Volume 137 — Wisconsin Reports

'Appeal from an order. of tbe circuit court for Rock county: Geoege Gkimm, Circuit Judge. This is an appeal from an order dismissing an appeal prosecuted by the plaintiffs from the disallowance of a claim by the common council of the city of Janesville. On November 21, 1905, a claim was filed with the city clerk of said city, entitled as follows: “City of Janesville to Hanrahan and Lindquist, Attorneys for M. J. Benson.” The amount claimed was $13,950.40.

<p> Railroads: Property: Taxation: Special assessments: Public-service corporations: Special improvements: Assessment by front-foot rule: Constitutional law: Police power. </p> <p>1. The principle that the franchises of a public-service corporation, together with the property owned by it which is necessary for its use in order to accomplish the purposes of its existence, constitute an entirety which is not ordinarily subject to division, by sale of a part on court or tax process, applies to railroads,, but is subject to the exception that such sale and division maybe authorized by special legislative authority.</p> <p>2. Ordinary statutory provisions, merely general in their nature, will not be construed to apply to such property.</p> <p>3. Oh. 425, Laws of 1903, providing, among other things, that the property of railroad corporations shall be in all respects subject to all' special assessments for local improvements in the: same manner and to the same extent as the property of individuals, such assessments to be collected by an ordinary action, at law, is an express and unambiguous declaration of legislative purpose to subject the property of a railroad to special assessments, although such property is a part of the entirety.</p> <p>4. Secs. 925 — 216 to 925 — 218, Stats. (1898), providing for the assessment for special improvements against adjoining lots at an even rate not exceeding $2 nor less than twenty-five cents per linear foot on the whole frontage of each lot, apply to public sanitary sewers, and are constitutional as a legitimate exercise of police power.</p> <p>S. Assessments against adjoining property need not he limited to - benefits received where such assessments are properly made under the police power.</p>

Appeals from a judgment of the circuit court for Bock ■county: Geobge Gbimm, Circuit Judge.

Action for negligence, wherein, plaintiff having stopped his loaded team in the road, and being engaged immediately in front of his front wheel in relieving' an entanglement of harness, the defendant undertook to drive by him from the rear upon the right-hand side, and, as plaintiff claims, turned back into the road before he had completely passed the plaintiff, causing the harness, and especially the whiffletree on defendant’s vehicle, to strike the plaintiff and do him…

<p>Appeal from a judgment of tlie circuit court for Rock county: Geoege Geimm, Circuit Judge.</p> <p>On July 7, 1900, tlie defendant gave W. T. Van Kirk, now deceased, a note for $200, with interest at the rate of seven per cent., due in one year. This action is brought by the trustee under the will of the deceased on this note, which was found among the decedent’s papers. The defense is payment. Defendant claims that in 1901 he gave a new note to take the place of the one upon which' this action is brought, which was lost, and that he thereafter fully paid the second note and thereby extinguished the debt. The second note has an indorsement upon its face, claimed by the defendant to be in the bandwriting of tbe deceased, as follows: ■“Paid in full with int.” Upon its back is tbe following in-dorsement, wbicb defendant claims was made by him at tbe time be gave tbe note to tbe deceased: “Int. paid on old note 14.00 Hov. 18 1901 old note lost if found canceled by this note.” Defendant introduced in evidence a receipt for a .year’s interest on a note, and was permitted, over objection, to testify that tbe receipt referred to tbe note on wbicb suit •had been brought. Tbe action was before this court on a former appeal, and is reported in 134. Wis. 291, 114 H. W. 489. Upon tbe remittitur and a new trial judgment resulted for the defendant. This is an appeal from such judgment.</p>

<p>Appeal from a judgment of the circuit court for Eock county: Geoege Gbimm, Circuit Judge.</p> <p>This is an appeal from a judgment affirming a judgment of the county court of Eock county disallowing part of the account of Charles Treloff as executor of the will of Herman Muellensohlader. The items disallowed were for counsel fees and disbursements incurred in securing the probate of the will of the deceased before said Treloff had qualified as executor and while he was merely proponent of the will, which will was presented for probate by said Treloff, executor named in the will. The circuit court found substantially as follows: That Herman Muellenschlader died on the 26th day of January, 1904, leaving a will dated the same day; that he left surviving him his widow, Anna Muellen-schlader, his daughter, Clara, aged ten years, and his son, Herman, aged seven, his sole heirs at law; that he bequeathed to Charles Treloff $2,000, to his daughter and son about $3,000 to be divided equally between them, to his wife and children, in equal shares, the sum of $3,500, stated in said will to be in Weld, Ehine province, Germany, from which bequest nothing has been realized; that to Charles Muellen-schlader, his brother, was bequeathed $2,000, stated in said will to be owing from one August Marx, from which bequest nothing has been realized; that the residue of his estate was bequeathed to bis wife and children in equal shares; that no residue remains; that Gharles Treloff was named as executor and the estate was appraised at $8,019.16; that said Gharles Treloff presented the will and his petition for probate to the county court of Rock county on the 2d day of February, 1904; that notice of contest was filed by the guardian ad litem in behalf of said infant heirs and by the widow in her own behalf; that a hearing upon the issues was had on the 19th day of April, 1904, and judgment entered denying probate of the will; that on the loth day of June, 1904, said Gharles Treloff and Charles Muellenschlader each took appeals from said judgment to the circuit court for Rock county; that on the 29th day of February, 1908, said matter was tried in the circuit court before the court and a jury and the jury returned a verdict advisory to the court therein, and thereafter the judge of said court filed findings of fact and conclusions of law adopting the verdict of said jury, and on the 8th day of April, 1905, entered judgment denying said will to probate; that on the 10th day of July, 1905, said Gharles Tre-loff took an appeal from said judgment of the circuit court to the supreme court of the state of Wisconsin, and the judgment of the circuit court was reversed and the case remanded with directions to the circuit court to enter judgment admit-" ting the will to probate and for further proceedings according to law [128 Wis. 364] ; that, upon such reversal, costs were 'taxed in said court in favor of said Gharles Treloff and against the respondents, widow and children of said deceased, in the sum of $130.30, which sum was charged in the final account of said Treloff as executor in said county court and allowed to him in said court out of said estate; that upon the filing of the remittitur in the circuit court costs were there taxed in favor of said Treloff and against the contestants, said widow and children of deceased, in the sum of $220.75, which sum was charged by said Treloff in his final account as executor and allowed to him by the county court out of said estate; that such costs included, among other items, $146.40 for drafting hill of exceptions on said appeal and copies thereof, witness fees for J. F. Pember $3.08, and witness fees for E. E. Woods $3.08 ; that upon the proceedings in said matter in the county court said Treloff appeared by George G. Sutherland, his attorney; that in the final account of said Treloff as executor he charged said estate $150 for services and disbursements rendered by said Sutherland, and upon the hearing of said final •account said item of $150 was allowed out of said estate, and ■said item included the witness fees for J. E. Pember and E. E. Woods, witnesses called on behalf of said Charles Tre-loff in said will contest in the county court; that William G. Wheeler was employed as attorney for Charles Muellen-schlader upon the trial of said matter in the county court, and that the appeal hy said Charles Muellenschlader from the judgment of the county court denying said will to probate was taken by said Charles Muellenschlader by William G. Wheeler, his attorney, and the appeal from said judgment by said Treloff was taken by George G. Sutherland and William G. Wheeler, his attorneys; that William G. Wheeler was actually employed'by said Treloff, the proponent and legatee named in said will and'the person named as executor in said will, as his attorney upon the will contest in the county court, circuit court, and supreme court, and in the course of such employment rendered services of the reasonable valué of $476.25 and incurred expenses amounting to $11.50; that on the trial of said will contest in the county and circuit courts said Treloff called as witnesses J. E. Pember and E. E. Woods, both physicians, to testify as experts relative to the mental competency of the testator at the time of making said will; that the reasonable fee of said Woods is the sum of $5; that the reasonable fee of said Pember for time actually spent as such witness, being two days in circuit court and one-half day in county court, at $15 per day, is $37.50.</p> <p>As conclusions of law the court found: That there was no abuse of discretion by the county court in refusing to allow said attorney fee of William G. Wheeler and the fees of said E. F. Woods and J. F. Pernber as expert witnesses in favor of said Charles' Treloff in his final account; that the judgment of the county court of Rock county dated December 26, 1907, from which this appeal was taken, should he wholly affirmed, with costs of this court in favor of the widow and children of said deceased against Charles Treloff.</p> <p>Judgment was entered according to the findings of fact and conclusions of law, from which judgment this appeal is taken.</p>

Dick, Circuit Judge. This action is brought to recover damages alleged to have been sustained by reason of the plaintiff’s horses having been injured on a defective highway. The defect complained of was that the defendant town had negligently permitted a certain highway to he blocked with an accumulation of snow for a period of two weeks or more, in violation of the provisions of see. 1249, Stats. (1898).

<p>Appeal from an order of the circuit court for Waukesha county: Mahtiet L. Ltjeck, Circuit Judge.</p>

Lueck, Circuit Judge. Action to recover damages for breach of contract. The cause was tried by a referee, who found as facts thus: February 17, 1904, defendant contracted to furnish plaintiff 400 tons of ice at $1 per ton, f. o. b. cars at Pewaukee, Wisconsin, shipments to be made at such times between April 1, 1904, and October 1, 1904, as demanded by plaintiff.

S. Geiswold, Judge. This is an action for the collection of a legacy and the enforcement of the lien created thereby upon the real estate specified in the will of plaintiff’s father, Henry Korn, deceased. 'William, Korn has a life interest in the real estate charged with the lien. After his death the property is devised to his issue then living, and, if he dies without issue then living, then it is devised to the living grandchild or children of the testator.

Two equitable actions • were consolidated and tried together. The first action was brought by Paetz, as administrator of the estate of one Louisa Kautz, deceased, to set aside and cancel a deed of lands executed by her to Zoerb a week before her death, on the ground that the deed was obtained by fraud and was never in fact delivered.

