Volume 135 — Wisconsin Reports

<p>Appeal from a judgment of the circuit court for Dane county: E. Rat Steyews, Circuit Judge.</p> <p>This action was brought to recover $200, the rental of certain lands in Marinette county. The complaint alleges in substance that the appellants and respondent entered into an agreement by the terms of which respondent agreed to lease to appellants the following described premises: The fractional 1ST. E. ¿ of section 20, and that portion of section 17 lying south of the Peshtigo river, also lot 1, section 18, and also the S. E. ^ of the N. W. of section 20, all in township 32 N., of range 20 E., being situate in Marinette county, Wisconsin, comprising in all 337 acres, more or less, for the period of one year at $200 rental; that, by arrangement between respondent and appellants, appellants agreed to pay $50 of the rental to one Henry Zech and $150 to respondent; that Zech has assigned to respondent his claim against appellants for the $50; that subsequent to' said contract appellants took possession under the lease; that respondent performed all the conditions and covenants of the lease by him to be performed; that said term of one year expired on May 20, 1904; and that the $200 rental became due at that time. Appellants answered, admitting the making of the lease and agreement to pay $150 to respondent and $50 to Zech, but denied any liability for rent under the lease, and counterclaimed for damages in the sum of $300 for loss of part of the crops grown upon the lands leased which were cut by said Zech and respondent and converted to their own use, and for being deprived of the use and occupation of part of the lands leased, and also for failure on the part of respondent to give them the use and possession of a large dwelling house alleged to be upon the lands leased to them. The respondent replied to the counterclaim, denying every allegation thereof except as admitted, and alleged, among other things, as follows:</p> <p>“Further answering said counterclaim, he alleges that there are two houses upon the lands leased to the defendants by the lease referred to in the complaint herein.”</p> <p>When the ease was called, for trial respondent moved to amend the reply by striking out the allegation above quoted respecting the two houses upon the leased land and by inserting in lieu thereof the following:</p> <p>“Further answering said counterclaim, he alleges that under said lease the defendants were given possession of a small house upon lands, other than those-leased to> the defendants, owned by the plaintiff; that another and larger house-situated upon lands other than those leased to the defendants, and the title to which was at* that tirhe in dispute, was at that time occupied by Mrs. Zech, the mother of Henry Zeeh, referred to in the complaint, and continued to be occupied by her for a long time.”</p> <p>This amendment was allowed on payment of $10 costs. Counsel for appellants claim surprise, but made no affidavit or showing of surprise. The jury returned a verdict in favor of the respondent for Judgment was rendered on the verdict in favor of the respondent, from which this appeal was taken.</p> <p>For the respondent there was a brief- by Jones & Schu-bring, and oral argument by B. J. B. Bchubring.</p>

<p>ERROR to review a judgment of the circuit court for Ash-land county: A. J. Vinje, Judge.-</p> <p>The plaintiff in error, hereinafter called defendant Vought, was tried and convicted of larceny of several alleged town orders. The indictment was against defendant Mert II. Vought and four others, namely, Michael J. Collins, Alexander McDonald, H. B. Templin, and Peter Eish-hach. Templin was not arrested and a nolle was filed as to Eishbach. Collins and McDonald filed a plea in abatement, which was demurred to by the state and the demurrer sustained and exception taken. A trial was had and resulted' in a yerdict finding the defendants Vought and Templin. guilty aud Collins and McDonald not guilty. A motion by defendant. Yought to set aside the verdict and for a new trial •was denied and Yought Was sentenced to state’s prison at Waupun for one year beginning at 12 o’clock noon on tbe 22d day of April, 1907. Defendant Yought brings error.</p>

Appjsal from a judgment of the circuit court for Barron county: A. J. Viitje, Circuit Judge. The appeal is from a judgment for $5,3U7.33 damages and costs given in an action for causing the death of David Wilson.

<p>Appealable orders: Probate proceedings: Party aggrieved: Anticipated expenses: Guardian ad litem.</p> <p>1. An application, made during the pendency of a contest of the probate of a will, by the guardian ad litem of the contestants, for an allowance from the estate to procure attendance of witnesses, being a separate and independent proceeding not necessarily related to the determination of tbe contest, an order entered thereon is final within the meaning of subd. 2, sec. 3069, Stats. (1898), authorizing an appeal from a final order affecting a substantial right made in special proceedings.</p> <p>Z. Where the contestants of a will obtained an order directing the proponent and special administrator to pay to their guardian ad litem funds of the estate to procure attendance of witnesses, the executor might have made himself a party to the proceedings by appearing and moving toi vacate the order, but, not having been made a party, he may not assign error on appeal, although he is special administrator, proponent, and executor.</p> <p>3. During the pendency of a contest of the probate of a will, where the same person was proponent, executor, and special administrator, application was made by the guardian ad litem of the contestants for an allowance from the estate to procure attendance of witnesses. An order to show cause why the special administrator and proponent should not be ordered to pay the expenses was directed to the proponent only and certain respondents. The special administrator and proponent was ordered to pay the allowance. Held, the special administrator not being a party to the proceedings, the proponent was the only person upon whom the order could operate and who was entitled to appeal.</p> <p>4. In the.absence of specific authority a court will not direct the payment from the estate of anticipated expenses of the contestants of the probate of a will.</p> <p>5. An award of costs, authorized by sec. 4041, Stats. (1898), to be granted by county courts in contested matters, can only be made by judgment.</p> <p>6. Sec. 2, ch. 267, Laws of 1907, amending sec. 4041a, Stats. (1898), does not authorize an allowance to a guardian ad litem of the contestants of a will from funds of the estate for anticipated expenses to procure attendance of witnesses.</p>

<p> State depositories: Official bonds: Sureties: Suit by state treasurer: Excessive deposit. </p> <p>1. Where the attorney general refused to bring an action against sureties for the breach of a bond given under the state depository laws to secure the deposit of State funds in a bank designated as a state depository, it became the duty of the state treasurer, under sec. 984, Stats. (1898), to cause an action to be commenced, and in the exercise of his discretion to employ counsel for that purpose.</p> <p>2. A bank designated as a state depository under sec. 160a, Stats. (1898), is a public officer, and the bond required of sucb depository under sec. 1606, Stats. (1898), is an official bond.</p> <p>3. Sureties on official bonds are presumed to know and consent to-the rule that the state is not ordinarily estopped by acts of misfeasance by its officers, and does not contract with such sureties that public officers shall perform their duties faithfully.</p> <p>4. The sureties on a bond given under sec. 1606, Stats. (1898), relating to state depositories, are liable, notwithstanding the state treasurer deposited a larger amount in the bank than was authorized by the state board of deposits, where the gross amount, of deposit comes within the penalties and terms of the bond.</p>

<p>- Appeal from a judgment of the circuit court for 01ai*k county: E. Rat Steveks, J”udge.</p>

SmiediNg, Je., Judge. Plaintiff and defendant had entered into a lease in writing of a dwelling house from July 1, 1903, to May 1, 1905, at the rate of $35 per month, with the privilege of a year’s extension. Plaintiff as lessor agreed to do all necessary repairing. Defendant continued in possession until some time in October, 1905, and paid rent up to November 1, 1905. This is an action to recover the amount of the rent from November 1, 1905, to May 1, 1906.

<p> Pleading: Supplemental complaint: Adoption of answer to original' complaint: Nyisance: Assumption of liability: Corporations: Personal liability of officers: Excessive damages: Exemplary-damages in equity: XJnapportioned damages: Effect on judgments </p> <p>1. In an action in equity to abate a nuisance and to recover damages tberefor, the original complaint and an amended complaint were against certain individuals. The defendants’ answer to the original complaint contained, among other things,, a general denial. While the action was pending, the original defendants sold the property in connection with which the nuisance was alleged to exist to a corporation. After the sale and-after the action was at issue -upon the complaint and answer of the original parties, the corporation was made a party. A supplemental complaint was filed alleging that said corporation, as an incident to the conveyance to it, assumed all the rights, duties, and liabilities theretofore resting on its grantors.. Upon the trial the corporation adopted, by leave of court and without objection, the answer of the original defendants. Held,. that upon the whole record it was understood by all the parties that by such adoption the original answer was intended to be and was an answer to the supplemental complaint, and therefore put in issue the defendant corporation’s assumption of the liabilities of its grantors.</p> <p>2. In the absence of proof that defendant corporation assumed the liabilities of its grantors in the maintenance of a nuisance-prior to its acquisition of property in connection with which the nuisance existed, it is not liable for damages which accrued before the sale.</p> <p>3. Pending an action in equity to abate a nuisance, the two individual defendants sold the property in connection with which the nuisance existed to a corporation of which they became respectively the president and vice-president. The corporation was made a party to the proceedings. After the sale the nuisance was maintained substantially as before by the defendant corporation acting through the two original defendants as its-, officers. Held, that the individual defendants were personally liable for damages caused by the nuisance after the sale.</p> <p>4. In an action in equity to alíate a nuisance caused by the construetion and maintenance of a dam and to recover damages therefor, evidence of permanent injury to plaintiff’s freehold and loss of rentals is examined and ah award of $900 for the former is found excessive, and of $700 for the latter is found to be supported by sufficient evidence.</p> <p>E. In an action in equity to abate a nuisance and to recover dam- . ages therefor, held, error to include exemplary damages in an award of compensatory damages.</p> <p>6. Sec. 3180, Stats. (1898), does not'authorize recovery of exemplary damages in an equitable action, and where a plaintiff elects to sue in equity he waives his right to recover exemplary damages.</p> <p>7. Plaintiff in such an action is entitled to judgment for all damages, not only those accruing prior to the commencement of the action, but up to the time of trial.</p> <p>8. In an action in equity to abate a nuisance and recover damages therefor, where certain individual defendants caused the nuisance and the defendant corporation, after purchasing the land in connection with which it existed, continued the nuisance, the corporation not being liable for the damages accruing prior to its purchase and the damages not being apportioned, no damages can be awarded against such corporation, but a judgment for abatement was properly awarded against all the defendants.</p>

<p> Will: Construction: Tested equitable remainder: Intention: Death of beneficiary: Conversion: Circuit court: Duty as to final disposition: Order of distribution following will: Effect of appeal. </p> <p>1. A testator devised a life estate to Ms wife, remainder, one tMrd to A., Ms son, one tMrd to B., Ms daughter, and one tMrd in trust for C., Ms other son, with directions to the trustees “to use and manage said other third as to them seems best and to pay to my said son . . . the income . . . yearly, and in their discretion to pay to him from time to time such part of said one third as in their judgment is proper for his comfort and support until said third part is all paid to him.” Held: (1) A. and B. each took a full legal vested estate in remainder; (2) the trustees took a present legal vested estate in trust; and (3) the cestui que trust had an estate in the lands and property as against all persons except the trustees.</p> <p>2. Estates legal and equitable given by will are to he regarded as vesting immediately unless testator has by very clear words manifested an intention that they should he contingent, and where the time of payment or distribution is merely postponed for the convenience of the fund or property, or to let in others, the vesting will not be deferred until that period.</p> <p>3. That the time of enjoyment of an equitable estate in remainder is postponed until after the termination of a precedent life estate neither prevents vesting nor indicates an intention that the equitable interest should not vest.</p> <p>4. Where an estate in remainder is devised in trust with directions to the trustees to pay the income annually to the beneficiary, and in their discretion to pay over the corpus of the trust, an intention is thereby indicated that the whole equitable interest .should vest at once, subject only to the life estate.</p> <p>■5. Where a remainder after a life estate is devised in trust for a person living at the death of the testator, and the equitable interest thereby created is vested, the death of the cestui que trust prior to the termination of the life estate does not defeat or terminate the trust, in the sense that the object of the testator has failed and the trust property becomes intestate property. but the beneficial interest — the trust property itself— passes by tlie law of descent to the heirs at law of the cestui que trust.</p> <p>6. In an action to construe a will the circuit court should, whenever possible under the issues made and presented, finally dispose of all questions relating to the descent and distribution of the property, and where this was not done this court may, on an appeal, to save threatened waste of the property in litigation, indicate its views upon the final disposition to be made of the case.</p> <p>Testator devised one third of his estate to trustees for the benefit of his son, with directions to pay over to the son the income thereof, and “from time to time such part of said one-third part as in their judgment is proper for his comfort and support.” Held, that the testator intended a conversion of the third part of the real property into money, and that for the purposes of descent and distribution, on the death of the beneficiary, the property will be considered all personalty.</p> <p>8. Where the legal effect of an order of distribution, made in an action to construe a will, was to follow the will and vest one third of the estate in trustees in trust for a named beneficiary and his heirs, no question of the binding force or conclusiveness of such order arose on an appeal to this court, and accordingly a decree requiring the trustees to convert the trust property into money for distribution may be directed.</p>

<p> Appeal: Record: Bill of exceptions: Negligence: Special findings: Sufficiency of evidence: Function of jury: New trial: Discretion of court: Amendment: Changing theory of action. </p> <p>1. The charge of the court is no part of the record unless it he Incorporated in the hill of exceptions.</p> <p>2. This court can consider no error assigned unless it is a part of the record or embodied in the hill of exceptions.</p> <p>3i In an action for negligence in not removing a charged wire which had fallen in the street, or in not guarding the same, held, there was ample evidence to sustain the special finding of the jury of due care hy defendant, and there was no error in the refusal to change such finding and to direct a verdict for the plaintiff.</p> <p>4. The question of negligence is always for the jury unless the proof is so clear that intelligent minds cannot fairly form different conclusions with respect to the matter.</p> <p>5. A motion to set aside a verdict and grant a new trial for insufficiency of the evidence is addressed to the discretion of the court.</p> <p>6. Where the issues raised hy the pleadings and to which the proof at the trial was directed related to the negligence of defendant in not properly safeguarding a charged wire which had fallen in the street, a motion to amend the complaint, made at the conclusion of the testimony, so as to charge defendant with maintaining a nuisance in the public streets, was properly denied.</p>

<p> Betting aside verdict: Discretionary power: Harmless error. </p> <p>1. In tlie exercise by the trial judge of Ms discretion to grant a new trial, mere doubt as to the preponderance of the evidence on wMcb the verdict rests will not require the setting aside of such verdict, though it may justify it if the doubts are so serious and substantial that the judge is affirmatively convinced that it is contrary to the preponderance of the evidence.</p> <p>2. Where the trial judge states that he was so convinced and under that conviction set aside the verdict, his erroneous view of the law, that he must be satisfied by the preponderance of the credible evidence that the verdict was warranted, did not affect the correctness of his order.</p> <p>■3. An order by a trial judge setting aside a verdict as not supported by the evidence, being discretionary, will not be reversed by this court unless there was an abuse of discretion.</p>

<p> Nonsuit: When proper: Highway: Defect: Evidence: Sufficiency. </p> <p>1. If the evidence in any reasonable view thereof, giving plaintiff the benefit of the most favorable inferences that can fairly be attributed thereto, would support a verdict in his favor, a non-suit cannot properly be granted.</p> <p>2. In an action against a town for the death of a horse by a defective highway, the evidence is held, sufficient to require the submission to the jury of the questions whether the defect existed a sufficient length of time before the injury to enable the town officers by the exercise of ordinary care to discover and remedy it, whether such officers knew, or.in the exercise of ordinary care ought to have known, of the defect, and whether the death of the horse was caused by the defect.</p>

<p> Amendment: Refusal: Harmless error: Defective machinery: Assumption of rish: Nonsuit: Sufficiency of evidence. </p> <p>1. Where 'all the essential facts of the cause of action on which plaintiff relies to show defendant’s liability were before the court, plaintiff was not prejudiced by a denial of his motion to amend the complaint.</p> <p>2. In an action for damages for injuries to plaintiff’s hand while • operating a defective pattern in connection with a machine for shaping cleats, the evidence is held to have warranted a non-suit on the ground that the defect in the pattern and the danger incident to its use were so open and obvious that plaintiff must have been aware of them and assumed the risk involved.</p> <p>3. The fact that a defective pattern was furnished him does not relieve plaintiff from the consequences of its use, which were incident thereto and which plaintiff assumed, since the risk was obvious to him under the facts and circumstances disclosed.</p>

Appeax from a judgment of tbe circuit court for Winnebago county: Guo. W. BubNem., Circuit Judge. Tbis action was brought to recover for injuries- alleged to have been sustained by plaintiff while a passenger upon the street railway of the Winnebago Traction Company, a corporation, which afterwards passed into the hands of B. H. Ilackett, receiver, defendant and appellant.

