights of all parties interested in tbe maintenance of said dam, and tbe use of tbe hydraulic power made available thereby, shall be ascertained and determined;” and that the rights of the plaintiffs be quieted — together with a prayer for the temporary and permanent enjoining of the city from declaring or enforcing a forfeiture.</p> <p>The answer puts in issue the allegations of the complaint as to the construction and validity of the contract, and as to the waiver by the city particularly denies any waiver of the breach of the contract arising from the closing of the lock and from the use of flashboards, asserts that the closing of the lock and use of the flashboards is unauthorized and illegal, and contains averments showing that the use of the flash-boards is not necessary to any public use, but that they serve only the private purposes of the plaintiffs, and alleges facts tending to show that the breaches of the contract by the plaintiffs are destructive of navigation and operate to the great injury of the city and jeopardize the lives and property of its inhabitants. The answer expressly denies that the city has, by its officers or otherwise, threatened to or will take possession of the said dam, water power created thereby, structures or works therewith used and connected, or any property of said plaintiffs or either of them, until such time as the proper court shall have decreed that the defendant city is entitled thereto', and denies that it is about to or will hinder or prevent the furnishing of water power for the operation of the waterworks in said defendant city for municipal or other purposes. The answer prays that the preliminary injunction be dissolved, that the contract of February 17, 1877, be adjudged invalid, and that the defendant be adjudged to be entitled to the ownership and possession of the dam and its appurtenances, with a prayer for general relief.</p> <p>The affidavits presented by the respective parties go in corroboration of said allegations contained in the complaint or the answer, and their contents are not material to the questions involved on this appeal. The interlocutory injunc-tional order was based- on tbe verified complaint and was issued ex paHe by a court commissioner, and in substance restrained tbe defendant, first, from declaring, by ordinance or otherwise, and from doing any act for tbe purpose of declaring, tbe forfeiture of tbe contract; second, from taking possession, or interfering with plaintiffs’ possession, of the dam and water power. IJpon tbe bearing in tbe trial court, as appears from tbe opinion of the lower court, tbe city did not seek to modify tbe latter part of tbe injunction, preventing tbe city from enforcing a forfeiture. Tbe city merely asked tbe vacation of that part of tbe order which prevented it from declaring the forfeiture, and such is tbe scope of tbe order modifying tbe injunction and now before this court for review.</p>

•Action to recover back $92, the consideration paid for a horse.