<p>Appeal from a judgment of tbe circuit court for La Crosse county: J. J. Fbuit, Circuit Judge.</p> <p>One Ealpb B. Luekey was on tbe 5tb day of February, 1907, adjudged bankrupt upon an involuntary petition filed January 18, 1907. For years be bad been a general merchant at Cuba City, doing bis banking business with tbe defendant, and for some time bad also been treasurer of tbe school district. Early in 1895 Luekey was indebted to tbe bank in tbe sum of about $4,000. He also was in arrears to tbe school district, having shortly before received $10,000 of school district money, deposited tbe same in bis general bank account, and so checked against that account that only some $4,000 remained to bis credit therein. Tbe cashier of tbe bank was one of tbe sureties on bis bond and became disturbed at tbe condition, and urged that be at least make good tbe school moneys. After some negotiation tbe two sureties upon bis school treasurer bond and tbe two other members cf tbe board undertook to sign notes for $7,750, which, with the moneys to his credit at tbe bank, would make good that fund. It is claimed by tbe defendant that tbe bank refused to lend this $7,750 to Luekey, but merely consented to loan it to tbe persons who signed tbe note. Tbe loan was in fact made, however, on tbe note of tbe parties other than Luekey and tbe money placed to the credit of the school district in the name of Luekey as treasurer. At the same time his own notes for $4,000 to the bank "were taken up, thereby discharging certain indorsers, and his new notes to the amount of $4,000 given in lieu thereof, which were secured by a written guaranty of the same persons who signed the $7,750 notes. A transfer from his general bank account to the bank account of the school district was made so as to make that account equal the school moneys in his hands. Tie continued to do business, paying in one way and another nearly $4,000, which were applied upon the $7,750 notes, until October or November, 1906, when the bank, and perhaps his sureties, became impatient, the indebtedness not having been reduced as promised. After considerable urgency, and efforts on his part to reduce his stock and make payments, ho finally, early in November, sold out his business at the full amount of the inventory of the stock and nearly $1,000 bonus. At that time $1,000 was paid by the purchasers and placed by him in his general bank account. The balance was to be paid when the inventory of the stock was to be completed. This was accomplished December 5, 1906, at which time he received checks for $7,300 from those purchasers, which he handed to the bank officers for application upon the claims which the bank held. The officers of the bank credited this $7,300 into his general account, already containing $600 or $700, and then made applications by debit charges against that account sufficient to satisfy all bis notes, and delivered up his notes, including the $7,500 note not signed by him. ITow far such applications were authorized by him so as' to constitute voluntary payments was a matter of contention between the parties. After the trustee in bankruptcy had been appointed, suit was brought in the circuit court for Dane county (venue being after-wards changed to La Crosse county) to recover the amounts of such payments from the defendant bank as unlawful preferences under the bankruptcy law. Upon the trial the parties stipulated that the court might find that Luckey was insolvent- .December 5, 1906, as a part of tbe special verdict, and that tbe payments by Luckey would enable sucb bank to obtain a greater percentage of its debts and claims than would be obtained by other creditors having claims of the same class, and that, after special verdict had been returned, the court should find the amount paid by Luckey to the bank in December, 1906, and a finding of Luclcey’s intent in making the payments in case he should determine it to be necessary, and also to find whether the sums of money received by the bank were offsets or not. Thereupon the court submitted two questions to the jury: First. Were the loans of April 11, 1905, made by the defendant bank, of $7,750, loans to Ealph B. Luckey? Answered “Yes.” Second. Did the bank officers on December 5, 1906, have reasonable cause to believe that by the payments made by Luckey to said bank on said day it was intended thereby to give the bank a preference ? Answered “Yes.” . No findings were made by the court, but, after due motions to raise all questions present on this appeal, judgment was entered in favor of the plaintiff for $7,915.12, with interest thereon from the commencement of the suit, from which judgment defendant appeals.</p> <p>They contended, inter alia, that the instruction quoted in the opinion was largely taken from Jackman v. Fau Claire Nat. Bank, 125 Wis. 465, which case was afterwards affirmed by the supreme court of the United States (Fau Claire Nat. Bank v. Jackman, 204 U. S. 522), and cited as other authorities supporting the instruction, Hargreaves Bros. v. Hackney, 74 Neb. 700, 104 N. W. 855, 856; Capital Nat. Bank v. Wilkerson, 36 Ind. App. 467, 473, 75 N. E. 837, 839; Parlcer v. Blade, 143 Eed. 560, 562, 151 Fed. 18; In re Hines, 144 Fed. 543, 545, 546; Sundheim v. Ridge Ave. Barde, 13& Fed. 951; Wetstein v. Franciscus, 133 Fed. 900; In re Andrews, 135 Fed. 599; Crittenden v. Barton, 59 App. Div. 555, 5 Am. Bankr. Rep. 775, 777; In re Virginia H. Mfg. Co. 139 Fed. 209; In re Pease, 129 Fed. 446, 448, 450, 451; Iloudc v. Christy, 152 Fed. 612; Walbrun v. Babbitt, 16 Wall. 577, 21 L. Ed. 489; In re Knopf, 146 Fed. 109; Coder v. McPherson, 152 Fed. 951, 952; Roberts v. Johnson, 151 Fed. 567; Western T. & T. Co. v. Brown, 129 Fed. 728, 730; Stevens v. Oscar Solway Co. 156 Fed. 90, 19 Am. 'Bankr. Rep. 399, 403; In re Lynden M. Co. 156 Fed. 713,. 714; In re McMurtrey, 142 Fed. 853, 856; Pittsburgh P. Q. Co. v. Edwards, 148 Fed. 377; Sardy v. Cray, 144 Fed. 922, 931; Wright v. Sampler, 152 Fed. 196, 198; In re Coffey, 19 Am. Bankr. Rep. 148, 165; John Naylon & Co. v. Christiansen S. Mfg. Co. 158 Fed. 290, 293; In re W. W. Mills Co. 162 Fed. 47.</p>

<p>Appeal from an order of the circuit court for Dane county: E. Eat Stevens, Circuit Judge.</p> <p>Mandamus proceedings to require the State Bailroad Commission to furnish the relator with a certificate of authority to issue stock in addition to that originally authorized in its articles of organization. The Commission refused to furnish such certificate because the relator had not filed the amendment to its articles of organization increasing its capital stock with the secretary of state. The relation showed facts essential to favorable action upon its request for the certificate unless filing of an amendment to its articles of organization increasing its capital stock was necessary. There was a motion to quash the alternative writ, which was denied upon the ground that the relator’s petition showed that it was entitled to the certificate demanded because a railroad corporation,, in order to increase its authorized capital stock, is not required to file an amendment to its articles of organization covering the subject or evidence thereof, with the secretary of state. The appeal is from the order overruling the motion to quash.</p>

<p> ■Criminal law and practice: Review: Writ of error: Amendment: Order denying new trial: Review by writ of error before judgment: Statutes. </p> <p>1. In. a criminal cause the fact that no judgment has been entered is of itself no sufficient ground for refusing to consider a writ of error, for the supreme court has power to amend the writ so as to permit a review of proper orders.</p> <p>2. The'proceedings under see. 4719, Stats. (1898), whereby the defendant in a criminal cause is given the right to apply for a new trial and on its denial is entitled to have errors alleged to have been committed on the trial and embraced in the application reviewed by writ of error, differ from the course of reviewing a motion for a new trial upon the court’s minutes under sec. 4724; hence a motion to set aside a verdict and grant a new trial upon the minutes of the court upon the grounds that the verdict was contrary to law, against the evidence and not supported thereby, and also upon the ground that the verdict was perverse and did not do substantial justice to the defendant, presents no grounds under sec. 4719 for the issuance of a writ of error before judgment to review the order refusing defendant a new trial.</p>

<p> Railroads: Personal injuries: Accidents at crossings: Contributory negligence. </p> <p>In an action for personal injuries sustained at a railroad crossing; it is "held, under the evidence, that the plaintiff had an opportunity to look and listen while traveling over the fifty-three feet which intervened between the point where he stopped, looked, and listened and the nearest rail of the track, and that, although his attention was diverted hy the spirited team he was driving, it.was not irresistibly diverted, and hence that he was. guilty of contributory negligence. "Winslow, C. J., and Sm-becker, J., dissent.</p>

<p>Judgments: Involuntary nonsuit: Res adjudicata: Discovery: Examination of adverse party for purposes of pleading: Affidavit: Requisites.</p> <p>1. A judgment rendered in a former action as the result of a motion for a nonsuit, made by the defendant at the close of plaintiff’s testimony and before the defendant rested ber case or offered any evidence, and rendered because plaintiff was found guilty of contributory negligence, is not a judgment of dismissal on tbe merits, but a judgment of involuntary nonsuit, and is not a bar to another action brought upon the same grounds.</p> <p>'2. Where a plaintiff proceeds to examiné the defendant under sec. 4096, Stats. (1898), for the purpose of framing a complaint, it is not required that plaintiff should set out in the required affidavit facts sufficient to constitute a cause of action.</p> <p>3. In such case it is not even necessary that the plaintiff should know that a cause of action exists, and the examination may be had even though the affidavit shows affirmatively that the plaintiff does not know.</p> <p>4. In such case, while it may be customary to state in the affidavit that the facts upon which discovery is sought are not within the knowledge of the plaintiff, such statement is not essential, and its omission does not render the affidavit defective.</p>

<p> Contracts: Ambiguities: Parol evidence: Sales: Breach: Waiver. </p> <p>1. A -written contract for the purchase of 20,000 bushels of malt provided, in substance, that the price should be fifty-nine cents, per bushel delivered free on board cars at Chestnut street station, Milwaukee, to be shipped one car per week beginning in the last week in November; that shipments were to be made-in bags or in bulk “as ordered,” and that the shipping directions given were “Via C., M. & St. P. R. R.,” followed by a line-headed with the word “To,” which was left unfilled. Held:</p> <p>(1) Taking all of the provisions of the contract together, and in connection with the significant, and apparently deliberate, omission of the place to which shipments were to be made, the-contract was uncertain on its face.</p> <p>(2) In that situation, evidence of the situation and surroundings of the parties as well as their communications, so far as such communications threw light upon the situation, were competent to be received in order that the court might read the contract in the same light as the parties did when they made it.</p> <p>(3) The meaning of the parties and the proper construction of the uncertain terms of the written contract was for the jury.</p> <p>2. In such case the parol evidence admitted on the trial is held to be sufficient to show that shipping orders were to precede shipments.</p> <p>3. In an action for breach of contract to deliver a quantity of malt, the evidence, stated in the opinion, is held to justify a finding that plaintiff, the purchaser, by its acts and conduct had, at the time the seller refused further performance, evinced an intention no longer to he hound by the contract.</p> <p>4. There may he a breach of an executory contract by deliberate refusal to perform stipulations upon which the obligation of the other party depends, and, when such breach takes place, the other party has a right to treat the contract as wholly terminated and take measures accordingly.</p> <p>5. In such situation, if the other party does not treat the contract as terminated, but continues to demand performance, he will be held to have kept the contract alive. He cannot treat the repudiation of the contract as a breach and as no breach at the same time.</p> <p>■6. Where, after a buyer had repudiated a contract for the delivery of malt, the seller neither did nor said anything indicating that he expected or demanded performance of the contract, he cannot Ije said to have treated, or waived his right to treat, the repudiation as a breach.</p>

<p>Appeal from a judgment of the circuit court for Brown county: S. D. Hastihgs, Circuit Judge.</p> <p>Action to recover for cream separator alleged to bave been sold and. delivered by plaintiff to the defendant with, no specified price, but which, was of the alleged reasonable value of $100. Answer, general denial. Action was tried to the court, jury being waived. The court found that on or about October 14th. plaintiff sold and delivered to the defendant the cream separator; that the same was of the reasonable value of $100; that payment had been demanded but not made; and rendered judgment in favor of the plaintiff for the amount so found with interest and costs, from which the defendant appeals.</p>

<p>Appeal from a judgment of tbe circuit court for Mari-nette county: S. D. Hastings, Circuit Judge.</p> <p>Tbe plaintiff bad judgment for $5,000 and costs against tbe defendant in an action for personal injury incurred June 10, 1906. There was a special verdict finding that tbe plaintiff was injured by being caugbt in tbe cogs of wheels on revolving shafts which be was attempting to oil, having been ordered to do so by defendant’s superintendent. Tbe bearings or cogs in question were squeaking and smoking for want of oil.- Tbe work of oiling tbe machinery was dangerous to an inexperienced person, and tbe superintendent was negligent in ordering tbe plaintiff to oil tbe machinery without instruction or warning as to tbe danger incident thereunto. This negligence was tbe proximate cause of plaintiff’s injury, and tbe plaintiff bad not at tbe time be attempted to oil the machinery sufficient instruction, experience, or intelligence to have enabled him by tbe exercise of ordinary care to have comprehended and appreciated tbe dangers incident to such work, and there was no contributory negligence on tbe part of tbe plaintiff. Errors assigned raise tbe questions: (1) Whether there was sufficient evidence to go to tbe jury or support a verdict. (2) In instructing tbe jury. (3) Eor improper remarks of counsel. (4) In framing tbe special verdict. There is also a claim that tbe damages are excessive.</p> <p>Among other references upon tbe part of tbe appellant were tbe following: Flaherty v. Harrison> 98 Wis. 559, 74 N. W. 360; Both v. 8. F. Barrett Mfg. Co. 96 Wis. 615, 71 N. W. 1034; Wunderlich v. Palatine F. Ins. Co. 104 Wis. 382, 80 N. W. 467; McCoy v. Milwaukee St. B. Co. 82 Wis. 215, 52 N. W. 93; Beyer v. St. Paul F. & M. Ins. Co. 112 Wis. 138, 88 N. W. 57; Muenchow v. Theo. Zschetzsche & Son Co. 113 Wis. 8, 88 N. W. 909; Burnell v. West Side B. Co. 87 Wis. 387, 58 N. W. 772; Groth v. Thomann, 110 Wis. 488, 86 N. W. 178; TJpthegrove v. Jones & A. C. Co. 118 Wis. 673, 96 N. W. 385; Banderola v. Wis. Cent. B. Co. 133 AVis. 249, 113 N. W. 138; Van de Bogart v. Marinette & M. P. Go. 127 AVis. 104, 106 N. W. 805; Chybowski v. Bucyrus Go. 127 Wis. 332, 106 N. W. 833; Peake v. Superior, 106 Wis. 403, 82 N. AV. 306.</p> <p>Among other references upon the part of the respondent were the following: Neilon v. Mcvrmette & M. P. Co. 75 Wis. 579, 44 N. W. 772; Ohopin v. Badger P. Go. 83 Wis. 192, 53 N. W. 452; Anderson v. Ohicago B. Go. 127 Wis. 273, 106 N. AV. 1077; Stork v. Charles Siolper G. Go. 127 Wis. 318, 106 N. W. 841; Horn v. La Orosse B. Go. 123 Wis. 399, 101 N. AV. 935; Thompson v. Edward P. Allis Go. 89 Wis. 523, 62 N. W. 527; Taylor v. O. & N. W. B. Go. 103 Wis. 27, 79 N. W. 17.</p>

