Volume 136 — Wisconsin Reports

<p>Courts: Decision of jurisdictional and preliminary questions: Refusal to entertain action: Superintending control of supreme court: Mandamus: Vacation of orders: Selection of grand jurors: Identity of person chosen: Similarity of names: Designation of residence.</p> <p>1. A court must always inquire wlietlier the law either gives it the jurisdiction or imposes upon it the duty to entertain a given controversy, and must inquire into existence of facts, either of notice to one of the parties or of some other preliminary condition, upon which the law imposes on it the power and duty; and in deciding these questions the court acts judicially.</p> <p>2. Where an inferior court decides a jurisdictional question or one preliminary to the main controversy submitted to it adversely to its jurisdiction and refuses further action, such decision, although judicial in character, constitutes, if erroneous, a refusal to perform its duty with respect to the main controversy; and in the absence of other adequate and sufficient remedy this court may, under the superintending control granted in sec. 3, art. VIII, Const., review such decision and consider whether or not it is the duty of the inferior court to entertain the controversy.</p> <p>3. Performance of its duty by the inferior court in such a case may he compelled by mandamus; and the writ may he so framed as to compel, as ancillary to and in aid of the primary relief granted, the vacation of orders made by the inferior court which constitute formal obstacles to the performance of such duty.</p> <p>4. The decision of a trial court that the action of the grand jury in returning an indictment was void and that no valid indictment existed against defendant because a person not selected by the jury commissioners had served on such jury, is one preliminary to the main controversy and may be reviewed by this court under its constitutional superintending control of inferior courts.</p> <p>5. Upon thfe list of names from which grand jurors were to be drawn the jury commissioners placed the name of “George J. Davies, 663 38th Street.” A venire was served upon John George Davies, who lived at that address, and he attended and served as a grand juror. Upon the evidence (summarized in the opinion) it is held, contrary to the decision of the trial Court, that the man who so served, and not a George Jeremy Davies who lived on Cedar street, was the identical person whom the commissioners had selected, and that an indictment found by the grand jury was not void because of his participation in its action.</p> <p>6. The use of a middle initial may under some circumstances be very significant in the identification of a person; but that significance varies much with circumstances, and the misplacement of an initial used by one whose current Christian name is also used is so probable and frequent an occurrence, at least among those whose acquaintance with him is not exact and intimate, that its significance is very much diminished.</p> <p>7. While jury commissioners have no official duty to state the place of residence of a person selected, the fact that they do state it is none the less significant of the identity of the person whom they had in mind in placing the name on the jury list, and is of so vastly greater weight than the mere transposition of an initial as to entirely outweigh it.</p>

<p>Appeal from an order of the circuit court for Wood county: Chas. M. Webb, Circuit Judge.</p> <p>Plaintiff seeks to recover for materials furnished to and used by the firm of J. J. Olsen & Son in the construction of a high school building under a contract between them and the school district. The contract provided that the contractors should construct the building and provide all labor and materials needed for the due performance of the work, and that all material delivered on the premises to form part of the work should be considered the property of the district and was not to be removed without its consent. In the event of the contractors being unable to complete the work because of bankruptcy or unreasonable delay the district might take possession of the premises and carry the work to completion, the expense thereof to be deducted from the amount provided as payment for the work; and in that event the contract provided that the district should have the right to use the scaffolding or fixed tackle belonging to the contractors so long as it should be wanted for the work. It was further provided that the school district should not in any manner he answerable for any of the materials or other things nsed and employed in finishing and completing the building, but that, whenever required, the contractors should produce all vouchers showing the quality of the goods and the materials used; that payments should be made in the manner provided in the specifications; and that for the protection of the district against the lien laws the contractors, if required, should show by affidavit or otherwise that there were no liens recorded against the property at the time of making any or the final payment, and that the property was free from all liens or ■claims against the premises or the contractors for work done or material furnished on the work. The contractors and the Mina Indemnity Company gave a bond to the school district, binding themselves to pay to the school district the sum of $12,000 upon the condition that if J. J. Olsen & Son '■should duly perform the contract and fulfil all the several ■stipulations therein provided, “and pay for all labor and material that enter into the construction of said building,’7 then the obligation was to be void, but, if otherwise, then the obligation was to remain in full force and effect.</p> <p>This action is brought against the contractors and the ■surety company to secure payment of the amount due for material furnished the contractors and used in the execution of the contract. The surety company demurred to the complaint on the ground that there was a defect of parties plaintiff, in that the school district had not been made a party plaintiff, and that the complaint did not state a cause of action. The demurrer was sustained upon the ground that the bond had been executed for the benefit of the school district ■only. This is an appeal from the order of the court sustaining the demurrer.</p> <p>'They contended,. inter alia, that the contract and bond do not evince an intent to secure any, benefit to the plaintiff. The obligation of a> surety is striciissimi juris, and nothing is to be taken against him by inference or intendment. W. W. Kimball Co. v. Ba-her, 62 Wis. 526; Smith v. Lockwood, 34 Wis. 72, 78; Nichols v. Palmer, 48 Wis. 110. This rule applies to a surety for hire. Loner gem v. San Antonio L. & T. Go. (Tex.) 104 S. W. 1061; Electric A. Go. v. U. S. F. & G. Go. 110 Wis. 434, 440. The contract of the'Olsens for the construction of the schoolhou.se nowhere contains any promise or stipulation on their part to pay materialmen for materials used' therein. Greenfield L. '& I. Go. v. Parker, 159 Ind. 571, 65 N. E. 747; Green Bay L. Go. v. Ind. School Dist. 121 Iowar 663, 97 N. W. 72; Gampbell & G. Go. v. Estate of Garnagie,. 98 Wis. 99, 101. The contract and bond are to be read together, and the latter interpreted in the light of the former.Guaranty Go. v. Pressed B. Go. 191 U. S. 416, 423. It is apparent that the contract was drawn to protect the district from any liens or claims for liens for “work or materials,”' and the corresponding expression in the bond must be construed to refer only to labor and materials which might be^come a lien. Plaintiff was not entitled to a lien, and there-' fore was not within the contemplation of the provisions of the' contract and bond against liens. Electric A. Co. v. U. S. F. é G. Go. 110 Wis. 434; Green Bay L. Go. v. Ind. School Dist. 121 Iowa, 663, 97 N. W. 72; Hunt v. King, 97 Iowa,. 88, 66 1ST. W. 71; Montgomery v. Spencer (Utah) 50 Pac. 623; Smith v\ Bowman (Utah) 9 L. R. A. w. s. 889, and' note; Townsend v. Cleveland F. P. Go. 18 Ind. App. 568, 47 N. E. 707; Spalding L. Go. v. Brown, 171 Ill. 487, 49 N. E-725; Simonson v. Grant, 36 Minn. 439, 31 N. W. 861;. Gampbell & G. Go. v. Estate of Garnagie, 98 Wis. 99, 101. The contract and bond do not contain any promise legally enforceable by the plaintiff. A condition of tbe bond, al-tbongb it may be of incidental benefit to a third party, cannot be construed into a promise of payment to such third party. Parker v. Jeffery, 26 Oreg. 186, 37 Pac. 712; Turk v. Riclge, 41 N. Y. 201; Simson v. Brown, 68 N. Y. 355.</p>

TarraNT, Circuit Judge. This is an action of unlawful detainer, brought by the appellant against the respondent in justice’s court for Milwaukee county. On the return day the defendant appeared specially by his attorney and filed an affidavit of prejudice and paid the statutory fees; whereupon the case was removed to another justice.

TaeeaNt, Circuit Judge. As to tbe defendant’s knowledge or reasonable cause to believe tbat tbe 0. W. Milbrath Company was insolvent, they cited In re Eg-gert, 102 Fed. 135 ; In re Virginia, II. M. Go. 139 Fed. 209 ; In re Jacobs, 1 Am. Bankr. Rep. 518; Jackman v. Earn Claire Nat. Bank, 125 Wis. 465, 104 N. W. 98; Suffel v. McCartney Nat. Bank, 121 Wis. 208, 106 N. W. 831. They cited Bankr. Act July 1? 1898, cb. 541, §§ 60a, 606, 30 U. S. Stats, at Large, 562 (U. S. Comp.

TaeeaNt, Circuit Judge. This is an action by tbe vendee to enforce specific performance of an alleged written contract to convey certain premises in tbe city of Milwaukee. Tbe action was originally brought against Henry Eohey and Rosa Fohey, his wife, but Henry Fohey having died after judgment, and his wife having been appointed executrix of his will, the action was revived in this court in her name as executrix.

order of the circuit court for Milwaukee county: Orrew T. Williams, Circuit Judge. Action to recover for a personal injury claimed to have been produced by defendant’s negligence. The complaint stated facts sufficient to constitute a cause of action.

<p> Master and servant: Death of servant: Unsafe method of worlc: Evidence: Custom: Knowledge of danger: Failure to give warning: Instructions to jury: Damages recoverable by widow: Appeal: Costs for printing supplemental case. </p> <p>1. In an action to recover for death of an employee alleged to have been caused by negligence of defendant in the unloading of a heavy machine from a car, evidence of the feasibility of using certain precautions and safeguards against the overturning ol the machine which caused the injury, and that they were often applied by others, was sufficient to warrant a finding by the jury that the manner of unloading the machine was not reasonably safe. It was not necessary to show a general custom to use such precautions.</p> <p>2. The evidence in such case is helé to warrant the inference of a causal relation between the perils set forth in the complaint (including narrowness and irregularity of the base of the machine) and the overturning of the machine which caused the injury.</p> <p>3. It was not necessary to a recovery in such case that the jury should find that defendant was negligent in adopting the method of unloading the machine or that its lack of reasonable safety was the proximate cause of the injury. The perils of the method adopted having been known to defendant’s superintendent some considerable time before the machine overturned, and not obvious to the deceased, it became his duty to notify the deceased thereof; and findings that he failed to do so, that such failure was the proximate cause of the injury, and that the deceased was not guilty of contributory negligence, were sufficient to establish defendant’s liability.</p> <p>4. Refusal to give instructions as to the weight of certain isolated evidentiary facts or circumstances was not error.</p> <p>5. Refusal to give requested instructions which are adequately covered by the' general charge is not error.</p> <p>£6. Whether in an action based on negligence in unloading a heavy machine from a car to the floor of defendant’s factory the evidence as to a general custom to use certain precautions should be confined to what was done by manufacturers and dealers in and purchasers of machinery of that character, or might extend to the custom among movers of such machinery, not determined.]</p> <p>7. As preliminary to testifying to precautions which he had known to be used by others and to custom, a witness was permitted to teátify to his experience in unloading a machine somewhat similar to the one in question. Helé, not error, such testimony having a bearing upon the qualifications of the witness, and there being no request to limit its effect.</p> <p>8. It was not prejudicial error to permit a witness for plaintiff to testify that certain similar machines received at the same time as the one in question had been unloaded by defendant by means of a steam crane, and to state why the crane was not used for this machine, — the purpose of the evidence being apparently to show that the deceased had no knowledge of the dangers of the method adopted for unloading the machine in question.</p> <p>9. In an action by a widow suing as administratrix to recover for tbe death of her husband, evidence as to the health of the plaintiff and as to the number of her children was admissible, the jury being properly cautioned that she could recover only for the pecuniary damage resulting to herself from the death.</p> <p>.10. Costs are not allowed to respondent herein for printing of a supplemental case which was not necessary to a fair presentation of the merits of the appeal.</p>

<p> Automobiles: Bicycles: Use of streets: Gollision: 'Negligence. </p> <p>1. As to their reciprocal duties when approaching one another at the intersection of streets a bicyclist and an automobilist are governed by the common-law rule, each being bound to exercise reasonable care.</p> <p>2. Finding's of the jury that an automobilist in such a case was negligent are held to be sustained by the evidence.</p> <p>.3. Plaintiff while riding a bicycle westward on the north side of a street collided at the intersection of a cross street with an automobile which had just crossed from the south side of the street, behind an eastbound street car, for the purpose of going north on the cross street. Upon the evidence it is held that plaintiff was guilty of contributory negligence either in failing to keep a proper lookout or in'riding so near the street car and at such a speed as to render the collision inevitable.</p>