<p>Banks and banking: National banks: Taking over business of insolvent creamery corporation: Receipts of proceeds of butter manufactured: Liability of bank: Checks: Payment: Insolvent national banks: Creditors: Claims: Dividends: Trust funds: Identification: Tracing trust funds: Presumptions: Defenses: Ultra vires.</p> <p>1. In an action against the receiver of an insolvent national hank the evidence, stated in the opinion, is held to warrant a finding that designated transactions between the bank’s cashier and an insolvent creamery corporation constituted a turning over of the creamery corporation’s property to the bank, for its corporate purposes, with the bank’s cashier serving merely as nominal custodian of title for it, and consequently that the bank, and not the cashier, collected the proceeds of the sales of butter manufactured while operating the creameries.</p> <p>2. In such case, by virtue of the agreements under which the patrons of the creamery company delivered their milk, stated in the opinion, it is held that the proceeds of the butter manufactured, after deducting the fixed commission or toll allowed the creamery company by the patrons, remained their property and not merely a debt from the person collecting the same, and hence that the bank, having assumed the place formerly occupied by the creamery company, when it collected the proceeds held the same as the property of the patrons until it was in fact paid over to them.</p> <p>3. In such case it is also held that when the bank applied such money to another purpose and failed on demand to pay it over, it at least became indebted therefor to the owners.</p> <p>£4. Whether the bank might also have been guilty of an unlawful conversion, not considered, since no judgment was rendered based on such view.]</p> <p>6. Where a bank took over the property of a creamery company, subject to contracts with the patrons for milk supplied, and issued its checks for the patrons’ shares of the proceeds of butter manufactured, such checks are held not to constitute payment, but merely an evidence of the amount of money which the bank held belonging to each patron.</p> <p>6. In such case, where the bank became insolvent and payment of such checks was refused, and it appeared that prior to that time the bank had used such patrons’ money for other purposes, the bank is held to have become the debtor of such patrons as much as any of its other creditors, and such patrons had a right to stand as general creditors of the bank and share in any dividends that might be declared out of its assets.</p> <p>7. Trust funds coming into the hands of a receiver of a national bank, which are not identified as -belonging to any particular person, are held by the receiver as assets of the bank and must be ratably apportioned among all the bank’s creditors.</p> <p>8. When moneys belonging to other persons are received and mingled in a general fund with moneys belonging to a depositary o-r a trustee, and then such depositary or trustee pays out generally from such fund for its own purposes, there is a presumption that such payments are made from moneys in such fund belonging to such depositary or trustee and do not constitute wrongful misappropriations of the money of the cestui que trust, but that such moneys remain on deposit.</p> <p>9. Such presumption is possible of complete effect only so long as the fund is large enough to contain all the moneys of the cestui que trust and some of the moneys of the trustee.</p> <p>10.In an action against the receiver of an insolvent national bank it appeared, among other things, that the bank had received all the property of an insolvent creamery company and had continued the business of the creamery company with its patrons under agreements whereby the proceeds of the butter manufactured, after deducting the fixed commissions or toll allowed the creamery company, remained the property of such patrons; that during the two months prior to the bank’s insolvency the proceeds of butter sold were received by the bank, either actually or through the bank’s correspondents, to whom drafts therefor had been sent for collection; that at no time had the bank’s money on hand or at credit with its correspondents been reduced below the amounts received for such butter, and that all of such funds of the bank and credits with the correspondent banks had passed to the receiver and had either been collected by him or still remained under his control. Held, that the receiver -had in his possession, in actual money or credits, the funds belonging to such patrons and was chargeable with the duty of paying it to such patrons, the true owners.</p> <p>31. In such case it is no answer to the receiver’s obligation that the bank had no legal power to take the steps by which the patrons’ money came into its hands, since, having taken such steps and obtained their money, no such absurdity exists as a legal obstacle to its surrendering it.</p> <p>[12. The exact limits of the power of a hank which, being a creditor, becomes possessed of property or property rights as security, to do acts in management or improvement of such property or development of such rights in order to render them valuable, to the end, in good faith, of thereby securing liquidation of the debts to it, is quite indefinite, but public policy seems to require that a bank, like an individual, should have broad powers of the exercise of discretion and judgment, to the end that property or rights so held as security be rendered as valuable as possible so that it may not lose that which it ought to collect.]</p>

<p> Municipal corporations: Public improvements: Paving streets: Assessment against abutting property: Defects and irregularities. </p> <p>1. In an action to cancel and annul tax certificates issued for special assessments levied in 1902 for macadamizing a city street and to enjoin tlie issuance of tax deeds thereon, it appeared that in 1869 the street had been improved and the cost thereof assessed against the abutting property, and that such earlier improvement consisted of a strip through the center of the street only ten feet wide, and left the remainder of the street an earth surface between the pavement and the edges of the street. Tlie city charter (ch. 299, Laws of 1885) provided that when a street had heen paved, macadamized, or graded and the cost of the improvement had heen assessed upon abutting property it should not he subject to or assessed for a second or subsequent improvement. Held:</p> <p>(1) To exempt abutting property from payment of the cost of improving a street by reason of having paid for former assessments, it was necessary that such former improvement should be one which substantially covered the street from curb to curb.</p> <p>(2) The improvement of 1869 was not of such character or extent as to exempt the abutting property from assessment for the improvement of 1902.</p> <p>2. In enforcing the collection of special assessments on abutting property, defects which do not go to the groundwork of the tax, but are irregularities in the proceeding after the municipal authorities have obtained jurisdiction to make the improvement and to assess the cost thereof against the abutting property, do not operate to impose any unjust proportion of the burden on the abutting owner, and afford no ground for relief against the tax.</p>

<p>Appeal from a judgment of tbe circuit court for Green Lake county: Chester A. Fowleis, Circuit Judge. '</p> <p>This action was brought to recover tbe value of a cream separator alleged to bave been sold by tbe Vermont Farm Machine Company to respondent. Tbe contract and all claims thereunder were assigned to tbe appellant, August F. Hein. Tbe contract contains tbe following provisions:</p> <p>“Tbe Improved U. S. Separators are sold under tbe guarantee that when used according to tbe printed directions they will bave tbe capacities per hour stated in tbe price lists in catalogues, depending upon tbe season of tbe year and tbe condition of the milk, and to do such thorough separating as to leave an average of one tenth or less of one per cent, of fat in tbe skim milk, as shown by tbe Babcock Test. All Improved U. S. Separators are warranted to be well made, and of good material, and to do good work with proper management when set up and operated as per printed directions. If, upon starting tbe separator, it should not work well, immediate written notice must be given to tbe local selling agent of whom it was purchased, and reasonable time be allowed to get to it and remedy tbe defects, if any. (Tbe purchaser rendering necessary and friendly assistance.)”</p> <p>Tbe defense was substantially breach of warranty and tbe case was tried upon that issue. Tbe jury returned a general verdict in favor of tbe defendant. A. motion for a new trial was denied and judgment given upon the verdict in faver of respondent, from which this appeal was taken.</p>