<p>Abbeal from a judgment of the circuit court for Brown county: S. D. HastiNgs, Circuit Judge.</p> <p>This action is brought to recover damages for an injury sustained by the plaintiff while engaged in repairing a car that was out of order. The alleged negligence of the defendant consisted in moving an engine upon the track on which the car stood that was being repaired, without any warning or precaution, whereby said car was suddenly moved, and plaintiff, in consequence of such movement, was injured. It was also alleged that defendant was negligent in failing to provide any protection against the negligent moving of the engine, and in failing to supply plaintiff with means of protecting himself, and in failing to warn the plaintiff that the track upon which the car was being repaired would be used in operating the engine which caused the accident. At the close of the testimony the court directed a verdict in favor of the defendant, and from a judgment entered upon such verdict dismissing the complaint plaintiff brings this appeal.</p>

<p> Municipal corporations: Public improvements: Worh on streets: Manner of payment: Contracts: Bids. </p> <p>1. A village board appointed a street commissioner and authorized him to hire men and teams and do general highway work under the orders of the board, and the commissioner employed men and teams by the day, and proceeded to fill up holes and turnpike the main village street for a distance of seventy rods with gravel hauled from a pit owned by the village. Held, that the board had authority to do.this and defray the expense out of the general highway funds of the village created under secs. 911, 912, Stats. (1898).</p> <p>2. Sec. 921, Stats. (1898), does not prevent the repair of highways by the employment of, men and teams by day’s work, even though the total expense of the entire work may exceed fifty dollars.</p>

<p>Appeal from a judgment of tbe circuit court for Mar-inette county: S. D. HastiNgs, Circuit Judge.</p> <p>This was a controversy between employee -and employer as to whether an injury which happened to the former was caused by actionable negligence of the latter.</p> <p>The injury consisted of the breaking and severely wounding of plaintiff’s right leg, rendering amputation above the knee necessary. While he was in the regular course of his. employment in the act of stepping over the uncovered journal end of a shaft which was armed with a safety set-collar having the head of the set-screw sunk to a level with the ring, the set-collar being feed to the shaft so as to run substantially in contact with the inner end of the bos, the lower part of his overalls on the right leg caught in a defect in the collar with the result stated. The accident happened August 11* 1906.</p> <p>The claim of plaintiff was that defendant was actionably negligent in maintaining an uncovered shaft and set-collar over which employees were accustomed to pass in the course-of their employment and liable to be injured by coming in contact therewith. Defendant,-by answer, put in issue such claim and pleaded contributory negligence.</p> <p>There was evidence as follows: Plaintiff was accustomed to work about machinery, particularly such as was connected ■with the avocation of a blacksmith. PTe was upwards of forty years of age. He had been working for a considerable period •of time prior to tbe accident as a blacksmith, in defendant’s blacksmith shop, during which time he had more or less to do with the particular machinery in question. Primarily his duty was to work at his forge, depending upon a blower operated by power transmitted thereto by means of machinery of which that he came in contact with at the time of the injury was a part He had a helper whose duty was to attend the machinery, but in case of his absence plaintiff had to give attention thereto. He was perfectly familiar with all of the •conditions he was subjected to in the course of his employment, except a breach in the set-collar. How long such imperfection had existed and whether defendant knew thereof prior to the accident, there was no proof. There was a rectangular oblong structure composed of four six-inch square timbers suspended above the floor of the shop. Across the narrow part of • this framework, and about midway thereof, there was a shaft which ran in boxes at the ends of the shaft resting on blocks which in turn rested on the framework so that the shaft was some thirteen inches above the top of the timber. The south end of the shaft was fitted with the set-collar aforesaid. North of the set-collar there was a transmission pulley on the shaft thirty inches in diameter. At the north end of the shaft, set substantially up to the box on that end, there was a drive pulley. It was necessary frequently to reach the two boxes for the purpose of oiling them and sometimes to reach the drive belt at the northeast comer of the framework in order to throw such belt from the prdley and stop the machinery. There was other machinery •supported on the framework so located in connection with •belts that there was a choice of methods of reaching the points mentioned without dangerous interferences. "When plaintiff was employed he was referred to his assistant for information as to the method of reaching and caring for the machinery. He was instructed accordingly. The way the assistant was accustomed to proceed, and the plaintiff as well by the former’s advice, was to ascend by means of a ladder to the top of the framework at the west end, then walk on the timber, assisted, if necessary, by taking hold of a steam pipe suspended high enough to clear-the drive pulley and horizontal with the long way of the framework, to the south bos, and, as required, to the east comer of the framework, thence north to the point of throwing off the drive belt. In case of the steam pipe being hot so as .not to admit of its being grasped by the bare hand, a hook was used with which to engage the pipe, leaving the hand at a safe distance therefrom. The thirty-inch pulley was so near the south timber that by reason of a joist set on the south side of the framework one in passing over the south box to reach the place for throwing off the belt had to go through a passageway between the ' pulley and the joist about eleven inches wide. On the morning of the day in question, plaintiff, observing the journal on the drive end of the shaft was heating, proceeded in the regular way to the south box with a pail of water with which to cool the “hot box.” From his position at the south box he • leaned over and poured 'water on the north box. Finding that he could not seasonably by that means restore the north box to a proper working condition, he started to go south on the timber for the purpose of reaching the point for throwing off the drive belt. In so doing he lifted his right foot to step over the end of the shaft, which was revolving at great speed, whereupon his overalls caught in the imperfection in the sertr collar and he was instantly injured as before indicated.</p> <p>The cause was submitted to the jury with the following result: Plaintiff, while employed in defendant’s mill, August 11, 1906, was injured by having his overalls caught by a collar on the shafting that was not guarded. The shafting was so located as to be dangerous to plaintiff in the discharge of his duties. The injury was caused by failure to guard the shafting and collar. There was no want of ordinary care on plaintiff’s part, aside from his continuing in defendant’s employment with knowledge of the unguarded shaft and collar, contributing to his injury. Eight thousand five hundred dollars is required to compensate plaintiff for his injury. Judgment was rendered accordingly.</p>

<p>Appeal from a judgment of tbe circuit court for Brown county: S. D. HASTINGS, Circuit Judge.</p> <p>Tbe defendant school district, for a period of about twenty years, rented from tbe defendant Congregation of tbe Immaculate Conception, a Roman Catholic church corporation, certain rooms in its school building and expended the school moneys of the district in paying teachers to conduct schools therein, and also paid certain small amounts for fuel, cleaning, and the like. The building had been erected for the purposes of a parochial school by said church corporation, and the rest of the rooms therein not rented by the district were used to maintain the parochial school, and the public school conducted in the rooms rented by the school district was characterized by certain religious ceremonies, in that certain distinctive prayers of the Catholic Church were said at intervals throughout the school day, church hymns were sung, and the teachers were nuns specially designated to the service by the superior of a Catholic sisterhood to which they belonged. In addition the scholars prior to school hours quite uniformly attended distinctively religious teaching in the adjoining church, and the school was suspended to enable their attendance upon weddings and funerals in the church. The pupils were all children of Catholic parents, members of the church congregation, with occasional exceptions of one or two at various times during said twenty years. The plaintiffs, members of the congregation, but also residents and taxpayers of the district, on behalf of themselves and others similarly situated, brought this-action to enjoin the school board and district from persisting in maintaining the public school of the district in such manner and from paying out any moneys of the district for such purposes, and also to recover in behalf of the district all sums paid for maintenance of such school from the said church corporation and from the members of the school board,who had joined in paying it out. The trial court found that the school so conducted had.at all times been pervaded and characterized by sectarian instruction contrary to law, and granted injunction against continued maintenance thereof, but held that it was within the power of the school •district and board to rent rooms as they deemed wise for the maintenance of a distinctively public school, and therefore refused to enjoin the maintenance thereof in the parochial school building. With regard to the moneys expended prior to the commencement of the suit, he held that the plaintiffs and all members of the school district had at all times had full knowledge, both before and immediately after the fact, of the manner in which the school was conducted and of the -expenditure of the school district moneys for the purposes aforesaid, and that, having made no objection, they were .guilty of laches such as to warrant the court in denying the prayer for the repayment of moneys expended for services rendered in good faith and with the tacit approval and acquiescence of all interested parties. The plaintiffs appeal from those parts of the judgment which deny injunction against maintenance of a public school in the parochial school building and deny recovery from the church corporation and from the members of the school board of the moneys paid out for teachers’ salaries and other expenses of the school maintained heretofore.</p>

<p> Contracts by correspondence: Meeting of minds. </p> <p>A contract claimed to arise from an,offer and acceptance in letters is to be interpreted and applied in the light of the facts as understood by the parties, and when the minds of the parties to the transaction did not come to an agreement on the subject of the interest in the property to be embraced in the contract, no contract resulted.</p>

<p>Appeal from a judgment of the circuit court for Oconto •county: S. D. Hastings, Circuit Judge.</p> <p>Action for personal injuries.</p>

D. Hastings, Circuit Judge. This action is brought upon a nonnegotiable promissory note for $500, executed and delivered by the defendant to one W. H. Clawson, which note was assigned by said Clawson to one W. B. Allen, and was assigned by said Allen to the plaintiff. The alleged consideration for the note was the procuring of a purchaser by Clawson for a steamboat owned in part by the defendant.

I). Hastings, Circuit Judge. Action by an architect to recover on two contracts, one for making plans and specifications for a dwelling house and the other for superintending the construction thereof. Defendant pleaded as a defense to plaintiff’s second claim that the contract was entire and was not fully performed.

EeeoR to review a judgment of the circuit court for Juneau county: J. J. Eeuit, Circuit Judge. Writ of error to review conviction of the plaintiff in error upon information charging that on or about February 1, 1907, the plaintiff in error embezzled the sum of $850 from H. E. McEachron Company, a corporation, of which he was an employee.

D. HastiNgs, Circuit Judge. This action was commenced for the recovery of damages on account of personal injuries alleged to have been sustained by plaintiff, Frarilc Phillips, at De Pere, Wisconsin, on or about the 11th day of August, 1906, through the negligence •of defendant.

Aeeeae from a judgment of tbe circuit court for Brown county: S. D. HastiNGS, Circuit Judge. Tbe plaintiff was at work sweeping one of tbe streets in tbe city of Green Bay, Wisconsin, and was run into and injured by an automobile owned by appellant, John Baum.

'Appeal from an order of tbe circuit court for Dane county: E. Rat SteveNS, Circuit Judge. This is an appeal from an order overruling tbe demurrer of tbe appellant to tbe plaintiffs complaint. Tbe action was brought to foreclose a lien claimed by respondent, Chcmctter Lumber Company, for lumber and mill work to tbe value-of $1,100 alleged to bave been furnished by it to tbe defendant U. Scbutte, principal contractor, for tbe construction of a dwelling bouse for appellant.