<p>Appeal from a judgment of the circuit court for Milwaukee county: J. C. Ludwig, Circuit Judge.</p> <p>Tbe action was brought to recover interest on a note given for tbe purchase of an interest in real estate under a land contract. The complaint alleges in effect that on the 7 th and 8th of May, 1903, the plaintiffs by land contracts sold to the defendants an undivided one-third interest in 28.21 acres of land, for which the defendants agreed to pay $15,000 within five years and $100 annually towards the taxes on such real estate during said five years; that defendants paid two instal-ments of interest, to wit, $315 November 7, 1903, and $375 May 7, 1904, and also $100 towards the taxes of 1903; that there is due and unpaid on the note and land contracts four instalments of interest of $375 each and $200 taxes.</p> <p>The answer admits the ownership of the real estate, the signing of the note and contracts, the payment of $750 interest and $100 taxes, and that no other payments were made by the defendants. It further alleges that the defendants were induced to sign the note and contracts by reason of false and fraudulent representations made to them by the plaintiff Pfeiffer, acting for himself and his coplaintiff; that the fraudulent representations so made were substantially as follows: That the value of the real estate was more than $50,000, when in truth and in fact its real value was not to exceed $25,000, as was then known by the plaintiff Pfeiffer; that the Gentlemen’s Driving Club, an association of Milwaukee, had offered $52,000 for such real estate and had agreed to take the same as soon as they could raise the money; that negotiations were then pending between Pfeiffer and said Gentlemen’s Driving Club, when in truth such association had never made any offer for such real estate; that one Capt. Merryman had paid for real estate nearly adjoining said 28.21 acres on the east the sum of $3,000 for one acre, when in truth he had paid but $2,500 for about three acres, which was then well known to Pfeiffer; that the real estate adjoining on the west was worth $2,000 an acre and the owners were holding it for $2,000 to $2,500 an acre, when in truth such real estate was not held by its owners for more than $1,000 an acre, as was then, well known to said Pfeiffer; that the soil of such real estate was rich and fertile and easy to cultivate and like a garden, when in truth the soil was lean and sterile, full of noxious weeds, and hard to cultivate, as was then well known by said Pfeiffer.</p> <p>It is further alleged that the defendants, relying upon such false and fraudulent representations, were induced to sign the note and contracts, and through the further fraud of said Pfeiffer substantially as follows: That he falsely and fraudulently represented to the defendants that there was a mortgage of $15,000 on the real estate in question drawing five per cent, interest, which Pfeiffer had to pay, together with $100 taxes per annum, and that he had no income except $1,000 a year salary; that he proposed if the defendants would assist him in selling the real estate by paying the interest on the mortgage from year to year and $100 taxes he would give them the use of such real estate during the time they should pay interest and taxes, and when such real estate was sold he would give them all over $45,000 up to $50,000 of the proceeds and one third of all over $50,000, and that such real estate would be sold for more than $50,000; that defendants accepted such proposition and agreed to pay interest and taxes to the amount of $850 per annum; that thereupon Pfeiffer fraudulently caused to be prepared a land contract and presented the same to defendants for signature May 7, 1903; that defendants refused to sign, and on the next day a modification was procured, and through the false and fraudulent representations the note and contracts were signed under the belief that such modified agreement contained the real agreement between the parties. The note for the purchase price was given on the 8th, and the land contract modified by providing, among other things, that the parties of the second part, defendants herein, should have the exclusive use of the entire tract of 28.21 acres for a term of five years, using the same as tenants of plaintiffs during said term, or for such period thereof as defendants should continue to pay tbe interest and taxes, said taxes not to exceed $100 per annum, and that on request in writing tbe plaintiffs should grant an extension of the contracts for five years. And it was further agreed in said modification of the land contract that if at the end of said five years the second parties, defendants herein, should request to be released from the agreement and further liability and at a time when they were not in default for payment of interest or taxes, the first parties should release them from any further liability on said contract. r</p> <p>It is alleged that about November 1, 1903, the defendants notified Pfeiffer that they would terminate their agreement May 7, 1904, and Pfeiffer then informed them that the agreement could not be terminated for five years; that on March 18, 1904, the defendants demanded in writing that the contract be reformed to correspond with the actual agreement so as to provide among other things that the land contract and agreement between the parties be subject to termination at the election of the second parties, defendants herein, at the end of any year. In April, 1904, the defendants commenced an action to reform the land contracts executed May 7 and 8, 1903. This reformation action was prosecuted and finally resulted in judgment for defendants, plaintiffs herein, which judgment was entered September 20, 1906. It is further alleged that the minds of the parties never met on the agreement as written and defendants never assented thereto.</p> <p>The facts were set up in the answer at great length by way of defense and also by way of counterclaim. Plaintiffs denied the allegations of the counterclaim. On the trial the defendants withdrew the counterclaim and amended the prayer of the answer so as to ask that the complaint be dismissed on the merits with costs. The case was tried upon the issues joined and the following verdict returned:</p> <p>“(1) Did the plaintiff John G. Pfeiffer represent to the defendants or either of them, as an inducement to the making of the contract in question by the defendants, that the land described in the complaint in this action was rich, fertile, and very productive, and free from noxious weeds ? A. Yes.</p> <p>“(2) If you answer the first question ‘Yes,’ was such representation untrue? A. Yes.</p> <p>“(3) If you answer the second question ‘Yes,’ did the plaintiff Pfeiffer know, or ought he to have known, that such representation was false ? A. Yes:</p> <p>“(4) If you answer the third question ‘No,’ did the plaintiff Pfeiffer make such representation recklessly, without any knowledge on the subject? A.-.</p> <p>“(5) If you answer either the third or fourth question ‘Yes,’ did the defendants rely upon such representation as true and were they induced thereby to enter into said contract? A. Yes.</p> <p>“(6) If you answer the fifth question ‘Yes,’ did the defendants, in relying upon such representation as true and entering into said contract, exercise due and proper vigilance ? A. No.</p> <p>“(I) If you answer the second question ‘Yes,’ when did the defendants first obtain knowledge of the falsity of such representation? A. (by court). During the slimmer of 1903.</p> <p>“(8) Did the plaintiff Pfeiffer represent to the defendants or either of them, as an inducement to the making of the contract by the defendants, that the premises in question were worth more than $50,000 ? A. Yes.</p> <p>“(9) If you answer the eighth question ‘Yes,’ was such representation untrue ? A. Yes.</p> <p>“(10) If you answer the ninth question ‘Yes,’- did the plaintiff Pfeiffer know, or ought he to have known, that such representation was false ? A. Yes.</p> <p>“(11) If you answer the tenth question ‘No,’ did the plaintiff Pfeiffer make such representation recklessly, without any knowledge on the subject? A. -.</p> <p>“(12) If you answer either the tenth or eleventh question ‘Yes,’ did the defendants rely upon such representation as true, and were they induced thereby to enter into said contract? A. Yes.</p> <p>“(13) If you answer the twelfth question ‘Yes,’ did the defendants, in relying upon such representation as true and entering into said contract, exercise due and proper vigilance ? A. No.</p> <p>“(14) If you answer the ninth question ‘Yes,’ when did the defendants first obtain knowledge of the falsity of said representation? A. In Inly, 1904</p> <p>“(14a) If you answer the ninth and thirteenth questions ‘Yes/ ought the defendants, in the exercise of due and proper vigilance, to have discovered that said representation was false before they paid the interest due May 7, 1904? A. Yes.</p> <p>“(15) Did the plaintiff Pfeiffer represent to the defendants or either of them, as an inducement to the making of the contract by the defendants, that the Gentlemen’s Driving Club had offered him the sum of $52,000 for said land ? A. Yes.</p> <p>• “(16) If you answer the fifteenth question ‘Yes,’ was such representation untrue? A. Yes.</p> <p>“(17) If you answer the sixteenth question ‘Yes,’ did the •defendants rely upon such representation as true, and were they induced thereby to enter into said contract? A. Yes.</p> <p>“(18) If you answer the seventeenth question ‘Yes,’ did the defendants, in relying upon such representation as true and entering into said contract, exercise due and proper vigilance ? A. No.</p> <p>“(18a) If you answer the seventeenth and eighteenth questions ‘Yes,’ ought the defendants, in the exercise of due and proper vigilance, to have known the falsity of said representation before they paid the interest due May 7, 1904? A. Yes.</p> <p>“(19) If you answer the sixteenth question ‘Yes,’ when did the defendants first obtain knowledge of the falsity of such representation? A. Between November, 1906, and April, 1907.</p> <p>“(20) Did the plaintiff Pfeiffer represent to the defendants or either of them, as an inducement to the making of the contract by the defendants, that $3,000' had been paid for one acre near the plaintiff’s land to the east (meaning Capt. Merryman’s land) ? A. Yes.</p> <p>“(21) If you answer the twentieth question ‘Yes,’ was such representation untrue ? A. Yes.</p> <p>“(22) If you answer the twenty-first question ‘Yes,’ did the plaintiff Pfeiffer, when he made such representation, know or ought he to have known that it was false ? A. Yes.</p> <p>“(23) If you answer the twenty-second question ‘No,’ did the plaintiff Pfeiffer make such representation recklessly, without any knowledge on the subject? A. Yes.</p> <p>“(24) If you answer either the twenty-second or twenty-third question ‘Yes,’ did the defendants rely upon such representation as true, and were they induced thereby to enter into said contract? A. Yes.</p> <p>“(25) If you answer the twenty-fourth . question ‘Yes,’ did the defendants, in relying upon such representation as true and entering into said contract, exercise due and proper vigilance? A. Yes.</p> <p>“(25a) If you answer the twenty-first and twenty-fifth questions ‘Yes,’ ought the defendants, in the exercise of due and proper vigilance, to have known that said representation was false when they paid the interest due May 7, 1904? A. Yes.</p> <p>“(26) If you answer the twenty-first question ‘Yes,’ when did the defendants first obtain knowledge of the fact that such representation was not true? A. Within last three or four months.</p> <p>“(27) Did the plaintiff Pfeiffer represent to the defendants or either of them, as an inducement to the making of tho contract by the defendants, that the land adjoining plaintiff’s land on the west (Shenner’s land) had been sold for $1,500 and was held by the owner at $2,000 to $2,500 an acre? A. Yes.</p> <p>“(28) If you answer the twenty-seventh question ‘Yes,’ was such representation untrue ? A. Yes.</p> <p>“(29) If you answer the twenty-eighth question ‘Yes,’ did the plaintiff Pfeiffer, when he made such representation, know or ought he to have known that it was false ? A. Yes.</p> <p>“(30) If you answer the twenty-ninth question ‘No,’ did the plaintiff Pfeiffer make such representation recklessly, without any knowledge as to its truth or falsity ? A. -.</p> <p>“(31) If you answer the thirtieth-question ‘Yes,’ did the defendants rely upon such representation as true, and were they induced thereby to enter into such contract? A. Yes.</p> <p>“(32) If you answer the thirty-first question ‘Yes,’ did the defendants, in relying upon such representation and entering into said contract, exercise due and proper vigilance? A. Yes.</p> <p>“(32a) If you answer the twenty-eighth and thirty-second questions ‘Yes,’ ought the defendants, in the exercise of due and proper vigilance, to have known that said representation was false at the time they paid the interest due May I, 1904 ? A. Yes.</p> <p>“(33) If you answer the twenty-eighth question ‘Yes,’ when did the defendants first obtain knowledge of the fact that such representation was not true? A. Within three or four months.</p> <p>“(34) If the court should find that defendants were induced to said contract by fraud, did the defendants suffer damage thereby ? A. (by court). Yes.”</p> <p>Demand for reformation, prosecution of reformation suit to final judgment, and knowledge of value of premises are established by the verdict and evidence. On motion of the defendants the court changed the answer to the eighteenth question from “No” to “Yes,” and struck out the answer to the twenty-third question. Judgment was rendered upon the verdict in favor of the plaintiffs, from which this appeal was taken.</p>

<p>Appeal from an order of tbe circuit court for Milwaukee county: ORREN T. Williams, Circuit Judge.</p> <p>Tbe appeal is from an. order overruling a demurrer to tbe complaint.</p> <p>Among other references upon tbe part of tbe appellants were tbe following: Miami Co. Nat. Bank v. Goldberg, 13-3 Wis. 175, 113 N. W. 391; subd. 2, sec. 2307, Stats. (1898) ;. Reynolds v. Carpenter, 3 Pin. 34; Taylor v. Pratt, 3 Wis. 674; Parry v. Spikes, 49 Wis. 384, 5 N. W. 794; Willard y. Bosshard, 68 Wis. 454, 32 N. W. 538; Twohy M. Co. v. Ryan D. Co. 94 Wis. 319, 68 N. W. 963 ; Waldheim v. Miller, 97 Wis. 300, 72 N. W. 869 ; Comm. Nat. Bank v. Smith,. 107 Wis. 574, 83 N. W. 766; Coxe Bros. & Co. v. Milbrath, 110 Wis. 499, 86 N. W. 174; Klee v. Stephenson, 130 Wis. 505, 110 N. W. 479.</p> <p>Among other references upon tbe part of tbe respondent-were tbe following: Browne, Stat. Frauds, §§ 406, 495; Harney v. Burlians, 91 Wis. 348, 64 N. W. 1031; Blakeslee-v. Rossman, 43 Wis. 116; De Colyar, Guar. 174; Evenson v. Bates, 58 Wis. 24, 15 N. W. 837; Herbst v. Lowe, 65 Wis. 316, 26 N. W. 751; Gillmdnn v. Henry, 53 Wis. 465,. 10 N. W. 692; Bouvier, Law Diet. Instrument ; Shook v. Yanmater, 22 Wis. 532; Young v. Brown, 53 Wis. 333,10 N. W. 394; Waldheim v. Miller, 97 Wis. 300, 72 N. W. 869; Van Doren v. Roepke, 107 Wis. 535, 83 N. W. 754.</p>

<p> Taxation: “Property:” Exemptions: Stoclc in trust compames: Construction of statutes. </p> <p>1. Corporate stock is “property” within the meaning of sec. 1034, Stats. (1898).</p> <p>2. Under suhd. 9, sec. 1038, Stats. (1898), exempting from taxation “stock in any corporation . . . which is required to pay taxes upon its property in the same manner as individuals,” the' “manner” of taxation referred to is taxation upon an ad va- - lorem basis.</p> <p>3. Prior -to 1891 trust companies were required to pay taxes upon their property in the same manner as individuals, and stock therein was exempt. By ch. 263, Laws of 1891 — sec. 12227c, Stats. (Supp. 1906; Laws of 1905, ch. 442) — they were required to pay annually a 'certain license fee and percentage of their net income “in lieu of all taxes” except taxes on their real estate. Under the new system the amounts payable were but a small proportion of those payable under the former law. Held, that the words "in lieu of all taxes,” etc., indicate merely that the general property of such, companies is exempt from ordinary taxation; that they are not required to pay taxes in the same manner as individuáis; and therefore that stock in such companies is taxable.</p> <p>4. Rules for judicial construction of statutes are applicable only where there is uncertainty of sense.</p>

C. Ludwig, Circuit Judge. Action for breach of promise of marriage, resulting in verdict for plaintiff of $100 compensatory, and $100 punitory, damages, from judgment in accordance with which the de^ fendant appeals.

<p>Appeal from a judgment of tbe circuit court for Milwaukee county: WarreN D. Tarrant, Circuit Judge.</p> <p>Tbe defendant Augusta, Born was tbe owner of a lot in tíre city of Milwaukee wbicb extended from Twenty-fourtb street to West Twenty-fourtb street in tbe block between Hadley and Center streets. Eor many years sbe bad occupied it as ber homestead, living in an old bouse wbicb stood on tbe balf of tbe premises fronting Twenty-fourtb street. Sbe entered into a contract with tbe defendants Hauclc and Bartelt for tbe erection of a bouse on tbe other balf of tbe premises, wbicb fronts on West Twenty-fourtb street, with the intention of occupying the same as ber homestead. This bouse was completed, accepted, and occupied, and paid for with money raised on, a mortgage executed by Augusta Dorn on the whole of the premises. Thereafter sbe entered into a contract with Hauclc and Bartelt to remodel and rebuild tbe old bouse fronting on Twenty-fourtb street. While tbe remodeling was being done trouble arose between tbe parties to tbe contract and Hauclc and Bartelt filed a mechanic’s lien against the balf of tbe premises fronting on Twenty-fourtb street. They obtained judgment against Augusta Dorn, and her interest in the half of the premises fronting on Twenty-fourth street was sold to them for less than the amount of the judgment, and a deficiency judgment was ordered in their favor. They thereafter completed and remodeled the old house without regard to the plans and specifications according to which the contract for remodeling and constructing the building had been made.</p> <p>The instant action was commenced to foreclose the mortgage given by Augusta, Dorn on the whole premises. She answered, demanding that the part of the premises fronting on West Twenty-fourth street which she occupied and claimed as her homestead should be sold separately and last. The defendants Hauclc and Bartelt asked that this part of these premises should first be sold to satisfy the mortgage. The court found that the house and a part of the premises fronting on West Twenty-fourth street was the homestead of the mortgagor, and ordered that the other half of the premises should be first sold to satisfy the mortgage. This is an appeal by the defendants Hauclc and Bartelt from such judgment.</p>

Appeals from a judgment of the circuit court for Milwaukee county: J. 0. Ludwig, Circuit Judge. This case comes before this court on appeals by both tbe plaintiff and defendant from a .judgment of the circuit court for Milwaukee county in favor of tbo plaintiff and. against tbe defendant for tbe sum of $300, interest and costs, amounting in all to $403.52.

C. Ludwio, Circuit Judge. Tbe appeal is from an order overruling a demurrer to tbe complaint. Tbe complaint averred tbat tbe respondent was at all times therein mentioned a citizen and resident of Wisconsin and tbat tbe appellant was a foreign corporation organized and existing under the laws of tbe state of Pennsylvania and engaged in tbe business of selling and repairing a machine called tbe Wales adding machine.

<p> Wills: Undue influence: .Evidence. </p> <p>A finding by tlie trial court that a will was tlie product of undue influence on tlie part of tlie sole devisee is held to be sustained by tbe evidence.</p>

Appeai, from an order of the circuit court for Milwaukee county: ObkeN T. WiuliaMS, Circuit Judge. The appeal is from, an order sustaining a demurrer to the complaint, which alleged the following facts: ■ Defendant Standard Lead & .Zinc Smelting & Mining Company is a corporation organized under the laws of the territory of Arizona February 24, 1905, with an authorized capital of one million shares of the par value of $1 each.

C. Ludwig, Circuit Judge. Action to foreclose mortgage executed jointly by the appellant and Charles A. Pride, her husband, upon real estate in Milwaukee owned by them jointly.

WilliaMs, Circuit Judge. This is an action for damages for personal injuries received by the plaintiff at the plant of the defendant in having his arm drawn into an unprotected and exposed gearing on a lathe. The complaint alleges that this gearing was so situated as to be dangerous to employees, that it was wholly unguarded, and that such gearing generally is and can be guarded without interfering with the usefulness and operation of the machine.