'Appeal from an order of the circuit court for Columbia county: ChesteR A. Eowlee, Circuit Judge. Tbe appeal is from an order overruling a demurrer to tbe complaint and permitting “tbe board of education of tbe city of Oolwrnbus” to* be joined as a party plaintiff. Among other references upon tbe part of tbe appellant ¡were tbe following: Const, art. X, sec. 3; secs. 411, 474, 490, 492, 493, 495, Stats.

’Appeal from a judgment of the circuit court for Foud du Lac county: Chestee A. Fowlee, Circuit Judge. On July 18, 1904, plaintiff was a passenger on one of the defendant’s electric cars, when a collision with another car took place, and she was thrown against one of the seats and into the aisle and received serious injuries, rendering her substantially unconscious. She was treated for some three days by physicians paid by the defendant.

<p>'Appeal from a judgment and an order of the circuit court for Fond du Lae county: Chestee A. Fowlee, Circuit Judge.</p> <p>Ejectment to recover a parcel of land in tlie city of Fond du Lac. The answer was a general denial. The case was on the calendar of the February, 1907, term of the circuit court for Fond du Lac county and was reached February 13, 1907, on which day, the plaintiff not appearing, the court received testimony upon the merits, and thereafter made findings of fact to the effect that the legal title to the land in question was in respondents and that appellant’s title was based upon tax deeds for taxes levied on the land at a time when it was owned by the state and not subject to taxation, and further found as conclusions of law that appellant’s tax deeds were void and that he acquired no claim or title whatsoever thereby, and directed judgment to be entered in accordance with the findings. These findings were served on plaintiff’s attorneys March 9th and filed March 13th following, being still of the February term. The clerk did not, however, enter the judgment as ordered, and on March 19th the appellant served notice of motion to set aside the findings, on the ground that the court had no jurisdiction to try the case in the absence of the plaintiff. Two other grounds were alleged in the motion papers, but as they were subsequently waived it is unnecessary to refer to them. The motion was made returnable on the first day of the May term of said court. On the same day that the motion papers were served the appellant obtained from a court commissioner an order purporting to stay all further proceedings in the action until the hearing and determination of the motion. Upon the hearing of the motion the court denied the same, and further ordered the clerk to sign and enter a judgment in accordance with the findings (which had been presented to him for signature March 14, 1907) as of the last named date nunc pro tunc. The plaintiff appeals both from this order and from the judgment</p>

<p>Appeal from a judgment of the circuit court for Columbia county: OhesteR A. Eowleb, Circuit Judge.</p> <p>Action to' enjoin the defendants, as the supervisors and pathmaster of the town of Hampden, from opening a highway through appellant’s farm.</p> <p>The issues raised by the pleadings and tried are indicated by the result, as shown by the court’s findings, which are, in effect, as follows: At all times material to the litigation plaintiff owned the premises described in the complaint, and the defendant supervisors of the town of Hampden, in which the land was located, duly laid out a highway through the premises as alleged. The same is a legal public highway and defendants, acting in their official capacities, intend to open the same. Damages were duly awarded in the sum of $722. The resident population of the town is less than 8,000 persons according to the last census, and by the last assessment the value of the taxable property therein is $1,531,825. The highway was laid out through a tobacco shed belonging to* the plaintiff, situated on his land. It is used by him to dry, cure, and fit for market tobacco grown on such farm. The shed is a building or fixture used for the purpose of trade or manufacture. The damage thereto by laying out and establishing the highway through the same is $30. The value of the structure is $80. The highway was not accepted nor the award of damages approved by a majority of the qualified electors of the town. Payment of the damages awarded was provided for by the electors. No award of damages was made on account of the tobacco shed exclusive of the damages to the land, the award being made in a lump sum of $600. Upon such facts the court decided that no approval of the award of damages by the electors of the town was necessary to render the laying out of the highway valid, and that defendants were entitled to judgment dismissing the complaint with costs.</p> <p>Judgment was rendered accordingly.</p>