<p>Appeal from a judgment of tbe circuit court for Dane county: E. Eat SteveNS, Circuit Judge.</p> <p>Tbe claim in tbe case was tbis: April 28, 1897, plaintiff obtained from tbe Natural Premium Mutual Life Insurance Company, a corporation duly authorized in tbe matter, an annual twenty-payment life insurance policy, securing to his wife, Julia Plilliard, in case of ber surviving him, $1,000, or in tbe event of ber not so surviving and- bis decease leaving children, such sum to such children, otherwise the same to his personal representative. It provided for a payment of $162.09 as a surrender value at the end of ten years in case of the policy being kept alive till that time, contingent upon its surrender for cancellation and sixty days’ notice in writing being given to the company. December 5, 1906, plaintiff gave defendant such notice, but it failed and refused and on further notice and demand still refuses to pay said sum or any part thereof. He tendered defendant the policy before the commencement of this action and has kept such tender good. By contract with the company named in the policy and subsequent assent of the assured, prior to 1899, all the liabilities under such policy devolved upon the defendant. There was an appropriate prayer for judgment. The defendant answered by a general denial and pleaded the terms of the contract. The giving of notice as alleged' was admitted. There were further allegations presenting the question as to whether the surrender value was not less than that claimed by about one half.</p> <p>The cause was tried by the court without a jury. The policy of insurance contained this provision: “It is understood, that in the event of the surrender of this policy, the beneficiary hereunder shall have no claim whatever upon the said company.”</p> <p>The court found as matters of fact the issuance of the policy, the creation of liability and surrender value at the end of the tenth year, as alleged in the complaint, and further found that the defendant company was solvent and had in hand funds available for and applicable to payment of such value, and ordered judgment in plaintiff’s favor therefor with interest as prayed for in the complaint. Judgment was accordingly rendered.</p>

Appeals from judgments of the circuit court for Sauk •county: James O’Neill, Judge. These actions involved the same transactions and were tried on the same testimony. The first action was brought upon leave, duly obtained, to foreclose a mortgage upon real •estate given to Claridge by the Clover Creamery Association, a bankrupt corporation, and the second was brought by the trustee of the bankrupt to recover payments made by the association to Claridge before the' bankruptcy.

<p>Appeal from a judgment of tlie circuit court for Brown county: S. D. Hastings, Circuit Judge.</p> <p>This is an action upon a promissory note for $250, which, ■was one of four notes executed hy Howard J. Smith (respondent Irving 0. Smith's testator) and William L. Pfeiffer to the Advance Eire Appliance Company, a partnership, on October 31, 1903. The partnership was composed of one Scheuer and one Weinsheimer, and was engaged in manufacturing and selling an unpatented dry compound for extinguishing fires, prepared from a secret formula and known as “Blaze Killer,” and which was put up in tin tubes having on the outside a design composed of a shield and trefoil with the words “Blaze Killer” thereon, which was labeled a trademark but never recorded or copyrighted. The compound had been upon the market since its discovery in 1899 by one Schaffer and had attained some general sale. The consideration of the notes (which in all amounted to $950) consisted in the agreements of a written contract executed on the same day by the parties. This contract recited that whereas the defendants had purchased from the first parties and paid for “the right and privilege for the exclusive sale of its fire extinguisher (Blaze Killer) in Brown county, Wisconsin, it was agreed;” then followed a statement of the fixed price per dozen, viz. $6, at which for a term of ten years the first parties were to sell the Blaze Killer to defendants in any quantity the defendants might wish; an agreement that, should the first parties sell any Blaze Killers to any one within the said county, they would maintain a price five times as great as that charged the defendants and pay to defendants the difference monthly; a provision that no salea .should be made by defendants outside of the territory, but, if any were made, that defendants should pay to the first parties one half of the sums received in excess of the contract price; also a provision that the contract should become void in case three dozen were not sold by defendants in any .year; and a further provision giving the defendants one half of the amount paid for exclusive agency rights in other territory by any purchaser whom they obtained.</p> <p>Soon after the contract was made a domestic corporation was formed, of which Scheuer became president, and the partnership transferred to the corporation all its business and property, including the note in suit, which was specially in•dorsed by the partnership to the order of the corporation without recourse. On December 2, 1903, the defendants ¡surrendered the previous contract to the corporation and ■received in exchange a new contract executed by the corporation and themselves, which was intended to take the place of the previous contract. It stated that the corporation had appointed the defendants its agents for the sale of Blaze Killer and such other articles as it might place on the market, and that it sold to the defendants the “exclusive privilege for the sale of its extinguishers and other goods” in Brown, Calumet, and Oconto counties. This agreement fixed the prices ¡at which Blaze Killer should be furnished to defendants up to January 1, 1921, at $6 per dozen for cash, .but, in case notes had been given for territorial rights, then the price should be $13.50 per dozen cash, of which $7.50 was to be indorsed on the notes until the notes were fully paid, after which the price was to be $6. It contained the same stipulation as the former agreement as to the prices which the ■corporation would maintain and the amounts which it would pay to the defendants in case it sold Blaze Killer to any ■other persons within the territory, with a proviso that, in case such sales were made by any agent working for the ■corporation under a similar contract, the defendants should rely only on the agreement of such agent to turn over to the corporation, for the benefit of defendants, one half of the amount of such sales exceeding $6 per dozen. It also contained a stipulation that if defendants sold any Blaze Killer outside of their territory they would report same to the corporation and turn over to it monthly one half of the amounts so received in excess of $6 per dozen for the benefit of the agents having the right to such territory, failure to do which should ipso facto terminate the contract. It also contained like provisions as to the termination of the contract in case three dozen were not sold in any year and as to the amount to be paid to defendants in case they secured a purchaser for additional territory, except that such amount was to be twenty-five per cent-, of the proceeds instead of one half.</p> <p>The note in suit was payable one year after its date, and on the 7th of May, 1904, the plaintiff received it from Scheuer in payment of a personal obligation to him from Scheuer, and it was then indorsed: “Pay to B. A. Kipp without recourse. Advance Eire Appliance Company by Joseph E. Scheuer, Prest., E. L. Grieb, Secy.” The plaintiff claimed to be a bona fide holder before due, but the defendants claimed that he took the note with knowledge of the facts, and that there was in fact no consideration for it. The trial court held as matter of law that there was no consideration, and submitted to the jury the single question whether the plaintiff bought the note in .the usual course of business in good faith, for value,' and without notice of what it was given for. The jury answered this question in the negative, and, judgment being rendered for the defendants, the plaintiff appeals.</p>

Appsal from a judgment of the circuit court for Ash-land county: John K. Parish, Circuit Judge. This is an action upon a promissory note by the receivers of the Security Savings Bank, incorporated, against the mater of the note and the former owner of the note as in-dorser. L. T. Boyd is the maker of the note and J. S. Ellis is the payee and indorser.

JohN K. PaRisi-i, Circuit Judge. This is an action of ejectment brought by the plaintiffs, original owners, against tbe defendant, claimant under a tax title. Tbe action was tried in tbe circuit court for Iron county and resulted in a verdict for tbe plaintiffs. After verdict and on July 1, 1905, tbe court signed a conditional order requiring tbe plaintiffs to pay tbe amount of taxes paid by tbe defendant, with interest, within ninety days.

Parish, Circuit Judge. The appeal is from a judgment, denying a motion of defendants to vacate a judgment in the above entitled action and allow defendants to file a proposed answer. Among other references upon tbe part of tbe appellants were tbe following: Sec. 2832, Stats. (1898); Bloor v. Smith, 112 Wis. 340, 87 N. W. 870; Schobacher v. German-town F. M. Ins.

<p>Appeal from a judgment of tbe circuit court for Busk county: JohN K. Paexsh, Circuit Judge.</p> <p>Tbis action is brought to recover damages for tbe killing of live stock on two separate occasions. At tbe close of tbe testimony tbe court directed a verdict for tbe plaintiff for tbe amount demanded in bis complaint as amended at tbe trial. Defendant assigns as error tbe refusal of tbe court to grant its motion for a directed verdict and tbe granting of tbe plaintiff’s motion for sucb verdict. Defendant urges tbat its motion to direct a verdict should have been granted because tbe notices of loss failed to state where the animals were killed, and one of them failed to state tbat satisfaction Avas claimed for tbe loss sustained, and, further, tbat tbe jury, upon tbe facts tbat might be legitimately considered by it, would be warranted in finding a lesser amount than tbat which it was directed.by the court to find.</p>

Paeish, Circuit Judge. Tbis is an action to recover a balance claimed to be due for cutting, skidding, and banking saw logs and to enforce a log lien therefor. Tbe action was tried before a jury.

<p>Appeal from a judgment of the circuit court for Ashland county: John K. Paeish, Circuit Judge.</p> <p>Civil action for assault and battery.</p> <p>Beth plaintiff and defendant were partly of Indian blood. The occurrence was at Odanah railway station on the Indian reservation in Northern Wisconsin. The defendant justified upon the ground that he was an Indian policeman lawfully acting in the performance of his duties.</p> <p>There was evidence showing, or tending to show, the following situation: Defendant was a subordinate United States officer on' the Indian reservation having authority to enforce observance of the regulations of the Interior Department for the preservation of peace and good order and the observance of law thereon. Plaintiff knew, or ought to have known, of that fact. The latter went upon the depot platform to meet his wife and child, whom he expected, presently, to arrive by train. Defendant ordered him back from the front of the platform and persisted in enforcing his command in that regard after being informed of plaintiff’s purpose. The latter persisted in carrying out such purpose after the train arrived and his' wife was about to alight therefrom notwithstanding defendant indicated a determination to prevent it by force. The result was that defendant pushed plaintiff back, roughly, and knocked him down with a policeman’s club and then incarcerated him in a badly kept jail for two nights and a day and then set him at liberty.</p> <p>There was evidence on defendant’s side tending to show he acted in good faith to enforce, as he supposed, lawful rules made by the Indian agent, his superior officer; that he assaulted plaintiff to prevent being assaulted by him; that he took him into custody because he was, and persisted in being, disorderly; that he kept him the two nights and one day because of the time, the intervening day being Sunday, and that he set him at liberty, without further pursuing the matter, as a favor. There was evidence on the other side tending to show the assault was needless and perpetrated, revengefully, to prevent plaintiff from going to meet his wife, and child. There was evidence that the Indian agent had given orders to keep persons away from trains on their arrival who were not desirous of boarding the cars, but there was no rule of the Inferior Department on the question, nor any rule of such department which plaintiff violated up to the time the assault occurred. The jury rendered a verdict in plaintiff’s favor. The amount allowed thereby was reduced to comply with terms of denying a motion for a new trial, and judgment was rendered accordingly.</p>

Pabish, Circuit Judge. The complaint alleges that November 12, 1903, the county board of Price county by adoption of an ordinance to be in full force and effect after April 1, 1904, did change the boundary line between plaintiff and defendant towns by detaching certain territory from the defendant and annexing it to the plaintiff, which ordinance directed that the boards of supervisors of the respective towns shall meet as soon as convenient after the next annual meeting and…

Paeish, Circuit Judge. This is an action in replevin to recover possession of certain railroad ties and cordwood. The answer was a general denial. The sheriff seized forty cords of the wood; the defendant gave a redelivery bond, and this property was returned to him. The evidence showed that the wood was cut by the defendant from the plaintiffs’ land. The defendant offered to permit plaintiffs to take judgment for the sum of $50 and costs.

Pabish, Circuit Judge. The appeal is from a judgment rendered upon certiorari to and reversing' the decision of the inspectors of election of the village of Prentice relative to the results of an election upon the question of license or no license for retail liquor dealers in said town.

'Appeal from an. order of the superior court of Lincoln ■county: Almost A. Helms, Judge. This is an appeal from an order overruling two general demurrers interposed „by different defendants to the complaint in the action.

<p> Chattel mortgages: Legal title after condition brolcen: Trespasser: Right as against unfiled chattel mortgage. </p> <p>1. A chattel mortgagee, after condition broken, has tbe legal title to the mortgaged property and the right to the possession thereof.</p> <p>2. Under sec. 2313, Stats. (1898), providing for the filing of chattel mortgages and the effect of such filing, the owner of an un-filed chattel mortgage can recover the mortgaged property from a mere trespasser.</p> <p>£3. It seems that the provisions of sec. 2313, Stats. (1898), are intended only for the protection of those claiming the mortgaged property by purchase, assignment, or otherwise from the mortgagor in possession, and not for the protection of mere trespassers.]</p>

C. Silverthorkt, Circuit Judge. Action to recover on contract for personal services. Tbe controversy was as to tbe amount due and involved two coun-tercláims.

<p> Master and, servant: Personal injury: Questions for jury: Setting aside directed verdict. </p> <p>In an action by a servant for personal injuries it is held that tbe questions of negligence and contributory negligence or assumption of risk were properly for tbe jury, and that tbe trial court did not err in setting aside on that ground a verdict which, at tbe close of tbe evidence, it bad directed for tbe defendant.</p>

This is an action of mandamus to compel tbe mayor and common council of tbe city of Wausau to revoke tbe license of one Ered Brand, a duly licensed saloonkeeper of tbe city, it being alleged that be unlawfully sold intoxicating liquors to a minor. Complaint was made to tbe mayor and common council that Brand bad sold intoxicating liquor to a minor without a written order from bis parents or guardian.