<p> Criminal taw and practice: Disqualification of juror: Waiver. </p> <p>Where, in a criminal action, upon the examination of a juror as to his qualifications, it appeared that he was disqualified by reason of his inadequate knowledge of the English language, the defendant, by failing to challenge such juror for cause or otherwise object to his presence on the jury, waived all objections to his competency.</p>

<p> Criminal law: Conviction of lesser offense: Burglary in daytime: Pleading and proof. </p> <p>Burglary in the daytime being merely a lower grade of offense than burglary in the nighttime, it is not essential in a prosecution for the former offense to allege or prove that it was committed in the daytime.</p>

<p> Criminal law: Homicide: "Withdrawal of lesser degrees from jury: Acquittal: Conviction of higher degree: Reversal: Jeopardy: Premeditation and heat of passion: Evidence: Confidential communications: Husband and wife. </p> <p>1. On tlie first trial under an information charging murder in the first degree the court withdrew from the consideration of the jury all lesser degrees of homicide, holding that there was no evidence warranting the submission of any of them. Defendant was convicted, hut on writ of error the judgment was reversed and it was held that the evidence did not warrant the conviction of murder in the first degree and that certain de- ' grees of manslaughter should have heen submitted to the jury. Held, that there had been no acquittal as to any of the degrees of homicide, nor had the accused been in jeopardy so as to preclude his conviction, on a second trial, of any degree of murder or manslaughter — all of which are included in the charge of murder in the first degree.</p> <p>2. Premeditated design and heat of passion are not necessarily inconsistent terms when used with reference to a homicide.</p> <p>[3. Whether, upon the trial of a husband charged with premeditated murder of his wife, letters written by her to him shortly before the homicide, when offered in evidence on his behalf to show the absence of ill-feeling between them, were properly excluded as being confidential communications, is not determined.]</p> <p>4. The state of feeling which such letters tended to prove being abundantly proven by parol testimony, and the jury having found that the hilling was not premeditated but was done in the heat of passion, so that defendant was guilty of manslaughter in the second degree only, the error, if any, in the exclusion of the letters was not prejudicial.</p> <p>5. A letter written by the deceased to the defendant prior to their marriage three years before the homicide, was properly excluded as too remote.</p> <p>6. The evidence in this case is held to sustain a conviction of manslaughter in the second degree.</p>

<p> Criminal law: Homicide: Improper remarles Toy trial judge: Evidence: Immaterial errors: Intoxication of witness: Rebuttal: Experiments as to powder stains: Expert testimony: Instructions to jury: Degrees of homicide: Unnecessary hilling. </p> <p>1. Upon a trial for murder a witness for the state was cross-examined as to his movements and the time of day when he saw the deceased two days before the homicide, and found difficulty in fixing any exact times. Upon objection to such cross-examination as irrelevant and immaterial the court said: “I don’t know what it has to do with it, hut I will state this for the benefit of the witness: When you cannot state positively the time, you may say it was somewhere between 1 o’clock and 5, or whatever time you may have.in mind.” Also, when the witness objected to stating how much money he had loaned to the deceased, the court said: “You may answer and let him know whether it was a large or small amount.” Again, when asked whether he was a member of a certain labor union, the witness answered, “That is my business.” Afterwards he stated that he was a member, and was then asked why he said it was none •of counsel’s business when asked if he was a member, and the •court said: “He probably thought so.” Held, that such remarks •did not constitute prejudicial error.</p> <p>2. Where on a murder trial defendant claimed to have acted in self-defense, and there was testimony that a companion of the deceased, who was in the room at the time of a quarrel in which the latter was shot by defendant, picked up a cuspidor just before the shooting and that it was found to be broken after the affray was over, but there was no evidence that it was used as a weapon or as to how it was broken, rulings and remarks by the court as to the admission in evidence of the broken pieces of the cuspidor, to the effect that they might be received, together with certain broken chairs, and, if the jury found they were broken at the time in question, might be considered as tending to show the nature of the affray, are held not erroneous.</p> <p>3. On a murder trial there was a question as to whether a witness for the prosecution had been with the deceased during the afternoon preceding the homicide, and several witnesses for the defense had testified to having seen them together in a certain place at about 4 o’clock of that afternoon. Another witness then testified that he saw deceased at that time and place with a man whom he did not know and could not identify. The state moved to strike out this testimony, and the court said: “He didn’t really give any.” Afterwards the court told the jury that such remark was not well expressed and that he did not intend to intimate that the testimony was not credible or that it was not entitled to weight. Held,, that this explanation removed any prejudicial error.</p> <p>4. It was competent for the defense on a murder trial to show that a witness for the state was intoxicated at the time of the homicide, in order to discredit his testimony; but evidence that he was intoxicated an hour and a half later was properly excluded as immaterial.</p> <p>5. Where on a murder trial the defendant claimed to have acted in self-defense and his testimony tended to show that when the fatal shot was fired he was struggling with the deceased and ■ the muzzle of the pistol must have been within a few inches of the latter’s vest, it was proper to permit the state in rebuttal, after testimony that there were no powder marks on the body of the deceased, to show experiments made by shooting the same pistol, using similar cartridges, through the vest at distances of two inches, eight inches, two feet, and four feet, resulting in powder stains upon the cloth when the pistol was fired at the two lesser distances, and to show by expert testimony that there would have been powder stains on the body if the pistol had been fired at a distance of six inches.</p> <p>6. After instructing the jury as to necessary elements of manslaughter in the second degree under sec. 4351, Stats. (1898), — i. e. the unnecessary killing of another while resisting an attempt of such other to commit a felony or other unlawful act, — the court further told them in effect that if the killing was with premeditated design it was murder in the first degree, not manslaughter in any degree, unless justified under the law of self-defense. Held, that this instruction was not capable of causing the jury to believe that defendant, though acting in self-defense, might still be guilty of manslaughter in the second degree.</p> <p>7. The evidence in this case is held to justify a finding that the killing was unnecessary and to sustain a conviction of manslaughter in the second degree under sec. 4351, Stats. (1898).</p>

<p> Railroad Commission: Powers: Interference by courts: Constitutional law: Powers of legislature: Delegation: Ascertainment of facts: Regulation of railroad rates or service: Fixing “reasonable” rates, etc.: Review by courts: “Unlawful or unreasonable” orders: “dear and satisfactory evidence:” Railroad stations: Distance apart: Stopping of trains. </p> <p>1. Tii© Railroad Commission created by ch. 362, Laws of 1905, was intended by the legislature to be a tribunal of great dignity and responsibility having to deal with vast interests and complicated legal and economic questions, and was given powers appropriate to the discharge of these duties.</p> <p>2. Unless clearly required to do so the circuit court should not interfere with the determinations or orders of the Railroad Commission.</p> <p>3. If the orders and rules of the Railroad Commission were wholly legislative in their nature the legislature could not delegate to the Commission power to make such rules and orders.</p> <p>4. Neither could power be conferred upon courts by mere statute to review and set aside as unreasonable acts of the legislature not in conflict with the state or federal constitution or with some paramount federal law.</p> <p>5. It is impossible under our system of government to fix and maintain efficiently a system of just and reasonable regulation of railroad rates and service by direct action of the legislature specifying rates and details of service.</p> <p>6. The authority of the state to exercise the just and ordinary powers usually possessed by governments (among which is the regulation of rates and services of railroad carriers) is not to be restricted by mere implication from the expressed provisions of the state constitution.</p> <p>7. Without any specific enabling provisions in the constitution the legislature of this state may make all laws necessary and proper for carrying into execution the powers which that instrument vests in the state government or in any department or officer thereof.</p> <p>8. In the usual process of enacting a law there is frequently necessary the preliminary determination of a fact or group of facts by the legislature.</p> <p>9.The legislature may delegate such power not legislative in its nature as it has itself authority to exercise.</p> <p>10. The legislature may create a q-wasi-judicial tribunal and delegate to that tribunal the power which the legislature possesses to ascertain, determine, and declare facts, whether such determination precedes or follows the enactment of the general legal rule.</p> <p>11. In a case in which its power of regulation cannot otherwise he justly or efficiently exercised the legislature has power to declare a general rule of law applicable to conditions of fact described by that law in general terms but not precisely ascertained, such law to take effect upon all specific cases within that general rule only when the existence of such conditions of fact is ascertained and established by subsequent determination of a judicial or qjiasi-judicial tribunal.</p> <p>12. Likewise a general rule of law may be enacted to take effect and be in force upon the subsequent establishment of certain facts or conditions; and the nature of the contingency in which the law is to go into effect is not material if such contingency be fairly connected with the object and purposes of thé statute and reasonably- certain.</p> <p>13. A statute declaring that railroad rates and service shall be rear sonable, creating a commission with power to investigate existing rates and service and to fix and determine what rates and what service are reasonable, and providing that the rates and service so fixed shall be in force, is a valid exercise of the legislative power.</p> <p>14. The legislature may in such case, instead of making the law wholly conditional and contingent upon the ascertainment and declaration of reasonable rates or service by the commission, add the further contingency that the order of the commission fixing the rate or service be subject to review by-the courts and upheld by the courts as not unreasonable.</p> <p>15. Neither the commission nor the courts can, however, be vested with discretion to determine whether the precedent law shall or shall not go into effect in particular cases.</p> <p>16. Ch. 362, Laws of 1905, assumes and declares the existence of a railroad rate, charge, classification, or service which is exactly reasonable and just, applicable to every special instance or condition, and discoverable by investigation, and commits to the Eailroad Commission the duty to ascertain and disclose that rate, classification, or service, and when so ascertained and disclosed the mandate of the statute that rates, fares, charges, classifications, and joint rates fixed by the Commission shall be in force and prima fade reasonable, declares an ancillary rule of law to take effect in the particular instances investigated by the Commission, contingent upon the ascertainment and promulgation by the Commission of what is reasonable in the particular instance or under the particular conditions under investigation. The Commission is not given power or discretion to fix one of several rates either of which would be just and reasonable, and hence there is no delegation of purely legislative power.</p> <p>17. The function of the courts, under said ch. 362, Laws of 1905, in reviewing an order of the Railroad Commission is not to determine whether the rate or service fixed by it is just and reasonable, but to determine whether the order is unreasonable or unlawful. If the order is found by the court to be such that reasonable men might well differ as to its correctness, it cannot be said to be unreasonable.</p> <p>18. In such review the courts are required to exercise no legislative power, to ascertain and disclose no rates, to declare no rule or law unreasonable, but merely to exercise judicial power in determining whether or not the order of the Commission was unreasonable and to set it aside if so found, leaving the Commission free to make further investigation and take further action; and the conferring of such authority upon the courts is within the legislative power.</p> <p>19. In the provision in sec. 16, ch. 362, Laws of 1905, that in an action to set aside an order of the Railroad Commission the burden of proof is upon the plaintiff to show by clear and satisfactory evidence that the order is unlawful or unreasonable, the words “clear and satisfactory” are intended to describe a degree of proof greater than a preponderance of evidence and such as is necessary to establish fraud or prove mistake in a written instrument.</p> <p>20. Considering the degree of proof required in such an action, the viewpoint of the investigation by the court, and that the court is dealing with a question of fact or a mixed question of fact and law, great weight will necessarily be given to the order of the Commission and a very strong case must be made to establish its unreasonableness.</p> <p>21. An order of the Commission need not be confiscatory in its character and effect in order to be unlawful or unreasonable within the meaning of the statute.</p> <p>22. What distinction there is between the terms “unreasonable” and “unlawful” as used in the statute, is not here determined.</p> <p>23. In this case an order of the Railroad Commission requiring the erection of a platform and the stopping of certain local passenger trains at a point about midway between stations 7.8 miles apart, is held not to have been shown to be unreasonable, although, this court would not have made the order had it been sitting as a commission.</p> <p>Marshaix and Basi-ifobd, JJ., concurring in the decision, are of the opinion:</p> <p>1. In every hearing before the Railroad Commission on complaint the initial and jurisdictional question is whether, in the given case, the conduct of the railroad company is unreasonable; and such jurisdictional fact should be shown affirmatively to have been found.</p> <p>2. The reasonable service or rate which the Commission is empowered to fix and order substituted for the service or rate complained of is in each case the minimum service or the maximum rate which is reasonable.</p> <p>3. A full judicial review of the action of the Commission is contemplated, the circuit court to try questions of law and fact the same as the Commission, giving such weight, however, to the decision of the latter on all matters of fact that it shall stand unless shown to be wrong by clear and satisfactory evidence; and, in case of an appeal to the supreme court, the scope of review to be the same as in case of any appeal from a judgment in an action tried by the court.</p> <p>Dodge, J., dissenting from the decision on the ground that the service in question, rendered by the railroad company at the time of the complaint to the Commission, was not shown to have been other than reasonably adequate, is of the opinion:</p> <p>1. The Commission is empowered first to determine whether a rate or service complained of is unreasonable, and not until or unless that fact is established is any further action by the Commission authorized.</p> <p>2. After finding that the rate or service complained of is unreasonable, it becomes the duty of the Commission to ascertain and declare the reasonable rate or service, which is the maximum rate or minimum service consistent with reason.</p> <p>3. The selection and fixing of any other than such maximum rate or minimum service would necessarily involve, not merely the ascertainment of a fact or condition, but also the exercise of choice or discretion based on considerations of policy or expediency. The power to exercise such choice is purely legislative and cannot be delegated.</p> <p>4. In reviewing an order of the Commission requiring certain service from a railroad company the court must assume that the Commission thereby fixed the minimum service which in its opinion would be reasonable, and if the court finds, after consideration of the evidence, giving due weight to the decision of the Commission, that a less service would be within the field of reason, the order should be held unlawful because an erroneous decision of a concrete question of fact.</p>

<p>Appbai.s from an order of the circuit court for Milwaukee county: J. C. Ludwig, Circuit Judge.</p> <p>This was an action commenced by the attorney general without special authority and without leave of any court against numerous defendants who may be classified as follows: (1) The railway company, hereinafter called the corporation; (2) several directors of that company who were such in 1899 and 1900 and also at the time of the commencement of the suit; (3) several persons, some of them included in the second class, who were and still are directors of the North American Company; (4) Fred Vogel, Jr., who was a director of the North American Company at the commencement of the action but not at the time of the acts complained of in 1899 and 1900; (5) the North American Company; and (6) several persons who were mayor and aldermen of the city of Milwaukee in 1899 and 1900.</p> <p>Attempted service of summons on all of said defendants in the month of August, 1901, having been made, the plaintiff gave notice of examination under sec. 4096, Stats. (1898), of those in "Wisconsin, and filed an affidavit that, in order to enable it to plead, an examination of said persons was necessary. It sot forth on information and belief that in tlie months of December, 1899, and January, 1900, the defendants constituting the directors of the corporation unlawfully and by collusion paid over large amounts of the corporation’s money or property to the defendant North American Company and its directors which was intended to be and was unlawfully paid over to the defendants, who were then mayor and several aldermen of the city of Milwaukee, whereby was induced the granting of an amended and extended franchise under which the corporation has since operated its street railway business in Milwaukee. Plaintiff asserted as the general nature of this action (1) to ■compel the defendant directors and officers of the corporation to account for their said official conduct in the management and disposition of its funds; (2) to compel the defendant directors of the corporation and also the defendant directors of the North American Company to account for their official conduct in management and disposition of the funds and property of that corporation; (8) to compel both such directors to pay to the corporation all sums of money and value of all property which any of them had acquired to himself or transferred to others or had lost or wasted by any failure of duty; (4) to suspend the said defendant officers of the corporation for abuse of their trust; (5) to remove said defendant directors and officers of the corporation for gross misconduct; (6) to set aside all alienations of property of the corporation made by said defendant directors and officers contrary to the provisions of law or for purposes foreign to the lawful business and objects of said corporation in all cases where the person receiving the property so alienated knew the purpose; (7) to compel the defendant directors and officers of the corporation and also the defendant directors and officers of the North American Company to account for all funds and property illegally and fraudulently obtained and used by them in fraudulently and ■corruptly securing the franchise aforesaid of January 2, 1900; (8) to compel said defendants mayor and aldermen to account for all funds and property of tbe corporation illegally or fraudulently paid to them for said purpose and to disclose the names of all persons making any such payment and the time, place, and circumstances thereof; and (9) to restrain the defendant corporation from exercising any rights under, and to set aside, vacate, and annul, the said franchise ordinance of January 2, 1900.</p> <p>The corporation, the several directors thereof, Fred Vogel, Jr., director of the North American Company, the mayor, each separately, and the several defendant aldermen together, filed petitions with the circuit court praying it to' adjudge and determine that the plaintiff be not entitled to such or any examination or discovery as against the petitioners and that the notice and subpoena be suppressed; each of said petitions asserting that all cause of action for accounting or recovery of money or property was barred by the statute of limitations. These petitions were all denied, and the same defendants, respectively, appeal from the orders of denial.</p>

