Volume 138 — Wisconsin Reports

B. Beldeu, Circuit Judge. The appellant, a corporation organized under the general railroad act of the state of Wisconsin and operating its line by electric power, in ISToyember, 1905, filed its petition for condemnation, in which it averred that the lands belonged to one of the respondents, Thomas B. Jeffery, and prayed that the whole of the lands described in the petition be taken.

<p>Municipal ordinances: Judicial notice: Pleading: Conclusion of law: Demurrer: Mandamus: Buildirig inspector: Compelling issuance of permit: Sufficiency of return.</p> <p>1. Courts do not take judicial notice of municipal ordinances not pleaded.</p> <p>2. Tile petition for a writ of mandamus to compel a building inspector to issue a permit pursuant to city ordinances should show the existence of an ordinance imposing such duty and that the duty is absolute or the action under the ordinance-merely ministerial.</p> <p>3.An allegation in such petition that it is the duty of said inspector, under the ordinances of the city, to issue such permit, does not sufficiently plead the ordinances. It is not an averment of fact, but a mere conclusion of law not admitted by demurrer. Maeshaíi., J., dissents. •</p> <p>4. A demurrer to the return to an alternative writ of mandamus relates back to the petition and raises the question of its sufficiency.</p> <p>5. The return of a building inspector to an alternative writ of mandamus commanding him to issue a permit for certain repairs- or alterations in the basement of a building, that “the superstructure is so dilapidated, rotten, and in bad condition that, it will be unwise and unsafe to permit the repair of said building in such manner,” is a good return if the ordinances governing his action permit of any discretion on the part of the inspector in refusing permits.</p>

Williaais, Circuit Judge. Action of ejectment tried to the court without a jury.

T'aeRANt, Circuit Judge. Tbe plaintiffs, a firm of attorneys at Eond du Lae, commenced an action, at tbe request of tbe defendant, in the circuit court for Sheboygan county, to set aside deeds from tbe sheriff of Sheboygan county to M. Winter Lumber Company and from this company to Cudahy Bros. Company. The case was prosecuted to a judgment in favor of the defendant in this action.

Halsey, Circuit Judge. The appeal is from a judgment in favor of the respondents and against the appellant, who were interpleaded defendants at the suit of the New York Life Insurance Company. As to the mental competency of the deceased, they cited Holden v. Meadoios, 31 Wis. 284; Tn re Lewis’s Will, 51 Wis. 101, 7 N. W. 829. The action is equitable and triable by the court.

<p> Street railways: Collision with vehicle: Contributory negligence: Court and jury: Duty of person about to cross trades. </p> <p>1. In an action for injuries sustained in a collision with, a street car there was evidence tending to show that as plaintiff got into his inclosed laundry sleigh, which was fronting north on the west side of a street, he saw the car approaching from the north and at least 900 feet away and saw several people standing on the corner of an intervening street apparently intending to take the ear; that he immediately started to turn around, hut did not look again at the car; that after partially making the turn his hack was toward the car and his vision otherwise ■obstructed; that in making the turn the fore feet of the horse went just beyond the east rail of the south-hound track; that the time which would he consumed in making the turn and clearing the track would not exceed half a minute; that the sleigh had almost cleared the track when it was struck; that the car was running at an excessive rate of speed; and that the motorman failed to use reasonable precaution to prevent the collision. Held, that it was a question for the jury whether plaintiff was negligent.</p> <p>2. Unless there is enough in the testimony to enable a court to say, as a matter of law, that the plaintiff was guilty of contributory negligence, a nonsuit should not be granted on that ground.</p> <p>3. Contributory negligence is a defense that must ordinarily be shown by affirmative evidence or by logical inference from such evidence, and is not established by a mere absence of proof.</p> <p>4. A person about to cross the track of a street railway must, as in the case of a steam railroad, look and listen for approaching cars; hut there is a distinction between the two cases, in that the person wishing to cross the street railway track in advance of an approaching car has the right of way and may proceed without being guilty of contributory negligence if, calculating reasonably from the standpoint of a person of ordinary care and intelligence so circumstanced, he has sufficient time, proceeding reasonably, to clear the track without interfering with the movement of the car, assuming that it is moving at a reasonable and lawful rate of speed — provided, however, that if, in the exercise of ordinary care, the person about to cross can see that the car is approaching at an unlawful or unusual speed, he must take that fact into consideration in deciding whether there is time for him to safely clear the track.</p>