<p>Appeals from a judgment of the circuit court for Manito-woc county: Michael KiRwah, Circuit Judge.</p> <p>This is an appeal and cross-appeal from a judgment entered in condemnation proceedings begun by the defendant in the circuit court for Manitowoc county. From the award of the commissioners both parties appealed, and the appeals were consolidated for the purpose of trial. At the time of the commencement of the condemnation proceedings the-plaintiff was in possession of the premises, containing about fourteen acres, under a mitten contract with the Wisconsin Central Railway Company and the Manitowoc Land Improvement Company, the latter being a holding company for the former. For brevity this contract will he called a lease, and the Wisconsin Central Railway Company the lessor. The plaintiff thereby acquired the land for a term of years for the purpose of manufacturing bride from the clay found' upon the premises. It erected a plant on the land valued at about $30,000, and was engaged in the manufacture of large-quantities of brick. The land was bounded on the east by the Manitowoc river, on the north, northwest, and west by the tracks of the Wisconsin Central Railway Company, and on the south by private property. The right of way acquired by the defendant was a strip 100 feet wide running north and south across plaintiff’s premises and separating them into nearly equal parts, the manufacturing plant being on the east side thereof and the larger portion of the brick clay on the west. The plaintiff obtained the clay from the breast of a cut about twenty feet deep in which the Wisconsin Central Railway .was constructed. The clay was hauled to the manufacturing plant on tram-cars across the land condemned for a right of way. The defendant’s railroad was built upon the top of the bank and crossed the Wisconsin Central Railway about twenty-five feet above the tracks at the place of crossing. Without a suitable crossing over or under the defendant’s right of way the plaintiff wonld thus be cut off from access to the larger portion of the clay land, which it conld only nse profitably in connection with this manufacturing plant.</p> <p>Upon the trial the defendant tendered the plaintiff a conveyance of a crossing or subway, which the plaintiff rejected, claiming the right to recover damages in view of the separation of the premises without any crossing. The tender was admitted and also testimony showing the damages arising from taking the plaintiff’s property with the crossing and the amount without the crossing. A special verdict was submitted for the assessment of damages on each of these grounds. The verdict fixed the plaintiff’s damages at $66,900 if the plaintiff under the law or under the tender made by the defendant was not entitled to_or obliged to take a suitable and convenient subway or undercrossing to connect the eastern with the western portion of its remaining premises, and fixed the plaintiff’s damages at $13,800 if the plaintiff was entitled to or was obliged to take such crossing. The court adjudged that the plaintiff was bound to accept the tender of a crossing upon the trial of the case and entered judgment unconditional for $13,800, and for $53,100 conditional upon the neglect or failure of the defendant to construct a subway or undercrossing within a specified time after the plaintiff had served notice of its election to accept the tender of the crossing made by the defendant. The plaintiff on its appeal assigns as error the refusal of the court to render judgment unconditional for the sum of $66,900, and for interest thereon and costs.</p> <p>The defendant appeals from the- entire judgment, and a further statement is required in that connection. The defendant held the land in question under a contract which contained a clause allowing the lessor to resume possession of any portion of the premises after six months’ notice upon certain conditions, which the jury found had not been complied with. After the defendant company had staked out its proposed line across this land the general manager of the plaintiff was requested by the Wisconsin Central Railway Company to surrender the right of way to the defendant., and after his refusal the six months’ notice was given by the Wisconsin Central Railway Company of its purpose to resume under the lease the strip of land in question. Within three months thereafter and before the time had arrived to demand possession under the terms of the lease, the Wisconsin Central Railway Company quitclaimed this tract to the defendant, who took titLe with full knowledge of the rights of the parties. After this conveyance the Wisconsin Central Railway Company took no steps to meet the requirements of the contract by offering other land in place of that taken until about the time when the six months’ period had expired. Fourteen days prior to the expiration of the six months’ period the petition for condemnation was filed. At that time the manager of the defendant went to Milwaukee to ascertain the lessor’s position with respect to the condemnation proceedings, and was then informed that it would have nothing to do with it. On the day before the six months expired and fourteen days after the petition for condemnation had been filed, and after the necessity for the taking had been determined and the commissioners appointed, the defendant company by its attorney tendered to the plaintiff an instrument executed by the officers of the lessor of an equal area of clay land selected by said lessor in lieu of that taken for the right of way. The plaintiff refused toi accept this offer and no further steps were taken until the trial. Upon the trial the plaintiff claimed that the deed did not in fact contain an equal area of clay land and did not therefore constitute a compliance with the condition of resumption; whereupon a second deed of land in lieu of that resumed was tendered to the plaintiff and was refused as not having been made in compliance with the contract. The question was submitted by tbs court to tbe jury. Tbe jury found that tbe tract of land which was tendered to tbe plaintiff in exchange for tbe strip taken by tbe defendant for its right of way did not contain as much clay suitable for brick-making purposes as contained in tbe strip taken by the defendant.</p> <p>At tbe close of tbe testimony the defendant moved for a direction of verdict in its favor or for nominal damages. After tbe verdict was returned tbe defendant moved to strike out tbe answer of tbe jury to tbe question: which found that tbe land offered in exchange did not contain as much clay suitable for brick-making purposes as tbe strip taken for tbe right of way. Defendant also moved for judgment notwithstanding tbe verdict. Tbe errors assigned by defendant relate to tbe rulings of tbe court ón these motions.</p>

<p>Appeal from a judgment of the circuit court for Kewau-nee county: Michael KiRwaN, Circuit Judge.</p> <p>This is an action brought under sec. 3186, Stats. (1898), to quiet the title to two strips of land in the city of Kewaunee to which the plaintiff claimed title by adverse possession. Many of the facts were undisputed. Eor many years prior to April, 1880, the defendant owned the whole of government</p> <p>lot 4, a tract of several acres lying south, of the harbor and on the shore of Lake Michigan, in the city of Kewaunee, which tract was hounded on the south by an east and west street called Ellis street. In March, 1SS0, the plaintiff suffered the loss by fire of a small machine shop' which he operated in the city of Kewaunee and contemplated leaving the city, but the citizens, being desirous of keeping the industry in the city, circulated a subscription paper and raised several hundred dollars to enable him to build a new shop, and the defendant proposed to donate to the plaintiff a small strip of land from said lot 4 on which to build the new shop. The plaintiff concluded to accept the proposals, and in April, 1880, the plaintiff and defendant, with others, went to -the proposed site to stake out the lines of the parcel to be donated. The plaintiff claims that the defendant at this time staked out a parcel commencing in the center of Ellis street fifty-eight feet west of a certain meander post, running north to a point 150 feet north of the north line of Ellis street; thence east to the lake; thence south, along the lake, to the center line of Ellis street; and thence west to the place of beginning. On the other hand the defendant claims that the boundary agreed on commenced only twenty-nine feet west of the meander post and ran north only 125 feet from the north line of Ellis street. The strips on the west and north lying between the two disputed lines are the parcels in controversy. The situation will more plainly appear by reference to the map on page 111.</p> <p>The plaintiff immediately constructed a shop as indicated on the map which he has used ever since. No deed was executed at the time. The plaintiff claims that he has adversely occupied the disputed strips for yard purposes and for piling materials. The defendant does not deny that the plaintiff has used much of the disputed territory for yard and piling purposes, but claims that such use was permissive only, and not exclusive or adverse. .A roadway which, has been used ■for many years by all who desire to use it exists west and north of the plaintiff’s building as indicated on the map.</p> <p> </p> <p>Other facts appearing in the evidence will he stated in the opinion.</p> <p>An advisory verdict was taken, which, was subsequently adopted by the court with some modifications and additions in its findings. By these findings the claims of the plaintiff' as to the location of the original lines were found to be established, and it was further found that the plaintiff had adversely occupied the disputed strips on the west and north,, except where the same were encroached on by the roadway shown on the map, for more than twenty years prior to the commencement of the action. Judgment establishing the title of the plaintiff to the land so adversely occupied was-entered by the court and the defendant appeals.</p>

<p>Appeal from a judgment of the circuit court for Manito-woc county: Mioi-iael Eiewan, Circuit Judge.</p> <p>The plaintiff, when injured, as hereinafter stated, was nineteen years of age^ well educated, intelligent, having had several years of employment which brought him in contact with wood-working machinery of various kinds, and fully appreciated that, when an appliance in a machine served to cut or shape a board pressed against it, it would injure his fingers if they got to the spot where the board was operated on. lie knew what a shaper machine was for, namely, to form or shape the edge of a board, and that was accomplished by revolving knives. He had heard that such a machine was dangerous, and had been reluctant to work upon the machine in question at the only time when employed to do so by himself for that reason, but claimed that he was induced to do so by the assurance that the knives which trimmed the edges of the board were all below the upper surface of that board so that his hands, being on top of the board, could not be injured. He testified that he had never observed the mechanism of the shaper or the place or arrangement of the knives when they were stationary so that he could see them. On May 25, 1896, he was called on to aid his boss in propelling through the shaper a four-foot-wide board, seven eighths of an inch thick, in order to shape the edge thereof. This was done by a pair of revolving knives resembling chisels, projecting horizontally from the circular head of a vertical spindle about three inches in diameter, which revolved above the surface of a plane table on which the board was pushed. They revolved at the velocity of 6,500 revolutions a minute, so that the knives as such were not perceptible, but appeared as a bright rim or blur around the outside of the head of the spindle. As matter of fact these knives were over two inches wide, and only the lower portion of them was used in giving the shape to the board’s edge; the upper portion of them, which was more protrusive, being above the upper surface of the board and protruded inward over the edge some three quarters of an inch. The plaintiff’s duty -was to place his hands upon the upper surface of this board and push it forward SO' that the right side of it passed along these knives. Considerable exertion of force was necessary to propel it. The board, about seven feet long, had been propelled so far that all except the last seven or eight inches had been shaped, at which time the plaintiff’s right hand slipped and was thrust against the revolving knives, a movement of two or three inches being sufficient. The hand was badly mangled. The jury found by special verdict (1) that the fact that the knives extended above the upper surface of the board made the work which plaintiff was then doing dangerous to a person of his age, experience, discretion, and judgment; (2) that he did not know that the Imives so extended before he was injured; (3) that the exercise of ordinary care on his part would not have disclosed to him before he was injured the fact that the knives so extended above the face of the board; (4) that defendant failed to warn or instruct plaintiff as to- the danger incident to his work at the'machine arising from the extension of the knives aforesaid; (5) that by such failure to warn defendant was guilty of negligence; (6) that the in-j ury was the natural and probable consequence of such negligence ; (J) that defendant in the 'exercise of ordinary intelligence and prudence under the circumstances ought reasonably to have foreseen that such negligence would be likely to result in personal injury to the plaintiff; (8) that the plaintiff was not guilty of any failure to exercise ordinary care which contributed to causing injury; and (9) damages $3,000. Due motions for the direction of a verdict for defendant, for judgment notwithstanding the verdict on the undisputed evidence, and for the reversal of the answers to the several questions, and judgment on the verdict so modified, were duly made and overruled, and judgment rendered for the plaintiff for the damages found, from which the defendant appeals.</p>

<p> Evidence: Sufficiency: Principal and agent: Accepting payments before maturity. </p> <p>1. In an action to foreclose a mortgage given to secure a note, defended on the ground of payment to mortgagee’s agent, the evidence is held sufficient to sustain the finding of the trial court that plaintiff had authorized his agent who negotiated the loan for which the note was given to receive payments thereon.</p> <p>2. While authority to an agent to receive payment of a note does not include authority to mature such note by receiving payment before due, it does include authority to accept payment before due to be applied as of the time of maturity.</p>

<p> Support of pauper: Sufficiency of evidence. </p> <p>In an action to recover money paid for the support of a pauper alleged to have a legal settlement in defendant town, there being credible evidence to support the finding of the jury that the money furnished by the defendant was received by recipient as a pauper, the verdict will not be disturbed.</p>

<p>Appeal from a judgment of the circuit court for Sheboy-gan county: Michael Ejbwan, Circuit Judge.</p>

<p>Appeal from an order of the circuit court for Iowa county: Geokge Clementsoh, Circuit Judge.</p> <p>This is an appeal from an order overruling a demurrer to the complaint. The complaint, after stating the incorporation, location, and business of the defendant and the •ownership by the plaintiff of the land therein described and the dwelling situated thereon, alleges in substance: That for sl great many years up to 1901 plaintiff had occupied said property as her dwelling, and that the same, but for facts subsequently alleged, is of the value of $3,000; that the •defendant owns and occupies land contiguous to and in the immediate vicinity of said property; that it had erected thereon, in close proximity to plaintiff’s property, in 1901 a sulphuric acid plant; that it has operated the same since its erection for the manufacture of sulphuric acid, and has ■caused to be sent out from said acid plant large volumes of unwholesome and destructive smoke, fumes, vapors, and substances which penetrated plaintiff’s dwelling house and •caused such annoyance and discomfort therein that plaintiff was thereby compelled to remove therefrom; that such destructive substances are dangerous to her health as well as offensive, and pollute the water in the entire vicinity and particularly upon plaintiff’s property, so as to render the same unsanitary and unfit for use and dangerous to the health' of plaintiff and her family; that such obnoxious substances bave rendered the atmosphere on plaintiff’s property unhealthful, have caused plaintiff much suffering and sickness, destroyed all the vegetation upon her property as well as clothes hung out upon the same, and rendered her property uninhabitable; that such fumes and substances greatly impair the value of plaintiff’s property and lessen the rental value thereof; that they and the plant from which they are emitted and sent out constitute and are a nuisance and that the defendant still continues to maintain said sulphuric acid plant and to1 emit therefrom said deleterious substances, to her great damage. The prayer is for an abatement of the nuisance under the statute and for damages. The sufficiency of the facts stated in the complaint to constitute a cause of action is challenged by the demurrer.</p>

The complaint in this case is substantially the same as that in Holman v. Mineral Point Zinc Co., ante, p. 132, 115 N. W. 327. The demurrer was upon the same grounds, only one of which — -that challenging the sufficiency of the complaint — was urged upon the attention of the court.