<p>Constitutional Law: Police Poweb:’ Regulation of Tenement Houses, etc. (1) Who may challenge validity of statute. (2) Injunction against state officials. (3) Unconstitutional enactment a nullity. (4, 5) Duty of courts: Doubts resolved in favor of validity. (6-10) Extent of police power: Judicial and ■ legislative questions: “Reasonableness." (11-18) Tenement and lodging houses: Construction and maintenance: Unreasonable requirements: Differences in localities: Official approval of plans: Width of street courts: Light, equipment, etc.: Equal protection of the laws: Penalties preventing resort to courts. (19) Ideal and practical regulation. (20) When statute wholly void.</p> <p>1. A person specially injuriously affected by enforcement of an unconstitutional law may in judicial proceedings challenge the validity thereof.</p> <p>2. An action against state officials to enjoin them from enforcing an unconstitutional legislative enactment is not an action against the state. In such circumstances the law, so called, affords such state officers no protection. They are judicially regarded as acting in their personal capacities only.</p> <p>3. An unconstitutional legislative enactment, though law in form, is in fact not law at all. “It confers no rights; it imposes no duties; it affords no protection; ... it is in legal contemplation as inoperative as though it had never been passed.”</p> <p>4. A court, upon its jurisdiction being properly invoked for the purpose, is in duty bound to test a legislative enactment by all constitutional limitations bearing thereon and condemn it if it be found illegitimate and thus uphold the constitution as superior to legislative will.</p> <p>■5. In testing a legislative enactment as regards its constitutionality, all reasonable doubts must be resolved in favor of legislative power.</p> <p>6. Legislative authority in the field of police power, the same as in any other, is fencéd about on all sides by constitutional limitations. It cannot properly extend beyond such reasonable interferences as tend to preserve and promote the enjoyment, generally, of those “unalienable rights” with which all men are endowed and to secure which “governments are instituted among men.” When it goes heyond that it enters the field of the destructive and so offends against some constitutional limitation.</p> <p>7. What constitutes a proper subject for regulation under the police power is a judicial question. Matters of mere expediency in respect thereto are wholly for legislative cognizance. What is reasonable is primarily for legislative judgment, but in the ultimate it is a judicial question. There must be reasonable ground, having regard for the public welfare, for the interference, and the means adopted to accomplish the purpose in view must be reasonably necessary.</p> <p>8. What is reasonable in any given case being a matter resting in human judgment and difficult of ascertainment, in all doubtful cases judicial authority must defer to legislative wisdom, but where the interference is plainly excessive the duty of the court to repel the encroachment is absolute.</p> <p>9. What is reasonable is not necessarily what is best but what is fairly appropriate to the purpose, under all the circumstances. The scope of the term “reasonable” as regards any situation must be measured having regard to the fundamental principles of human liberty as understood at the time of. the formation of the constitution, adapting the same to modern conditions.</p> <p>Í0. In determining what is reasonable the court must look to the language of the statute and the facts which appear because of judicial knowledge thereof or otherwise.</p> <p>11. The construction and maintenance of tenement, lodging, and boarding houses is a proper subject for legislative regulation, but the degree of regulation permissible varies greatly according to circumstances.</p> <p>12. A police regulation in the field mentioned in the last foregoing paragraph which is not excessive as to a large city might be held unreasonable if applied to the state at large.</p> <p>13. Limitations in the field suggested impossible or impracticable to comply with, either because of absence of facilities necessary therefor or expense so great as to render the regulation prohibitive in many situations, are unreasonable. .</p> <p>14. A general police regulation down to minute particulars of the construction and maintenance of tenement houses, rendering it impracticable to safely comply therewith in the absence of any official approval of plans and specifications in advance, and containing no provision for such approval, is unreasonable.</p> <p>15. Where the penal feature of a police regulation is so severe, having regard to the nature of the regulation, as to efficiently intimidate property owners from using their property at all for tenements or lodging-house purposes and from resorting to the courts for redress or defense as to their honestly supposed rights, it is highly unreasonable. It is a defiance of the equal protection of the laws rendering the act void irrespective of whether its provisions would otherwise be valid.</p> <p>16. To penalize good-faith resistance to the enforcement of a law by judicial interference is unreasonable and indefensible from any point of view. It denies the equal protection of the laws; it violates the constitutional guaranty to every person of a certain remedy in the law for all injuries to person and property, and violates every principle of civil liberty.</p> <p>17. A law regarding the construction of tenement houses requiring street courts to be six feet in width between the lot line and the opposite wall of the building — that is, under all conditions and in all localities to be at least six feet wide, — is an unreasonable interference.</p> <p>18. A police regulation making every habitation regardless of locality a boarding or lodging house in case the proprietor allows a person not a member of his family to have a sleeping room in the house, and regulates the maintenance of the house as regards light, location of beds, equipment with water-closets, ■ etc., is an unreasonable interference.</p> <p>19. There is a wide interval between the ideal and the practical. The latter standard should prevail as to legislative regulaitons as to the construction and maintenance of tenement, lodging, and boarding houses. Common sense as to what is reasonable in such matters should prevail, not the extreme views of well-meaning persons, as to what is for the best.</p> <p>20. Where parts of a law viewed by themselves are unconstitutional and other parts so viewed are not, the former may be condemned and the latter upheld if the two are separable, otherwise not. In case the act as a whole has one or more invalid features pervading the entire act it must be regarded as an entirety and all be condemned as unconstitutional.</p> <p>[Syllabus by Mabshaxl, X]</p>

<p> Street and electric railways: Condemnation of streets for interurban road: Grant of “the use” of the street by city council: Dismissal of proceedings. </p> <p>1. Under sec. 1863a, Stats. (Supp. 1906), giving to a street or electric railway corporation tlie right to condemn a street for the purposes of an interurban railway where the use of the street has first been granted to the company by a franchise duly passed by the city council, there can be no such condemnation where the only right which has been granted by the city council is a right to use the street for purely urban railway purposes.</p> <p>2. If the proceedings in this case were brought to condemn the right to maintain an urban railway only on the street they were properly dismissed because no such condemnation is necessary.</p>

Dicjc, Circuit Judge. Tbis is an appeal from an order in a proceeding to estab-lisb a drainage district in certain towns in Dodge county. The case was bere before on appeal from an order appointing commissioners (In re Horieon D. Dist. 129 Wis. 42, 108 N. W. 198), which, order was made before the passage of ch.- 419, Laws of 1905 (secs. 1379 — 11 to 1379 — 32&, Stats.: Supp. 1906).

<p>Appeal from an order of the circuit court for Dodge county: James J. Dick, Circuit Judge.</p>

D. ITastiNG-s, Circuit Judge. Action to set aside and cancel a mortgage on the ground that the same was tainted with usury and before the commencement of the action plaintiffs duly tendered to the defendant the entire sum to which she was entitled. The issues were decided thus: April 14, 1905, plaintiffs gave defendant their note secured by mortgage for $190, due one year from date with eight per cent, interest per annum..

B. BeldeN, Circuit Judge. For tbe appellant it was contended, inter alia, that tbe court below erred in submitting to the jury tbe issue of payment, and further erred in placing the burden of proof as to that issue upon the plaintiff. Kuenster v. Woodhouse, 101 Wis. 216, 77 N. W. 165; Knapp v. Runals, 2>1 Wis. 135; Studebalser Bros. Mfg. Co. v. Langson, 89 Wis. 200, 61 N. W. 773.

J. Vinje, Circuit Judge. A proceeding, upon the petition of the Eastern Railway Company of Minnesota, to condemn lands for its use as a railroad, A portion of the lands so sought to be acquired front on St. Louis Bay, which is connected with Lake Superior.

'Appeal from an order of the circuit court for Douglas ■county: A. J. Yistje, Circuit Judge. This action was brought against the defendants to enjoin them from further trespassing upon the plaintiff’s premises and from taking permanent and exclusive possession of said premises by building a railroad thereon.

Appeals from a judgment of tbe circuit court for Milwaukee county: OeeeN T. Williams, Circuit Judge. Tbis is au action to recover damages for failure to deliver a part of tbe lumber agreed to be delivered by tb© terms of a written agreement executed by defendant to tbe plaintiff November 28, 1905.

<p>(1) Contracts: Abrogation: Pleading. (2, 3) Appeal: Review of evidence: Motion to set aside verdict. (4, 5, 9) Special verdict: Sufficiency: T/Vaiver: Changing ansivers. (6) Findings of fact: Recitals in judgment. (10, 11) Tax titles: Sufficiency of deed: Recitals. (7, 8, 12-17) Vendor and purchaser of land: Evidence: Readiness of purchaser to perform: Sales by vendor to others: Measure of damages for breach of contract: Marhet value: Deduction for tax titles.</p> <p>1. In an action upon a contract, abrogation thereof by mutual consent is new matter and, if relied, upon as a defense, must be specially pleaded.</p> <p>2. A motion for judgment notwithstanding the verdict does not challenge the sufficiency of the evidence to support the findings and cannot be treated as a motion to set aside the verdict on that ground.</p> <p>3. Where there was no motion to set aside the verdict the supreme court will not review the evidence to determine its sufficiency.</p> <p>4. In an action for breach of a contract it was stipulated that a special verdict be taken as to all issues except certain ones reserved for trial by the court. No objection was made to the form or sufficiency of the questions submitted, and in answer to one of them the jury found that the contract had not been, as alleged in the answer, abrogated on a certain day by mutual consent. There was no motion to set aside this answer, and no suggestion was then made that the issue as to abrogation had not been determined. Afterwards foi- more than two years proceedings were had at intervals for the purpose of ascertaining the amount of the damages. Held, that defendant’s counsel had treated the question of abrogation of - the contract as embraced in and determined by the special verdict or as settled by the undisputed evidence, and could not properly contend, on appeal, that the question was still open as to an abrogation subsequent to the day mentioned.</p> <p>5. The court cannot change the answer to a question in the special verdict if there is any credible testimony to support it.</p> <p>6. A recital in the judgment that allegations of the complaint had been established by the undisputed evidence is held sufficient as a finding of facts, although the practice is not approved. If defendant desired a more particular finding he should have requested it.</p> <p>7. A finding that plaintiff liad been at all times ready and willing to perform on his part a contract for the conveyance of lands to him, is helé to he sustained by the evidence.</p> <p><3. Tn an action for breach of a contract to convey lands, evidence that after the contract was made defendant had conveyed certain of said lands to other parties was admissible as bearing upon the intention of defendant to repudiate the contract and also as showing the value of the lands from the consideration stated in the deeds.</p> <p>3. An order was made on defendant’s motion, after the testimony had closed, reopening the case as to certain issues upon the express condition that the parties agree and stipulate that the findings of the jury then impaneled be taken by way of special verdict on all the other issues. No objection was made to the special verdict, which embraced the questions counsel then thought material for determination; there was no motion to set aside; nor was the attention of the trial court at any time called to any supposed omission therefrom, although the trial was protracted for a long time thereafter. Held, that questions as to the form and sufficiency of the verdict were foreclosed.</p> <p>10. A tax deed reciting that “J. L. Gates, and assignee of Ashland county, has deposited” certain tax certificates, etc., sufficiently shows that J. L. Gates, the applicant for the deed, presented himself as assignee of the county. The word “and” before “as-signee” should be rejected as surplusage or as written by the clerk through mistake for “an.”</p> <p>11. A further recital in the deed that it appears from the certificates that the lands described were for nonpayment of taxes sold “at public auction, at Ashland, in the county of Ashland and J. L. Gates,” on a day named, “to the said Ashland county for the sum,” etc., shows that the lands were sold to the county. The words “and J. L. Gates,” inserted after “the county of Ashland,” describing the place of sale, cannot be transposed and inserted after “Ashland county” where it is named as the purchaser, and thus make it appear from the deed that there was a joint sale to the county and Gates, which would be unlawful. Sprague v. Gosnen, 30 Wis. 209, distinguished.</p> <p>12. The “market value” of land is the price that would in all probability result from fair negotiation where the seller is willing to sell and the buyer desires to buy; and the expressions “actual value” and “market price” mean the same thing.</p> <p>13. In an action for breach of a contract to convey a large quantity of lands — some by quitclaim deeds and others by warranty deed subject to incumbrance — the measure of plaintiff’s damages is the difference between the price agreed to be paid and. the actual value of the lands at the time of the breach, if sold In a body, subject to outstanding incumbrances, to one ready and willing to buy; such damages to be ascertained with reasonable certainty as the natural result of the breach and as. within the probable contemplation of the parties at the time the contract was entered into.</p> <p>14. Evidence of sales made at or about the time of the breach of a contract to convey lands is admissible as bearing upon the actual value, when it appears that there has been no sudden change in conditions. In this case too much weight is held to. have been given to evidence of sales made a year or more after the breach and after there had been a decided advance in values.</p> <p>15. The value of the lands in small parcels should not in such a casa-be taken as the basis of damages, since that would be greater than their value in a body and neither party could have contemplated a resale in small parcels within a short time.</p> <p>16. Upon the evidence in this case it is held that the fair market value of the large quantity of lands which defendant held by tax titles and was to convey to plaintiff by quitclaim deed was. $1.75 per acre.</p> <p>17. Although a tax deed fair upon its face is prima facie a marketable title, yet, it being matter of common knowledge that a tax title is not as acceptable to the ordinary purchaser as an original title, it was proper for the court, in determining the amount of damages for breach of a contract to convey by quitclaim deed lands held by tax titles, to make a deduction for diminution in value on that account; and a deduction of fifteen cents per aeré-is held reasonable in this case.</p>

Paeish, Judge. This action was brought to recover for personal injuries. At the time of injury the plaintiff, a street laborer, was working for the Wisconsin Telephone Company placing gravel between cedar blocks in the street, and while thus employed was run into by one of defendant’s cars. The issues involved were negligence of defendant and contributory negligence of plaintiff.