<p> ’Physicians and surgeons: Registration: Review of decision of Board of Medical Examiners: Who are “reputable physicians.’’ </p> <p>1. Ch. 422, Laws of 1905, giving to the circuit courts jurisdiction to annul any certificate of registration procured from the Wisconsin State Board of Medical Examiners by fraud or perjury or issued through error of the board, does not contemplate a trial de novo of the questions presented to the board. The term “error” is used therein in the sense in which it is ordinarily understood as applied to trials in courts before juries, — that is, aside from jurisdictional errors such as would render the decision void, it is confined to such absence of evidence in support of the board’s decision that in no reasonable view thereof could its decision be justified, or prejudicial refusals to admit or exclude evidence, or other prejudicial misapprehensions of law.</p> <p>2. The term “physician,” as used in ch. 87, Laws of 1899, providing for registration of reputable resident physicians who were on July 1, 1897, in the actual practice of medicine in this state, Includes any person, ol whatever school or of no known school, engaged in good faith in treating human ills hy any remedy or remedies, however simple, so as to be known among the people as a physician, — especially in view of ch. 264, Laws of 1S97 (referred to in the act of 1899), wherein the term is expressly defined as including every person “who shall, for a fee, prescribe drugs or other medical or surgical treatment for the cure or relief of any wound, fracture, bodily injury, infirmity or disease.”</p> <p>3. The term “reputable,” as used in said ch. 87, Laws of 1899, means reputable in the common lexical sense, and does not necessarily imply graduation from a reputable medical college or membership in an incorporated medical society.</p> <p>4. In this case a certificate of registration issued, under ch. 87, Laws of 1899, upon competent proof, to one who stated in his-application that he belonged to the “physio-medical and hydro-pathic” school, is Held not to have been issued through error of the Board of Medical Examiners.</p>

<p> Master and servant: Liability for injury from defective appliance. </p> <p>A platform four feet square with a rope at each corner by which it was to he tied at the proper height to projections on telephone poles was furnished by a telephone company to its cable splicer and his assistant, to be kept in their custody and used in their work. After it had been in use by them for several months one of the ropes parted, precipitating them to the ground, and the assistant was injured. Held, that the platform being a mere appliance, sufficient when furnished, and the extent of the wear and weakening of its ropes being better known to the employees who used it than to any one else, the employer was not liable.</p>

<p> Contracts: Failure in strict performance: Waiver of forfeiture: Life insurance: Acceptance of premiums after default. </p> <p>1. Where, by a failure of some exact performance, a forfeiture is imposed on one party by the strict terms of an agreement, conduct of the other party sufficient to induce a belief that a modified performance is satisfactory and will be accepted as equivalent to strict performance will justify a conclusion that the parties have assented to a modification of the original terms or that the obligee has waived strict performance.</p> <p>2. Although by its terms a life insurance contract lapsed upon default in payment of any quarterly premium or instalment, yet the conduct of the insurance company during a period of moro than two years prior to the death of the insured, in collecting and receiving after they were due all of such instalments except one (which was paid on the last day of grace) without anything in the course of dealing to suggest that the contract had been terminated and that there had been a reinstatement after a lapse in the manner specified in the contract, is held to have constituted a waiver of strict performance, notwithstanding the company in its correspondence and written notices insisted that no stipulation had been waived or modified; and the company is estopped from insisting on a forfeiture and is liable on the contract, although an instalment due three days before the death of the insured was not tendered until after and on the day of such death and was then refused.</p>