The defendant Carolina is the wife of defendant Friedrich Petraschefsld, and plaintiff Lydia is the wife of plaintiff Otto Mootz and daughter of defendants.

Helms, Judge. The appeal is from an order refusing to vacate an order made by the judge of said court appointing commissioners in a condemnation proceeding. Among other references upon the part of the appellants were the following: Powers v. Bears, 12 Wis. 213; Stale v. Hogue, II Wis. 384, 36 N. W. 860; Western Union R. Co. v. Diclcson, 30 Wis. 389; Eaton v-. Williams, 51 Wis. 99, I N. W. .838; Baker v. State, 56 Wis. 568, 14 N. W. 718; Yellow River Imp.

Helms, Judge. This action is brought to compel the defendant to specifically perform a contract alleged to have been made for the sale of real estate. The contract is based entirely upon letters passing between the parties.

<p>County judges: Compensation: Appeal and error: Questions presented for review: Conclusiveness of findings: Officers: Per diem compensation: Splitting days: Judicial day’s work: Statutes.</p> <p>1. Under sec. 694, Stats. (1898), providing that the county hoard shall fix the salaries of county officers, including the county judge, in the absence of other specific provisions the salary of a county judge so fixed constitutes the sole compensation for all services which the law requires of him. 1</p> <p>uder sec. 2454, Stats. (1898), as amended by ch. 45, Laws of 1903, judges of county courts which do not have civil jurisdiction are entitled to a per diem compensation for hearing applications for permits allowing minors to labor, except in counties where provision is otherwise made by law.</p> <p>3. The county court of Lincoln county is endowed with civil jurisdiction by ch. 249, Laws of 1895, and sec. 9 thereof provides that, in all matters, actions, and proceedings of which the county court and the judge thereof “had jurisdiction before the passage .of this act,” it should be lawful for him to receive and charge the same fees and per diem as theretofore allowed by law for like services, to be paid in like manner. Ch. 109, Laws of 1891, in force in 1895, prohibiting the employment of children under fourteen years of age in certain occupations, except upon a permit to be obtained from the county judge after examination into the circumstances, further provided that “no charge or fee shall be required under this section.” Held:</p> <p>(1) The word “required” indicates that the intent was to make sure that the application should be entirely free to the applicant and to prevent the county judge from requiring such applicant to pay anything in order to secure the permit.</p> <p>(2) The county judge of Lincoln county was entitled to his per diem compensation from the county for time actually engaged in considering applications for child labor permits at the time of the passage of the act giving his court civil jurisdiction.</p> <p>(3) The county judge of Lincoln county was entitled to a per diem compensation for his services in examining and passing upon applications for sdeh permits in 1906.</p> <p>4. A finding is conclusive on appeal where there is no exception thereto and the evidence is not preserved by bill of exceptions.</p> <p>5. While, as a general rule, under statutes allowing a per diem compensation to officers for services, a day cannot fie split up, and the officer is entitled to a full day’s pay if any time was occupied in tfie service, although the whole day is not consumed, the use of the words “for each day he shall be actually engaged” in the matter, is held indicative of an intention only to allow for time actually consumed.</p> <p>6. Such construction necessitates a splitting up of days and a charge by the hour, and in the instant case, in the absence of any error assigned or argued upon the decision of the lower court that six hours constituted a day’s work for a county judge, such decision is affirmed, without committing this court in any way Upon the question as to the proper length of a judicial day.</p> <p>7. Where a statutory charge for an officer is limited to $5 per day it means a calendar day, and, where the number of hours constituting a day is fixed, such officer cannot, by working over hours, entitle himself to more than the per diem allowance for any one calendar day.</p>

0. Silverti-iorw, Circuit Judge. ' Plaintiff in error avus charged under sec. 4399, Stats. (1898), with burning the dwelling house of Julia Kopcyzn-ski, November 6, 1905, no person being lawfully therein. The cause was tried on a plea of not guilty. There was evidence to this effect: The accused at the time of the occurrence was the lawful husband of Julia Kopcyznski.

S. Gkiswold, Judge. Plaintiff alleged that she advanced $900 to the defendant, her son, to be used in purchasing a lot and in erecting a homestead, with the understanding that she was to receive a four per cent, mortgage therefor; that the money was expended, $300 in the purchase and $600 with other moneys in the erection of a house; and that defendant refuses to execute the mortgage. She prayed specific performance and other general relief.

' Appeal from a judgment of tbe circuit court for Douglas county: A. J. ViNJE, Circuit Judge. Tbis is an action for damages arising out' of tbe death of plaintiff’s intestate, alleged to have been due to tbe negligence of tbe defendant.

This is an appeal from a judgment in favor of the plaintiff and against the defendant on two promissory notes, one for $125 and the other for $53.52. The action was brought in justice’s court, where judgment was rendered in favor of the defendant, and upon appeal to the circuit court a verdict was directed in favor of the plaintiff subject to the opinion of the court upon questions of law.

<p> Highways: Establishment: Award, of damages: Jurisdiction of town board: Equity: Adequate remedy: Exclusive remedy. </p> <p>1. Even though the order of the town hoard laying out a highway 'specifies all the land which the supervisors consider damaged, . it is not necessary that it should specify all adjacent land which the board do not consider damaged or with regard to which the benefits may equal the damages.</p> <p>2. Town supervisors, having jurisdiction to decide what lands were damaged by the laying out of a highway, decided that the only damages sustained by the plaintiff by reason of the taking of land and laying out of the highway were upon one of two forties of plaintiff’s land. Held, if the town board were in error in so doing, that it was error within their jurisdiction, which resulted in an insufficient allowance, and plaintiff’s remedy was by appeal under the provisions of sec. 1285, Stats. (1898).</p> <p>3. In such case plaintiff is not entitled to equitable relief, not because he had an adequate remedy at law within the ordinary meaning of that expression, but upon the ground that the statutory remedy, in cases where it may be followed, is exclusive, and that a court of equity has no right to say that shall not be done which a valid statute authorizes to be done. 7</p>

<p> Criminal law and practice: Appeal from police court: Notice: Mistake in title of action: Jurisdiction of appellate court. </p> <p>Sec. 4761, Stats. (1898), providing for appeals in criminal cases from justices’ courts, which, hy sec. 2, ch. 190, Laws of 1889, governs the police court of the city of Neillsville, provides that the appellant shall “give said justice notice thereof in writing within twenty-four hours.” In an action in such police court the defendant was convicted of the violation of a city ordinance and by mistake entitled the action in his notice of appeal as ‘‘State of Wisconsin,” plaintiff, instead of “City of Neillsville.” Held, that the call of the statute was satisfied notwithstanding the erroneous title.</p>

<p>Appeal from a judgment of the circuit court for Eau Olaire county: Jaices O’Neill, Circuit Judge.</p> <p>Action to recover damages for death of the intestate,, claimed to have been caused by actionable negligence of defendant.</p> <p>Plaintiff’s claim was that the deceased, a boy of fourteen years of age, while in the exercise of ordinary care, riding in .a cutter with his sister, a school teacher, whom he was taking to her school, the cutter being drawn by a single, gentle horse, journeying on the highway which crossed defendant’s track, was, as he entered upon the track, run into by one of defendant’s passenger trains, going at a great rate of speed and without giving any signal of its approach by the sounding of the engine bell or blowing of the engine whistle, whereby he was instantly killed. The answer put in issue all allegations as to defendant’s negligence and pleaded contributory negligence.</p> <p>One of tbe principal controversies on tbe evidence was as to wbetber tbe deceased, as be approached tbe railroad crossing, bad ample opportunity to see or.bear, or both, tbe approaching train in time to stop bis horse and avoid colliding with tbe train. There was little or no controversy but that be bad such opportunity at least from tbe time be was within 100 feet of'tbe track and that he bad such opportunity there-nfter continuously until be was* at tbe point of danger, unless bis horse escaped from bis control after reaching a point ■sixty-six feet from tbe track.</p> <p>Tbe jury rendered tbe following verdict:</p> <p>“(1) Was the whistle blown eighty rods from tbe crossing where tbe collision occurred ? A. No.</p> <p>“(2) At what rate of speed was tbe train moving as it approached and passed over tbe crossing where tbe collision •occurred? A. Forty miles per hour.</p> <p>“(3) Was tbe horse running away beyond control from a point about sixty-six feet from tbe crossing until tbe collision occurred? A. No.</p> <p>“(4) If you.answer tbe last question ‘Yes,’ then was tbe fact that tbe horse was so running away beyond control tbe ■proximate cause of the accident? A. No.</p> <p>“(5) Was there failure to exercise ordinary care by tbe •defendant railroad company in tbe manner in which it managed and conducted tbe train respecting its speed and whistling as it approached and passed over tbe crossing where tbe •collision occurred ? A. Yes.</p> <p>“(6) If you answer tbe last question ‘Yes,’ then was such failure to exercise ordinary care tbe proximate cause of tbe injury and death of Charles B. Clemons ? A. Yes.</p> <p>“(7) Did any want of ordinary care on tbe part of Charles B. Clemons contribute to produce bis injury? A. No.</p> <p>“(8) In case tbe court shall be of tbe opinion that plaintiff is entitled to recover, at what sum do you assess bis damages ? A. 3,250 dollars.”</p> <p>Tbe court on motion changed the answer to tbe first question from “No” to “Yes” and made a like change as to tbe seventh question, and rendered judgment in favor of the defendant. Exceptions were duly preserved for consideration in case of appeal, which was subsequently taken by the plaintiff.</p>

<p>Eeeoe to review a judgment of the circuit court for Clark county: Iambs O’Neill, Circuit Judge.</p> <p>Tbis is an action for a peremptory writ of mandamus to compel tbe defendant, a justice of tbe peace, to amend bis docket entries, made in a case wherein tbe petitioner was defendant. It is alleged tbat tbe docket entries are false. Petitioner a$ks tbat tbe justice be ordered to correct tbem so as to state tbe facts. The entries complained of are as follows:</p> <p>“August 3rd, 1901. Case called at my office at 9 o’clock a. m. S. M. Mai’sb appears for tbe plaintiff. Defendant ■appears in person but offers no proofs.”</p> <p>It is alleged tbat at tbe time tbe judgment was rendered in the action there was nothing due tbe plaintiff from tbe defendant ; tbat petitioner, as defendant in tbe action, was present at the office of tbe justice from 9 o’clock, tbe time to which tbe case bad been adjourned, until 10:20 o’clock; tbat neither tbe plaintiff, bis attorney, nor the justice appeared during tbat time; tbat execution has been issued by tbe justice upon tbe judgment rendered; and tbat the petitioner has no other ■adequate or efficient remedy for tbe refusal of tbe justice to correct bis docket. Tbe motion to quash tbe alternative writ which bad been issued was granted by tbe court on the ground tbat tbe petition for tbe writ did not state facts sufficient to entitle tbe petitioner to it. Tbis writ of error is brought to review tbe action of tbe court in quashing tbe writ.</p>

Apunsn-from' a. judgment of tbe circuit'court for Fond du Lac county: Chesteb A. Fowlee, Circuit Judge. This- action was- brought to recover $3,000.

Eowlee, Circuit Judge. Tbe appeal is from a judgment in an action for damages-to tbe person caused by tbe alleged negligence of tbe defendant. Among other references upon the part of the appellant were the following: Zentner v. Oshkosh G. L. Go. 126 Wis. 196, 105 N. W. 911; 51 Cent. Law Jour. 449; Bevolinski v. Adams 0. Go. 118 Wis. 324, 95 N. W. 122; Grant v. Keystone L. Go. 119 Wis. 229, 96 N. W. 535; Shearman & Bedf. Neg. § 87.

Fowleb, Circuit Judge. The appeal is from an order overruling a general demurrer to the complaint. The action is brought to recover damages from the defendant by reason of an injury sustained on account of an alleged defective sidewalk which it was the duty of the defendant to keep in a proper state of repair. The plaintiff relies upon the provisions of the special charter of the city of Fond du Lac for authority to maintain the action against the defendant as abutting owner.

Aepeal ±rom a judgment o± the circuit court lor iViax-quette county: Chestee, A. Eowlee, Circuit Judge. This is an action to recover damages resulting to tbe plaintiff's standing timber by reason of a fire alleged to liave been negligently set on tbe defendants’ land by tbeir servant and which escaped from control and spread onto tbe plaintiff’s land. There was a general verdict for the plaintiff, assessing bis damages at $125, and from judgment tbereon tbe defendants appeal.