<p> Master and servant: Assumption of risk: Knowledge of defects: Railroad brakeman: Defective track: Negligence in making flying switch: Questions for jury. </p> <p>1. An employee who has as good an opportunity as his employer to know of defects or dangerous conditions attending his work assumes the risk thereof if he voluntarily and without protest continues in the employment.</p> <p>2. But defects which are discoverable hy the exercise of such care as is required of the employer are not necessarily discoverable by such attention to his surroundings as an employee is hound to give.</p> <p>3. The employee is only required to see and comprehend those defects or imperfections which would ordinarily attract the attention of a person under the same or similar circumstances, in the exercise of ordinary care.</p> <p>4. Whether an employee in any particular instance is chargeable with knowledge of conditions imperiling his personal safety is generally, though not always, a question for the jury.</p> <p>5. A railroad brakeman engaged in switching cars was not bound to search or look specially for defects in the track and roadbed likely to cause injury, in the absence of circumstances reasonably suggesting the existence of such defects.</p> <p>6. In an action for injuries to a brakeman while making a flying switch, resulting from the derailment of an engine tender by reason of the defective condition of the track and roadbed at a curve, one of the defects being the insufficient elevation of the outer rail, it is held upon the evidence that t-he question as to assumption of the risk was one for the jury.</p> <p>7. Whether, in such a case, if the brakeman was not chargeable with knowledge of the dangerous condition of the track and roadbed, he was negligent in causing the flying switch to be made as it was, was also, upon the evidence, a question for the jnry.</p>

<p>Appeal from a judgment of the circuit court for Manito-woc county: Michael KiewaN, Circuit Judge.</p> <p>Defendant in and for some years before November, 1905, maintained a coal dock on the south side of the river at She-boygan, which consisted of a floor at a convenient height above the water for unloading, and a superstructure consisting of upright posts extending from the ground to about thirty feet above the floor and, generally, 12x12 in size. These posts were twelve feet apart in one direction and twenty-four feet apart in another. They were surmounted by horizontal beams of about similar size running from one post to the other, both north and south, upon which were laid a system of tracks for tram cars and for certain heavy derricks used in elevating and distributing coal both from vessels and from the floor of the dock. The upright posts were braced to the horizontal beams by 8x8 inch timbers twelve feet in length, placed at an angle of forty-five degrees, either spiked or bolted at each end to the upright and the horizontal timbers, which at the time and place in question had been in place about five years. The dock had been built by or for the defendant.</p> <p>On November 28, 1905, plaintiff was a common laborer •employed by the defendant to shovel coal on the floor of this •dock, and, while so engaged, one of these braces, with no apparent present reason, dropped from its place upon plaintiff, causing him serious injuries. There was evidence that the brace was insecurely fastened both to the upright post and the horizontal beam; that is, that it was merely spiked to each, and that the spikes originally penetrated the beams only from one to two inches. There was also some evidence tending to jtrove that generally through that part of the dock these braces had become parted from the timbers to the extent of one half or three fourths of an inch, and that they were subjected to frequent blows from the dropping of coal upon them and to much jar from the running of tram cars and the operation of the derricks.</p> <p>The negligence of the defendant alleged was “failing to provide plaintiff with a reasonably safe place in which to perform his work; that said place was unsafe and dangerous, because of insecure, careless, and negligent fastening of the brace.”</p> <p>The jury, by special verdict, found (1) that the brace which fell was so insecurely fastened to the timbers as to make the place not reasonably safe; (2) that such condition of insufficient fastening had existed for such a length -of time that the defendant, in the exercise of ordinary care and vigilance, ought to have known it; (3) that plaintiff’s injury was the natural and probable consequence of defendant’s failure to discover and repair the defective fastening; (4) that defendant should have foreseen that such insufficient fastening would be likely to result in personal injury to an employee; (5) that ordinary care on plaintiff’s part would not have informed him of the insufficient fastening; (6) that there was no failure of ordinary care on plaintiff’s part which contributed to cause the injury; and (1) damages $5,333. After denial of a motion to reverse the answers to the first, second, third, and fourth questions, or, in the alternative, to set aside the verdict and grant a new trial, judgment was entered upon the verdict, from which the defendant appeals.</p>

<p>Aepeal from a judgment of the circuit court for Grant county: Geoege Olementson, Circuit Judge.</p> <p>This is an action to recover the balance of the contract price for the erection of a roasting and separating plant for the defendant, the Roosevelt Mining Company. The plaintiff, in consideration of $6,500, agreed to erect for defendant one complete roasting and separating plant as specified in the contract of sale. The roaster is spoken of as the “Trego” roaster. The contract provided that payment of parts of the contract price should he made at specified times during construction, and that the balance of $1,500 should be paid two weeks after the plant was completed and ready for operation. The purchase price, except $1,500, has been paid, and this action is to recover this balance.</p> <p>The plaintiff claims that he furnished the roasting and separating plant called for by the contract, and that it fulfilled the conditions of the agreement; and demands the balance of the purchase price. One of the provisions of the contract was:</p> <p>“Said first party guarantees that this plant will handle twenty-five tons of mill concentrates from said second parties’ mill, providing the same do not carry more than thirty per cent, iron and four per cent, calcium carbonate, in each twenty-four hours of steady running, and that the finished product from the process will not contain more than four per cent, iron.”</p> <p>The defendant alleges that the roaster installed by the plaintiff failed to handle the amount of mill concentrates as agreed, and that it did not comply with the agreement for its erection, in that it was wholly unsuitable for the purpose for which it was designed, and alleges damages by way of counterclaim for the amount of money paid the men who were engaged by it while the plant was idle because of its defective operation, and for the value of great quantities of valuable ore which because of the alleged defective construction of the roaster were wasted and scattered through its smokestack. Defendant also asks the recovery of the amount paid on. the price of the plant, it being alleged that the plant is worthless and without value.</p> <p>The evidence adduced showed that the amount sued for was the balance due on the purchase price. It also appeared that the plaintiff had constructed a roasting and separating plant of the kind specified in the contract, namely, a Trego roasting furnace, with magnetic separating machine. These, with the accompanying appliances, constitute the structures enumerated in the contract, and were erected, except that the motor installed was a seven and one-half instead of a ten-horse power.</p> <p>The plaintiff ivas called and examined as a witness in his own behalf, and among other questions was asked:</p> <p>"Q. There are certain guaranties contained in the contract. I will ask you whether your plant was completed so as to fulfil all of those guaranties? (Objection. Uo proper foundation. This is asking for a conclusion without stating the groundwork of the information or whether he knows facts sufficient to show that it complies with the guaranty or not.) Court: I presume you had better let the question be answered. (To which ruling defendant excepted.) Ton can cross-examine. A. I did.”</p> <p>Upon cross-examination the following proceeding took place:</p> <p>“Q. "When you state that you complied with the conditions of the guaranty, yon rely on the representations of other people, do you not? A. And the chemists; yes, sir, Q. You didn’t know that of your own knowledge? A. Ho, sir. Defendant’s counsel: Then I ask that his evidence as to this mill complying with the guaranty be stricken out. Court: Well, it has been admitted. I cannot strike it out of the mind of the jury. This statement that it complied with the guaranty is not a statement made upon actual knowledge, but he has made that statement. Let that stand. It won’t hurt the case at all. (To which ruling the defendant by its counsel then and there duly excepted.)”</p> <p>There was no evidence in the case of analyses of mill concentrates of the quality specified in the contract which were furnished to the roaster and analyses of the roasted products from those mill concentrates. After the completion of the plant a test was made of.it and plaintiff thereafter reconstructed certain parts of it. There was evidence that the defendant used the plant for some time and that it offered to give a note for the balance of the purchase price. No instructions to the jury were given or requested upon the issues submitted to them. The jury returned a special verdict finding that the plant would handle the amount of ore specified in the time named and give a finished product as provided in the contract, provided the ore furnished was of the quality specified in the contract. This is an appeal from the judgment on the verdict in plaintiff’s favor.</p>

<p>Appeal from a judgment of the circuit court for Grant county: GeoRGE Clemewtson, Circuit Judge.</p> <p>This action was brought to establish the title of the plaintiffs to certain lands in Grant county, Wisconsin, and for an accounting and partition. The answer, among other defenses, sets up laches and alleges ownership and possession from the 18th day of April, 1896, and that such possession had been continuous, open, notorious, and exclusive of all rights, claims, or title of any person, and hostile to the claim of the plaintiffs and W. W. Likens, the person under whom plaintiffs claim. The findings made and filed by the court below give a history of the material facts.</p> <p>The court found substantially that on November 17, 1889, James Likens died intestate, leaving him surviving Artella Likens, his widow, and the following children: W. W. Likens, James Likens, Benjamin F. Likens, Sarah Jane Arnett, Josephine McGinnis, Emma I. Dilger, and Tilla A. Likens; that his son Benjamin F. Likens was appointed administrator in March, 1900, by the county court of Grant county, Wisconsin; that said administrator never filed a report and that the estate has never been settled; that said James Likens died seised of 232 acres of land in Grant county, upon which was an outstanding mortgage to James Miles of $250, dated Eebruary 28, 1880; that in 1891 a large barn was built on said premises at a cost of over $1,600; that said bam was built largely under direction and request of W. W. Likens, who promised to furnish the money to pay for the same, and, said barn not being paid for, liens were filed thereon in 1902 on a portion of said land in favor of William H. Schmitz for $249 and Kendrick & Wallenhorst for $709.65; that an action was brought to foreclose the lien of Kendrick & Wallen-horst in 1892, and in September of said year the widow and then surviving heirs of James Likens executed a mortgage to T. L. Oleary for the sum of $1,100 to pay said liens; that said mortgage was duly recorded, and covered all the land of which deceased died seised and the following additional land of Benjamin F. Likens: the S. E. \ of N. W. ^ of section IV, and the S. W. ¿ of the S. W. J of section IV, all in township 3, range 2 W.; that said mortgage was signed by Artella Likens (widow), Benjamin F. Likens, Barak Jane Arnett, W. W. Likens, Josephine McGinnis, Emma I. Dilger, and Tilla A. Likens; that James Likens, Jr., died in 1890, leaving him surviving a widow and three minor children, who did not join in said mortgage; that the proceeds of the mortgage to Oleary were used to pay the indebtedness on the barn built upon the lands of the deceased. The court further found that in 1894 said Cleary mortgage, having been duly assigned to O. H. Eighmy, was foreclosed, and judgment docketed thereon ETovember 14,1894, and thereafter the lands were sold by the sheriff in accordance with said foreclosure on March 6, 1896, to John F. Miles for $1,551, and a deed to said lands made by the sheriff to said Miles and duly recorded; that the land in question at a forced sale was not worth more than it was bid in for by said Miles; that the defendants Benjamin F. Likens and Tilla A. Likens did all they could preliminary to the foreclosure sale to induce others interested in said lands to come in and help them pay off the mortgage and save the land; that they failed in their endeavor, and all the parties interested knew that the land was to be sold and disposed of at a foreclosure sale; that John E. Miles bought the land for himself, but through his friendship for Benjamin F. Likens and Tilla A. Likens proposed to quitclaim it to them and take a mortgage back for the balance of the purchase money that they were unable to pay; that this transaction was in good faith, and Benjamin F. Likens and Tilla A. Likens on April 18, 1896, bought all the land described in said mortgage of John E. Miles for themselves, and have ever since April 18, 1896, held it as their own under said deed and to the knowledge of every one interested in the land prior to the foreclosure sale. The court further found that W. W. likens was a son of James Likens, deceased, and said W. W. Likens died in September, 1905, and that the plaintiffs are his widow and heirs, and that plaintiffs in this action, at the time of the death of W. W. Likens and ever since, have been nonresidents of the state of Wisconsin; that W. W. Likens, soon after said Miles deeded said lands to Benjamin and Tilla Likens, knew that they were the owners and claimed title thereto adversé to him, and never at any time during the nine remaining years of his life questioned their title as absolute owners of this land; that W. W. Likens was a lawyer, had practiced over thirty years, but did not reside with plaintiff, his widow, for more than twenty years before his death; that during the last four years of his life he was an invalid and was taken care of by Benjamin F. Likens and Tilla A. Likens, and that reasonable compensation for his board and attendance given him at that time would be $1,000; that none of the defendants in this action ever'appeared or answered except Benjamin F. Likens and Tilla A. Likens, and none of the other defendants has ever made any claim to an interest in these lands described in the complaint since March 6, 1896; that John F. Miles on April 18, 1896, made a quitclaim deed to Benjamin F. Likens and Tilla A. Likens of the lands described therein, and said deed was duly recorded; that said deed conveyed all the lands deeded to him in said sheriff’s deed except the S. E. of the N. W. of section 16, township 3, range 2 W.; that the said lands had been purchased by said Miles on, March 6, 1896; that the heirs of James Likens, Sr., had no title or interest in and to the lands of which he died seised (excepting the heirs of James Likens, Jr., deceased) from March 6, 1896, to April 18, 1896, when said lands were purchased from said Miles by Benjamin F. Likens and Tilla A. Likens; that the time for redemption under the Eighmy mortgage expired November 14, 1895; that the defendants Benjamin F. Likens and Tilla A. Likens fully informed the other heirs of James Likens, deceased, of all the facts as they occurred, and informed them that they were unable to redeem said lands from said foreclosure sale, and endeavored to secure the assistance of the heirs in raising money to do so; that thereupon all the other heirs of James Likens, deceased, abandoned all effort on. their part to redeem said lands or repurchase the same, and Benjamin F. Likens and Tilla A. Likens informed all the heirs that they were going to try and buy back the land in their own names and for their own benefit, and that all of the heirs acquiesced in this arrangement, and one of them, W. W. Likens, in a letter soon after the purchase, stated that he was glad to know they had bought the land in their own names; that at the time of the purchase from said Miles by Benjamin F. Likens and Tilla A. Likens the other heirs of James Likens, Sr., who signed the mortgage had no interest whatever in said lands and had lost the same by the foreclosure proceedings, and Benjamin F. Likens and Tilla A. Likens purchased said lands from Miles for their own sole use and benefit, as the heirs of James Likens, Sr., well knew; that during the last ten years the lands in controversy have greatly increased in value and are now worth four or five times what they were at the time of purchase by defendants; that if the plaintiffs, or their ancestor from whom they claim title, W. W. Likens, ever had any claim, there had been unreasonable delay on his part in claiming or establishing his claim to said lands.</p> <p>As conclusions of law the court found that the plaintiffs have established no cause of action and the complaint should be and is dismissed upon the merits, and the defendants Benjamin F. Likens and Tilla A. Likens recover their costs of the plaintiffs in this action. Judgment was so ordered and entered upon the findings of fact and conclusions of law, dismissing the complaint and for costs, from which judgment this appeal was taken.</p>

<p>Appeal from a judgment of the circuit court for Richland county: George Olemeetsow, Circuit Judge.</p> <p>Among other references upon the part of the appellant ■were tlie following: Sec. 4069, Stats. (1898); Daniels v. Foster, 26 Wis. 686; Belden v. Scott, 65 Wis. 425, 271ST. W. 356; Stewart v. Stewart, 41 Wis. 624; Adams v. Allen, 44 Wis. 93; Page v. Danaher, 43 Wis. 221; Sawyer v. Ghoate, 92 Wis. 533, 66 TT. W. 689 ; Harrington v. Priest, 104 Wis. 362, 80 U. W. 442; Allen v. Chippewa Falls, 52 Wis. 430, 9 ET. W. 284; Ward v. Henry, 19 Wis. 76; Gores v. Graff, 77 Wis. 174, 46 1ST. W. 48; McArthur v. Slauson, 53 Wis. 41, 9 1ST. W. 784; David v. Birchard, 53 Wis. 492, 10 1ST. W. 557; Fisher v. Shelver, 53 Wis. 498, 10 1ST. W. 681;’ U. S. Fxp. Go. v. Jenkins, 64 Wis. 542, 25 1ST. W. 549; Imhoff v. G. & M. li. Go. 20 Wis. 344; Bandall v. N. W. Tel. Go. 54 Wis. 140, 11 U. W. 419.</p>

This action is brought to recover a commission of $270 claimed to be due upon the sale of a farm.