<p>(1) Pleading: Amendment. (2, 3) Wills: When deed held testamentary: Delivery.</p> <p>1. In an action to set aside a trust deed on the ground of mental incompetency of the grantor, there was no error in allowing the complaint to he amended at the trial so as to allege that the deed was never delivered.</p> <p>2. An instrument in the form of a deed, plain and unambiguous on its face, conveying a present interest in land and unexplained hy any contemporaneous writing of a testamentary character, cannot he held to he a will.</p> <p>3. Thus, an instrument in the form of a deed, conveying land in trust, with power to sell, lease, or mortgage the same, and directing distribution of the proceeds among certain descendants of the grantor, which had been intrusted by the grantor, during her last illness, to a third person, to be kept by him. with other papers for her, but with instructions to deliver it to the grantee in case she did not recover from such illness, and which had, after her death, been, handed by said third person to the grantee, is held not to have been delivered so as to. be valid as a deed, and not to be a will.</p>

<p> Bills and notes: Accommodation paper: Consideration: Transfer after maturity: Rights of holder: Mortgages: Assignment: Failure to record: Payments: Rights of subsequent purchaser in good faith. </p> <p>1. No consideration moving to the accommodation maker is necessary to uphold an accommodation note, the consideration supporting his promise being that parted with hy the person taking the note and received hy the person accommodated.</p> <p>2. The maker of an accommodation note cannot defend against it on the ground that the holder other than the person accommodated, whether indorsee or transferee for value, knew before' and when he took the note that the accommodation maker received no consideration.</p> <p>3. The agency of the party accommodated to negotiate an accommodation note and raise money thereon does not, in the absence of express agreement, expire at the maturity of the note; and the mere fact that the transfer to a holder for value was made after the note became due does not permit the accommodation maker to defeat recovery at the suit of such holder merely upon tlie ground that there was no consideration moving to the accommodation maker.</p> <p>4. The indorsee of a negotiable note and mortgage may safely hold possession thereof without recording his assignment, and, nothing else appearing, he will be protected against payments by the debtor to the original mortgagee who has not possession of the note and mortgage.</p> <p>5. But it is otherwise as against one who purchases the mortgaged land in good faith and for a valuable consideration without notice of the assignment, and who receives from or through the vendor, at the time of his purchase and as part of the same transaction, a conveyance of the land and a satisfaction of the mortgage by the apparent owner of record. Against such a purchaser who places his deed and satisfaction of mortgage on record before the assignment of the mortgage is recorded, the assignee is estopped to assert his mortgage lien.</p> <p>■6. The mere fact that the deed delivered to such a purchaser sim-jUltaneously with the satisfaction of mortgage and as part of the transaction excepted the mortgage from the covenant against incumbrances, did not put him in the cosition of a debtor paying the mortgage debt.</p>

<p> Bills and notes: Consideration: Agreement to advance money: Transfer without indorsement: Defenses: Estoppel. </p> <p>1. A note and mortgage were delivered to tlie payee, one H., a dealer in such securities, upon his agreement to advance the' money subsequently as the maker should need it for a building. The maker knew that H. was likely to transfer the securities: to an innocent third person. The mortgage was recorded and' H. thereupon assigned and delivered it and the note as collateral security for his own note to one who took the securities in good faith without knowledge of the agreement between H. and the maker, but the note was not indorsed so as to make the' assignee a holder in due course. After the assignment H. wholly failed to make the agreed advances. Held:</p> <p>(1) The note to H. was supported by sufficient consideration and was valid in his hands.</p> <p>(2) Although the assignee of H. was not a holder in due course, protected by the law merchant, yet the maker was es-topped, as against him, to set up the defense of a failure of consideration by reason of the breach of the payee’s agreement.</p> <p>2. The rule that a negotiable instrument in the hands of an assignee for value and without notice of defenses, if he is not a holder in due course, is subject to such defenses as were available against his assignor, relates only to such defenses as existed at the time of the assignment.</p> <p>3. The doctrine of estoppel in pais, where it is applicable, is not. subordinate but supreme, staying the operation of other rules..</p>