<p> Appeal and error: Appealable orders: Striking out matter from pleading: Pleading: Demurrer: Scope. </p> <p>1. An order striking out as irrelevant portions of an answer is not appealable under see. 3069, Stats. (1898), since it does not determine the action or prevent a judgment from which an appeal may be taken.</p> <p>2. A demurrer must prevail or fall by the face of the pleading to which it is directed, and such pleading must be taken as it stands when the demurrer is interposed, unless otherwise authorized by statute.</p> <p>3. After a demurrer is interposed the pleading demurred to cannot be modified by motion and the demurrer then apply to the face of such modified pleading.</p> <p>4. A demurrer cannot be addressed to a part only of a defense alleged.</p> <p>5. After a demurrer to an answer has been interposed the court cannot examine the pleading challenged to ascertain whether portions of the facts alleged in connection with the defense demurred to, specifically eliminated by the demurrer, are relevant and material to the defense demurred to.</p> <p>6. Such examination would make the demurrer the medium of striking out irrelevant and redundant pleading.</p> <p>7. A demurrer does not reach irrelevant and redundant matter; that must be accomplished by a motion.</p>

<p> Bastards: Proceedings in court: Issues: Evidence of prosecutrix: Credibility: Sufficiency: Questions for jury: Trial: Instructions to jury: Remarles of counsel: Exceptions: Appeal and error: Review: Harmless error. </p> <p>1. In a bastardy proceeding the testimony of the complaining witness as to its probability is not to be tested by the same rule as if the charge were rape.</p> <p>2. In a bastardy proceeding the paternity of the child is the material fact to be found by the jury, and force on the part of the accused and resistance on the part of the complaining witness are not elements of the offense charged, are wholly immaterial, and are not essential in making out a case on behalf of .the state.</p> <p>3. In a bastardy proceeding, whether the complaining witness used the degree of resistance which she testified she did is material only in so far as it affects the credibility of her evidence, and such credibility is a question for the jury.</p> <p>4. In a bastardy proceeding proof of great intimacy between the complaining witness and one H. is immaterial in the absence of evidence sufficient to show criminal intimacy between them or anything further than such innocent relations as would exist between young people circumstanced as detailed in the evidence.</p> <p>5. In a bastardy proceeding, where there is ample evidence of the intercourse between the complaining witness and the defendant on the date charged and of the premature birth of a child as the result of such intercourse, the question whether such child was begotten by the defendant is one for the jury.</p> <p>6. In a bastardy proceeding refusal to give requested instructions to the jury, stated in the opinion, is held to be without prejudicial error.</p> <p>7. On error assigned upon the argument of counsel to the jury, where no particular language was called to the attention of the court upon the error complained of, no error sufficient to work a reversal is shown,, even if the language could, under the circumstances, be regarded as prejudicial.</p> <p>8. Where, in a bastardy proceeding, one issue was whether there was a premature birth of the child of the complaining witness, and the facts respecting a fall and the medical testimony tending to show that the birth was premature were before the jury, it is not prejudicial error to refuse to permit a witness to answer as to whether the fall was the probable cause of the premature birth.</p>