<p> Master and servant: Railroads: Negligence: Sufficiency of complaint. </p> <p>1. In an action for hodily injury and suffering and for death caused while deceased was performing his duties as hrakeman on defendant’s freight train, the complaint charged incompetency of the engineer and the existence of defective brakes and couplings to the knowledge of defendant, and alleged generally that the injury and the death resulted therefrom, and that while deceased was performing his duties as hrakeman and while switching was being done and while he was exercising ordinary care, defendant’s employees in charge of the engine negligently, without warning or signal, caused the engine to come with great force and speed against certain cars where deceased was discharging his duties, whereby said ears struck and crushed him. Held, on demurrer, that the complaint was sufficient under sec. 1816, Stats. (Supp. 1906), without stating that such conduct was a breach of the engineer’s duty.</p> <p>2. The court will assume on demurrer to the complaint, until the contrary is shown, that such conduct was a breach of the engineer’s duty.</p>

Apeeae from a judgment of the circuit court for Richland county: Geoege ClemeNtsoN, Circuit Judge. Taxpayers’ action against the town of Eagle, in Richland county, Wisconsin, its supervisors, and a person having a pretended contract with the town for the construction of a town hall therein, to restrain such supervisors from doing the acts suggested in the complaint to be impending.

Ebbob to review a judgment of tbe municipal court of Milwaukee county: A. C. Bbazee, Judge. Plaintiff in error was convicted on a charge of assault with intent to rape, committed on a female, his stepdaughter, under the age of fourteen years, on December 8, 1904. Conviction on April 1, 1905, followed by sentence to the state prison,, to review which defendant, Milton M. Dungan, sued out' this writ of error.

D. Hastings, Circuit Judge. Action to recover compensation for an injury claimed to Rave been caused by actionable negligence of the defendant.

Williams, Judge. Action for damages resulting from breach of contract.

W. Helms, Judge. This action was commenced by William Rowe, a taxpayer of the county of Eau Claire, to compel the town clerk and treasurer to alter the tax roll for the year 1906 under the provisions of ch. 134, Laws of 1905, after it had gone into the hands of the treasurer for collection, so as to include in it a sum of money alleged to he due from the taxpayers of said town hy reason of the determination of commissioners of ■equalization appointed and acting under the…

<p>Appeal from a Judgment of the circuit court for Eau Claire countyr E. W. Helms, Judge,</p>

<p>Arreal from a judgment of the circuit court for Eau Claire county: E. W. Helms, Judge.</p>

Eowlee, Circuit Judge. Action for breach, of promise to marry, alleged to have been made about the 1st of August, 1902, aggravated by seduction accomplished in reliance upon said promise, and followed by nearly three years of frequent illicit connection between the parties. The defendant denied any promise of marriage, but admitted the establishment and continuance of such illicit relations upon the basis of a cash payment on each occasion thereof.

Appeai. from a judgment of the circuit court for Juneau county: J. J. Enurr, Circuit Judge. This is an action to recover for personal injuries received by the plaintiff, a young woman twenty-three years of age, while walking upon the platform in front of defendant’s station building at the village of Mather, Juneau county, Wisconsin, at about 8:30 p. m. May 10, 1906.

J. Fruit, Circuit Judge. The complaint in this action alleges, in effect, the ownership of certain lands by plaintiff, and that on the 25th day of May, 1903, plaintiff and defendant entered into an agreement, by the terms of which plaintiff for a valuable consideration gave to defendant a right of way across said lands.

<p>Appeal from an order of tbe circuit court for Monroe county: J. J. Ebuit, Circuit Judge.</p> <p>The appeal is from an order sustaining a demurrer to- the complaint. The complaint averred the corporate existence of the plaintiff and its ownership of a railway, the corporate existence of the defendant as a drainage district, the institution of proceedings for the appointment of commissioners to examine and report upon the feasibility of draining certain lands through which the railroad of the plaintiff passed, and the making of a report by the commissioners on December 12, 1902, including a list of all lands which would be damaged by the construction of the proposed drains and ditches, awarding $8 to the plaintiff for damages to part of its right of way passing through several described subdivisions of land, and the modification of said report at the instance of the plaintiff so as to read in part as follows:</p> <p>“That no assessment shall be made for benefits on the right of way of the Chicago, Milwaukee & St. Paul Railway ■Company where said right of way passes through said district. That where said proposed ditches cross the said right of way the said ditches shall be protected to prevent washing of said right of way, and that any change to be made now or hereafter in the roadbed, bridges, or culverts of said railway company by reason of said ditches shall be made at the expense of the said drainage district.”</p> <p>The report thus amended was filed, by the commissioners Eebruary 17, 1903. Thereafter on March 12, 1903, the ■circuit court confirmed the report as so modified and amended, and thereupon said defendant became organized as a drainage district under and by the name of the Lemon-weir River Drainage District. Thereafter said defendant proceeded to construct a system of drainage and ditches, three of which crossed the right of way and roadbed of the plaintiff and gathered into straight, deep, .and comparatively narrow channels the waters that always, theretofore in times of freshet or flood had spread themselves over a large surface, and sent these waters in swift destructive torrents into the ditches, and so undermined the roadbed and tracks and .abutments and supports of the bridges of the plaintiff making it necessary to lengthen, construct, and reconstruct the sev■eral bridges at an expense to the plaintiff of $1,789.98, which sum was demanded of the defendant and payment refused. The defendant demurred to the complaint as not stating facts .sufficient to constitute a cause of action.</p> <p>Among other references upon the part of the appellant were the following: McGinnis v. Knickerbocker Ice Go. 112 Wis. 385, 88 N. W. 300; 1 Ency. PL & Pr. Mil, 602, 694; McGord v. Sylvester, 32 Wis. 451; Busch v. M., L. S. & W. B. Go. 54 Wis. 136, 11 N. W. 253; 6 Am. & Eng. Ency. of Law (1st ed.) 604; 15 Cyc. 982; Younlcin v. Milwaukee L., II. & T. Go. 112 Wis. 15, 81 N. W. 861; Davis v. La 0. & M. B, Go. 12 Wis. 16; Pettibone v. La O. & M. B. Go. 14 Wis. 443; sec. 19, eh. 419, Laws of 1905; Alcerly v. Vilas, 25 Wis. 703; Sentinel Go. v. Thomson, 38 Wis. 489; Boe v., Lincoln Go. 56 Wis. 66, 13 N. W. 887; 23 Cyc. 1126, 1226.</p> <p>Among other references upon the part of the respondent were the following: Lake Erie <& W. B. Go. v. Smith, 61 Fed. 885; Donnelly v. Decker, 58 Wis. 461, 17 N. W. 389;. secs. 1379 — 11 to 1388a, Stats. (1898) ; Valley L. Go. v. Ilogan, 85 Wis. 366, 55 N. W. 415.</p>

<p> Account stated: ~What constitutes: Gonclusiveness. </p> <p>1. Where plaintiff presented to defendant a statement in writing showing the dehits and credits with respect to the items embraced therein, which defendant admitted to be correct, the finding that this constituted an account stated was justified, although the defendant at the time of admitting the correctness asserted a counterclaim, which plaintiff denied, growing out of another transaction.</p> <p>2. Unless the balance shown on an account stated has been reached as the result of compromise, or unless there be facts working an estoppel, such account is only prima facie correct, and may be impeached for mistake of law or fact with respect to the items included in it or for omission of items.</p>

<p>Appeal from a judgment of the circuit court for Monroe county: J. J. Eeuit, Circuit Judge.</p> <p>The complaint alleges that the defendant transferred by deed to- the plaintiff certain lots of land, and as consideration therefor plaintiff executed and delivered to defendant a bill of sale of certain livery stock owned by her. It is alleged that the livery stock was of the value of $3,000, that this value was agreed upon by the parties, and that defendant took possession of and has since remained in actual possession of the livery stock. It is alleged that the defendant represented to the plaintiff’s agent, Mr. Mannel, in the negotiations for the trade, that the lots comprised a full quarter-section and exceeded 160 acres in area; that the lands were valuable on account of the amount of timber thereon, which was represented to he 3,000 cords of not less than $2,900 in value; and that the amount of timber on this land would run better than other lands shown plaintiff’s agent upon which the timber would cut from twenty-five to thirty cords per acre. The statements made by the defendant are alleged to have been falsely and fraudulently made for the purpose of inducing plaintiff to make the trade. The amount of timber on the lands is alleged to have been much less than represented, not exceeding 300 cords, -with a value of not more than $300. The timber land is also alleged to be much less than was represented. The land is described as located on an island in the Mississippi river, useful only for pasture, and as not exceeding $600 in value.</p> <p>Plaintiff alleges that the statements made by defendant were relied upon by herself and her agent and that she was thereby induced to transfer her livery stock in exchange for the lots of land and a cash payment- of $100. Before learning of the falsity of the representations plaintiff sold fifty-eight cords of standing timber from the lots, of a value of $58., Plaintiff or her agent did net visit thé lands until a month after the transfer, when she alleges she first received an intimation of the falsity of the representations made by the defendant. This was at a time when the land was covered with deep snow and when it was impossible to have the premises surveyed and the amount of timber estimated. It is alleged that restitution was demanded of the defendant and cancellation of the transfers of property and a return of the livery stock, and that plaintiff tendered defendant a deed of the land, together with the sum of $100. This offer was refused by the defendant, and plaintiff alleges that subsequently she rescinded the sale for the fraud practiced upon her and demanded a return from the defendant of her livery stock, and tendered to the defendant a properly executed deed of all right, title, and interest in the lands, together with the sum of $100 and interest thereon, and the further sum of $58, the value of the timber sold from the land by the plaintiff. This tender was rejected.</p> <p>. Defendant has been conducting the livery business, and plaintiff demands damages in the sum of $150 because she has been deprived of the benefit, use, and income thereof. Damages in the sum of $500 are also demanded for alleged depreciation in the livery stock,- and the sum of $300 as plaintiff’s damages by reason of'the expenses and loss of time because of defendant’s fraud. Defendant denied that the parties agreed upon the value of the livery property at $3,000, but claims that it was $2,400. He alleges that plaintiff’s agent and he visited the lands before the transfer and that he pointed ont the boundaries and limits of the lots. He also claims that plaintiff’s agent had sufficient opportunity to acquaint himself with the lands and had full knowledge of the nature of the land and the quantity of timber thereon, and he denies that he practiced any fraud or that he was guilty of any false or fraudulent representations respecting it.</p> <p>The court found that during the negotiations for the transfer defendant falsely and fraudulently represented to plaintiff’s agent that the lots comprised a full quarter-section, that the timber would run as good as upon other lands shown the agent, which in fact would cut about twenty-five cords per acre, and that he falsely and fraudulently represented there were between 5,000 and 6,000 cords of standing timber upon the tract owned by him, part of which was shown to plaintiff’s agent, and that over one half thereof was upon the-lots which were afterwards sold and transferred to plaintiff, when in truth and fact the lots contained but 114 acres and the timber thereon did not exceed 331 cords. The further findings of the court were that prior to the transfer plaintiff or her agent had no personal knowledge of the amount of timber upon the land, and that plaintiff was induced to make the transfer relying upon the representations of the defendant, that defendant knew them to be false, and that plaintiff and her agent were not guilty of a want of ordinary care and prudence in the transaction. Plaintiff was found entitled to damages upon the grounds alleged, and was awarded judgment canceling the transfers of property and for damages and costs. This is an appeal from the judgment entered in accord with these findings.</p>

<p>Appeal from a judgment of tbe circuit court for Juneau county: J. J. Eeuit, Circuit Judge.</p> <p>Action to recover compensation for tbe death of plaintiff's intestate.</p> <p>Tbe issues are sufficiently indicated by tbe following: A jury was waived and tbe case submitted to tbe court on tbe evidence and agreed facts. These are such facts: September 12,, 1903, plaintiff’s intestate was a passenger on one of defendant’s passenger trains. It negligently ran such train into a washout caused by a severe rainstorm. Plaintiff’s intestate, at that time, from bis own choice was riding on one of the car platforms which was not vestibuled. There was ample opportunity for him to have occupied a seat in the car. The end of the car upon which he was riding and the adjoining end of the next ear, because of the train going into the washout, were crushed together, imprisoning and injuring the intestate, in consequence of which he died shortly after being released. No one riding inside the car was killed. 4</p> <p>The deceased was a married man forty-five years of age and left a widow and several children who we're dependent upon him for support. If plaintiff is entitled to recover at all, damages should be assessed at $5,000.</p> <p>There was undisputed evidence of a notice being in the car in a conspicuous place warning passengers not to ride on the platform.</p> <p>The court found in accordance with, the foregoing and found further, as a fact, that the deceased in standing upon the platform, as he did at the time of the accident, was guilty of negligence which contributed proximately to cause his death. It found as a conclusion of law that defendant was entitled to judgment dismissing the action with costs. Judgment was rendered accordingly.</p>

<p> Mechanic’s lien: Amendment of judgment. </p> <p>Where a judgment, in an action to foreclose a mechanic’s lien, was entered in accordance with the petition for lien, complaint, and proof made at the trial, which judgment was the identical one the court was asked to pronounce and which it intended to pronounce, and the record was made up accordingly, the court cannot at a subsequent term, more than a year after the rendition, modify it so as to exclude a part of the premises described therein and include other land.</p>

<p> Partition: Personal property: Jurisdiction: Interlocutory decree: Gonclusiveness: Contempt: Alternative remedy: Party ag- - grieved: Failure to assign error in brief. </p> <p>1. In an action for tlie partition of personal property tlie circuit court has general equity jurisdiction to appoint a receiver, to order the property delivered to the receiver, to enter an interlocutory decree, and to so mold its final decree as to cover and provide every possible form or kind of relief made necessary by the exigencies of the case or the contumacy of the parties in order to do final and complete justice.</p> <p>2. An interlocutory decree being appealable, if there are no exceptions to the interlocutory findings, and no bill of exceptions preserving the evidence on which the findings and decree were based, the findings are conclusive upon an appeal from a final judgment founded thereon.</p> <p>3. Where, in an action for the partition of personal property, defendant refused compliance with the interlocutory decree ordering him to deliver to the receiver in such action a certain portion of the common property, the court, in protecting the aggrieved party from loss by defendant’s noncompliance, is not limited to contempt proceedings, but may in a final decree accomplish the same end by awarding damages.</p> <p>4. Where in such an action it appears that the damages awarded in the final decree were less than the amount defendant might have been required to pay under contempt proceedings, the defendant is not aggrieved by plaintiff’s failure to resort to the latter proceedings.</p> <p>5. Where no error was assigned in appellant’s brief, as required by Supreme Court Rule 10, and this court unaided by such assignment was unable to discover material or prejudicial error, the judgment was affirmed.</p>