<p> Corporations: Assignment of stoch as collateral security: Right ta-ñóte: Transfer on boohs: When to be surrendered: Contract construed: Protection of pledgee’s security against impairment: Right to be officer of corporation </p> <p>1. In an action involving the right to vote corporate stock assigned as collateral security for notes given for its purchase price, it is held, upon the evidence, that by the understanding and agreement of the parties the pledgor has the right to vote the stock, although it was not expressly so stipulated in their written contract.</p> <p>[2. Whether, in general, the right to vote corporate stock assigned as collateral security is in the pledgor or the pledgee, not determined.]</p> <p>3.Upon the sale of all the stock of a corporation notes were given for a part of the purchase price and most of the stock was assigned to the vendor as collateral security therefor. One share was issued to him and it was agreed that he should be a director, officer, and employee of the company, so as to be in a position to protect his securities. Held, that he was entitled to have the stock so pledged transferred to him on the books of the company, and that a new certificate should be issued to him showing the transfer and that it issued pursuant to the judgment of the court.</p> <p>4. The assignment of the stock as collateral in such case being made, under the agreement, “to secure the payment of said notes, the same to be held by the [payee] until said notes shall be fully paid,” no part of the pledged stock need be surrendered until the indebtedness evidenced by the notes is fully paid.</p> <p>5. There being nothing in the agreement warranting an inference that the stock was pledged to secure anything other than the notes mentioned, the pledgee was not entitled to hold it to secure payment of damages by reason of a breach of his agreement in respect to his being retained as a director and officer of the company.</p> <p>6. In an action, for determination of the rights of all parties under such sale and agreement, the judgment should provide for the continuance of the vendor and pledgee of the stock as a director, officer, and employee of the company until the debt to him should be paid, upon the condition that he perform the duties of such positions; and his interest in the property should be protected against transfers or other acts of the corporation which might improperly impair his security.</p>

<p> Corporations: Action, when may be brought by stockholder: Necessary parties: Pleading: Dissolution of corporation: Continuance■ for bringing of actions, etc.: Statutes of other states: Presumptions. </p> <p>1. The wrongful taking and conversion by an officer of a corporation of moneys and property belonging to it is primarily a wrong to the corporation and it has the primary right to bring an action therefor.</p> <p>2. If, in such case, the corporation fails to sue, it is a necessary party defendant in an action brought by a stockholder.</p> <p>3. Assuming that an allegation that a corporation has been dissolved is sufficient on demurrer, a further averment that it has-“no legal existence at the present time” states merely a conclusion of law, which is not admitted by the demurrer.</p> <p>4. In the absence of allegations to the contrary it will be presumed" on demurrer that the laws of another state with respect to corporations organized therein provide — like our sec. 1764, Stats. (1898) — that after such corporations are dissolved they shall continue for three years to be bodies corporate for the purpose . of prosecuting and defending actions and of enabling them to-settle and close up their business, etc.</p> <p>B. Before a stockholder can bring an action for a wrong to a corporation which, though dissolved, still exists for the purpose of prosecuting and defending actions, he must show a demand upon the corporation to bring the suit or some sufficient reason for failure to make such demand.</p> <p>6. An allegation that plaintiff was a stockholder in a corporation. when it was dissolved does not show that he was a stockholder when the action was commenced, some eighteen months thereafter.</p> <p>7. An allegation that defendant controlled and dominated a corporation “up to the time of the dissolution thereof” does not show that he continued to dominate and control it thereafter, so as-to excuse plaintiff’s failure to demand that the corporation itself bring the action to remedy a wrong done to it by defendant. It cannot be presumed that after the dissolution defendant dominated or interfered with the winding up of the corporation as provided by law.</p>