Eowleb, Circuit Judge. Equitable action to have-a forfeiture declared of rights obtained by John Poluckie and others through him under a conveyance to him by his parents (plaintiff and her husband now deceased) to secure their support for the balance of their lives, tbe claim being that the deed and contract back for support had been extinguished by breach of condition subset quent.

Eowler, Circuit Judge. Petition by tbe executor for construction of certain clauses in the will of Augustus G-. Ruggles, deceased.

Eowlee, Circuit Judge. The complaint alleges the following facts: Lavina C. Curtis, a resident of the village of Bio, Wisconsin, was an aunt of the plaintiffs. On January 4, 1890, in expectation of death, she conveyed land, now known as lots 3 and 2 of block 1 in Dunlop’s third addition to the village of Bio, to her husband, Delos Curtis, for the term of his natural life.

Fowleb, Circuit Judge. This is a civil action commenced in the circuit court for Green Lake county for the recovery of a fine imposed by sec. 8, ch. 305, Laws of 1905 (sec. 1636 — 54, Stats.: Snpp. 1906), relating to the use of automobiles in public highways. Secs. 4 and 8 of this chapter read as follows: “Sec. 4.

Fowlee., Circuit Judge. Tbe appeal is from a judgment in an action at law upon contract. Among other references tbey cited Nim man v. Suhr, 91 Wis. 392, 64 N. W. 1035 ; Wanzer v. How-land, 10 Wis. 8; Duval v. Am. T. & T. Go. 113 Wis. 504, 89 N. W. 482; Computing 8. Go. v. Churchill, 109 Wis. 303, 85 N. W. 33Y; Goodwill v. Merrill, 13 Wis. 658; Gordon v. Brewster, Y Wis. 355 ; 8 Am. & Eng. Ency. of Law (2d ed.) 632.

Eowleb, Circuit Judge. Tbe plaintiff brings tbis action as a taxpayer, in bis own bebalf and in bebalf of other taxpayers in interest, to declare void certain assessment certificates issued against property abutting upon a portion of Third street in tbe city of Fond du Lac, and to restrain tbe city from selling, transferring, or otherwise disposing of any such certificates that might have been issued and in its possession at tbe time tbe action was-commenced, and to compel…

<p>Appeal from a judgment of tbe circuit court for Eond du Lac county: Chester A. Eowler, Circuit Judge.</p> <p>This is a contest over the construction of tbe u. T of George William Ohse, who died at the age of seventy-seven, leaving a -widow, a son, and four daughters, all of adult age. By his will he devised all his property, real and personal, to his son, William Ohse (except one cow, which was to go to his wife, Johanna), with the provision that “said William Ohse is to-pay to the said Johanna Ohse $800, to be1 paid to her as it becomes necessary for her needs,” and also to pay a certain specified sum to each daughter one year after testator’s death.. Johanna died about six weeks after the testator, having previously made a will bequeathing the $800 to her daughters. Four days before her death she caused to be served on William a written notice stating that she was in need of money for her support and demanding that he pay to her the entire-sum of $800, but no part of it was paid. The principal facts which are proper to be considered in aid of construction of the will are thus stated by the circuit judge:</p> <p>“The testator and his wife were Germans. The property left to the son was a farm of 160 acres, sixty-five acres-cleared, against which there was a mortgage and debts amounting to about $1,500. The testator died February 13, 1904,. aged nearly seventy-seven, and the will was executed a little-less than a year prior to his death. The wife died March 22, 1904, aged sixty-three. At the time the will was executed the testator and his wife lived on the farm, the son living with them. The following summer the old people went to the neighboring village of Fenwood, where the mother had a house and five acres of land, the son remaining on the farm. The parents lived together at Fenwood until about December, when the father went to the son’s and stayed until his death there. Prior to December the father had spent a part of the-time at the son’s. The mother remained in the home at Fen-wood until the father’s death, and after that lived with a daughter in the village until she died. The mother had been in poor health about a year prior to her death. The son had always lived on a farm with the parents. The daughters had lived at home until married, except when working out at domestic service. The son was nearly thirty-five years old at the father’s death.”</p> <p>Upon settlement of the final account of William Ohse as executor of the will of George, the respondent Miller, as executor of the will of Johanna, appeared and objected to the allowance of the account, and prayed that the will be construed and that the county court require said first-named executor to pay to him said sum of $800. The county court denied the relief asked, and the executor of Johanna’s will appealed to the circuit court, which last-named court reversed the judgment of the county court and .remanded the case to the county court with directions to require the payment of ■said sum of $800 to the executor of Johanna’s will (less the ■funeral expenses paid by William), and from this judgment William, as executor, appeals.</p>

<p>Appeal from a judgment of tie circuit court for Columbia county: Chestee A. Eowlee, Circuit Judge.</p> <p>The appeal is from a judgment of $1,608.20 damages and' costs to remedy injuries caused by alienating the affections, of plaintiff’s wife.</p> <p>The defendants are husband and wife and parents of plaintiff’s wife. Plaintiff’s claim was that defendants conspired together with had intent to deprive plaintiff of his wife’s affections and canse her to desert him, and accomplished their purpose by compelling the wife, who with her husband was residing with the defendants and had so resided for a considerable length of time prior to their marriage, to seclude herself and baby girl which had been born to them, from him, and induced her to refuse to speak to him or recognize him as her husband or permit him to pay her or their child any attention and drove him from the house by ill treatment and forbade him to return or come upon the premises, notifying him that the daughter would not go therefrom to live with him.</p> <p>Defendants answered putting in issue all the allegations of the complaint as to improper treatment of the plaintiff and with bad intent influencing his wife against him.</p> <p>Upon evidence tending to support the allegations of the complaint the cause was submitted to the jury on the subject of punitory and that of actual damages as well, resulting in a verdict in defendants’ favor as to the former but in the plaintiff’s favor as to the latter, the damages being assessed at $1,500. Judgment was entered upon the verdict in plaintiff’s favor.</p>

Ray Stevens, Circuit Judge. Prior to 1900 Ferdinand Voss, husband of plaintiff, was insured in tlie Northwestern Mutual Relief Association of Madison, Wisconsin, under a certificate bearing date February 1, 1884, in the sum of $2,000, upon the mutual assessment plan, which policy was canned by him until October 29, 1900.

<p> Pleading: Amendment on trial: Continuance: Discretion: Argument of counsel: Master and servant: Negligence: Injuries to servant: Inexperienced servant: Failure to instruct or warn: Obvious dangers: Appeal and error: Review: Appearance and manner of witnesses: Attorneys: Disrespectful arguments. </p> <p>1. In an action for personal injuries the defendant’s negligence, by the allegations of the complaint, was predicated upon defects in the machine in which plaintiff was injured. On the trial no defect in the machine was shown, and at the close of plaintiff’s evidence, defendant having moved that the plaintiff be nonsuited, plaintiff asked leave to amend his complaint, presenting an amended complaint, which was the same as the original complaint except that therein the negligence of defendant was predicated upon the ignorance and inexperience of the plaintiff, known to the defendant, and the failure of the defendant to instruct or warn the plaintiff before or at the time of placing plaintiff to work. Held, that it was proper to allow such amendment on the trial and there was no error in such ruling.</p> <p>2. In such case it is not error to refuse a continuance of the case over the term, where there is no showing, either by an affidavit or by a statement to the court based on the pleadings apparently supporting such statement, that the defendant was unprepared to meet and could not, with the evidence at hand or available, meet the issues raised by the amended complaint.</p> <p>3. The terms on which amendment of pleadings during the trial, which bring about no radical change of the issues, may be allowed, are in the discretion of the court.</p> <p>4. Error assigned to arguments of counsel, stated in the opinion, is held, to be too critical.</p> <p>5. In an action by an adult servant for personal injuries, alleged to have followed upon the failure of the master to instruct and warn the plaintiff before or at the time of placing him to worfc, under the evidence, stated in the opinion, it is held, that the master was justified in presuming that the servant was an inexperienced adult of ordinary intelligence, and hence that his duty to instruct or warn was only that which the law imposed upon him with respect to any ordinarily intelligent but inexperienced adult servant.</p> <p>6. In an action by a servant for personal injuries, alleged to have been caused by the servant’s coming in contact with a treadle and thereby releasing a drop hammer under which the servant was at work with his hands, the negligence of defendant was predicated on failure to warn or instruct the plaintiff before or. at the time of placing him at work. The servant was ■ of ordinary intelligence but inexperienced. Held, that the master was not by law required to explain or instruct against such obvious danger, nor with reference to such obvious function of the treadle, nor to anticipate that the servant was ignorant of the existence, or of the function, of the treadle of such a machine which the servant could plainly see in operation.</p> <p>7. In such case it is held that no negligence of the master causing the injury complained of was shown by his omission to caution or instruct the servant.</p> <p>8. While the appearance and manner óf .a witness is of importance in the consideration of the issue as to the intelligence of a party when taken in connection with other evidence affecting his credibility or his physical or mental condition, yet standing alone, or existing in connection with evidence which :prima facie shows ordinary intelligence, appearance and manner alone cannot be invoked to sustain a verdict based on a conclusion that the party was not of ordinary intelligence.</p> <p>9. Language of counsel in a brief for a rehearing, stated in the opinion, is held disrespectful and in violation of Supreme Court Rule 51.</p>

<p>Appeal from a judgment of the circuit court for Eau •'Claire county: A. J. Vinje, Judge.</p> <p>The city of Eau Olaire, in preparation for establishing municipal waterworks, had acquired certain real estate and other property, together with easements and privileges, including a right to water power for the purpose of operating pumps delivered to it at its water wheels. In 1885 it entered into an ordinance-contract with Fairbanks, Morse & Co., whereby a franchise was granted to operate waterworks and charge certain rates to private consumers, the city agreeing to pay a specified hydrant rental. The city turned over to Fairbanks, Morse & Co. its said property, easements, and rights, inclusive of the contract for power, and the latter contracted to build and maintain waterworks under various specifications. That ordinance or contract contained the following:</p> <p>“This ordinance is passed upon the express condition and reservation that the city of Eau Claire reserve to itself the right to acquire of the said grantees, their heirs and assigns, the said waterworks, and all lands, machinery, pipes, mains, hydrants and appurtenances thereto belonging, and the said grantees, their heirs and assigns, in accepting this ordinance, expressly covenant and agree that they will sell and convey to the city of Eau Claire the said waterworks and all lands, machinery, pipes, mains, hydrants and appurtenances thereto belonging, or in any manner.'appertaining thereto, at the expiration of five years from the completion of said works and at intervals of five years thereafter at an appraised value for said works to be determined as follows:</p> <p>“Whenever the city shall determine or désire to purchase ■said works, the mayor thereof shall give written notice to said grantees, their heirs and assigns, of the intention of the ■city to purchase and demand of the said grantees, their heirs and assigns, to appoint and select two persons to act as arbitrators in fixing and appraising the value of such waterworks without taking into consideration the property and rights leased or hereinbefore granted by the said city to the said grantees, their heirs and assigns, by this ordinance, or any h}rdrants and connections which may have been located on said main pipes at the expens'e of the city, which said notice may be served upon any one of the said grantees, their heirs and assigns, or upon the chief officer in charge of the said waterworks at Eau Claire.</p> <p>“Said five persons, or their majority, at a meeting of which all said arbitrators shall have had personal notice, may and shall, as arbitrators, on examination and evidence, fix and terminate the actual value of the said waterworks, exclusive of the property and rights leased or hereinbefore granted by the said city to the said grantees, their heirs and assigns, by the second section of this ordinance, and without reference to the franchise therewith connected, but including all improvements, buildings, betterments, machinery or other appliances placed by the said grantees, their heirs and assigns, •upon or connected with, the property so leased or granted to-them by the said city, and constituting a part of the said waterworks, excepting the hydrants which may have been located on the said main pipes at the expense of said city at the time such appraisal is made, such appraisal not to exceed what it would cost to build and construct such works at that time. And said appraisers shall make their award in writing in duplicate; and shall deliver one duplicate to the said grantees, their heirs and assigns, or to the chief officer in charge of the said waterworks at Eau Claire, and shall file the other with the city clerk of the said city within ten days after the same is made.”</p> <p>The city was then to have the option to purchase at such appraisal. Waterworks were constructed by Fairbanks, Morse & Oo. and assignee corporation, the Eau Claire Waterworks Company, or by its receiver appointed in certain foreclosure proceedings. In 1903, upon receiver’s sale, the entire system, with all rights existing, was sold, and about July 10th of that year transferred to the defendant the Eau Claire Water Company, which, at about the same time, exe* cuted a mortgage to the defendant Farmers Loan & Trust Company to secure a permitted issue of $350,000 of bonds,, the amount of which issue is not determined by any evidence except a statement by an officer of the defendant water company that it exceeded $300,000, and that at least $20,000 worth were held by the water company. In 1895 an appraisal was had, upon which the city elected not to purchase. In 1900, at the end of another five-year period, the subject of purchase was submitted to a referendum, and a resolution adopted to call for appraisal under the contract, and a notice of such election and appointment of appraisers was attempted to be given to all interested as assigns of Fairbanks, Morse & Co. by delivery of such notice to the secretary and superintendent of the water company, who resided at Eau Claire and was the only officer of either of the defendant companies in Wisconsin and who was in active charge and management of the waterworks business and plant. Five arbitrators were appointed in. the contract method, two by the city, two by the water company, and a fifth by the circuit judge. They filed an award in which they appraised the property at $253,000. The city made tender of that sum both to the superintendent and secretary of the water company and to the defendant Farmers Loan & Trust Company and demanded conveyance and release of the mortgage, which being refused, this action was commenced to compel specific performance of that part of the ordinance-contract agreeing to so convey. Upon the trial a large amount of evidence was offered with reference to the manner of procedure of the board of appraisers. The court found that they proceeded, pursuant to said ordinance and in the manner therein provided, to ascertain and determine the value of said system of waterworks; that they did fix it upon examination and evidence, acting together in all things as a board; that they did not act arbitrarily or in an unreasonable or unlawful manner; did not except or omit to take into consideration any of the items of the property which should have been considered, and fixed the value of said waterworks as of the date when said award was made at $253,000. The court also found the fact of demand and tender and that the city had kept a sum of the tender on hand in its treasury in a separate fund until the commencement of. this action, when, on March 5, 1907, it paid the same to the-clerk of the court, where it still remains; whereupon judgment was rendered requiring the defendants to make proper conveyance and release, and to accept said $253,000, except that the plaintiff should recover from the defendants the net revenues derived from the .waterworks in the interval between the time of tender and the judgment, and should also recover one half of the total fees of the fifth arbitrator paid by it, which, under the contract, were to be paid one half by each party; from which judgment the defendants appeal.</p>