<p> Accident insurance: Pleading breach of warranty: Construction of policy: Words and phrases: Ambiguity: Forfeitures: Waiver: Warranties: Questions for jury: Proximate cause of death: Evidence: Proof of death: When action may be brought. </p> <p>1. In an action on an accident policy a breach of warranty is not available as a defense unless expressly pleaded.</p> <p>2. A policy of insurance should be construed as any other contract t.o ascertain the intention of the parties from the language used, and all provisions, conditions, or exceptions which in any way tend to work a forfeiture should be construed most strongly against the party preparing the contract and for whose benefit they were inserted.</p> <p>3. Any provision or exception which is uncertain or ambiguous or is capable of two meanings should be construed most favorably to the insured.</p> <p>4. "Whether the answers in an insurance policy are false is a question for the jury, if there is any conflict in the evidence.</p> <p>5. If an insurance company receives an application for insurance with a material question therein unanswered or not fully answered and issues a policy thereon, it thereby waives a provision in the policy avoiding it in case the facts called for by such questions are not fully disclosed.</p> <p>6. Where an accident policy provides that the answers of the insured to questions therein shall be considered warranties, if a question is not answered there is no warranty that there is nothing to answer, and in case of a partial answer the warranty cannot be extended beyond the answer.</p> <p>7. An accident insurance policy contained a statement that the insured had never had certain disorders, except as therein stated, followed by a blank line in which a check mark was placed, apparently by the insurer’s agent. There were other similar statements followed by blank lines containing checks. The . policy was not signed by the insured and contained no warranty that the statements therein were fully and truly answered. Held, that an ambiguity existed with respect to the conclusion to be drawn from the warranties contained in the policy with a check mark in the blank space, and it was for the jury to determine whether the check marks were to he treated as a denial of any exception or as a waiver of any statement and answer thereto.</p> <p>8. Where there is an ambiguity in a written contract and ambiguous words or terms are to he construed by extrinsic evidence or the surrounding circumstances, the question is for the jury.</p> <p>9. Where an accident policy insured against death resulting “from bodily injuries sustained through external, violent, and accidental means, independently of all other causes,” and it appeared that the insured accidentally struck his leg against an iron safe, causing an abrasion of the skin where an infection started, from which fifteen days later blood poison ensued, producing death, held, that the wound produced by the accident was the proximate and sole cause of death.</p> <p>10. In such a policy, “independently of all other causes” has no more extensive meaning than “sole and proximate” cause.</p> <p>11. Where death results from disease which follows as a natural' though not necessary consequence of an accidental injury, it is within the terms of an accident policy insuring against death resulting “from bodily injuries sustained through external, violent, and accidental means, independently of all other causes,” the death being deemed the proximate result of the injury and not of the disease as an independent cause.</p> <p>12. It is to be presumed that the parties to an accident policy intended that words used therein describing certain physical conditions should be understood in their ordinary sense when used in common speech.</p> <p>13. Where in such a policy the insured stated he was not afflicted with bronchitis, held, that the word "bronchitis” was used in a limited sense as meaning a chronic disease which would not readily yield to treatment and which tended to impair the health and strength; that it did not include an acute attack from which the insured had fully recovered at the time the policy was accepted.</p> <p>14. In an action on such a policy the evidence is held not to show conclusively that the insured ever suffered from bronchitis within the meaning of the warranty.</p> <p>15. “Bodily infirmity,” as used in an accident policy exempting the insurer from liability, only includes an ailment or disorder of an established and settled character, and not merely a temporary disorder arising from a sudden and unexpected derangement of the system.</p> <p>16. “Sound condition physically” is synonymous with sound health, which does not mean perfect health, hut indicates the absence in the constitution of any yice or disease of a serious nature tending to a general impairment of physical health and vigor.</p> <p>17. Whether the insured is in sound condition physically depends upon the circumstances of each case and is a question for the jury on the evidence.</p> <p>18. Testimony which might have been excluded if seasonably objected to, but which was received without objection, is entitled to full consideration.</p> <p>19. The requirement in an accident policy of affirmative proof of death may be regarded as satisfied by notice of death to the insurance company and the holding of an autopsy at its request.</p> <p>20. Where an accident policy provided that action thereon should not be brought within three months after affirmative proof of death, held, that a denial by the insurer of any liability on the policy was a waiver of the right that the stipulated time elapse before suit, and an action may be commenced at once.</p>

<p> Guaranty: Acceptance: Notice. </p> <p>In an action upon the following written guaranty: “I request that should C., ag’t, . . . order goods from you at any time after date of this letter of credit until further notice, that you ship the same to order of said agent, and I hereby guarantee payment for the same within twenty days after the arrival of goods at destination,” held, that the letter constituted an offer merely, which did not become a contract until accepted and notice of acceptance given to the guarantor.</p>

<p>'Appeal from a judgment of the circuit court for St. 'Croix county: E. W. Helms, Circuit Judge.</p> <p>Action to recover $150 alleged to be due for rent of certain real estate in the city of Hudson, Wisconsin.</p> <p>The cause was tried without a jury and the issues raised by the pleadings sufficiently appear from the following brief summary of the findings: September 15, 1905, plaintiff, being then the owner of certain real estate described in the complaint, entered into a written 'agreement whereby she agreed to lease such real estate to defendant for the term of one year for the sum of $300 payable in advance. Some time during the month of Eebruary or March succeed-' ing and again in June or July, plaintiff notified defendant that in case of the latter desiring to occupy the premises after the expiration of the lease it would be required to pay double the amount of rent formerly paid. At neither time did defendant manifest any dissent to the new condition. It continued to occupy the premises after the expiration of the lease. October 13, 1906, it attempted to turn over possession to plaintiff by delivering the key of the premises to her, which she refused to receive. September 19, 1906, plaintiff demanded the rental due for the quarter and thereby elected to renew the lease for one year from September 15, 1906, upon the terms of the written lease as modified by her notification that the rent would be doubled after the first year. No part of the rent for the quarter succeeding September 15, 1906, has been paid and there is now due and payable the sum of $150. Upon such facts the court found as a conclusion of law that, by defendant occupying the premises after the 15th day of September, 1906, upon the election of plaintiff, the former became the tenant of the latter for the term of one year from September 15, 1906, at a yearly rental of $600 per annum, payable quarterly in advance. The court thereupon rendered judgment in plaintiff’s favor for $150, and from the judgment so rendered defendant appealed.</p>

Croix county: E. W. Helms, Circuit Judge. Action of trespass qúare clausum. Defense on the ground that defendant Tobin was superintendent of highways and that the only act done was the removal, with the assistance of defendant Simon, who was a town supervisor, of a fence maintained by plaintiff, which constituted an obstruction of the highway.

Ray Stevens, Circuit Judge. The Northwestern Mutual Relief Association, duly incorporated in 1882 under the general laws of the state of Wisconsin, was reorganized and reincorporated on January 19, 1892, being authorized and empowered to- insure and indemnify its members on the assessment plan of life insurance-against accident, old age, and death, and against either of them.

Rat Stevens, Circuit Judge. This is an appeal from an order denying defendant’s motion for judgment and setting aside a special verdict and granting a new trial in the action brought to recover damages for injuries received upon a defective highway.

<p>Contract: Partial performance: Quantum meruit: Practice: Reopening case: New issue: Witness: Cross-examination: Order of proof.</p> <p>1. Plaintiff sued for tlie value of services rendered. The evidence showed a contract to do certain work for a stipulated sum, which contract was never completed. There was no evidence of an acceptance of partial performance -hy defendant, nor of the value of the services. Held, that there could be no recovery of the sum stipulated nor of the value of the services.</p> <p>2. Where plaintiff’s evidence showed that the work sued for was done under a contract for a stipulated sum and the trial of the case on that theory was closed and some of the witnesses had left the court room, held, that there was no' abuse of the discretion vested in the trial court to refuse to reopen the case to permit plaintiff to introduce evidence of the value of the services, as this would involve a trial of another and distinct issue.</p> <p>¡5. In an action to recover a stipulated sum for work done under a contract, plaintiffs witness on cross-examination stated that he had not testified in the same action in the justice’s court that the contract was not completed. Defendant’s witness contradicted this. Plaintiff recalled his witness and asked him to state what he testified to in the justice’s court. This question being excluded, plaintiff then offered the minutes of the justice showing the witness’s testimony in that court. Reid, that both the question and the minutes were properly excluded, as not specifically meeting any testimony that had been offered by defendant.</p>

<p> Railroads: Collisions at street crossings: Contributory negligence: Duty to loolc and listen: Diversion of attention. </p> <p>1. In an action to recover the value of horses and other property destroyed at a street crossing by being struck by a passenger train running at an unlawful rate of speed, the evidence is held, as matter of law, to establish that the driver of the horses was guilty of contributory negligence, either in failing to look before going onto the crossing or in attempting to cross in front of the train with knowledge of its approach.</p> <p>2. The duty to look and listen before going onto a railroad crossing is absolute, where the opportunity exists, and is not excused by mere diversion of attention, except there be circumstances for which the traveler is not responsible which so irresistibly force his attention to something .else as to deprive him ' of his opportunity to perform his duty.</p> <p>3. A freight train on a siding near a street crossing at a station was something naturally to be expected by one familiar with such station and its surroundings, and did not constitute such a diversion as to deprive a traveler approaching the crossing of his opportunity to look.</p>

<p>Apteai, from an order of the circuit court for Dane county: E. Rat Stevens, Circuit Judge.</p> <p>This was an action upon two certificates of deposit, one for $263.75 bearing date April 14, 1879, and bearing interest at four per cent, if left four months and at five per cent, if left six months; another for $214 bearing date September 4, 1880, and bearing interest at three per cent, if left four months and at four per cent, if left six months. The form, exclusive of interest memoranda, was as follows:</p> <p>“This certifies that Dr. A. P. Lusle has deposited in the Stoughton State Bank $263.75 credit of himself, payable in bantable currency upon return of this certificate properly indorsed. Robe Dow, Cashr.”</p> <p>The complaint averred that prior to 1879 the defendant became, ever since has been, and now is a banking corporation organized and existing under the laws of the state of Wisconsin under the name of the Stoughton State Barde. It also contains an aveiment that the defendant held itself out to the public as a banking corporation in a manner set forth. Said certificates, properly indorsed, have been presented to the defendant and payment demanded and refused, but no date of demand or presentation is averred. Another cause of action in the complaint related to matters not relevant upon this appeal. The answer denied that the defendant was a banking corporation, and averred that up to March 30, 1882, the Stoughton State Bmh was a private -banking institution, which did not become an incorporated bank until tlie date last mentioned. The six-year statute of limitations is then pleaded.</p> <p>Among other references upon the part of the appellant were the following: Sec. 4230, Stats. (1898) ; Ourran v. Witter j 68 Wis. 16, 311ST. W. 705 psec. 4, subch. II, ch. 234, Laws of 1903; Whitney v. Robinson, 53 Wis. 309, 10 R. W. 512; Riclcetson v. Galligan, 89 Wis. 394, 62 R. W. 87; Clark & M. Priy. Oorp. 282; Blade River Imp. Go. v. Hol-■way, 85 Wis. 344, 55 R. W. 418; Terr. Stats. 1839, p. 261, § 19; sec. 18, ch. 127, R. S. 1849; sec. 23, ch. 138, R. S. 1858; 26 Am. & Eng. Ency. of Law (2d ed.) 610; Koelzer v. First Nat. Bank, 125 Wis. 595, 104 R. W. 838.</p> <p>Among other references upon the part of the respondent wore the following: State ex rel. Lederer v. Inter-National Inv. Co. 88 Wis. 512, 60 R. W. 796; Bevitt v. Crandall, 19 Wis. 581; Suth. Stat. Constr. § 268; 21 Am. & Eng. Ency. of Law (2d ed.) 1012; Gallagher v. McKeague, 125 Wis. 116, 103 R. W. 233; Alabama v. Montague, 117 U. SI 602, 6 Sup. Ct. 911; Edson v. Hayden, 20 Wis. 682; Jensen v. State, 60 Wis. 577, 19 R. W. 374; Morse v. Buffalo F. & M. Ins. Co. 30 Wis. 534; 3 Am. & Eng. Ency. of Law (2d ed.) 771, 772; Winter-field v. Stauss, 24 Wis. 394; 5 Am. & Eng. Ency. of Law (2d ed.) 801; sec. 28, ch. 94, R. S. 1878; Gove v. While, 20 Wis. 425; 11 Am. & Eng. Ency. of Law (2d ed.) 387.</p>

<p> Real-estate hrolcer: Commission. </p> <p>A commission contract for the sale of realty contained a provision that the principal could revoke the same on ninety days’ written notice to the agent, and in case of such revocation the agent was to he entitled to receive no compensation unless a sale was made to a purchaser procured hy him prior to the expiration of the contract. Held, that the agent was entitled to recover the stipulated commission on a sale consummated by the principal after the expiration of the contract to a purchaser procured hy the agent during the existence of the contract and with whom the principal had previously refused to deal.</p>

<p> Guaranty: Demand, on debtor: Notice of default: Foreign corporation: Transacting business within the state: Interstate commerce: Limitations on state’s power: Agency: Knowledge of agent. </p> <p>1. "Where a guaranty is one of payment and not of mere collection, no efforts to collect from the debtor are necessary before demand on the guarantor.</p> <p>2. No notice of the defaults of a debtor to a guarantor is necessary unless required by the provisions of the guaranty.</p> <p>3. Where F. acted as agent for plaintiff, a foreign corporation, in soliciting orders for the sale of groceries to residents, and defendant guaranteed the payment for all goods supplied to F. by plaintiff, held, that as between plaintiff and defendant the validity of the guaranty was not affected by the fact that the transactions by which the goods were sold might be invalid because plaintiff, being a foreign corporation, bad not complied •with sec. 1770b, Stats. (1898), requiring tbe filing of articles of incorporation before transacting business witbin tbe state.</p> <p>4. Tbe power of tbe state to impose conditions, mentioned in sec. 1770b, Stats. (1898), on granting to foreign corporations tbe right to do business witbin tbe state is not restrained by sec. 2, art. IV, IJ. S. Const., providing that tbe citizens of each state shall be entitled to all the privileges and immunities of tbe citizens of tbe several states, nor by sec. 1, amend. XIV, U. S. Const'., forbidding tbe state to make or enforce any law abridging tbe privileges or -immunities of citizens of tbe United States.</p> <p>E. Tbe power of tbe state to require foreign corporations to file their articles of incorporation before transacting business witbin tbe state is subject to such implied restraints as grow out of tbe power in tbe federal government to regulate interstate commerce.</p> <p>6. Transactions involving a physical transfer of merchandise from tbe possession and title of an owner in one state to tbe possession and ownership of purchasers in another are interstate.</p> <p>7. Soliciting orders or making a contract for tbe sale of goods situated in one state and which by tbe terms of tbe order or contract are to reach tbe bands of a purchaser in another is an inherent part of tbe commerce consisting of tbe whole transaction.</p> <p>8. Delivery to tbe purchaser of goods needing to be transported from one state into another is an, inherent and essential part of “commerce,” without consideration as to tbe manner or continuity of tbe transportation or tbe maintenance at tbe time of delivery of tbe same inclosure or package which characterized the commencement of tbe transportation.</p> <p>,9. “Commerce” comprehends all tbe intercourse between parties necessarily or ordinarily involved in a commercial transaction • .with reference to merchantable commodities.</p> <p>10. Plaintiff, a foreign corporation having a store in Chicago, employed an agent in Wisconsin who solicited orders for groceries from persons witbin tbe state, noting tbe orders received upon a slip beaded with plaintiffs name and upon which be inserted tbe name and address of tbe purchaser. After securing several orders the agent made out an “order sheet” addressed to plaintiff, directing it to ship to him tbe goods therein specified, and on tbe sheet be stated tbe various parcels that be bad sold to different individuals, each order being referred to by its number but not by tbe name of tbe purchaser. Tbe goods were then wrapped in plaintiff’s store at Chicago in the amounts of each specification designated by the number of the order on each parcel but not with the name of the purchaser, and all of these parcels were then assembled in larger packages and sent to the agent, who opened the same and delivered the individual parcels to the respective purchasers, collecting a price greater than that charged him by plaintiff. His profit or commission resulted from this difference in price. Held, that the only transaction of business by plaintiff in this state and its only contracts herein were in the conduct of interstate commerce and were not, therefore, subject to the provisions of sec. 17706, Stats. (1898). ■</p> <p>11. Actual knowledge. by plaintiff of the identity of the person for whom any given package of goods was intended when it started the same on its transportation from Chicago was not essential to support the conclusion that the act of delivery by the agent was a part of interstate commerce; but if knowledge were necessary, then the agent’s knowledge of the identity of the purchaser was the knowledge of the principal.</p>