<p> Wills: Trusts: Devise of rents and profits: Future estates: Perpe-tuities. </p> <p>1. A testatrix devised the future rents and profits of lands to her father during his life; at his death to her brother and three sisters and survivor of them for life; and after the death of the last survivor the lands to he sold and the proceeds divided among the children of the persons last named and her half brothers aDd sisters, children of her father, who should be surviving at that time. There was no devise in trust and nothing in the will to bring it within the provisions of sec. 2081, Stats. (189S). Eeld:</p> <p>(1) The will did not create any trust.</p> <p>(2) The disposition so made of the rents and profits is, under sec. 2060, Stats. (1898), to be governed by the rules in relation to future estates in land.</p> <p>(3) The future estate attempted to he given to the brother and sisters is void under secs. 2038, 2039, Stats. (1898), since under the terms of the will the property could not be sold during the continuance of five lives in being at the creation of the estate.</p> <p>(4) The estate attempted to be devised to the nephews, nieces, etc., of the testatrix is a contingent future estate, since the persons to whom it is limited must remain uncertain until the ceasing of the precedent estate. Such estate would also offend against secs. 2038, 2039.</p> <p>(5) No part of the devise can be upheld.</p> <p>2. Even a trust is void as creating an unlawful perpetuity if the trust term exceeds the period permitted by statute, where there is no power of sale and the statute — like secs. 2089, 2091, Stats. (1898) — forbids alienation by the trustee and the beneficiary during the continuance of the trust.</p>

Aeeeal from a judgment of the circuit court for Milwaukee county: Lawrektoe W. Halsey, Circuit Judge. Action to enjoin collection of a garnishee judgment.

<p>Appeal from a judgment of the circuit court for Milwaukee county: LawreNce "W. Halsey, Circuit Judge.</p> <p>Action to enjoin sale of lands by county treasurer for delinquent drainage assessment, and also to require the appellant, Dick, town clerk, to expunge all records of the drainage-proceedings and to perpetually enjoin him and his successors in office from placing on any future tax roll any assessment or tax growing out of said proceedings. The county treasurer, impleaded with the appellant, defaulted. The appellant answered. Plaintiff moved for judgment upon the pleadings, whereupon judgment was so entered, from which defendant. Dick brings this appeal.</p>

0. Ludwig, Circuit Judge. The defendant G-egenseitige Unterstuetzungs-Gesellschaft, Germania, is a corporation organized exclusively for charitable and benevolent purposes for the purpose of extending mutual aid to its members and their families in cases of sickness, accident, and death. On January 22, 1894, this society issued its certificate No. 2306 on the life of August C. Baschke, a member, Auguste BaschJce, his wife, being named as beneficiary.

Taeeant, Circuit Judge. Certiorari brought by relator, wbo bad long been a contributor to tbe policemen’s pension fund of Milwaukee and at tbe time of tbe relation was retired and pensioner tbereon, to review tbe action of tbe board of trustees in awarding a pension to tbe appellant Mary T. Sullwcun and ber children, as tbe widow and children of tbe deceased, William L. Sullivan, at the time of bis death a member of tbe police force.

<p> Marriage of divorced person within year: Invalidity: Common-law marriage: Mutual benefit insurance: Who may be beneficiaries. </p> <p>1. Within a year after his divorce a resident of this state was married in Illinois to another resident of Wisconsin. The laws of Illinois, like those of Wisconsin, prohibited such marriage. The' woman knew the man had been divorced but did not know that their marriage was prohibited. She continued to cohabit with-him as his wife in Wisconsin until his death more than a year after his divorce. Held, that there was no common-law marriage, and that the woman could not share as beneficiary in the-proceeds of a mutual benefit certificate issued by a society whose by-laws did not authorize her, if not his wife, to be named as-such beneficiary.</p> <p>2. The fact that the insured was sick for several months prior to-his death and was being attended to and cared for by his supposed wife during such illness did not bring her within a bylaw of the society under which the insured might designate, as-beneficiaries, “persons who are not related to him by blood, but who are dependent on him, or he on them, for their maintenance.”</p>