<p> 'Criminal law and, practice: Statutes defining crimes: Construction: Time when statutes take effect: Physicians and surgeons: Registration of births: “Wilfully.” </p> <p>1. Ch. 469, Laws of 1907 (secs. 1022 — 1 to 1022 — 59, Stats.), which, among other things, denounces a penalty upon any physician who, on or before October 1, 1907, shall fail to register his name, address, and occupation with the “local registrar” of the district in which he resides, took effect from and after October 1, 1907. The same statute created the office of local registrar. Held, that until October 2, 1907, there was no “local registrar” in existence, and hence a compliance with the only command of the statute with reference to registration was impossible.</p> <p>'2. A law which takes away a man’s property or liberty as a penalty for an offense must so clearly define the acts upon which the penalty is denounced that no ordinary person can fail to understand his duty and the departure therefrom which the law attempts to make criminal.</p> <p>3. One cannot be said to wilfully violate a statute winch is so contradictory or blind that he must guess or conjecture what his duty is thereunder.</p> <p>4. An act, in order to be wilfully criminal, must fall both within the words of the denunciatory statute and within its spirit.</p> <p>5. Under ch. 469, Laws of 1907 (secs. 1022 — 1 to 1022 — 59, Stats.), denouncing a penalty upon any physician who, on or before October 1, 1907, shall fail to register his name, address, and occupation with the local registrar of the district in which he resides, and under the evidence, stated in the opinion, it is. held that defendant was not shown to have wilfully failed and neglected to register in breach of the command of the-statute.</p> <p>6. “Wilfully,” when used to describe acts which shall be punished criminally, includes, in addition to mere purpose to do the act, a purpose to do wrong, and involves evil intent or legal malice.</p> <p>7. “Wilfully,” in the Wisconsin criminal statutes, is satisfied only by evil intent without justifiable excuse, and is used to characterize an act done wantonly, or one which a man of reasonable knowledge and ability must know to be contrary to his-. duty.</p> <p>8. Ch. 4G9, Laws of 1907 (secs. 1022 — 1 to 1022 — 59, Stats.), denounces a penalty upon a.ny physician who wilfully refuses to-make a certificate of birth in a prescribed form within five days after the date of birth. Defendant, a physician, who had. no actual knowledge of the passage of the law of 1907, attempted to perform his duty in reporting births by making a certificate upon a blank which had theretofore been furnished him by the city health officer, who, under the act of 1907, became-local registrar. This certificate was returned to defendant and his attention called to the fact that it did not comply with the new law. Defendant thereupon returned the certificate, stating that he had none of the so-called new blanks, and made application for some of them, but, although the certificate was again returned to defendant, no blanks were supplied, and a few days thereafter the instant prosecution for violation of the act of 1907 was commenced. Held, that defendant was not guilty of wilful violation of the law of 1907, but there was a mere inadvertent omission of a required act in. the sincere attempt to perform a duty as defendant understood it.</p> <p>[9. Whether ch. 469, Laws of 1907 (secs. 1022 — 1 to 1022 — 59, Stats.), is an invasion of the constitutional rights of the individual, not determined.]</p>

<p> Eminent domain: Electric railroads': Right of way: Uses: Admissibility of evidence: Instructions to jury: Remote and speculative damages: Witnesses: Competency: Experts: Qualifications: Hypothetical questions: Appeal and error: Review: Prejudicial error: Damages and benefits: Uses of land tahen: Values: Averages. </p> <p>1. In proceedings to condemn- a right of way for an electric railroad, evidence showing that the defendant railroad was connected with and had trafile arrangements with commercial railroads, of the probable location of its freight yards and their proximity to such other railroads, and what under its charter were its powers and privileges as to its right to use motive power other than electric in its use of the strip of land sought to be condemned, is held admissible to show what use the defendant might make of this strip.</p> <p>2. Tn proceedings to condemn a right of way for an electric rail- ■ road, the nature of the use of the strip sought to he * condemned is material on the question of damages to the landowner’s adjoining property, if it appears that a particular use would naturally tend to depreciate its market value.</p> <p>3. In proceedings to condemn a right of way for an electric railroad, instructions to the jury informing them that evidence that the defendant’s railroad was connected with and had traffic arrangements with commercial railroads, of the probable location of its freight yards and their proximity to such other railroads, and what under its charter were its powers and privileges as to its right to use motive power other than electric in its use of the strip of land sought to be condemned,, could only be considered on the question of the market value of the land not taken, are held appropriate and sufficient to-inform the jury of its duty in considering such evidence.</p> <p>4. In proceedings to condemn a right of way for an electric railroad, items of evidence of the cost of replacing sheds and fences taken as part of the strip, and of the danger to life and property consequent upon a railroad farm crossing, are not in themselves elements for which damages can properly be allowed as items of injury to the adjoining land, and in arriving at the damages are to be rejected as too remote and conjectural as causes of depreciation.</p> <p>6. In such case the court instructed the jury, in substance, that such class of evidence was only “received as showing reasons upon which witnesses testifying thereto base their opinions that the fair market value of the land not taken was depreciated because of the presence of the railway, and may be considered by you in explanation of their opinions as to valuation and depreciation, to assist you in estimating the value of such opinions, and to aid you in measuring the real loss to the owner. Such facts do not constitute a basis for separate and distinct damages, for they are too remote and speculative;” that the damage to the adjoining land, if any, was. the actual depreciation of it in market value at the time of' the award on account of the taking of the strip for railroad' uses, and that the fair market value of the strip taken included trees and improvements. ' Held, under such positive directions and instructions, that it is presumed that the jury understood that they were not to assess any special damages on account of such conjectural or remote conditions, and that they followed such explicit instructions in arriving at their verdict.</p> <p>6. Testimony of a witness qualifying as an expert as to values of farm lands, that he had owned real estate in a city distant about one quarter of a mile, that he had owned acreage property, that he had theretofore bought and sold some, and that he had made inquiries as to market values, shows sufficient information on the subject to enable him to express his opinions on the questions covered, the grounds of his opinions and their weight being for the determination of the jury.</p> <p>7. In proceedings to condemn lands for an electric railroad, a hypothetical question as to values, stated in the opinion, is held not to embrace improper items of evidence, to contain sufficient facts to enable the witness to form an opinion, and not to be misleading or confusing.</p> <p>8. In proceedings to condemn lands for an electric railroad, where a witness had fully testified on the questions of the adaptability'of the lands, a farm, for platting and how to plat it.after the taking of the strip for railroad purposes, it is not prejudicial error to sustain an objection to a question: “Would you, as a real-estate man, advise the owner of the farm to cut it into acre tracts and sell them off on Asylum avenue?” since an answer to the question would at most be expressive of the witness's opinion or advice regarding the advisability of platting and cutting off acre tracts on Asylum avenue.</p> <p>9. If such question was designed to elicit an answer respecting the market value of the land in acre lots, the ruling was also proper, because the question failed to disclose any such purpose and an appropriate answer thereto could not give such information.</p> <p>10. In proceedings to condemn lands for an electric railroad, portions of instructions to the jury excepted to, stated in the opinion, which were only parts of sentences or paragraphs embracing one subject and which should be considered in connection with the other parts, are held not to be subject to the claim that they conveyed the idea that the jury were not to take into consideration any enhanced value of plaintiff’s lands at the time of taking by reason of the probable construction of the road.</p> <p>11. In proceedings to condemn land for an electric railroad, instructions to the jury, in substance, that the railroad company has the right under the law to occupy and use such land for all the purposes prescribed in its charter and articles of incorporation, that a present omission to exercise all such rights ' does not reduce the damages actually sustained, and that the award made by the jury should cover the plaintiff’s damages for all time and every authorized use, in connection with information that the jury were not to consider any remote, speculative, and improbable uses, but were to confine their consideration to the actual facts of the case, are held to embody the rule applicable to the situation, correctly embrace the elements of the ease bearing on the question at issue, and to sufficiently cover defendant’s requests on that subject.</p> <p>12. In proceedings to condemn land for an electric railroad, refusals to instruct and the instructions given which pertained to duplication of damages, the defining of fair market values, the value of the strip actually taken, the materiality of sales of other property in connection with opinion evidence of witnesses as to market value, the opinions of witnesses as to the damages to the remainder of the land based on the depreciation of the market value of the whole, the adaptability of the remainder of the land for platting because of the railroad crossing, and its availability for present and immediate uses, are held not to have been erroneous.</p> <p>13. In proceedings to condemn lands for an electric railroad, instructions to the jury that they were not to agree in advance to add the values as fixed by the various witnesses, to divide the total by the number of witnesses, and to adopt the result as the true value, but that they were “to consider all credible evidence, facts, and circumstances in the ease, and therefrom find and determine the fair market value of the land taken and the depreciation, if any, to the fair market value of the land not taken,” are held to be' an appropriate and correct submission, and not open to the objection that thereby the court informed the jury that they could take an average of the fair market values testified to by the various witnesses as the actual market values of the property involved.</p>

<p>Evidence: Account boolcs: Items of charges for money: Witnesses .- Competency: Transactions with persons since deceased: Mem-oranda: Statutes: Construction.</p> <p>1. On the trial of a claim consisting of two items of $150 each for money loaned, filed against a decedent’s estate, the claimant's-hooks of account, verified under the calls of sec. 4186, Stats. (1898), are properly excluded, since the items fall within the-exception of sec. 4187, excluding entries of items of money delivered at one time exceeding $5.</p> <p>2. In such case, hy reason of the statute rendering the plaintiff incompetent to testify to transactions or communications personally liad with the decedent, plaintiff could not use the hooks as memoranda to refresh his memory and then testify to the transactions.</p> <p>3. Neither were such hooks admissible under sec. 4189, Stats. (1898), since that section refers to entries made in a hook not strictly a hook of account, and the hooks were identified as belonging to the class mentioned in sec. 4186, and produced by a party to the cause in his own behalf.</p> <p>4. In such case, even if one cash item was represented by a written order drawn upon another party indebted to the plaintiff, which was given to the deceased and cashed by him, it is but another method of delivering money to the deceased and within the exception of sec. 4187, Stats. (1898).</p> <p>[5. Whether the books of account mentioned in sec. 4186, Stats. (1898), properly verified, would in any case be evidence of a loan of money as a separate transaction, not determined.]</p>

B. Belden, Circuit Judge. Tliis action was brought to recover damages for a personal injury sustained on April 10, 1905, and on January 15, 1907, judgment was rendered in plaintiff’s favor for $10,099.58. After the action was commenced and on November 14,. 1905, the defendant was adjudicated a bankrupt and a receiver in bankruptcy was duly appointed.