<p> Boundaries: Evidence: 'Weight and sufficiency: Original monuments’: Courses and distances: Old fences: Instructions to jury. </p> <p>1. In controversies as to the location of corners or boundaries of lots or blocks in platted lands, tbe original location of monuments must prevail over tbe courses and distances marked on tbe plat.</p> <p>2. If tbe monuments bave disappeared tbeir original location is to-be determined by tbe best evidence available; and in sucb case-location of tbe disputed points by means of measurements by courses and distances is evidentiary only, and its weight depends upon circumstances.</p> <p>3. Where tbe original markings of a block bad been removed many years before tbe controversy as to tbe south boundary line of a lot arose, evidence of tbe construction of a fence designed to-be on the north line of the lot so soon after the original survey as to render it probable that the monuments were then in place or their location readily ascertainable, and evidence of acquiescence in the location of such fence for some thirty or forty years, was competent and, with other evidence, was sufficient to warrant the conclusion that the fence was properly placed, notwithstanding evidence of a surveyor to the contrary based on measurements from supposedly original monuments in other blocks.</p> <p>4. Instructions to the jury in such case directing them to give primary and controlling evidentiary effect to the old fence line if they were satisfied that when built it accorded with the original survey, and calling the jury’s attention to the undisputed facts and the testimony on the subject, are held not to have given undue significance to the old fence line.</p>

<p>Appeal from a judgment of tbe circuit court for Grant ■county: Geoege ClemeNtsoN, Circuit. Judge.</p> <p>Defendant’s railroad ran northerly and southerly through the village of Cassville, Wisconsin, and for several blocks was laid about the center of Front street, elsewhere one of the important streets, but within the block in question substantially uninhabited and untraveled except by pedestrians. .About five feet west of the track was a row of posts eighteen inches high supporting semaphore wires. The ordinary course of travel for pedestrians was on the track or upon the ballast close to the ends of the ties, and on the west side was between the track and these semaphore wires. On the day in question a long freight train was proceeding northward -on this track, and plaintiff, a boy nine and one-half years old, started to walk in the same direction between the -wires and the track.' According to the plaintiff and the verdict he was struck on the head by a “dope pail” attached to the side ■of one of the cars, knocked down, and severely injured. The jury found, by special verdict, that the presence of the dope pail on the side of the car constituted negligence on the part of the defendant and that such negligence was the proximate cause of the plaintiff’s injury. Motions to set aside and reverse the answers to these questions were overruled, and judgment entered upon the verdict for the damages found, from which the defendant appeals.</p>

<p>Certiorari: Appeal: Reviewy of judgment: Highways: Laying out and discontinuing: Clerical error in description: Presumption of regularity: Notice to landowners.</p> <p>1. Where, upon appeal from a judgment quashing a writ of certi-orari, the record shows that the circuit court heard the cause upon its merits on the return to the writ, and that there was no motion to quash, this court will review the judgment.</p> <p>2. In the proceedings of a town hoard laying out a highway, designation of the point of beginning as eighteen rods west of the northeast corner of a certain quarter-section, instead of the southeast corner thereof, is held to be a mere clerical error not invalidating the order of the board, where other parts of the description definitely showed the true point of beginning.</p> <p>3. Under sec. 1298, Stats. (1898), an order laying out or discontinuing a highway is conclusive evidence, in the absence of an affirmative showing to the contrary, of the facts stated therein and of the regularity of the prior proceedings, including the sufficiency of a notice and its service upon the proper persons.</p>

J. Fruit, Circuit Judge. This action was brought to recover balance due on promissory notes.

'Appeal from a judgment of tbe circuit court for Juneau county: J. J. Fbuit, Circuit Judge. Among other references upon tbe part of tbe appellant were tbe following: Secs. 3619, 3620, 3621, Stats. (1898) ; Bird v. Kleiner, 41 Wis. 134; Ohse v. Bruss, 45 Wis. 442; Miles v. Ghamberlain, 17 Wis. 446; Verbech v. Verbeck, 6 Wis. 159; secs. 2302, 2304, Stats.

J. Fruit, Circuit Judge. Tbis action is brought to recover damages for tbe loss of an eye, alleged to bave been caused by tbe actionable negligence'of defendant, wbicb operates a street railway in tbe city of La Crosse. Tbe plaintiff was a passenger on one of tbe defendant’s cars and desired to leave tbe same at tbe end of its journey.

<p> Marriage: Divorce: Statute prohibiting remarriage within year: Construction and effect: Evasion by marriage in another state: yar lidity: Common-law marriage. </p> <p>1. A state has power to declare that marriages between its own citizens contrary to its established policy shall have no validity in its courts, even though they he celebrated in other states under whose laws they would ordinarily he valid; hut the legislative intention that a statute should have such effect should be quite clear.</p> <p>2. Sec. 2330, Stats. (Supp. 1906; Laws of 1905, ch. 456) — providing that it shall he unlawful for any person divorced by any court of this state to marry again within one year, and that any such marriage shall he null and void — is a declaration of public policy and is clearly intended to control the conduct of residents of this state whether they be within or outside its boundaries.</p> <p>3. When persons domiciled in this state and subject to the provisions of said statute leave the state for the purpose of evading those provisions, and go through the ceremony of marriage in another state and return to their domicile, such pretended marriage is within the provisions of the statute and will not be recognized by the courts of this state.</p> <p>[4. Whether a judgment of divorce 'under the laws of this state should/not he construed as containing an inhibition of marriage of either party within one year which must he given “full faith and credit” (under sec. 1, art. IV, Const. U. S.) in all other states, so that such a marriage is not valid anywhere, is not decided.]</p> <p>6. For the purpose of evading the statute above mentioned a divorced woman was married in Michigan to another resident of this state. They returned here and cohabited as husband and wife until the husband’s death some months after the expiration of a year from the divorce. They had talked about a remarriage after the year, but it never took place on account of' the husband’s illness and death. Held, that there was no common-law marriage.</p>

<p> yendor and, purchaser: Fraud or mistake of vendor's agent: Pointing out wrong land: Rescission). </p> <p>"Where a person employed to procure a purchaser for land points out the wrong land to intending purchasers, whether by fraud or by mistake, and they purchase in the belief that they are getting the land shown, the consideration paid may be recovered, although the vendor did not know, when it was paid, that the agent,had shown the wrong land.</p>

<p>Appeal from a judgment of the circuit court for Wood county: Chas. M. Webb, Circuit Judge.</p> <p>July 30, 1903, plaintiff received personal injuries, alleged to have been caused by a defective highway in the town of Bock, Wood county. ■ Plaintiff was engaged in hauling wood over the road. The wagon wheel ran into a rut, or hole and gully, estimated at from one to two feet deep, causing one of the stakes holding the cordwood on the rack to break and the wood to fall. The horses became frightened, unmanageable, and ran. Plaintiff fell off the wagon and under the wheels of the wagon, which broke and crushed his leg and caused serious personal injuries. The notice of injury which was served upon one of the officers of the town contains the fob lowing description of the place of injury:</p> <p>“On the afternoon of the 30th day of July, 1903, I was driving and riding in a two-horse wagon loaded with cord-wood drawn by a span of horses at the public highway in said town which runs north between sections 32 and 33, in township twenty-four (24) north, of range two (2) east, about sixty rods north of the north line of the town of Cary, and while passing that part of the said highway, about sixty rods north of the north line of the town of Cary, in the exercise of due care, in the traveled path of said highway, the wheels of my wagon ran into a deep rut or gully.”</p> <p>This notice is alleged to be defective and misleading in that the place of accident, as shown by the evidence in the case, was not the same as that fixed by this notice of injury. There is evidence tending to show that the place of accident was about fifty-five rods from the town line, and some evidence that it was sixty-three rods from the line, instead of the sixty rods stated in the notice. There was evidence in the case tending to show knowledge on the part of the supervisors of the condition of that road, that they were not in fact misled by the alleged insufficiency of the notice of injury, and that the defects in the highway had existed for a sufficiently long time before the accident to enable the town, in the exercise of reasonable care and diligence, to have removed the defects.</p> <p>The jury returned a special verdict finding that the injuries were due to the defective and insufficient condition of the highway; that the town had notice thereof a sufficient length of time before the accident to enable it, in the exercise of reasonable care and diligence, to remove it; that the defects were the proximate cause of the injuries; that plaintiff was not guilty of any want of ordinary care proximately contributing to the injuries; and that the officers of the defendant town were not in fact misled by the notice of injury as to the place of accident by any inaccuracy in describing the place of accident and the injury with sufficient particularity. The jury also fixed plaintiff's damages.</p> <p>Errors are alleged on this appeal as to the reception and rejection of evidence, as to the instructions of the court and the refusal to submit proposed questions in the special verdict, as to the refusal of the court to change certain of the jury’s answers in the special verdict, and as to the refusal of the court to set aside the verdict and to grant a new trial. This is an appeal from the judgment on the verdict.</p>

<p> Master and servant: Injury to minor servant: Failure to give him proper information: Burden of proof: Instructions to jury: PrejvMcial error: Special verdict: Witnesses: Credibility. </p> <p>1. In an action for injuries sustained by a boy -while operating a machine in defendant’s factory, a charge to the jury which in effect put upon defendant the burden of proving affirmatively that proper instructions as to the adjustment and operation of the machine had been given to plaintiff, is held to have been prejudicially erroneous, notwithstanding a general statement in tlie opening part of. the charge that the burden of proving his contentions was upon the plaintiff.</p> <p>2. In an action for injuries sustained by a servant the burden of proof upon the issue of contributory negligence or assumption of risk is upon the defendant.</p> <p>3. Questions relating to mere evidentiary facts should not be submitted in a special verdict.</p> <p>4. Where a decision in a party’s favor depends largely upon the weight to be given his own testimony, the court should, upon request, instruct the jury that in considering the weight to be given his testimony they should consider his interest and the motive which he has to testify favorably to himself.</p> <p>B. Where a witness has wilfully testified falsely as to any material fact, the jury may disregard all his testimony except as it may be corroborated by other credible evidence.</p> <p>6. A requested instruction that, if the jury found that any witness had wilfully testified falsely as to any material fact, they might disregard all his testimony except as it might be “corroborated by other evidence in the case,” was defective because of the omission ©f the word “credible” before the word “evidence.”</p> <p>7. Although a requested instruction is a fair statement of the law on the subject, if it is a general instruction, not applying to any question of the special verdict, the refusal to give it. is not error.</p>

<p> Master and servant: Injury from uncovered gearing: Questions for jury: Negligence: Contributory negligence: Special verdict: Evidence: Immaterial error: Excessive damages. </p> <p>1. In an action for injuries to a minor employee caused by bis coming in contact with an exposed gearing in defendant’s sawmill, tbe evidence is held to sustain findings in a special verdict that such gearing was so located as to be dangerous to employees in tbe discharge of their duties, that it was not securely guarded or fenced, that defendant was guilty of negligence in that respect, and that plaintiff was not guilty of contributory negligence.</p> <p>[2. Whether sec. 1636;', Stats. (1898), — providing that gearings so situated “shall be securely guarded or fenced,” — imposes upon the employer an absolute duty to keep them so guarded, is not determined.]</p> <p>S. A question in the special verdict, “Did the plaintiff in any manner fail to use ordinary care which proximately caused or contributed to produce the accident?” which the jury answered “No,” is held, in the light of the charge to the jury, to have been understood and answered by them as if it read, “Did the plaintiff in any manner fail to use ordinary care, which failure proximately caused or contributed to produce the accident?”</p> <p>4. Error in permitting a witness who had worked in five or six different sawmills to testify that gearings therein in situations similar to that of the gearing in question were covered was not prejudicial, defendant’s duty to cover the gearing in question being imposed by statute.</p> <p>5. An award of $5,000 for injuries to a b'oy, whose leg was lacerated for a distance of fourteen to sixteen inches between the knee and hip and a portion of the muscle of his thigh torn out, and the use of whose leg was permanently impaired to a great degree, is held not excessive.</p>

<p>'Appeal from a judgment of the circuit court for Wood county: Ohas. M. Webb, Circuit Judge.</p> <p>This case was before this court on a former appeal and is reported in 132 Wis. 563, 113 N. W. 44. Eeference is made to that case for a statement of the facts material to be considered upon this appeal.</p> <p>After the record was remanded to the trial court, judgment was rendered in that court in favor of the plaintiff and against the defendant for $3,904.27 damages and $396.33 costs, making an aggregate of $4,300.60. The judgment for damages included interest to the amount of $693.'02, interest having been computed on the balance due under the terms of the contract from the time it became due until the date of the rendition of the judgment. The allowance' of such interest is the error upon which defendant relies for a reversal of the judgment.</p> <p>They argued, among other things, that the mandate of the supreme court is not now open to amendment or con-struetion. Anything omitted therefrom must have heen intentionally so omitted. The failure to provide affirmatively for interest is conclusive that interest cannot- he allowed. Whitney v. Traynor, 76 Wis. 628; Ludington v. Patton, 121 Wis. 649, 664; Everett v. Gores, 92 Wis. 527; Jenúings v. Parr, 66 S. C. 384, 44 S. E. 962; Meyer v. Kohn, 33 Oal. 484; In re Washington & G. B. Go. 140 U. S. 9.1, 94; The Glenochil, 128 Eed. 963; Green v. G., 8. & G. B. Go. 49 Eed. 907. Eecent cases show the practice of this court to direct in the mandate the allowance of interest, when interest is proper. Forster, W. Go. v.' F. MacKinnon Mfg. Co. 130 Wis. 281, 293; Brillion L. Go. v. Barnard, 131 Wis. 284, 303; Loverin & B. Go. v. Travis„ 135 Wis. 322. Municipal indebtedness will not carry interest, in the absence of an express contract to pay interest,’until after demand and refusal of payment. Carr v. State ex rel. Goetlosquet, 127 Ind. 204, 11 L. E. A. 370, 375; Savings & L. Soc. v. San Francisco, 131 Cal. 356, 63 Pae. 665; State ex rel. Parrott v. Board of Pub. Works, 36 Ohio St. 409; Tillson v. TJ. S. 100 U. S. 43; Pekin v. Beynolds, 31 Ill. 529, 532. Municipal corporations differ from other debtors in that the law does not penalize them with interest for failure to pay their debts when due, hut only after, a proper demand has heen made upon them and payment has heen refused. Donnelly v. Brooklyn, 7 ET. Y. Supp. 49, affirmed 121 ET. Y. 9, 24 El. E. 17; Taylor v. Mayor, 67 ET. Y. 87, 94; O’Keeffe v. New York, 176 ET. Y. 297, 298; Grant Go. v. Lake Go. 17 Oreg. 453, 21 Pac. 447; Savings & L. Soc. v. San Francisco, 131 Cal. 356, 63 Pac. 665; Boott G. Mills v. Lowell, 159 Mass. 383, 34 ET. E. 367; Ghicago v. People ex rel. Norton, 56 Ul. 327, 334; Vider v. Ghicago, 164 Ill. 354, 45 ET. E. 720; Peoria v. Fruin-B. G. Go. 169 Ill. 36, 48 ET. E. 435; Dan-ville v. Danville W. Go. 180 Ill. 235, 54 ET. E. 224; Goles Co. v. Goehring, 209 Ill. 142, 70 ET. E. 610, 616; O’Uerrin v. Milwaukee Go. 67 Wis. 142.</p> <p>They contended, inter alia, that upon default in its contract obligations the city must pay interest the same as a private contractor. Upon the principles applicable to private contracts interest has been adjudged against the state: Martin v. State, 51 Wis. 407; State ex rel. Sloan, S. & M. v. Warner, 55 Wis. 271. Against a county: Land, L. & L. Go. v. Oneida Co. 83 Wis. 649; Bice v. Ash-land Oo. 114 Wis. 130; Spooner v. Washburn Oo. 124 Wis. 24, 35, 36. Against a city: Kluender v. Milwaukee, 57 Wis. 636. Against a town: Mills v. Jefferson, 20 Wis. 50; Packard v. Bovina, 24 Wis. 382. These decisions are in harmony with the great weight of authority elsewhere. Bes-puhlica v. Mitchell, 2 Dali. 101; Milne v. Bempublicam, 3 Yeates, 102; Swann v. Turner, 23 Miss. 565 ; In re O’Berry, 179 N. Y. 285; Harrodsburg W. Go. v. Harrodsburg (Ky.) 89 S. W. 729; Lonsdale Go. v. Woonsocket, 25 R. I. 428, 56 Atl. 448; New Orleans v. Fisher, 180 U. S. 185; Louisville v. Henderson’s Trustee (Ky.) 13 S. W. Ill; Barfield v. Louisville (Ky.) 64 S. W. 959; Goan v. Brownstown Tp. 126 Mich. 626, 86 N. W. 130; Koshkonong v. Burton, 104 U. S. 668; Toledo G..E. Go. v. Toledo, 13 Ohio Dec. 137; Cooke v. Saratoga Springs, 23 Hun, 55. Cases holding interest not recoverable on county or town orders are not applicable since they are governed by special statutes.</p>