<p> Elections: Nonregistered voter: Sufficiency of affidavit: Defective forms of affidavits: Construction of statute: Imperative provisions: Pleading: Denial of Knowledge. </p> <p>1. In a municipal election the affidavit of a nonregistered but otherwise qualified voter, presented to ■ establish his right to vote, stated merely that he was a resident of the ward, a citizen of the United States or had declared his intention to become such, that he was of lawful age, and had resided in the state one year and in the election district for ten days. Held, that the affidavit was essentially defective in that it failed to state, as required by see. 61, Stats. (1898), that since the completion of the registry of voters the affiant had become a qualified voter of such district; that he was a voter at the last previous general election in the district where he oilers to vote, and has not ' since become disqualified by removing therefrom, or otherwise; or if removed therefrom, that he was then a legal voter of this district, or has otherwise become a qualified voter thereof.</p> <p>2. In a proceeding to contest the defendant’s election to the office of alderman the answer of defendant to plaintiff’s allegation that a certain person had voted for defendant stated that he had no knowledge as to how such elector voted. Held, that this was not equivalent to an allegation that defendant had not sufficient knowledge or information to form a belief and therefore does not put plaintiff to proof thereof.</p> <p>3. The fact that some of the forms of affidavits provided for non-registered voters, desiring to present proof of their right to> . vote, were essentially defective, does not entitle such voters i to rely on them as sufficient proof of their right, as sec. 23, Stats. (1898), forbids the receipt of the votes of nonregistered electors unless they show their qualifications in the manner prescribed by sec. 61, Stats. (1898).</p> <p>4. Sec. 61, Stats. (1898), prescribing the manner of proof by a nonregistered elector of his right to vote, is imperative; and the vote of such an elector who failed to comply with the statute should not be counted, although it was received by the inspectors.</p>

<p> Jurisdictional defects: General and special appearances. </p> <p>1. If a defendant desires to avail himself of want of jurisdiction oí his person, he must keep out of court for all purposes except that of objecting to jurisdiction, and if he appears and takes any steps consistent with the idea that the court has jurisdiction of his person, such appearance amounts to a general appearance and gives the court jurisdiction for all purposes.</p> <p>2. Where a defendant appeared and objected to the jurisdiction of the court on the ground that the summons and its service were defective in certain respects, and moved to amend the return of the officer to conform to the facts and that the action be dismissed because the court had not acquired jurisdiction of his person, held, that the appearance, although denominated in the motion as special, amounted to a general appearance, and gave the court jurisdiction for all ■ purposes, as the motion could not be passed upon without jurisdiction of the person and the subject matter.</p>

<p> Real-estate broker: Commission: Sufficiency of evidence. </p> <p>Plaintiff, a real-estate broker employed to procure a customer for the sale of .defendant’s property for $20,000 or better, produced a customer who offered $19,000. Defendant refused such offer and declared plaintiff’s agency at an end. Shortly afterwards defendant sold the property to the same person through- another broiler for $19,000. Prior to plaintiff’s employment the property at $19,000 had been brought to the attention of the purchaser by still another broker. Held, that the evidence warranted the finding of the trial court that the plaintiff never produced a customer ready and willing to buy at a price satisfactory to defendant.</p>

J. Feuit, Circuit Judge. Tie plaintiffs are several owners of distinct parcels of riparian land and allege tiat tie defendant maintains a dam 'on tie nonnavigable stream known as tie Lemonweir river with no rigit so to- do except under- ci. 176, P. & L. Laws of 1856, wiici was enacted in tie interval between tie repeal and tie re-enactment of wiat is known as tie milldam act, now ci. 146, Stats. (1898).

<p> Promissory note payable to malcer: Validity: Transfer: Time of in-dorsement: Presumption: Trust deed: Transfer of note, secured: Transferee’s right to security: Statute of limitations: Effect on security: Parties: Holder of note enforcing security: Tax deed: Payments on redemption: Practice: Conclusiveness of trial court’s findings. </p> <p>1. A note payable to the order of the maker has no validity until it is negotiated, and when indorsed in blank by the maker it becomes payable to bearer and may be transferred by delivery.</p> <p>2. There is a presumption that the indorsement of a note takes place at or about the date of the note, and where a party’s right to land, mortgaged to secure notes payable to the maker’s order, depended upon whether the land was conveyed before or after the notes were negotiated by the maker, the burden was upon such party to prove that the notes had not been negotiated at the time the land was conveyed, and in the absence of such proof the negotiation is held to have taken place before the land was conveyed.</p> <p>3. The H. Co. executed promissory notes payable to its own order and secured by trust deeds to L. covering certain of its lands. The notes were negotiated by the maker to Y., who sold and delivered them without indorsement to plaintiff, executing at the same time a paper purporting to transfer his interest in the trust deeds. Held, that plaintiff succeeded to the rights of Y. and acquired the lien created by the trust deeds, and was consequently competent to maintain a suit under sec. 3186, Stats. (1898), to test the validity of certain tax deeds held by-defendant covering the land included in the trust deeds.</p> <p>4. While the statute oí limitations effectively extinguishes liability so that if properly pleaded it will bar any action to enforce the liability, still the extinguishment's only at the option of the obligor, and an action may be brought and a recovery had unless the statute is specially pleaded..</p> <p>5. Where a debt is secured by mortgage the remedy to enforce the lien may be prosecuted after the debt is barred by the statute of limitations, although the defense of the statute is pleaded.</p> <p>6. Where a debt secured by mortgage is barred by the statute of limitations and an action is brought to enforce the lien there can be no deficiency judgment for any balance remaining due upon the indebtedness.</p> <p>7. A trust deed given to secure a note is, like a mortgage, accessory thereto, and the transfer of the note carries with it the security of the deed without formal assignment, notwithstanding that at the time of the transfer any action on the note was barred by the statute of limitations.</p> <p>8. Where a finding of fact by the trial court is not excepted to it must be taken as a verity on appeal.</p> <p>9. A trustee in a trust deed given to secure certain notes who refused, after request by the holder of the notes, to bring an action to test the validity of tax deeds covering the land included in the trust deed, is not a necessary party to an action brought for the same purpose by the holder of the notes, such holder by Ms acquisition of the notes having acquired the lien created by the trust deed, and being entitled to bring an action in his own name under sec. 2605, Stats. (1898).</p> <p>10.A tax-title claimant who subsequently acquired a title to the same land through mesne conveyances was under no obligation to pay the taxes either when they were levied or when he acquired the tax title, and therefore a person seeking to redeem from such tax title should pay into court, under sec. 1210ft, Stats. (1898), the amount for which the land was sold as well as the taxes subsequently paid by the tax-title claimant, together with the statutory interest.</p>

This is an action in equity to remove clouds from the title of certain vacant and unoccupied lands in Forest county hy canceling as fraudulent certain recorded deeds thereof. The defendants Michael H. .Sullivan, Frank E. Knaup, and A. E. Knaup each filed a separate general demurrer to the complaint, and the plaintiff appeals from an order sustaining each of said demurrers.

<p>Corporations: Misconduct of officers: Wrongs to corporation: Stockholder’s action: When previous demand, unnecessary: Discretion of trial court.</p> <p>1. In case of a wrong to a corporation, remediable only by judicial interference, and tbe persons possessing tbe primary right as its officers to move in that regard fail upon demand being made by a stockholder to do so, or without such demand in case the, circumstances are such as to indicate that the same would he useless, any stockholder may sue on- behalf of all the stockholders to protect the corporate rights, making the wrongdoer and the corporation parties defendant.</p> <p>2. Whether or not a cas.e falls within the principle stated must he determined hy its own peculiar facts. The trial court has considerable discretion in the matter; and its determination that a suit is proper, within the principles justifying its equitable jurisdiction, will not be reversed on appeal unless it clearly appears to be erroneous.</p> <p>3. In a stockholder’s action against the corporation and its president to vindicate the corporation’s right to certain real estate, the complaint alleged that there had been no meeting of the stockholders or of the directors for many years; that the directors had not for a long time paid any attention to the corporate affairs; that they, left the president in full control; that the secretary, a large stockholder, had full knowledge of the president’s misdeeds, acquiesced therein, and was so hostile to stockholders like plaintiff that he suppressed information of the names of other officers of the corporation; that the president suffered and procured real estate of the corporation to be sold for taxes, and by mesne conveyances acquired the tax titles for himself; that a request on the corporation to bring an action to redress the wrong would warn the president and stimulate him to pass the wrongfully acquired titles to innocent parties; that a request was made on the secretary to have an action brought in the name of the corporation, which was re- . fused. Held, that the trial court, in overruling a demurrer to the complaint, had reasonable grounds to conclude that efficient demand on the corporation to bring an action was impracticable, if not impossible.</p>

<p> Boundaries: Meandered waters: Natural monument: Quieting title: Possession: Sufficiency of evidence. </p> <p>1. Where by tbe original survey and government plat a tract of land is bounded by a body of water, sucb body of water is a natural monument and will constitute tbe boundary, however distant or variant from tbe position indicated- for it by tbe meander linq, and bence will control as a call of tbe survey over-either distances or quantity, except where tbe body of water is so remote that it cannot in reason be supposed that tbe plat indicates a purpose to make it the boundary of tbe premises.</p> <p>2. Where plaintiff claimed tbe shore of a lake as his boundary and' the contour of the lake shore was in general similar to that of' tbe meander -line and no other lands were surveyed which even by a projection of their lines to tbe lake shore could interfere with the projection of plaintiffs lines, held, that the shore of the lake, although considerably remote from the meander line,, was to be taken as the boundary, and neither fraud in the survey nor gross mistake in the location of the lake was to be assumed so as to force the conclusion that the government did. not, under the rule stated, intend to convey to the lake shore.</p> <p>3. The rule that where a meander line is drawn on one side of the-regular survey lines the boundaries of land within such meander line cannot be extended across such survey lines in order-to reach the water front, especially when the survey line appeared upon the government plats as a boundary of another lot or subdivision conveyed to some- one else, has no application where the meander line frequently crosses the survey line, thus conclusively refuting the inference that the government intended that the lot line should be confined within the survey lines.</p> <p>4. In an action to quiet title it appeared that plaintiff resided for many years upon the land' claimed as a part of his premises, cultivated part of it, and exercised such dominion over the whole as was reasonably consistent with the character of the land. Defendant, a landowner on the opposite side of a narrow lake, undertook to survey and plat a portion of the land not cultivated by plaintiff, along the lake shore, and made such entry as was necessary to accomplish this. Held, that the evidence warranted the finding of the trial court that the plaintiff was in possession claiming title and that the acts of defendant were in the nature of temporary trespasses and did not interrupt such possession.</p>

<p>Pleading: Amendment: Changing theory of action: Partnership: Accounting: When impracticable: Partner's neglect of firm bust>ness.</p> <p>J.. Where a complaint in an action for an accounting between partners proceeded upon the theory of the existence of a partnership from a specified date and all the evidence and the conduct of the parties accorded with such theory, an amendment offered by plaintiff after all the evidence was received, to the effect that the partnership was dissolved on such date, was properly denied, especially since if the amendment were permitted it would bring the cause of action within the bar of the statute of limitations.</p> <p>Z. In an action for an accounting between partners there were no books of account of the firm business, nor, through its entire existence, of the moneys received and disbursed, nor any accurate or intelligent account of any part of the business for any period. There was no balance or statement of the firm’s affairs or of the accounts of each partner with the firm. Each member used the partnership funds for his individual needs as •occasion required, and all partnership funds not so appropriated were applied on firm obligations. Both partners approved, of and acquiesced in this method of conducting the partnership affairs. Beld, that acquiescence in such a course of business amounted to an agreement to conduct both their partnership and individual transactions upon a basis of mutual trust, and operated to preclude either of them from insisting upon a partnership accounting, each partner being limited to demanding that the partnership be dissolved and that he be awarded his share of the assets after payment of existing liabilities and the expenses involved in the proceeding.</p> <p>3. In such an action no charge could be made by one partner against the other for failure to give his time and attention to the firm business nor for individual property supplied for firm purposes.</p> <p>4. Where a partnership accounting is impracticable because of the confused condition or lack of partnership accounts, the partners having by their conduct impliedly consented to conduct the business without an accounting, a report of the referee as an approximation to an accounting may be made the basis for the distribution of the firm assets, although it cannot stand as an account.</p>

<p> Adverse possession: Rebuilding line fence: New entry: Permission: Evidence: Sufficiency: Continuity of possession: Land not included in deeds: Conveyance by husband to wife: Equitable title: Possession by husband: Willow’s possession: Absence of intent to claim adversely. </p> <p>1. For twenty-nine years there existed a substantial fence between the property of plaintiff and of defendant which was always maintained on the line where originally placed for more than twenty years. About twenty years before the commencement of plaintiff’s action defendant and her husband rebuilt the fence on the same line where it was first placed, without objection by any one. Defendant and her predecessors in title always claimed that the fence marked the true boundary line and occupied adversely the land included within it. Plaintiff claimed that during a portion of the time the occupancy of the defendant’s grantors was permissive. Held, that the rebuilding of the fence amounted to a distinct hostile entry sufficient to ripen into title by adverse possession, even though there had been permissive use prior to that time; and it was incumbent on the true owner to establish permissive use after such entry.</p> <p>2. In an action in equity to restrain repeated trespasses the evidence is held sufficient to sustain the finding of the trial court that the defendant had acquired the property in question by adverse possession, notwithstanding evidence of a permissive use prior to the rebuilding of the new line fence.</p> <p>3. The continuity of adverse possession is not broken by the fact .that the land in controversy was not included in any deeds by defendant or predecessors in title, if the land so claimed was within the limits of the boundary line adopted.</p> <p>4. Where defendant in adverse possession was a married woman and derived title through a deed from her husband, executed before conveyances between husband and wife were authorized, such deed, although it did not convey a legal title, did convey an equitable title, so that the continuity of the wife’s adverse holding was not interrupted.</p> <p>5. The fact that possession was not delivered at the time of the execution of the deed from husband to wife and that the husband occupied the land for a year after such deed, was not sufficient to interrupt the running of the statute, because the holding by the husband and wife, or either of them; "was adverse as against the true owner, especially where, before the commencement of plaintiffs action, the entire title and possession had passed to defendant.</p> <p>t>. Where defendant in adverse possession was a married woman and derived title through a deed from her husband before direct conveyances between husband and wife were authorized, and the husband occupied the land for a year after such deed but died before commencement of plaintiff’s action, and his widow, under sec. 3872, Stats. (1898), was entitled to and did occupy the lands claimed adversely, held, there was sufficient privity between defendant and her husband to constitute a continuity of adverse possession from husband to defendant.</p> <p>7. Evidence of a defendant claiming title by adverse possession to the effect that she never intended to claim beyond the true boundary line, held insufficient to defeat her title acquired by actual adverse possession.</p>