<p>Appeal from an order of the circuit court for Milwaukee county: Obeen T. Williams, Circuit Judge.</p> <p>This action is brought to recover damages for a personal injury. A wheel, broken from a hose cart, rolled against the defendant and injured him while he was standing on a street comer in the city of Milwaukee. Action was commenced by the service of a summons and complaint December Y, 1905, against the city of Milwaukee to recover damages for such injury. The accident happened July 13, 1905, and on July 21, 1905, notice of the injury was served on the city, pursuant to subd. 5, sec. 4222, Stats. (1898), such notice being addressed to the mayor and city clerk of the city, and claiming “satisfaction for said injury from the city of Milwaukee.” Such notice recited:</p> <p>“That the street in front of and along said Commerce and Walnut streets at and near the place where the accident occurred was out of repair and defective to the knowledge of the city of Milwaukee, and the hose cart upon which the said wheel was detached was defective, and that while the said hose cart was rapidly and with great violence running to a fire, the said wheel, on account of the said defective condition of the street and hose cart, became detached and rolled against the plaintiff, causing said accident and injury.”</p> <p>On February 3, 1906, the city of Milwaukee tendered the defense of the action to the MilwavJcee Gas Light Company, on the theory that the defective condition of the street complained of was due to the failure of such company to restore said street to its former condition after having tom up the same to repair a leak in a gas main, and that said gas company was primarily liable for the injury sustained by plaintiff by reason of the defective condition of the street. The tender of the defense of the action was accompanied with a copy of the summons and complaint in the action and also a copy of the notice of injury served upon the city on July 21, 1905. The plaintiff was nonsuited in the action brought against the city, on the ground that the defendant in this action was primarily liable for the damages sustained. This action was commenced March 11, 1908, and more than one year after the accident occurred. The complaint alleges that the notice required by subd. 5, sec. 4222, Stats. (1898), was duly given to the defendant by reason of the service on said defendant, by the city attorney of the city of Milwaukee, of a copy of the notice of injury served on said city, together with a copy of the complaint in the action against the city, and of the tender of the defense in said action. The complaint alleges that “no other notice was served upon said defendant Milwaukee Gas Light Company.” The defendant demurred to the complaint on two grounds: (1) As not stating a cause of action; and (2) because the action was not commenced within the time limited by sec. 4222, Stats. (1898). From an order sustaining such demurrer plaintiff appeals.</p>

<p> Criminal law: Assault with intent to hill: Conspiracy: Trial of one conspirator: Opening statement: Evidence: Resistance to arrest: Previous threats: Submission of lessee degrees included in charge: Instructions to jury: Intent: Presumptions. </p> <p>1. If two persons assault another with design to feloniously take that other’s life, and the claim of the prosecution is that such persons acted pursuant to a conspiracy, having for its purpose the offense attempted in aid of a further general purpose, and only one is placed on trial who denies being one of the two, and the identity of the other is established — all the circumstances of the conspiracy, and the various steps in its consummation tending to show motive for participation therein of the one on trial and to identify him as having been the participant and the general intent of such participation, may properly he given in evidence.</p> <p>2. In the situation mentioned it is proper to state to the jury in opening the case on the part of the prosecution all facts the state expects to prove, as to the existence of the conspiracy, the connection of the accused therewith, particularly at the time of the offense, and to offer all legitimate evidence showing such circumstances, so far as they tend to establish guilt of the accused.</p> <p>3. In such a situation, the fact that one participant has not been apprehended, does not militate, upon the trial of the other, against showing all the facts regarding the absent one hearing on the criminality of such other.</p> <p>4. If a person, about to he apprehended as guilty of having committed a criminal offense, resists arrest, that may properly he established upon his trial as bearing on the probability of his guilt and given such weight by the jury as they may think it is entitled to imder all circumstances.</p> <p>5. If an attempt be made to arrest a person upon a charge of his having committed a criminal offense, and he successfully, by threats or intimidation, prevents being apprehended, and is informed that he will be visited later by a force sufficient to secure his submission, and he evinces a disposition to resist in such event, and upon a new attempt the officers are resisted by such person and a comrade, acting in concert with him, and to the extent of a claimed design to take the lives of such officers, — proof of the previous occurrence and threats are legitimate as to the intent of such resistance.</p> <p>6. If a perscin is charged with a homicidal offense of a high degree, including lesser degrees, the case need not be submitted to the jury in any aspect other than such as there is evidence in some reasonable view to sustain.</p> <p>7. In the trial of a person accused of having committed a homicidal offense of a character including a lesser offense, the court should instruct the jury as to every offense included in the charge established in any reasonable view by the evidence.</p> <p>8. In the circumstances last mentioned, failure to charge as to any particular grade of offense, no proper request being submitted therefor, is not harmful error.</p> <p>9. In such circumstances, an instruction requiring conviction of the higher degree or acquittal, is favorable rather than harmful to the accused.</p> <p>10. A requested instruction, embodying a correct rule oí law but not applicable to the facts of tbe case, may properly be refused.</p> <p>11. In submitting a cause to a jury involving a charge of assault, with a dangerous weapon with felonious intent to take human life it is proper t.o instruct the jury that a man is presumed to intend the natural, probable, and usual consequences of his act, that being given so as to indicate it is not conclusive; only an. evidentiary circumstance, to be considered in connection with the legal presumption of innocence and all the evidence bearing on the issue.</p> <p>12. The fact that, in the given case, the reasonably to be expected result, as the usual and probable consequences of the act charged, did not occur, does not preclude giving to the jury the rule as to the inference of fact arising from the deliberate act [Syllabus by Maeshaul, J.]</p>