<p>Appeal from a judgment and an order of the circuit court for Wood county: Chas. M. Webb, Circuit Judge.</p> <p>This is a divorce action brought by the husband, alleging desertion, and praying for dissolution of the marriage, for costs, and for general relief. The summons and complaint were personally served on the defendant, who made default, and judgment was rendered on March 18, 1907, dissolving the marriage, giving the custody of the infant child of the parties to the defendant, providing that the plaintiff turn over to the defendant $400 as a final division of the property of the parties, and that plaintiff be wholly released from any care, maintenance, or education of the child or for the support of the defendant.</p> <p>More than a year after the entry of the judgment the defendant made a motion, based upon affidavits and a proposed answer, to set aside the judgment and for leave to defend. This motion was resisted upon opposing affidavits and denied by the court May 11, 1908. Erom this order and from the judgment (except those parts thereof granting the divorce and awarding the custody of the child to the defendant) the defendant appeals.</p> <p>To the point that under a prayer for general relief the trial court may grant alimony or a division of the property as ancillary to the action, even though the same is not prayed for in the complaint, they cited Zuver v. Zuver, 86 Iowa, 190; Hills v. Hills, 94 Ind. 436; Zulier v. Zulier (Ohio) 56 U. E. 661, 664; McJEwen v. McEwen, 26 Iowa, 575; Darrow v. Ear-row, 43 Iowa, 411; Gimmy v. Gimmy, 22 Cal. 633; Mum-roe v. Munroe, 20 Oreg. 579; Twing v. O’Meara, 59 Iowa, 326, 13 K W. 321.</p>

<p>'Appeal from a judgment of tbe circuit court for Milwaukee county: WakREN D. TaeeaNt, Circuit Judge.</p> <p>Action for penalty under cb. 515, Laws of 1907, for that on the 11th day of January, 1908, one McGrath was a telegraph operator in defendant’s station at Milwaukee engaged in reporting and receiving orders affecting the movement of cars, engines, and trains of the defendant company, and operating signal devices; that on said day the defendant required, allowed, and permitted said McGrath to be and remain on duty for said defendant twelve consecutive hours, not by reason of any casualty upon said railroad.</p> <p>The answer set up numerous separate defenses, most of them attacking the validity of the state law as inimical either to the Fourteenth Amendment of the United States constitution or to certain provisions of our own constitution, and some of them asserting certain technical grounds of escape from the words of the act. By the second and fifth defenses it was set forth that the defendant’s road ran through several states; that it was engaged in both interstate and intrastate business by the same employees, trains, cars, appliances, and track; that it was unavoidable that the same operator should work upon all trains passing over the. same division of tbe road, botb those whose termini were wholly within the state and those which crossed the state line; that it was wholly impossible that either class of trains should be directed or governed by a separate man; that during the excess time of employment of McGrath there was one train as to which he made reports, received orders, etc., which ran wholly within the state and carried nothing of interstate commerce, but that the great majority of trains in any way acted upon by him were interstate commerce trains; that any attempt to separate interstate from domestic commerce in the operation of trains and the regulation thereof by said operatives would result in great danger, delay, interference, and expense to the interstate commerce; that the statute in question was therefore void as restricting and regulating interstate commerce in defiance of the constitution of the United States conferring upon Congress the power to regulate such commerce, and also of the act of Congress of March 4, 1907 [ch. 2939, 34 U. S. Stats, at Large, 1415, IT. S. Comp. Stats. S>upp. 1907, p. 913], which prescribed a different and longer service for the same employees.</p> <p>The separate defenses of the answer were each met by a separate demurrer, except the first, which merely denied indebtedness for the penalty. The court below sustained the demurrer to all of said defenses except the first. The defendant declining to amend, judgment was entered for the' plaintiff for the sum of $1,000 with costs, from which the defendant appeals.</p>

Action for personal injuries. On and for some time prior to the 28th of September, 1905, the plaintiff, a man thirty years of age, was employed by the defendant as the conductor of a mixed freight and passenger train running between Mineral Point and the village of Highland, about thirty miles distant.

Mandamus to Eugene W. Helms, Judge of the Circuit Court for St. Croix County.

<p> Action, tort or contract? Agency contract: Breach: “Conversion:" Delivery of goods without requiring payment: Personal liability of agents. </p> <p>1. By a contract of agency for the sale of agricultural machinery no machinery was to be delivered to purchasers except for cash or notes actually received, and it was provided that any sale in violation of' that requirement should he deemed a conversion of the machinery by the agents, who should thereupon become personally liable to the principal for the full price thereof. In an action by the principal against the agents the complaint set out the contract and alleged that in violation thereof the agents sold and delivered certain machinery without its being paid or settled for in cdsh or notes and that plaintiff elected to treat such delivery as a conversion of the machinery by the defendants, who were personally liable therefor. Held, that the action was one for breach of contract, and that the “conversion” mentioned in the contract and complaint meant merely that by default of the agents the property had become theirs and they had become personally liable as stipulated in the contract.</p> <p>2. Acts of the agents in such case, in leaving machinery on the highway, not in charge of any person, and notifying the purchaser, without specifying any time, to come and get it and settle for it, thus giving him an opportunity, of which he availed himself, to get the machinery without first settling for it, are held to have been a breach of the contract, entitling the principal to hold them personally liable for the machinery.</p>

<p>. Appeal from a judgment of tbe circuit court for St. Croix county: E. W. Helms, Circuit Judge.</p> <p>Tbis action is brought on two promissory notes executed by tbe defendants to tbe Kenyon-Eosing Machinery Company, a corporation, hereinafter called “Machinery Company,” which notes were deposited with the plaintiff as collateral security for the indebtedness due it from such corporation. In August, 1904, the defendants, or some of them, purchased from the said Machinery Company a separator, stacker, and engine, for which they agreed to pay $3,200. Notes for the entire purchase price were signed by all of the defendants and delivered to said Machinery Company, two of said notes being drawn for $125 each, two for $738 each, and two for $737 each, such notes falling due at different dates. One of the notes for $738 and another for $737 were delivered to the plaintiff, as above stated. Early in September, by agreement of the parties, the engine which was delivered was returned to the Machinery Company because it did not comply with the contract of sale, in that it was a coal burner instead of a wood and straw burner, and another engine was delivered in its stead which used wood and straw for fuel. There was testimony tending to show that, at the time the exchange of engines was agreed on, some fault was found with the separator, and that the agent of the Machinery Company stated that, if it did not work satisfactorily after the new engine was put in use, it would be taken back and that the notes given for the outfit would be surrendered. Some time after the engine was delivered fault was found with the separator and the defendants refused to continue using it, claiming that it did not fulfil the terms of the contract under which it was purchased. This claim on the part of the defendants led to other negotiations, which resulted in a new agreement being made between the parties on December 6, 1904, to the effect that the separator and stacker might be returned to the Machinery Company.</p> <p>There was some dispute in the testimony as to the amount of credit to which defendants should be entitled on account of the return of this part of the outfit. It was claimed on the part of the defendants that at the time the agreement for the return of the separator and stacker was made the Machinery Company through its agent agreed to surrender up and cancel the notes that were then outstanding and that new notes should be executed in lieu thereof for the purchase price of the engine. The plaintiff contended that the agreement between the parties was to the effect that the two notes aggregating $250 should be surrendered and that proportionate indorsements should be made on the remaining notes for the balance of the credit to which the defendants were entitled on account of the return of the property as stated. The notes in question were delivered to the plaintiff before the agreement in reference to the exchange of engines or the agreement in reference to the taking back of the separator and stacker was made. The defendants had no notice of the alleged transfer of the notes, but such notes are admittedly nonnegotiable.</p> <p>The jury found that the Machinery Company promised to .surrender and cancel the notes originally given, and on the verdict so rendered the court entered judgment dismissing the complaint. Errors are assigned because of the failure of the court to direct a verdict for the plaintiff; because of the refusal of the court to change the answers to certain questions in the special verdict; because of the refusal of the court to render judgment for the plaintiff notwithstanding the verdict ; and because of rulings on evidence.</p>

<p>Appeal from a judgment of the circuit court for Dunn county: E. W. Helms, Circuit Judge.</p> <p>Action to recover on a promissory note. The defense was as tendered in the proposed amended answer, fully set forth in the report on the first appeal to this court. 130 Wis. 318, 110 1ST. W. 174. Eor a full statement of the issues presented reference is here made to such report, it being understood that such proposed amended answer was the answer in fact at the second trial, resulting in the judgment appealed from.</p> <p>Tie first trial was by tie court pursuant to a stipulation that tie cause should be placed upon tie court calendar and tried at tie convenience of tie court upon notice by it to tie attorneys for tie respective parties.</p> <p>Tie judge who presided at tie first trial did not preside at the second. On tie latter occasion, tie cause being on tie jury calendar and laving been reached for trial, plaintiff’s counsel moved on tie aforesaid stipulation for a transfer of tie cause to tie court calendar and a trial without a jury. Tie motion was denied, due exception to tie ruling being preserved. Evidence was introduced bearing on tie questions passed upon by tie jury. A special verdict was rendered containing these findings in substance: Tie purpose of both parties to tie contract was to defraud others. Tie real arrangement between them was a mutual scheme to make money by selling nominal territorial rights to others, each of whom should, by the sale contract, become a party to tie scheme, agreeing to sell similar rights to others, each of-whom should likewise sell to still others, and so on to the extent that purchasers could be found who would become like parties. Such arrangement was the real consideration for the note in suit. Neither party supposed the right to sell the device in Gates county was of any real commercial value, or that defendant would make any effort in that regard. Such right was not of any real commercial value. The written contract did not include the entire agreement. It was agreed when the contract was made and note given that the right to sell the patented article in Gates county during the life of the patent was of no value. The agent who represented the defendant in the transaction was authorized to make the agreement. Such agent had authority additional to that indicated in the writing between him and plaintiff.</p> <p>After the rendition’of the verdict a motion was made on behalf of plaintiff for judgment thereon, and a motion was made on behalf of defendant to change the answers which were adverse to it to answers in its favor and for judgment on the corrected verdict for the amount claimed in the complaint. Subsequently the court made and filed full findings of fact, substantially the same as would have been required in case of the trial having been had without a jury, denied plaintiff’s motion, and granted that of defendant. Judgment was rendered accordingly - dismissing the cause with costs.</p>

Ray SteveNS, Circuit'Judge. Plaintiff, lumber dealer in Chicago, on July U, 1906, bad agreed upon a sale of two bills of lumber, specified in detail for two bouses, for wbicb one H. Scbutte, a builder, bad taken contract, amounting to $2,160, and before shipment thereof tbe defendant executed a guaranty in part as follows: “I guarantee tbe payment of tbe above amount to you for lumber and building material' purchased of you by Mr. H. Scbutte to be delivered free on board…

<p> Sales: Executory contract: Refusal to accept goods: Performance: Burden of proof. </p> <p>Writings executed in August tc\ the effect that plaintiff had sold to defendants his crop of tobacco for that year, consisting of a certain number of acres, to be delivered about the next January in certain prescribed forms and in good packing condition, are held to have constituted an executory contract, not a sale in prmsenti; and in an- action for breach thereof by refusal to accept the tobacco the burden of proof was upon the plaintiff to show substantial compliance on his part by offer of delivery of the tobacco in the forms and in the condition specified.</p>

Ray SteveNS, Circuit Judge. This action was commenced in justice’s court to recover a balance of $4-6, alleged to be due tbe plaintiff from the defendant for rent of certain rooms, and to recover tbe further sum of $4 for gas furnished to tbe defendant.

Rat StevbNS, Circuit Judge. Action for personal injuries. The defendant owned and operated a large sugar factory at Madison, which was operated night and day. The plaintiff was a millwright, and at the time of the accident had been employed by defendant for more than a month as foreman of the night repair gang, and his duties were to repair such breakages in the machinery, belting, shafting, or pumps as happened during the night. There was much heavy machinery in the factory.

Eat Stevens, Circuit Judge. Action for damages resulting from excavation by defendant on his own adjoining premises and consequent removal of lateral support for plaintiff’s ground. Trial to tbe court, and judgment for plaintiff for $100 damages and costs, from wbicb defendant appeals.

order of the circuit court for Dane county: E. Rat Steveks, Circuit Judge. The appeal is from an order sustaining a demurrer to the plaintiff’s amended complaint in a suit in equity.

<p>Appeal from a judgment of the municipal court of Outa-gamie county: Thomas H. Ryaw, Judge.</p>

Action to recover upon a fraternal benefit insurance certificate.

<p>Appeal from a judgment of the circuit court for Outa-gamie county: Joi-iN GoodlaNd, Circuit Judge.</p> <p>Plaintiff having given a land contract for certain real estate for something over $2,000, of which about $200 was paid, which contract had by assignment become the property of Levi Bergstrasser, who had, however, taken no manual possession of the real estate, an arrangement was made between plaintiff and Levi Bergstrasser for the latter to procure certain pine timber on the premises to be cut and delivered to the plaintiff at a designated point and that the plaintiff should pay the expenses of cutting, hauling, and of sawing, and should dispose of the lumber and apply the net proceeds thereof upon the purchase price of the land. In pursuance of this arrangement George Bergstrasser, father of Levi, cut and hauled the logs to the designated place, at the sawmill of a third party, and there left them. A few days afterward, and after some had been sawn, they were levied upon under an execution against George Bergstrasser, and, without plaintiff’s knowledge, were sold by the sheriff, Lockery, to the defendants Iloffman and Rockdaschel, or one of them. Plaintiff, learning of this fact, made demand for redelivery of the logs and lumber into which they had been sawed, which was refused by the defendants Hoffman and Rockdaschel. Whereupon this action in replevin was brought therefor.</p> <p>The defendants set up, as their only claim, the sale on execution against George Bergstrasser. Upon the trial, after proof tending to establish the facts above stated, the court, on motion of the defendants to dismiss the action, held that the plaintiff sought to recover on the strength of an oral agreement made after the land contract, which was void under the statute of frauds, because the growing trees were real estate. He thereupon entered judgment reciting a directed verdict of the jury in favor of the defendants, but merely adjudging that the defendants recover costs from the plaintiff, from which judgment the plaintiff appeals.</p>