<p>Appeal from a judgment of tlie circuit court for Chippewa county: A. J. Vhtjte, Circuit, Judge.</p> <p>Among other references upon the part of the appellant were the following: Sees. 925 — 61, 925 — 65, 925 — 67, '925 — 69, 3662, 4744, Stats. (1898) ; Heeler v. State, 43 Wis. 479; Harrington v. Slate, 50 Wis. 68, 6 TT. W. 317; McNamara v. Spees, 25 Wis. 539; Perkins v. Jones, 28 Wis. 243; Weame v. Smith, 32 Wis. 412; secs. 17, 27, 28, ch. 82, Laws of 1885; Davey v. Janesville, 111 Wis. 628, 87 U. W. 813; sec. 15, art. VII, Const.; In re Boyle, 9 Wis. 264 ; Cole v. Black River Palls, 57 Wis. 110, 14 IT. W. 906; Forty v. Paine, 62 Wis. 154, 22 1ST. W. 137; In re Burke, 76 Wis. 357, 45 IT. W. 24; Fenelon v. Butts, 49 Wis. 342, 5 U. W. 784; Norton v. Shelby Go. Tax. Disi. 118 IT. g! 425, 6 Sup. Ct. 1121.</p> <p>Among other references upon the part of the respondents were the following: Baizer v. Lasch, 28 Wis. 268; State ex ■rel. Dearborn v. Merrick, 101 Wis. 162, 77 IT. W. 719; Brosde v. Sanderson, 86 Wis. 368, 57 1ST. W. 49; State v. Tall, 56 Wis. 577, 14 1ST. W. 596; State v. Boncher, 59 Wis. 477, 18 IT. W. 335; secs. 3744, 4739-4774 (ch. 194), Stats. (1898); 'sec. 2, art. VII, Const.; secs. 3569, 3570, 3623, 3625, 3616, 3617, Stats. (1898) ; secs. 853a, 926, Id.; subd. 5, sec. 3574, Stats. (1898) ; Grate v. Petbepher, 112 Wis. 252, 87 1ST. W. 1104; Platteville v. Bell, 43 Wis. 488; Pulton v. Slate ex rel. Meiners, 103 Wis. 238, 79 U. W. 234; State ex rel. Haeselich v. Schweitzer, 131 Wis. 138, 111 1ST. W. 219; State ex rel. Wood v. Goldstucker, 40 Wis. 124; State ex rel. Jones v. Oates, 86 Wis. 634, 57 ÍST. W. 296.</p>

Arpear from an order of the circuit court for Jefferson county: George Grimm, Circuit Judge. This appeal is from an order made July 15, 1907, denying the application of the contestants of an instrument purporting to he the last will and testament of David G. Eraser, deceased, for a change of the place of trial of said action.

<p> Appeal: Sufficiency of evidence. </p> <p>On an appeal on the ground that the ruling of the trial court was contrary to the evidence there are two very important elements which are generally of sufficient weight to sustain the trial court in ease the evidence is conflicting, viz., the presumption in favor of the correctness of the findings helcw because of the superior advantages of the trial court for determining the credibility of witnesses, and the wide difference between mere and clear unmistakable preponderance of the evidence. Where the respondent is thus aided by these two elements, the probative character of the appellant’s evidence must necessarily be so strikingly superior as to leave only a shadowy ground, if any in reason, in support of the decision complained of to warrant a reversal.</p>

<p>'Appeal from a judgment of tire circuit court for Greeu •county: Geoege Geimm, Circuit Judge.</p> <p>The defendant, being a manufacturer and dealer in cheese at Brodhead, Wisconsin, and having several tributary local cheese factories, entered into a written agreement with the plaintiff whereby from April 1, 1905, to April 1, 1906, he engaged the plaintiff “as cheese-maker.” The contract provided for supply of tools and machinery by defendant and return thereof by plaintiff unimpaired; also that defendant should provide the necessary supplies and materials; that plaintiff should receive milk from the farmers and supply any additional help he might need; that he should keep tools clean and in good condition, and keep factory and cellar clean; that he should have use of the factory as a residence and cheese and milk for the use of his family. The plaintiff further</p> <p>'“agrees to make Limburger cheese, or cheese whenever so desired by the party of the first part. The cheese-maker also agrees and binds himself especially to do the cheese-making in a clean, good, and workmanlike manner to the best of Ms-ability, to tend and cure the cheese properly until fully cured or until requested by the party of the first part to pack and ship the goods. He also agrees to take care of the cheese until all of the season’s product has been ordered away by the party of the first part, and in general binds himself to do everything required for the operation of a cheese factory, even if not especially mentioned in this contract.”</p> <p>The defendant agreed to compensate the plaintiff by paying him seventy-five cents per 100 pounds of Limburger cheese manufactured by him. Appended to the contract, which was upon a printed blank, was the paragraph:</p> <p>“Party of the second part [plaintiff] also agrees to stand good for any loss or damage on bad cheese if caused through his negligence.”</p> <p>Plaintiff remained throughout the year and manufactured Limburger cheese, of which 42,302 pounds was taken by defendant into his warehouse at Brodhead and sold by him. Payments were made to plaintiff from time to time as his living expenses required, amounting to about $245, so that there would have been due him at the contract rate of compensation about $46. The payments never had reference' to any specific deliveries of cheese nor to the total amount earned at the time they were made, being mere general advances. Plaintiff brought this suit to recover the balance of compensation. Defendant interposed counterclaim alleging that plaintiff, through lack of skill and negligence, spoiled a large amount of cheese by reason of doing his work in a negligent, unskilful, and unworkmanlike manner, to the damage of the defendant in the sum of $949.'71, and also that through his lack of skill and negligence he caused injury to one of the appliances of the factory to the amount of $50, for both of which recovery was prayed. The jury found a general verdict in favor of the plaintiff for the undisputed amount of the balance of compensation at the contract rate, disallowing the counterclaims entirely. Erom judgment entered on this verdict the defendant appeals.</p>

<p> Vendor and purchaser:.Contract construed: Consideration: Condition, precedent: Vendor's title: Damages. </p> <p>1. Defendants having acquired title to plaintiff’s premises hy foreclosure of their mechanics’ lien leased the same to her for one year, and at the same time gave her a written option to purchase within one year on payment of a specified sum. The léase' provided that in case she exercised her option the rent should apply on the purchase price. Plaintiff, having occupied the premises, elected to purchase. Held that, the option and the lease being substantially contemporaneous, relating to the same-subject matter, and aiming to carry out a common purpose* there was ample consideration for the same.</p> <p>2. Where an option agreement provided that the vendors would convey on the payment by the vendee of a specified sum and the payment of the taxes "to the proper officers,” held, that the actual payment of the taxes to the proper officers was not a condition precedent, and the vendee’s failure to pay them when due did not work a forfeiture of the option, if they were paid before the expiration of the option period.</p> <p>3. Where an option agreement recited that the vendor had acquired title to the premises by foreclosure and that they would convey the same by a good and sufficient quitclaim deed, held, that the agreement called for a conveyance of the entire estate of the land embraced therein, and'was in no way restricted by the prescription of the form of the conveyance by which the transfer should be made.</p> <p>4. Where the vendors in an option agreement calling for the conveyance of the entire estate of land embraced therein have disabled themselves from complying with their agreement, the-plaintiff upon election to purchase and tender of performance is entitled to recover the value -of the premises at the time the conveyance was demanded, less any sum due the vendors under-the option agreement.</p>

■ Appeal from an order of the county court of Dodge county: J. A. Barney, Judge. This is an appeal from an order setting aside a judgment and permitting the defendant to answer. Among other references upon the part of the appellant were the following: Sec. 2832, Stats. (1898) ; Main v. Me-Laughlin, 78 Wis. 449, 47 1ST. W. 938; Jefferson Go. Bank v. Robbins, 67 Wis. 68, 29 N. W. 209, 893; Wheeler & W. Mfg.

S. Gbiswold, Judge. This is an action by the beneficiary in an accident insurance policy issued by the defendant October 26, 1.905, to recover the death indemnity provided thereby. The plaintiff is the widow of Erank Knoebel, the assured, who was at the time of the issuance of the policy superintendent of a, stone quarry near Waukesha, Wisconsin, and met with an accident resulting in his death within a few hours on October 5, 1906.

Action to recover on an insurance policy. The issues were tried by the court without a jury and,, omitting formal matters, were thus iu substance closed as to-facts: September 15, 1904, defendant duly made and delivered to plaintiff an insurance policy covering the risk of loss by fire or lightning of the- former’s live stock, including a horse, the value of which it is sought to recover.

Bubnell, Judge; also> from an order of tbe same court: W. C. SilveethoeN, Circuit Judge. Tbe petitioner, Christian Baile, seeks to bave tbe proceedings of tbe Marathón county circuit court for the incorporation of tbe village of Unity set aside and vacated upon tbe ground that such proceedings are illegal and void. Petitioner alleges that be is a resident, and taxpayer of tbe territory sought to be incorporated.

J. Ebuit, Judge. The plaintiff, a common laborer, but with many years’ experience in working at machinery and considerable experience with the machine at which he was injured, was employed to aid another man in operating what is called a drop* hammer, which was arranged so that automatically a belt and pulley served to raise the hammer until it was engaged by a clutch, whereon it rested when not in use, which clutch was forced under the hammer by a spring.

B. Belden, Circuit Judge. The will of James M. Dardis, of Racine county, Wisconsin, was presented for probate by Jdhn T. Lee, the executor therein named, and notice duly given. The will was made in November, 1904; devised a house and lot to’ one daughter, and the rest of the property, real and personal, to seven named sons and daughters in equal shares, save that one of them was to have twice as much as each of the others.

'Appeal from, a judgment of the circuit court for Winnebago county: Chas. M. Webb, Judge.

<p>Appeal from a judgment of tbe oironit court for Sheboy-gan county: Michael Kibwait, Circuit Judge.</p> <p>Action to recover on an accident insurance policy issued on the mutual assessment plan.</p> <p>The contract secured to plaintiff, as beneficiary, the sum of $8,000 in case of the death by accidental means of George W. Corbett, her husband. The complaint contained all allegations essential to a recovery. The answer stated three defenses, as follows, in effect: (1) The defendant is a Nebraska corporation which has never complied with the laws of this state authorizing service of process upon it by serving upon the commissioner of insurance >and the only service made was of that character; (2) without waiving the plea to the jurisdiction of the court the defendant shows that it never qualified to do business in this state and, therefore, the making of the insurance contract was prohibited by sec. 1978, Stats. (1898), and is not enforceable in the courts of this state; (3) without waiving any right under the foregoing the allegations of the complaint as to the assured being a member in good standing of the association at'the time he was injured are denied, and it is alleged that he ^as not such member by reason of bis having failed to pay the last assessment upon bis policy, wbicb was due five days before bis death, prior to the date of bis injury. There were other allegations in the answer to the merits and a reply so that the issues as made up for trial involved these disputed matters: Did the court obtain jurisdiction of the defendant and the subject of the action by service of the summons upon the insurance commissioner under sec. 1955/, Stats. (1898) ? If such jurisdiction was obtained, it being admitted that the defendant was a Nebraska corporation and not competent to do business in this state by reason of its having failed to comply with the law in that regard, was the j>olicy contract, though good in Nebraska, one enforceable at the suit of plaintiff in this state, under the circumstances, if the assured was a member of the association in good standing at the time of the accident? Was the assured such member, having paid the assessment upon his certificate due December 10, 1905, before he was injured. If he did not so make such payment, did he make it thereafter, and was the default waived ?</p> <p>The plea to the jurisdiction was tried first and overruled. Defendant by its counsel excepted to the ruling. No specific objection was made to then proceeding to a trial upon the merits, which was done. Before the hearing commenced there was a stipulation that the jurisdictional matter should first be disposed of, and then, if the decision should be adverse to the defendant, tire trial should proceed on the merits.</p> <p>It appeared by the evidence and the pleadings, beyond controversy, that the association at the time of the accident had some fifty members in this state; that it was not qualified under the law to do business in this state; that it had no agent or place of business therein and conducted all its transactions by means of the United States mail. There was evidence further to this effect: The association, as was customary, issued the certificate to the assured and transmitted the same to him by mail in response to his application likewise received. Tbe customary way in wbicb tbe assured bad made bis payments was by sending checks through tbe mail. The following by-law was a part of the contract:</p> <p>“Sec. 2. Upon receiving notice of an assessment, it is tbe duty of each member to remit promptly- to tbe secretary-treasurer. Any member who' shall not. remit tbe amount of bis assessment when due, shall become suspended, and will not be entitled to any benefits of tbe association until bis certificate of membership shall have been reinstated, as hereinafter provided. Any such suspended member may be reinstated to membership upon tbe payment of tbe amount of tbe delinquent assessment, together with .the amount of such other calls as may have been made upon tbe members of tbe association, after such member became suspended.”</p> <p>The last assessment upon tbe certificate was payable December 10, 1905. A cheek dated December 10, 1905, signed by tbe assured for tbe amount- thereof,, inclosed in a letter dated December 18, 1905, was deposited in tbe postoffice, duly addressed to tbe association, or its proper officer, and ■was thereafter received and put in process of collection before such association knew of .the accident. Such accident occurred December 15, 1905, about 10 o’clock in the forenoon. Tbe assured, upon it happening, became unconscious. He so remained until be died. The association received notice of the accident the day before tbe'check was paid. It received and retained tbe money till some time after its officer, duly authorized in tbe premises, visited Wisconsin and made a personal examination into'the merits of plaintiff’s claim, when the same was tendered back to tbe plaintiff in her capacity as administratrix of her husband’s estate. There was a controversy on tbe evidence as to1 whether tbe letter containing the check was ’ deposited in the postoffice prior to the accident and also as to wh.eth.er the same was received and placed in course of collection prior thereto. There was no evidence showing, or tending to show affirmatively, that the assured, when he became-a member of the as-soeiation or at any time thereafter, knew that it had not complied with the laws of the state of Wisconsin qualifying it to do "business therein.</p> <p>The jury rendered the following verdict:</p> <p>“(1) Was the check which is in evidence and bears dato of December 10, 1905, signed by plaintiff’s hnsband, George W. Corbett, before he received the injury in the forenoon of December 15, 1905, which caused his death? A. Yes.</p> <p>“(2) Was the letter in which said check was inclosed when received by the’ defendant, deposited and left, or caused to be deposited and left, by said George W. Corbett, in the postofEce in Plymouth, Wisconsin, to be forwarded by mail, before the time when he received said injury? A. Yes.</p> <p>“(3) Was said check received by defendant, at Omaha, Nebraska, before the time when said George W. Corbett received said injury? A. Yes.</p> <p>“(4) (Withdrawn and not submitted.)</p> <p>“(5) Was the letter which is dated December 13, 1905, in which said check was inclosed when received by defendant, written or caused to be written by said George W. Cor-bett ? A. Yes.</p> <p>“(6) Before said check was deposited by defendant in the bank at Omaha, on December 18, 1905, did defendant, through its secretary and treasurer, E. E. Elliott, have knowledge or information that said George W. Corbett had received said injury ? A. (by the court by consent of counsel) No.</p> <p>“(I) Before said check was paid by the bank at Plymouth, Wisconsin, on December 21, 1905, did defendant, through its secretary and treasurer, E. E. Elliott, have knowledge or information that said George W. Corbett had received said injury ? A. (by the court by consent of counsel) Yes, the notice of injury was received by defendant on December 20, 1905.</p> <p>“(8) Did E. E. Elliott, the secretary and treasurer of the defendant corporation, while at the city of Plymouth in the month of December, 1905, after the death of George W. Corbett, request of M. O. Moad, the attorney for the plaintiff and beneficiary, that the plaintiff furnish proofs of death of the deceased in accordance with the by-laws of defendant corporation? A. Yes.”</p> <p>Motions and rulings were made and exceptions taken pre•serving for review the questions discussed in the opinion. Judgment was rendered in favor of plaintiff, from which this appeal was taken.</p>

'Appeal from an. order of the circuit court for Washington county: MaRtiit L. Lueok, Circuit Judge. The appeal is from an order overruling’ plaintiff’s demurrer to' defendant’s answer and counterclaim.