<p> Criminal law and practice: Indictment and information: Sufficiency: Requirements: False pretenses: Variance: Material error: Alleging previous conviction: “Conviction:” “Sentence:" Trial: Instructions to fury: Evidence: Weight and sufficiency: Venue: Judicial notice: Statutes: Construction. </p> <p>1. Under see. 4669, Stats. (1898), providing that when an offense charged has been created by statute, or the punishment declared hy statute, the information shall, after verdict, be held sufficient if it describes the offense in the words of the statute or in words of substantially the same meaning, an information charging the .defendant with obtaining money by false pretenses is held sufficient, although it does not allege that the person defrauded, “relying upon the false pretenses used and believing them to be true,” parted with his money.</p> <p>2. In an information the words used in the statutes to define a public offense need not be strictly pursued in charging an offense under such statutes, but other words conveying the same meaning may be used.</p> <p>3. The provisions of sec. 4706, Stats. (1898), authorizing the court to disregard the variance between the statement in the information and the proof where the same is not material to the case, apply on appeal, whether there is an amendment of .the information or not. "</p> <p>4. Under sec. 4737, Stats. (1898), providing for a greater punishment because of former offenses when “such sentence remains of record and unreversed,” an information, after alleging the former conviction, alleged that “such conviction remains of record and unreversed.” There was no claim that the sentence under such former conviction had been set aside. Held, under secs. 4658, 4659, Stats. (1898), that there was no prejudicial error, although the mistahe in the use of the word “conviction” instead of the word “sentence” is not approved.</p> <p>6.The term “conviction” is used in common language, and sometimes in the statutes, in two different senses. In its most common use it signifies the finding of the jury that the accused is guilty, but it is frequently used as implying a judgment and sentence of the court upon a verdict or confession of guilt.</p> <p>6. An information under sec. 4737, Stats. (1898), authorizing a greater punishment because of former offenses when the accused has been convicted and sentenced therefor and “such sentence remains of record and unreversed,” charging accused in this respect and that “such conviction remains of record and unreversed,” is held to meet the constitutional requirement that the accused shall enjoy the right to demand the nature and cause of the accusation against him.</p> <p>7. In a prosecution for obtaining money from one J. W. by false pretenses, under the evidence, stated in the opinion, there is held to be no fatal variance between the allegations of the information and the proof with respect to the identification of the person by whom it was',claimed the defendant Bad been engaged to collect the money secured.</p> <p>8. In a criminal prosecution for obtaining money by false pretenses, instructions to the jury relating to reasonable doubt and the elements constituting the offense charged, stated in the opinion, while not as full and accurate as they perhaps might be, are held to fairly present the issuable facts to the jury, and not prejudicial.</p> <p>9. In a criminal prosecution the information alleged in the first count the offense and in the second the sentence for a similar crime, as authorized by sec. 4737, Stats. (1898), and the defendant requested and the court refused an instruction: “The jury, in arriving at their conclusion herein, will entirely disregard all evidence introduced herein, whether oral or documentary, in reference to the case of ... in this court, wherein it is alleged [defendant] was sentenced to the county jail for defrauding the Schlitz Hotel out of a board bill.” Held, that the word “herein” in the requested instructions could not be limited to the first count, and hence it was not error to refuse it entirely, the statutory rule applying which requires each instruction asked to be given or refused in full without change or modification.</p> <p>10. While a former sentence must he pleaded when relied upon to subject the accused to the heavier punishment imposed by statute on conviction of a second offense, the jury must determine the fact as to the former sentence, and the record thereof cannot be considered in arriving at their conclusion upon the separate and primary offense charged in the information.</p> <p>11. Venue, like all other issuable facts in criminal cases, must he proven beyond a reasonable doubt.</p> <p>12. Courts from mere inspection of maps published by state authority take judicial notice of the location of municipalities and the territorial boundaries of the jurisdiction of courts.</p> <p>13. The supreme court takes judicial notice that the village, now city, of Waukesha is included within the territorial boundaries of the municipal court for the eastern district of Waukesha county.</p> <p>14. A statute is to be interpreted not only by esact words, but also by its apparent general purpose.</p>

<p> Appeal and error: Review: Second appeal: Law of the case: Trial: Special verdict: Distinct issues submitted in the disjunctive: Duplicity: Prejudicial error: Evidence at former trial, how proved: Bill of exceptions: Submission of issues to jury: Proximate cause: Excessive verdict: Review: Necessity of motion for new trial. </p> <p>1. In case of the reversal of a judgment on appeal, a new trial, a second judgment, and an appeal therefrom, the former decision is to he regarded as the law of the case and conclusive in disposing of the second appeal as to all questions common to both appeals, raised under the same circumstances as before.</p> <p>2. Two distinct issues of fact should not be embodied in one question of a special verdict. If they are so embodied and are expressed in the disjunctive, and the error is not rendered harmless by instructions or something in the record, the defect is fatally prejudicial.</p> <p>3. When two propositions of fact are embodied in the disjunctive in a question of a special verdict, and there is no evidence as to one of them, and the jury are expressly, or in effect, instructed to answer only as they shall find respecting the other proposition, the duplicity is harmless.</p> <p>4. In case of a first and second trial of an action, there being a bill of exceptions duly settled and made a part of tbe record containing tbe evidence given on tbe former and sufficient ground being shown upon tbe latter for' reproducing tbe evidence of any witness given on tbe first, that may be done by reading from such bill, though, if it is not certified to contain all tbe evidence, tbe rest thereof may be shown by any competent prooí, such as a certified transcript of tbe court reporter’s minutes.</p> <p>5. All elements of proximate cause may be submitted to tbe jury as involved in a single issue of fact.</p> <p>6. Tbe objection that a verdict is excessive cannot be raised on appeal in tbe absence of a bill of exceptions showing that a motion was made for a new trial on that ground. A motion to set aside tbe verdict as contrary to tbe evidence and for a new trial does not raise tbe question of excessiveness of tbe verdict.</p> <p>[Syllabus by Maeshall, X]</p>