<p>'Appeal from a judgment of tbe circuit court for Outa-gamie county: JohN G-oodlaND, Circuit Judge.</p> <p>An action to recover damages for personal injuries to plaintiff’s intestate, wbicli are alleged to bave been caused by defendant’s negligence. Tbe defendant is a corporation engaged in tbe manufacture of paper at Appleton, Wisconsin. Leo Reffke, plaintiff’s intestate, was employed as a laborer in defendant’s paper mill and was engaged as a helper to operate a paper machine. It is alleged that Leo Reffke was twenty-one years old at tbe time of accident, namely, November 21, 1906; that be was of, limited experience in tbe work as a helper; that a part of bis duties as such helper consisted in placing drier felt on a revolving pulley and in removing such drier felt while tbe pulley and belt were in motion, and it is alleged that be was injured while in tbe performance of tbe duty. It is alleged that defendant was negligent in not furnishing the deceased a safe machine, a safe place to work, and that tbe defendant negligently exposed him to unguarded and unfenced belting, gearing, shafting, and flywheels, making them dangerous, and that such negligence of tbe defendant was tbe proximate cause of tbe decedent’s injuries and death. Tbe plaintiff sues to recover tbe damages caused by such injuries and death. The deceased was unmarried and bad no children, but left bis father, the plaintiff, and Hermina Eeffke, .his mother, surviving him. Plaintiff was duly appointed administrator of decedent’s estate.</p> <p>The defendant admits that it is engaged in the paper manufacturing business as alleged, that Leo Reffke was in its employ, and was on the day of the accident engaged as a machine helper; denies that it was negligent in any of the respects charged by the plaintiff; alleges that it furnished decedent safe and suitable machines at'which to work, a safe place in which to perform his work, and that it properly guarded and fenced all dangerous belting, shafting, gearing, and pulleys; and denies that decedent was exposed to any dangerous, unguarded, and unfenced machinery and appliances as alleged by plaintiff.</p> <p>The case was tried to a jury, which rendered a special verdict. The second question of the special verdict is: “At the time and place in question, did the defendant use ordinary care and prudence to prevent injury to-The plaintiff’s intestate while engaged in performing his duties as employee ?” The jury answered this question in the negative. By questions 3 and 4 the jury found that “the defective and unsafe condition of the machinery and appliances alleged to have existed at the time and place in question [was] the proximate cause of the injuries,” and that such condition had existed a sufficient length of time for the defendant, in the exercise of ordinary care, to have discovered and repaired it. They also found that the deceased was not guilty of any want of ordinary care which contributed to produce his injuries, and assessed the damages plaintiff sustained as a result of Leo Reffke’s death. Judgment was awarded against the defendant for the amount of damages assessed by the jury and the costs of the action. Erom this judgment defendant appeals.</p>

<p>Appeal from a judgment of the circuit court for Lang-lade county: -JoiiN GoodlaNd, Circuit Judge.</p> <p>Tbis is an action of ejectmeht brought to recover the possession of land fourteen rods east’and west by twenty-seven rods north and south, situate in the northwest comer of the N. W. J of the N. E. J of section 10, town 31 N., range 14 E. The complaint is in tire usual form, and the answer denies the plaintiff’s title and alleges ten years’ adverse possession by defendant under a written instrument. The plaintiff claims title by adverse possession for twenty years. The action was brought to trial in November, 1907, before the court and a. jury. At the close of plaintiff’s evidence the court granted a nonsuit, and judgment was entered dismissing the complaint, with costs, from which judgment this appeal was taken.</p>

<p> Trespass: Cutting of timber: Mistake: Evidence: Damages. </p> <p>In an action for trespass by cutting timber it appeared from the evidence that defendants bad positive knowledge of the existence and location of tbe witness- trees to a quarter-post on tbe section line dividing tbeir land from plaintiffs land on tbe east, and knew that sucb trees were at a distance west of a straight line between tbe section corners; that when about to cut tbe timber they ordered a survey by one who bad no knowledge of such trees, and that they did not in any way help him to find the quarter-post, although they knew that it determined the proper location of the line; that afterwards, knowing that he had not found the post hut had probably passed to the east Of it and that his survey was therefore unfinished and imperfect, and without giving him reasonable opportunity to find it,, they ordered him away to another survey. 'Held., that there-was no support for a finding by the jury that the cutting of timber on plaintiff’s land east of the true line was done by mistake; that such finding should have been changed by the court; and that plaintiff was entitled to recover under sec. 4269, Stats. (1898), the highest market value of the timber, in whatever place or condition, while in defendants’ possession.</p>

<p> Sunday: Contracts: Validity: Sale: Delivery and payment on secular day: Warranty of quality. </p> <p>1. A contract of sale made on Sunday is void and is not susceptible of ratification.</p> <p>2. An oral agreement for the sale of a carload of potatoes was made on Sunday. On Monday they were delivered and paid for. Held, that such delivery and payment were not mere incidents of the Sunday transaction, but in themselves constituted a complete contract of sale and delivery.</p> <p>3. At the time of the sale of a carload of potatoes in sacks some of the sacks were opened and the potatoes found to be all right. The sacks could not all be opened and examined without the expenditure of much time. There was evidence that the vendors represented to the vendee that the rest of the potatoes were as good as those examined and that the vendee relied on such representation and paid for the potatoes, hut upon promptly unloading the car found that about 100 bushels had been frozen, probably in transit. Held, sufficient to warrant a finding by the jury that there was an express warranty and a breach thereof.</p> <p>4. In such a case, if there had been no express warranty, the vendee might recover for breach of an implied warranty of quality.</p>

<p>Exceptions from tlie circuit court for Ashland county: E. Eat Stevens, Judge.</p> <p>On August 16, 1907, the defendant was convicted, under ch. 489, Laws of 1905, and the acts amendatory thereof, of setting, placing, using, and causing to be set, placed, and used, gill nets and pond nets for trapping fish in the waters of Lake Superior along the south shore thereof and within one mile of the main shore of said Lake Superior, said nets not being minnow seines not more than twenty feet in length or five feet in depth, or minnow dip nets not more than six feet in diameter. The information charges that defendant violated the provisions of the law above described.</p> <p>The case was tried upon a stipulated statement of facte, which set out that the defendant is a Chippewa Indian, bom within the jurisdiction of the United States and residing within the territory ceded by the Chippewa Indians of Lake Superior and the Mississippi to the United States under a treaty of September 30, 1854 (10 U. S. Stats, at Large, 1109). He became a citizen of the United States by virtue of sec. 6 of'the act of Congress of February 8, 1887 (24 U. S. Stats, at Large, 390, ch. 119), and for more than five years last past has exercised the rights of a citizen and has voted at elections in Bayfield county during that period. It is agreed that defendant used the nets seized in this action and that he set them in the outlying waters of Lake Superior, in Eed Cliff Bay, within one mile of the shore line of Bay-field county. Defendant does not reside within the boundaries of any Indian reservation, but resides in the village of Bayfield, Bayfield county, where he owns real estate upon which he pays taxes. The treaty under the provisions of wbieb tbe defendant claims exemption from the fishing laws of Wisconsin provides that such of the Indians as resided in the territory ceded therein should “have the right to hunt and fish therein until otherwise ordered by the President.”</p> <p>The court refused to direct a verdict in favor of defendant upon the stipulated facts and he was found guilty. The case is certified to this court under sec. 4720, Stats. (1898), upon summary exceptions to the court’s rulings.</p> <p>For the plaintiff it was argued, among other things, that as to the provision for hunting and fishing in such ceded territory contained in the treaty of 1854, made after the state was admitted, the federal government at that time, which was after the admission of the state, had lost jurisdiction — had no power or authority to insert such provision in the treaty, and that such provision is void as against the state or the laws of the state regulating the hunting or catching game and fish. People v. Bootman, 180 N. Y. 1, 7, 8; Geer v. Connecticut, 161 U. S. 519; State v. Nergaard, 124 Wis. 414; Ward v. Race Norse, 163 U. S. 504, 507. The state holds title to fish and game within its boundaries as a trustee for the people. Bossmiller v. State, 114 Wis. 169, 186; Roberts v. Fullerton, 117 Wis. 222. It can neither dispose of such property nor abdicate the trust, nor grant to one person special privileges in relation thereto, and it has never conferred upon the United States authority to control the game and fish within the boundaries of the state nor to grant special privileges Or rights in respect thereto either to Indians or others. Authority not conferred on the United States by the federal constitution is reserved by and to the several states.</p> <p>Counsel for defendant cited U. S. v. Thomas, 151 U. S. 577; Wisconsin v. Hitchcock, 201 U. S. 202; Starr v. Qamp-hell, 208 U. S. 527 (52 L. ed. 602) ; Ward v. Race Horse (dissenting opinion by BbowN, J.), 163 U. S. 504; Hauen-slein v. Lynham, 100 U. S. 483; Chew Heang v. U. S. 112 U. S. 536, 549, 5 Snp. Ct. 255. ,</p>

<p> Bastardy: Nature of proceedings: Jurisdiction: Circuit and municipal courts in Winnebago county: Change of venue. </p> <p>1. A bastardy proceeding, though purely statutory and strictly neither a criminal nor a civil action, has characteristics of both and is comprehended within the term “matters civil and criminal” as used in sec. 8, art. VII, Const., giving to the circuit courts original jurisdiction in all such matters not prohibited by law.</p> <p>2. A bastardy proceeding is not a criminal action within the meaning of that term as used in ch. 24, Laws of 1895, creating the municipal court of the city of' Oshkosh and county of Winnebago.</p> <p>3. Ch. 24, Laws of 1895, confers exclusive jurisdiction of bastardy proceedings upon the municipal court of the city of Oshkosh and county of Winnebago, and by implication prohibits the exercise of original jurisdiction in sucli matters by the circuit court for Winnebago county.</p> <p>4. The right to a change of the place of trial from one court to another is statutory and can be enjoyed only as prescribed by the written law.</p> <p>5. Ch. 24, Laws of 1895, provides for a change of venue from the municipal court of the city of Oshkosh and county of Winnebago in criminal cases only; and a change of venue from that court in a bastardy case cannot confer jurisdiction upon the circuit court for Winnebago county, even though the change is made upon the application of the accused and he thereafter submits without objection to trial in the circuit court.</p> <p>6. Where a court does not have jurisdiction of the subject matter of an action, mere submission thereto does not confer such jurisdiction, and if the court proceeds to trial and judgment the judgment is void.</p> <p>Timxiit and Babnes, JJ., dissent.</p>

<p> Appeal: Bevleio: Findings of fact by referee: Clerical errors: Exceptions: Logging contracts: Driving logs: Payment of damages to riparian owners. </p> <p>1. A finding of fact by a referee upon conflicting evidence will not be disturbed on. appeal unless it is clearly against tbe preponderance of tbe evidence.</p> <p>2. A specific finding of fact should be held to be controlling over another finding which is a mere recapitulation in figures of conclusions from facts previously found, where there is an evident clerical error or discrepancy in such figures.</p> <p>B. An exception to a finding of fact “except quantity of logs driven and the ownership of the enumerated parts,” does not authorize review of the part of the finding relating to the quantity of logs driven.</p> <p>4. Plaintiff contracted to drive defendant’s logs but became financially embarrassed and defendant took up the work and agreed to drive them at a reasonable price to be charged against plaintiff on the contract. During the drive defendant paid certain sums to riparian landowners who threatened to delay or prevent the drive unless damages for overflowing their lands were paid. The referee and trial court found that the danger of serious and prejudicial delay in the driving was apparently real and that the payments were necessarily made in order to enable the defendant to finish the drive within a reasonable time. There was evidence of an understanding between the parties that some such damages would probably have to be paid as a part of the expense of the drive. Held that, although there was no legal liability for such damages unless the drive was negligently made, reasonable payments of that nature were properly chargeable against plaintiff.</p> <p>5. In an action upon a logging contract the evidence is held to show that plaintiff left in the woods a greater quantity of logs than that found by the referee, and that the reasonable charges for cutting and banking uncut and skidded logs and the expense of driving the same were considerably less than the amounts found by the referee.</p>

Ray Stevens, circuit judge, sitting for the municipal judge. The petitioner, a Wisconsin corporation, contracted with the city of Madison to furnish all the labor and materials to lay gutters, to grade, macadamize, and otherwise improve Rlount street of the city, and to build a concrete drain under this street from Dayton street to Lake Monona.

Ray Stevens, Circuit Judge. This action is brought against a resident of the state of Wisconsin to enforce a stockholder’s liability arising under the laws of Minnesota. In May, 1901, the Merchants’ Rational Bank of St. Paul recovered a judgment against the Minnesota Thresher Manufacturing Company (hereinafter called the bankrupt), a corporation organized under the laws of the state of Minnesota, amounting to $2,936.07.

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

Action for damages, alleging tbat tbe defendant, a corporation, was conducting a place of public accommodation and amusement, to wit, a roller skating rink, in tbe city of Superior; tbat plaintiff paid tbe price of admission and for skating and entered said rink, but was prohibited by tbe defendant from skating for tbe reason tbat tbe plaintiff was a colored man; tbat be was thus unjustly denied equal enjoyment and privilege by illegal discrimination based wholly upon color,…

J. Vinje, Circuit Judge. Tbe defendant is a foreign corporation. On January 1, 1906, plaintiff at Charles City, Iowa, signed an order for a gasoline engine, subject to approval by tbe defendant.

<p> Justices' courts: Jurisdiction: Attachment: Insufficiency of affidavit: Waiver: Admission of requisite facts: Q-eneral appearance. </p> <p>1. Under secs. 3701, 3702, Stats. (1898), relating to affidavits for attachment and amendment thereof, the jurisdiction of a justice-of the peace to issue a warrant of attachment depends not upon the sufficiency of the preliminary affidavit, but upon the actual existence of the requisite facts, and these may be shown at any time before the trial, provided they existed at the time the original affidavit was first presented to the justice.</p> <p>2. Although the original affidavit for an attachment was insufficient, yet if, before the trial and while the justice had jurisdiction to-entertain the cause and allow an amendment, the defendant appeared generally and went to trial without objecting to the attachment on the ground of insufficiency of the affidavit, this was-a waiver of that objection and an admission of the .existence of the facts upon which jurisdiction to issue the warrant rested, so that, without amendment of the original affidavit, the justice-continued to -have jurisdiction not only to render a personal judgment against defendant but to entertain and determine the-attachment proceedings.</p>

This is.au appeal from a judgment entered in pursuance of an order sustaining a demurrer ore terms to the complaint in an action brought against the city of Superior for damages for personal injury alleged to have been caused by a defective sidewalk on a bridge in that city.

This is an action to recover for personal injuries received 'by the plaintiff while in defendant’s employ as a common laborer June 5, 1907. On and prior to said date the defendant owned and operated a factory and yard for the manufacture of cement and lime at Superior, which was located on the hay, so that vessels could and did discharge cargoes of stone into the yard.

Action to recover on contract. The issues involved Whether plaintiff rendered services for defendant in operating a store in Superior, Wisconsin, under an agreement that Re should receive as compensation therefor a specified amount per month and twenty-five per cent of the profits, and, if so, the amount of profits earned during the period of employment.

Plaintiffs busband, Henry Clappenback, beld a straight $1,000 life insurance policy with tbe defendant company, payable upon bis death to tbe plaintiff, containing a clause for payment of tontine accumulation of profits at end of twenty years. He bad paid premiums thereon for six years, up to October 20, 1906, but defaulted in payment of premium due at that date.

The plaintiff was running a saloon under an agreement with the defendant by the terms of which the plaintiff agreed to pay for the fixtures advanced by defendant in instalments of $5 per month and also pay $15 a month on rent of the premises.

J. .ViNJE, Circuit Judge. Tbe issues involved in tbe case, tbe facts respecting the location of tbe elevator in defendant’s building, its construct tion, manner of operation, its use by tbe occupants of tbe building as tenants of tbe defendant, and tbe facts bearing on defendant’s neglect to keep tbe elevator in a reasonably safe condition for carrying passengers are stated in detail in tbe report of tbe case on tbe former appeal (132 Wis. 478,110 N. W. 395, 111 N. W. 657,…

This action was commenced in justice’s court and the plaintiff recovered judgment. It was tried on appeal in the circuit court by the court, a jury having been waived. Plaintiff claims damages for loss of baggage checked from Edgerton to Janesville, Wisconsin. The circuit court found that defendant was liable as a common carrier for the loss of articles mentioned in the complaint, and that plaintiff was entitled to recover $89.29, the value thereof, with interest ..and costs.