<p>Appeal from a judgment of the county court of Dodge county: J. A. Baisitey, Judge.</p> <p>Action against Roeming and Opperman as copartners under the name of the Northern Contracting Company to recover hoard furnished them. Plaintiff was a hotel-keeper in Horicon. The defendants were building contractors living elsewhere, who had a contract for work in Horicon requiring their presence while in progress. The evidence tends to prove that Roeming applied to plaintiff for board for his men and for himself and partner and was given rates; that while the work was in progress certain of the workmen were boarded at the hotel, as also Roeming and Opperman. Roeming paid for the board of himself and some of his men, leaving unpaid Opperman’s board, which is the subject of this suit. Opper-man was not served personally with summons and made no appearance, except as the attorney for Roeming also entered appearance for the partnership of Roeming and Opperman. After trial to a jury the court directed a verdict in favor of the defendants and entered judgment dismissing the action, from which plaintiff appeals.</p>

<p> Evidence: Varying written contract: Contract for benefit of third parties: Counties: Building contracts: Protecting third persons: Foreign corporations: Interstate commerce. </p> <p>1. A contractor agreed to construct certain portions of buildings for a county and bound himself to pay “all claims for labor performed and materials furnished” for his portion of the work, and gave a bond conditioned for the faithful performance of his contract. Eeld, there being no ambiguity in the agreement, parol evidence could not be received to explain, modify, ^ or contradict it.</p> <p>2. The fact that such agreement operated to benefit a third party, who did not personally assent to its terms at the time of its inception or before the materials were furnished, would not alter the rule as to the right to modify written agreements by parol evidence.</p> <p>3. Where a principal contractor hound himself to the faithful performance of his agreement with a county for the erection of certain portions of buildings and to “pay all claims for labor performed and materials furnished” for such work, held, that, upon the consummation of the transaction between the immediate parties, a third person, furnishing materials for such work, obtained a right under the contractual terms thus established for his benefit which he could enforce against the sureties on the contractor’s bond in the same manner and to the same extent as if he had personally entered into and assented to the engagement.</p> <p>4. The power conferred upon a county, under sec. 604, Stats. (1898), to contract for the erection of an insane asylum, includes authority to make contracts for the benefit of third persons dealing with immediate contractors of the county, so that such persons supplying materials may recover therefor under the contractor’s bond to pay all claims for materials furnished.</p> <p>5. A foreign corporation manufactured brick in Illinois, loaded them on cars there, and shipped them, pursuant to a contract procured by its traveling salesman in this state and approved at the company’s home office in Illinois, to a contractor in this state, who received them f. o. b. cars at destination. Held, that the transfer of the brick from the possession and ownership of the foreign corporation to the possession and control of the contractor constituted interstate commerce, in which said corporation was entitled to engage without complying with sec. 17705, Stats. (1898).</p>

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

<p>Appeal from a judgment of the circuit court for Mari-nette county: S. D. HastiNgs, Circuit Judge.</p> <p>Among other references upon the part of the appellant were tbe following: Sweet v. Ohio 0. Co. 18 Wis. 127, 47 N. W. 182; Faber v. C. Beíss C. Co. 124 Wis. 554, 102 N. W. 1049; Albrecht v. C. & N. W. R. Co. 108 Wis. 530, 84 N. W. 882; Kerrigan, v. C., M. & St. P. R. Co. 104 Wis. 166, 80 N. W. 586; 2 Words & Phrases, 1319; McKivergam v. Alexander & K. L. Co. 124 Wis. 60, 102 N. W. 332; Mac-Carthy v. Whitcomb, 110 Wis. 113, 85 N. W. 707; Smith v. Q., M. -& St. P. R. Co. 91 Wis. 503, 65 N. W. 183; Fwald v. C. & N. W. R. Co. 70 Wis. 420, 36 N. W. 12, 591; Toner v. C., M. & St. P. R. Co. 69 "Wis. 188, 31 N. W. 104, 33 N. W. 433; Rueping v. C. & N. W. R. Co. 123 Wis. 319, 101 N. W. 710; 13 Oye. 135, and note 78.</p> <p>Among other references upon the part of the respondent were the following: Wedgwood v. C. & N. W. R. Co. 44 Wis. 44; Brabbits v. C. & N. W. R. Co. 38 Wis. 289; Welty v. Lake S. T. '& T. R. Co. 100 Wis. 128, 75 N. W. 1022; Grams v. C. Reiss C. Co. 125 Wis. 1, 102 N. W. 586; Hmiann v. Milwaukee B. Co. 127 Wis. 550, 106 N. W. 1081; Bigelow v. C., B. & N. R. Co. 104 Wis. 109, 80 N. W. 95; Meddles v. C. é N. W. R. Co. 77 Wis. 228, 46 N. W. 115; Dugan v. C., St. P., M. é O. R. Co-. 85 Wis. 609, 55 N. W. 894; Own* mings v. Nat. F. Co. 60 Wis. 603, 18 N. W. 742, 20 N. W. 665; Heath v. Stewart, 90 Wis. 418, 63 N. W. 1051; Baltzer v. C., M. & N. R. Co. 89 Wis. 257, 60 N. W. 7,16; Neilon v. Marinette ,<£ M. P. Co. 75 Wis. 579, 44 N. W. 772; Hinton v. Cream City R. Co. 65 Wis. 323, 27 N. W. 147; Ferguson v. Wis. Cent. R. Co. 63 Wis. 145, 23 N. W. 123; Nadau v. White River L. Co. 76 Wis. 120, 43 N. W. 1135; Schmidt v. M. & St. P. R. Co. 23 Wis. 186; Berg v. C., M. & St. P. R. Co. 50 Wis. 419, 7 N. W. 347; Olwell v. SJcobis, 126 Wis. 308, 105 N. W. 777; Wysoclci v. Wis. Lakes I. & C. Co. 121 Wis. 96, 98 N. W. 950; Heer v. WarremScharf A. P. Co. 118 Wis. 57, 94 N. W. 789.</p>

D. Hastings, Circuit Judge. This action was brought by the appellant against the respondent for divorce on the ground of cruel and inhuman treatment. The parties intermarried in December, 1889, and have one child, a boy fifteen years of age. The proof showed that the married life of the parties had not been at all times harmonious, and that for more than a year prior to the commencement of the action they had not lived together.

<p> Railroads: Highway crossings: Signals: Statutes: Construction: Duty independent of statute: Evidence: Sufficiency: Duty to stop: Disregard of duty: Negligence: Proximate cause. </p> <p>1. While sec. 1809, Stats. (1898), requiring of a railroad company the blowing of the engine whistle eighty rods from a highway crossing, • cannot be complied with where the engine starts within that distance, still the requirement that the engine bell be rung is applicable and entirely possible of fulfilment, at least from the point of starting until the highway is crossed.</p> <p>2. Even in the absence of express statutory requirement it was the duty of railroad employees in charge of an engine to approach a highway crossing with due care, having regard to the physical surroundings and the obstructions to vision, if any, and if the circumstances called for the giving of signals for the safety of travelers approaching the crossing using due care, the omission to give such signals would be negligence.</p> <p>3. In an action for injury to plaintiffs team caused by a railway-crossing collision, held, that there was evidence which would have justified -the jury in finding that no signal was given by the railroad company and that such failure was negligent</p> <p>4. It cannot he held as matter of law that it is always the duty of one approaching a railway crossing to stop, even though he he driving a team. Whether it is his duty to stop as well as to look and listen is a question for the jury after due consideration of all the surrounding circumstances.</p> <p>5. In an action for damages to plaintiffs team caused hy a railway-crossing collision, it appeared that there was a clear view of the crossing for 140 feet, that the highway was sandy, that plaintiffs vehicle was a spring huggy which made very little noise; and there was no evidence of other noises or of any wind blowing. A verdict for defendant was directed on the ground that it was plaintiffs duty-to stop, look, and listen before he came so near the crossing that he would he struck or that his horses would he frightened hy an approaching train, and failure to observe this duty necessarily constituted negligence which was the proximate cause of the injury. Held error, as, under the circumstances, whether ordinary care required him to stop his team was a question for the jury.</p> <p>6. Sec. 1809, Stats. (1898), requiring that the engine hell be rung before reaching and while passing over a highway crossing, is designed, not-merely to prevent travelers who are about to use the crossing from running into the train, but also to enable them to know of the approach of the train at a sufficient distance to guard their horses against taking fright.</p> <p>7. Where a switch engine approached a railway crossing without giving the signals required by statute, and a traveler driving toward such crossing looked and listened for signals but did not stop, the circumstances not being such as to make it negligence as a matter of law for him to approach without stopping, and by reason of the failure to give the signals he was led to approach nearer than he otherwise would have done, and to a point where the sight and noise of the coming train frightened his horses, causing them to become unmanageable so that they dashed against the train, the failure to give proper signals was the proximate cause of the collision.</p>

D. Hastings, Circuit Judge. The plaintiff, haying a note and mortgage executed by one Clegg, after the maturity thereof and on April 1, 1905, entered into a written agreement with Clegg for an extension on consideration that Clegg should pay eight per cent, interest instead of six and one-half per cent, as originally provided by the note and mortgage.' Before this agreement Clegg had made a conveyance of said property to one Mc-Arthur, from whom the appellant Erickson…

D. Hastings, Circuit Judge. This is an action to quiet title. The respondent claims an interest in the premises through a mortgage executed hy the owner, E. T. Clegg, April 14, 1905.

Parish, Circuit Judge. This action was brought by the plaintiff against defendant, a common carrier, to recover damages alleged to- have been caused by the negligent transportation of horses and han nesses delivered to it for carriage, in consequence of which negligence some of the horses died and the harnesses- were damaged.

<p>iAppeal from an order of tlie circuit court for Ashland county: Joins' K. PaRish, Circuit Judge.</p> <p>The appeal is from an. order sustaining a demurrer to the complaint.</p> <p>Among other references upon the part of the appellant were the following: Newton v. Marshall, 62 Wis. 8, 21 N. W. 803; Hunger-ford v. Bedford, 20 Wis. 345; Gulf. G. '& S.. F. B. Co. v. Ciarle, 101 Eed. 618; Dillingham v. Fisher, 5 Wis. 475; Shiver v. U. S. 159 U. S. 491, 16 Sup: Ct. 54; Wadleigh v. Marathon Go. Bank, 58 Wis. 546, 17 N. W. 314; Peyton v. Desmond, 129 Eed. 1; Kralcow v. Wille, 125 Wis. 284, 103 N. W. 1121. *</p> <p>Among other references upon the part of the respondents-were the following: Knight v. Leary, 54 Wis. 459, 11 N. W. 600; Act June 3, 1878, ch. 151, 20 U. S. Stats, at Large, 89, amended by Act Aug. 4, 1892, ch. 375, 27 U. S. Stats, at Large, 348 (U. S. Comp. Stats. 1901, p-. 1547) ; Gawley v.. Johnson, 21 Eed. 492; Jones v. U. S. 35 Eed. 561; Montgomery v. U. S. 36 Eed. 4; U. S. v. Budd, 43 Eed. 630; Cornelius v. Kessel, 58 Wis. 237, 16 N. W. 550; secs. 2198,. 4165, Stats. (1898) ; Braclcen v. Preston, 1 Pin. 365; Gun-solus v. Dormer, 54 Wis. 630, 12 N. W. 62; 26 Am. & Eng. Ency. of Law (2d ed.) 584, and note 2.</p>

<p>Appeal from a judgment of the municipal court for Mara1-thon county: Louis MaRCHetti, Judge.</p> <p>This action was brought in the municipal court for Marathon county by the respondents to set aside two conveyances of lands and to establish their title thereto as against the appellant. The respondents are the surviving children of John 0. Olarke and Rhoda J. Clarke, and appellant is the widow of John 0. Olarke by a later marriage, and claims the lands through conveyances from him. One parcel of land is located in Lincoln county and is vacant and unoccupied, and the other consists of a house and lot in Wausau, which had been occupied as a homestead by John 0. Olarke in his lifetime. Rhoda J. Olarke died testate in 1892, being then the owner of the land in question and of the house and lot. By her will she gave John 0. Olarke, who was named as executor, all her estate, real and personal, with full power to sell the same and to use during his life, and upon his decease the remainder to ber children. The ownership of Rhoda J. Clarke of the house and lot in Wausau was that of vendee in a land contract executed to her by one D. B. Wylie in 1888, and there was due thereon at the time of her death $1,350. By the contract she agreed to pay the purchase price, and assigned as further security for such payment a paid-up life insurance policy payable to her upon the life of her husband, John C. Clarke. A foreclosure of the land contract was commenced in 1894 by the administrator of the estate of I). B. Wylie, then deceased, but a settlement was made prior to judgment. The life insurance policy which had been assigned by Rhoda J. Clarke as security for the purchase price of the land provided that if she died before her husband the proceeds thereof should be paid to their children. The consent of the respondents, they being the surviving children, was obtained to the surrender of the policy and the issue of a new paid-up policy to the plaintiff in the foreclosure suit in settlement of the amount due upon the land contract, 1» discharge the obligation. Thereupon the representative of the Wylie estate conveyed the premises to' John 0. Clarke by warranty deed, excepting from the warranty “any claim of Rhoda J. Clarke or persons claiming under her.” John C. Clarke was at the time occupying the premises as a homestead under the will of his deceased wife. The court found that the title of the land was not taken in the name of John C. Clarke with the consent or knowledge of the respondents. John C. Clarke married the appellant in 1899. He made a will in February, 1903, leaving her all his property, and died December 14, 1906. In May, 1901, John C. Clarke executed a deed to the appellant of the house and lot in Wausau, which was recorded December 14, 1906, and on December 3, 1906, conveyed to her the land in Lincoln county by deed recorded December 19, 1906. The court 'found that the appellant paid no consideration for either of said conveyances and that the same had no efficacy as against the respondents, and directed judgment establishing their title to the lands. This appeal is from the judgment.</p>