'Appeals from orders and from a judgment of the circuit court for Racine county: E. B. Beldeb, Circuit Judge. Action to recover for personal injuries claimed to have been caused hy defendant’s negligence. The plaintiff was injured by going through the open door of an elevator shaft when the car was not in place and falling down the shaft. The negligence complained of, made the subject of inquiry on the evidence, was as indicated in the verdict.

• Appeal from a judgment of the circuit court for Racine county: E. B. Belden, Circuit Judge.

B. Bbldef, Circuit Judge. Tbe plaintiff is a resident of Chicago, Illinois. November 10, 1888, tbe defendant William H. Harrison made a promissory note for tbe sum of $1,000, dated Richmond, Illinois, payable one year from date to tbe order of tbe plaintiff, with interest at tbe rate of seven per cent.

SmubdiNG, Je., Judge. This action was brought against tbe defendant city of Racine and its officers to restrain tbe issue of bonds based upon a special assessment levied for tbe paving of Center street from Sixth street to De Noven avenue in said city.

<p> Master and servant: Right of action for interference with contract of employment: Strikes: Injunction: Pleading: Complaint: Discovery: Examination of plaintiff before answer: Limitation of scope: Discretion. </p> <p>1. While an action to redress the wrongful prevention, by defendants, of a fellow laborer from soliciting wort, from engaging in a contract to work, or from continuing in such work should ordinarily be brought by the servant so pre- • vented, yet at the same time a right of action accrues to the master, where the servant is coerced to break an existing contract with the master, or where abuse and violence backed by conspiracy amounts to an actionable interference with the employer’s rights.</p> <p>2. In an action by a master to enjoin .the wrongful prevention of his servants from carrying out their contracts of employment, the complaint should be detailed, certain, and specific, giving ' facts and circumstances, including time and place of each alleged act of coercion, the name of the person coerced, if known, the manner in which he was coerced, and the manner in which and the extent to which it affected or impeded the master’s right to conduct his business in a lawful way.</p> <p>'3. In proceedings under sec. 4096, Stats. (1898), for the examination of a party before issue joined, the court is not concluded by the required affidavit as to what is necessary to enable the moving party to plead.</p> <p>■4. In proceedings under sec, 4096, Stats. (1898), taken before issue joined, the limiting of the examination so as to prevent any examination under any or either of the points set forth in the required affidavit, stated in the opinion, is held to show no abuse of discretion.</p>

<p> Trial: Reception of evidence: Discretion of trial court: Municipal corporations: Streets: Hatchways: Notice: Injury to pedestrians:-Contributory negligence:. Landlord and tenant: Dangerous premises: Liability of lessee: Special verdict. ■ < </p> <p>1. It is within the discretion of the trial court to permit a plaintiff, who has rested, to introduce further evidence.</p> <p>2. A pedestrian, who knew of the existence of a hatchway and that it was sometimes open, is not nécessarily guilty of contributory negligence as matter of law for failing to look and discover that it was open before he walked into it.</p> <p>3. A pedestrian has the right to presume that a known hatchway, if open, will he properly guarded, and is not chargeable with knowledge that, it is in fact open, in the absence of notice of such condition.</p> <p>4. The lessee of a building, to whom a drayman was delivering merchandise through a hatchway which he left open and unguarded, is liable to a pedestrian who falls through the hatchway for the negligence of the drayman, in the absence of evidence that the drayman was acting independently of the control of the lessee.</p> <p>6. A special verdict which submits all the essential facts is not erroneous because it fails to submit one issue by a separate question.</p>

<p> Appeal and error: Review: Equity: Admission of evidence: Deeds: Action to set aside: Burden of proof: Descent and distribution: Rights of expectant heirs: Delivery of deed: Evidence: Findings: Trusts and trustees: Creation: Declaration of trust: Sufficiency: Effect. </p> <p>1. In an action in equity error cannot he assigned on the admission, or- on the refusal to strike out, evidence, if there is sufficient other evidence to support the judgment.</p> <p>2. In an action to set aside a deed for fraud or undue influence the burden of proof is upon the plaintiff.</p> <p>3. The owner of real estate, as against the heir, may convey it to-another as a gift without consideration.</p> <p>4. Evidence that a deed, signed by the grantor on the day of her death, accompanied by directions to her husband to deliver it to the grantee, followed hy a manual delivery after the grantor’s death, upholds findings that the deed was in fact delivered.</p> <p>6. A deed of land, absolute in form, to which is annexed a parol trust, void by the provisions of secs. 2302, 2304, Stats. (1898), 'is not absolutely void, nor voidable at the suit of the heir of the grantor, if the trustee observes the terms and executes the trust itself or executes a written declaration of trust.</p> <p>6. An answer, verified and filed by the grantee in a deed,.in a suit by the heir of the grantor to set the deed aside, admitting the terms and offering to execute a parol trust, is a sufficient written declaration of trust binding upon the grantee and available to the beneficiaries.</p> <p>7. A conveyance to a trustee to the use of A. for life and thereafter to B., imposing no active duties upon the trustee, is within the calls of sec. 2073, Stats. (1898), and vests an absolute legal estate in A. for life, with remainder to B.</p>

<p>Depositions: Adverse parties: Without the state:” Statutes:. Construction: Letters rogatory: Discretion,</p> <p>1. A party residing in a foreign country is “without the state” and within the calls of sec. 4096, Stats. (1898), authorizing the examination of a party otherwise than as a witness at the trial, and providing that his deposition in that hehalf may he taken without the state.</p> <p>2. The provisions of sec. 4096, Stats. (1898), requiring depositions thereunder without the state to he taken in the same manner that other depositions are taken, as applied to such depositions taken in a foreign country, contemplate depositions. taken either on oral interrogatories or by commission.</p> <p>3. The general provisions of secs. 4113, 4114, Stats. (1898), requiring depositions taken by commission to he on written interrogatories, do not override the special provisions of sec. 4096, permitting the party whose deposition is taken thereunder to he examined on oral interrogatories.</p> <p>4. It is within the discretion of the trial court to issue letters rogatory to a foreign court or tribunal in aid of an examination, under sec. 4096, Stats. (1898), of a party residing in a foreign country.</p>

0. Ludwig, Circuit Judge. An order was made by the superior court of Milwaukee county, presided over by Hon. J. C. Ludwig, judge of said court, December 6,' 1902, pursuant to a motion of defendant’s attorneys, based on a stipulation, dismissing the action without costs to either party. No formal judgment was entered.

Halsey, Circuit Judge. This is an appeal by plaintiff from an order sustaining a demurrer to an amended complaint filed after a former decision in the same action. 133 Wis. 148, 113 N. W. 447.

<p>Appeal from a judgment of the circuit court for Milwaukee county: Laweence W. Halsey, Circuit Judge.</p> <p>This is an action for the recovery of a balance of $701.65, with accrued interest, alleged to he due upon an express contract. Prior to March 17, 1898, defendant was engaged in business under the firm name of A. R. Wiens & Co. On that day there was due for rent to the plaintiff from the defendant the sum of $751.65. By a contract executed on that day defendant agreed, beginning May 1st of that year, to make monthly payments of at least $50 on the amount due, in addition to the monthly rent to become due by reason- of the lease of certain premises owned by the plaintiff and occupied by the defendant. Interest was to be at the rate of six per cent, per annum from the 1st day of April, 1897. The instrument was signed and sealed by the defendant and by the plaintiffs son in bis behalf. This son of the plaintiff died about two years before the trial of this action. . No power of attorney under seal from plaintiff to his son was shown on the trial. In his answer the defendant alleges that the alleged agreement set forth in the complaint is not properly executed as an instrument under seal and that the cause of action accrued more than six years before the commencement of the action.</p> <p>The action was tried by the court, a jury having been waived. Plaintiff testified that his son had general powers of attorney to execute the instrument in his behalf, that his son had executed this instrument in his presence and at his immediate direction, and that he had conferences with the defendant regarding the instrument in the presence of his son. Defendant testified that these statements of the plaintiff were incorrect to the best of his belief. On May 8, 1898, the sum of $50 was paid on the contract. The court found that the defendant executed the instrument under seal, and that the instrument was signed and sealed for the plaintiff by his son in his presence and under his immediate direction. The court found that the written agreement was properly executed as an instrument under seal, that the cause of action on it was not barred by the six-year limitation statute, and that the defendant was indebted to the plaintiff in the sum of $101.65, with interest on $151.65 from 'April 1, 1891, to May 8, 1898, and with interest on $101.65 from May 1, 1898. Judgment was awarded for such sum and interest. and the costs of the action. This is an appeal from the judgment.</p>

<p> Executors and, administrators: Ancillary administration: Claims:Contingent claims: Failure to file claim: Limitation of actionsr-Partnership. </p> <p>1. Sec. 3844, Stats. (1898), providing tliat every person having-a claim against a deceásed person proper to be allowed by tbe county court, who shall not, after notice given as required by sec. 3840, exhibit his claim to the court within the time limited for that purpose, shall be forever barred from recovering such demand, applies to property and rights involved in ancillary administration had in a Wisconsin court as well as to those in domestic administration; and hence where plaintiff had a claim for her husband’s share in a partnership against the estate of" the surviving partner, who died a nonresident and upon whose-estate ancillary administration was granted in Wisconsin, such. claim, though unliquidated, if not seasonably presented in the ancillary administration, cannot he the basis of an action in Wisconsin courts against the distributee of the surviving partner’s estate.</p> <p>2. A contingent claim is one which may never accrue, where the liability depends upon some future event which may or may not happen; and therefore the fact that an accounting is necessary to determine the amount due as claimant’s share in a partnership does not make the claim a contingent claim against the estate of a deceased partner.</p>

0. Ludwig, Circuit Judge. Tbe appeal is from an order sustaining a demurrer to an amended complaint. Among other references upon the part of the appellant were the following: Wittes v. Smith, 11 Wis. 81, 45 N. W. 666; Manson v. Dayton, 153 Fed. 258; Hervey v. Rhode Island L. Works, 93 U. S. 664; J. I. Gase T. M. Go. v. FoV ger, 136 Wis. 468, 117 N. W. 944. Among other references upon the part of the respondent were the following: Green Bay & M. 0.

<p>Ekeob to review a judgment of' the circuit court for Racine county: E. B. BelueN, Circuit Judge.</p> <p>The plaintiff in error (hereinafter called the defendant) was convicted of the crime of murder in the second degree in the circuit court for Racine county in November, 1907, and was sentenced to imprisonment in the state prison at Waupun for the term of seventeen years, pursuant to the judgment of conviction. To review such judgment he brings the case to this court on a writ of error and makes the following assignments of error:</p> <p>(1) The refusal of the state to call the eye-witness Plans Gibson to the stand before resting its case. (2) In submitting to the jury the question of defendant’s guilt of murder in the second degree. (3) In refusing to submit to the jury the question of defendant’s guilt or innocence of manslaughter in the first degree. (4) In refusing to submit to the jury the instructions requested upon “heat of passion,” “reasonable doubt,” and “duty to retreat.” (5) In charging the jury in reference to “heat of passion,” “reasonable doubt,” and “duty to retreat.” (6) In so submitting the case to the jury as to require it to first pass upon the guilt or innocence of the defendant as to murder in the first degree, and in excluding from its consideration the lesser degrees of homicide until in each instance it had determined the innocence of the defendant as to all higher degrees of offense. (7) In repeating and reiterating all higher degrees of the offense of felonious killing when submitting the lower degrees of. sucb offense. (8) In saying to the jury that it was its duty to base its verdict as to affirmative matters upon the evidence or want of evidence in the case.</p> <p>The evidence, in so far as it is material to the consideration of the errors assigned, will be found in the opinion.</p>