<p>Appeal from a judgment of the superior court of Lincoln -county: Almost A. Helme, Judge.</p> <p>This is a statutory action to remove a cloud from the title of a forty-acre tract of unoccupied land in Lincoln county. The defendant claimed title under a quitclaim deed from James A. Andrews and wife executed in October, 1906, and duly recorded on the 16th of that month. The evidence showed that on and prior to February 18, 1885, the parcel was owned by John Oomstock in fee and that on that day he conveyed the same by warranty deed, together with a large number of other parcels of land, to the plaintiff corporation, which deed was filed for record in the proper office December 11, 1885, but that the register of deeds by mistake omitted to copy into the record of the deed this one description; that John Comstock thereafter died testate, and that by virtue of his will and of subsequent wills of residuary devisees therein said James A. Andrews and wife became the owners of all the right and title of said Comstock in any lands owned by him not specifically devised, the parcel in question not being so devised; that in October, 1906, the defendant was a woodsman or land cruiser in Lincoln county and was doing' a land business as well as an abstract business at Merrill in copartnership with Thos. L. Davison, a lawyer, the land business being conducted under the name of the Merrill Land ■Company and the abstract business under the name of the Lincoln County Abstract Company; that the abstract company for a long time prior to the year 1906 had a map in their office purporting to show the ownership- of each government forty in the county, and that the plaintiff’s name was printed in the forty in question; that in March, 1906, the defendant firm furnished to one Mead the ownerships of lands in Lincoln county for a new map which the said Mead was preparing, and that in furnishing such data the defendant participated, and the name of the plaintiff was given as the owner of the tract in question; that Selover testified that they used the abstract records to get the ownerships, but must have used the map to get the ownership of the land in question; that the firm dealt in Lincoln county lands, and made a practice of searching the abstract records for titles which they could buy for nominal considerations; that they found this forty and some others which were apparently still owned by John Comstock and had been since 1874; that on inquiry they found that Andrews was the heir of Comstock and that they sent him a letter in July, 1906, asking for a quitclaim deed of one or two descriptions, and offering to pay $5 for executing the deed, and finally secured the quitclaim for $5; that they made uo inquiries to see if any one else claimed the land; that there appeared to he no tax titles against the land; that they considered it worth $1.50 to $2 per acre; that they made no search to see who had been paying the taxes and that “it looked queer” to them that they could buy the land at $5 a forty when apparently some one had been paying taxes on it for more than twenty years; that they made no inquiry of Andrews as to whether he had a good title, and made no search to see whether this land was inventoried as a part of Comstock’s estate. It also appeared that the plaintiff had regularly paid the taxes upon the parcel since its purchase in 1885 and that the assessed valuation thereof in the years 1904, 1905, and 1906 was $150; and that Selover made the purchase for himself and his copartner, Davison, with firm funds.</p> <p>Upon these facts the trial court held that the defendant and Davison before the delivery of their deed had knowledge of facts sufficient to put them upon inquiry, which inquiry if pursued with reasonable diligence would have resulted in the discovery of the fact that plaintiff owned the lands in question; that the defendant was not a purchaser iu good faith for a valuable consideration, and that the plaintiff was the owner of the lands. Judgment was entered establishing plaintiff’s title, and the defendant appeals.</p>

<p> Fraudulent conveyances: Statute: Construction: Effect: Entry of judgment after conveyance: Lien: Creditor’s remedies: Execwtion: Levy on real estate: Necessity: How made: Sufficiency. </p> <p>1. The word “void” in sec. 2320, Stats. (1898), relating to conveyances of property in fraud of creditors, means voidable.</p> <p>2. If a debtor, by collusion with, another, conveys his realty to such other in fraud of his creditors, notwithstanding sec. 2320, Stats. (1898), the title to such realty thereby passes to such other,, subject to such remedies as the law affords the creditors to reach the same for the satisfaction of their claims.</p> <p>3. In case of a conveyance of realty, falling under the condemnation of sec. 2320, Stats. (1898), a judgment subsequently entered in favor of a creditor, intended to be defrauded, does not by such entry alone, become a lien on such realty.</p> <p>4. In case of the entry of a judgment in the circumstances before stated, the judgment creditor may obtain a lien on the realty by an execution levy, and then maintain an action in equity to remove the cloud thereon consisting of the fraudulent transfer.</p> <p>6.In case of the entry of a judgment in the circumstances stated, the judgment creditor may, without first obtaining a specific lien on' the realty, enforce his right thereto, conditioned upon his not having any remedy at law to collect his claim, by an action in equity to remove the fraudulent transfer, interfering with such judgment attaching to the property.</p> <p>6. Real estate is not subject to an execution levy, in the sense of an actual seizure of the property, as in case of personalty, but it may be constructively levied upon, a specific lien being thereby-obtained.</p> <p>7. There is no way pointed out by statute for making a levy on real' estate under an execution.</p> <p>8. Any overt act by an officer holding an execution collectible out of realty, showing a formed purpose to appropriate such property to the satisfaction of the writ, such as an advertisement upon such writ of a levy upon the property, with the purpose of pursuing the same to effect, is an efficient levy thereon.</p> <p>9. In an action to remove a fraudulent transfer of realty, interfering with an efficient sale thereof under an execution levy, the complaint sufficiently shows the acquirement of a specific lien by means of such levy, if it shows a legitimate basis for an execution and that before the commencement of the action execution was duly issued upon the judgment and the property was thereunder duly levied upon.</p> <p>10. It is sufficient in a complaint for a legitimate basis for a valid execution against an alleged judgment creditor, to show that the judgment was “rendered and entered” in an appropriate jurisdiction.</p> <p>[Syllabus by Maeshail, J.]</p>

<p>Appeal from a judgment of the circuit court for Eond du Lac county: Ohestee, A. EowleR, Circuit Judge.</p> <p>Action of replevin for automatic slot piano under claim of absolute ownership in the plaintiff. The evidence tended to establish that for some time prior to July, 1906, one Lar pine, a saloon-keeper at Eond du Lac, owned the piano as a. part of his saloon fixtures, being indebted for most of the purchase price therefor to the plaintiff, which was secured by an unrecorded chattel mortgage. On July 13th Lapine, after a few days of negotiation, Sold his saloon with stock and fixtures to one Bethke, not including the piano, which, however, remained in the saloon. About the 13th of July, while negotiations were in progress, and after Bethke had decided not to purchase the piano, Lapine told Bethke that he had closed a deal with the plaintiff to take back the piano, and that one of his men would come and get it, and, in that event, to deliver it to him, and he handed the key of the piano to Bethke, which enabled him to take out any money that accumulated in the piano. Bethke subsequently sold to ■one Groesbeck, but there is no evidence of any direction to Groesbeck about the piano. While or before the negotiations for sale to Bethke were in progress, on July 2, 1906, Lapine wrote plaintiff offering to surrender up the piano in satisfaction of his liability thereon and to pay freight on same to Milwaukee. On July 5th plaintiff wrote insisting that La-pine should pay Mm at least $50 as a consideration of release. To this, on July 14th, Lapine replied, stating that he' had sold out and could not pay the $50 and substantially reiterated the former proposal. Upon the 16th plaintiff replied :</p> <p>“We have decided to accept your, proposition, and herewith accept the instrument in settlement of any and all claims we have ag’ainst you. We will have one of our men call and arrange to place the instrument with some other-party when convenient, and, in case it should he necessary to move the piano before, you can advise me and the same-will receive immediate attention.”</p> <p>There is some evidence that an agent of the plaintiff came to Eond du Lac in August and made some inquiry, and also-came in contact with defendant BecJiaud Brewing Oompamf and informed its manager that the plaintiff claimed to have a chattel mortgage upon the property; that defendant brewing company, thereupon ascertaining that no chattel mortgage was on record, sued out an attachment, and caused the same to be levied upon the piano as the property of Lapine. Whereupon plaintiff brought this action. The court submitted to the jury two forms of verdict: First, as to- whether-tire plaintiff had a chattel-mortgage interest therein; and, second, whether he had absolute ownership of the piano. The jury found absolute ownership and right of possession, also an amount of damages for1 detention; whereupon judgment was entered, from which the defendants appeal.</p>

judgment of the circuit court for Eond du Lac county: Chestbe A. EowleR, Circuit Judge: This is an action for divorce on the ground that the parties have voluntarily lived entirely separate for the space of five years next preceding the commencement of the action. The parties were married December 22, 1897.

<p>Appeae from a judgment of the circuit court for Eond du Lac county: Ohesteb A. EowleR, Circuit Judge.</p> <p>This action was commenced by the plaintiff against the defendant to recover upon nine promissory notes of $100 each executed by the defendant, ten notes having been originally executed and one paid before the commencement of this action. The answer sets up as defensive matter want of consideration, and further alleges that the notes were void because defendant was threatened with criminal prosecution for having received stolen property unless he would pay a large amount of money, and that he, through fear of said threats and in consideration of not being prosecuted, executed said notes. The answer also contains a counterclaim asking for cancellation of the notes and recovery of the amount paid on one of the notes before action brought. The plaintiff replied denying the allegations of the counterclaim. 'On the trial the court directed a verdict for the plaintiff, and •defendant appealed from the judgment entered upon the verdict.</p>

<p> Appeal: Irregular procedure: Appellant precluded by consent to allege error: Appeal from final judgment: Reviewing error in subsequent proceedings: Pleadings: Amendment: Immaterial variance: Schools: Discipline: Power to punish where no specific rules: Offenses committed after school hours: Judicial control. </p> <p>1. Where the court and the parties in an action for mandamus treated a demurrer to the return as an answer, and a consent order was entered referring the only controverted issue to a referee to report the testimony, and upon his report the court overruled the demurrer and denied the writ, the relator, having consented to such procedure, cannot complain.</p> <p>2. An appeal from a judgment in favor of respondent in an action for mandamus will not bring up for review an order denying a motion, made after the judgment, to amend the petition.</p> <p>3. Where there is no conflict oí testimony as to the facts of a proposed amendment to a petition for mandamus, a variance between the pleading and the proof is not material, and the court may under sec. 2670, Stats. (1898), find the facts in accordance with the evidence, or order an amendment to the petition.</p> <p>4. Under sec. 439, Stats. (1898), a school board may suspend a pupil for misconduct although no formal rule has been prescribed relating to such conduct.</p> <p>5. School authorities may suspend a pupil for an offense committed outside of school hours and not in the presence of the teacher which has a direct and immediate tendency to influence the conduct of the pupils while in the school room, to set at naught the proper discipline of the school, to impair the authority of the teachers, and to bring them into ridicule and contempt.</p> <p>3. School authorities are vested with a broad discretion in the government and discipline of pupils, and courts will not interfere with the exercise of such authority unless it has been illegally or unreasonably exercised.</p> <p>7. For causing the publication in a local newsiiaper of a satirical poem reflecting on the regulations of the school, certain pupils were suspended until they should apologize. Held, that the imposition of such a penalty was not an abuse of the discretion conferred upon school authorities in the discipline and government of pupils.</p>

<p>Appeal from a judgment of the circuit court for Milwaukee county: Okeen T. Williams, Circuit Judge.</p> <p>Action to recover damages for personal injuries. The defendant is a corporation owning and operating a large manufacturing plant at Wauwatosa, which is operated by steam furnished by a number of large tubular boilers. Eor some months prior to October 12, 1903, the plaintiff, a common laborer fifty-eight years of age, bad. been employed by the defendant as a general utility man, helping at blaeksmithing, steamfitting, and repairing of various kinds as he was directed. It was necessary to clean the boilers frequently, and they were cleaned one at a time. The method was to blow off the steam and hot water twelve hours or more before the' boiler was to be cleaned in order that it might be cool enough to enter, remove the manhole, and then send a man inside-with a light and hose, his duty being to wash out the inside with a stream of cold water through the hose. The plaintiff had frequently cleaned boilers when directed, and knew that if they were not cool enough inside there would be danger. He knew also that they could be tested before going in by turning the hose into them and seeing if steam was formed.</p> <p>Charles Quinlay was head engineer at the time of the accident and the plaintiff had been placed under his orders. The plaintiff claims that in the evening of October 12th the-engineer, Quinlay, told him he was going to give him a steady job'; that he was to clean one boiler every day; that he was to start with boiler No. 6 on the following morning;, that he (plaintiff) then said to Quinlay: “All right, I will start in the morning. You see that the boiler is blowed off tonight at 8 o’clock” — to which Quinlay. replied that he would see to it. The plaintiff further testifies that he came-back in the morning, found tire manhole of the boiler off, but could not find the gaskets which were necessary to prepare the manhole plates for the work; that it took some time-to get gaskets, and when he was about ready he- met Engineer Quinlay, who asked him if he hadn’t got that boiler yet, and he replied that he had been getting the manhole plates ready, and then asked Quinlay if the boiler was fixed for him to go in, to which Quinlay replied that the boiler was fixed for him to go in, that he had tested it and found it was all right, that he wanted him to take a hammer, the extension lights, go in and wash it out clean, and see that the stay bolts-were firm and stable and that there were no leaks; that be then got on the boiler with his hose and got into the boiler through the manhole and ordered the water turned on through the hose; that the water was turned on, and when it struck the back end of the boiler it turned to steam because that part of the boiler was still heated; that he got his head out of the boiler through the manhole, but could not get the-rest of his body out and was badly scalded by the steam. Plaintiff further testified that he would have tested the-boiler himself before going in if the engineer had not told him that he had already tested it. ■</p> <p>The engineer, Quinlay, denied that he promised that he-would see that the boiler was blown off before 8 o’clock in the evening, and denied that he told the plaintiff that he had tested it or that it was fit for him to go in. It was not denied that the plaintiff was seriously scalded and permanently-injured.</p> <p>A verdict for the plaintiff assessing his damages at $5,308.33 was rendered, a motion for new trial was denied and judgment rendered on the verdict, from which defendant appeals.</p>

EeeoR to review a judgment of the circuit court for Ke-nosha comity: E. B. Beldejst, Circuit Judge. The information charged three distinct offenses.

0. Brazee, Judge. This case comes here on writ of error to the municipal court of Milwaukee county. The plaintiff in error, hereinafter called the defendant, was convicted under sec. 4380, ■Stats. (1898), on the 29th day of June, 1907, and sentenced to pay a fine of $500 and. costs, and in default -thereof be imprisoned in the house of correction of Milwaukee county for a period not exceeding one year. Sec. 4380, Stats.