<p>Supreme court: Original jurisdiction: Taxpayer’s action: Restraining illegal disbursement of state moneys: Constitutionality of statute, when not determined: Poioers of state legislature: Investigations: Incurring of expenses: Creating “debt:” Public purpose: Judicial tribunal: Primary election law.</p> <p>1. The supreme court, in the exercise of its original jurisdiction, may entertain an equitable action to prevent the secretary of state and state treasurer from disbursing state moneys for illegitimate purposes; and such action may be initiated by a taxpayer if the attorney general refuses to act.</p> <p>2. The constitutionality of a legislative act will not be considered by the court unless a decision in respect thereto is essential to the determination of some controversy calling for judicial solution.</p> <p>3. The legislature has a broad discretionary power to investigate any subject as to which it desires information in aid of the proper performance of its legislative function or of any other act delegated to it by the fundamental law, state or national; and to that end may proceed by a duly authorized committee of one or both houses, and may incur reasonably necessary expenses, payable out of the public funds.</p> <p>4. The workings of the primary election law for the selection of party candidates for the office of United States senator, including the conduct, legitimate or illegitimate, of persons voted for or voting at such election, as bearing on the policy of retaining or amending the law or the advisory force of its result in the given case, is a proper subject for legislative inquiry, whether the law is valid or not.</p> <p>[5. Whether the primary election law (secs. 11 — 1 to 11 — 28, Stats.) so affects the discretion of members of the legislature, under the federal constitution, respecting the election of United States senators as to be invalid, and whether it infringes the right of public assembly and consultation for the public good, guaranteed by sec. 4, art. I, of the state constitution, not determined.]</p> <p>6. A legislative inquiry broad enough to embrace the policy of primary election laws in general cannot be regarded as a mere attempt to administer a void law, even though the particular statute whose workings are to be investigated may be void.</p> <p>7. A resolution providing for a legislative investigation in aid of-ordinary legislative business does not create a “debt” within the meaning of sec. 8, art. VIII, Const., relating to the passage of any law creating a state debt.</p> <p>8. A statute providing that the expense accounts of a legislative investigation shall be audited by the secretary of state upon the certificate of the chairman of the investigating committee stating the facts, does not confer any auditing authority upon such chairman or violate sec. 2, art. VI, Const., making the secretary of state the state auditor.</p> <p>9. A legislative investigation instituted for the purpose of securing information for legislative guidance is within the domain of public purpose and general interest, as distinguished from private purpose and from a mere political party purpose and interest, even though it may have political aspects and be dominated- by members of one political party.</p> <p>10.A legislative investigating committee charged with the duty of gathering and reporting information for legislative guidance - is not a judicial tribunal within the meaning of sec. 2, art. VII, Const.</p>

<p>(1) Witnesses: Competency: Transactions with persons since deceased: Officers of corporations. (2-4) Constitutional law: Vested rights: Remedies: Change in rules of evidence. (5) Appeal: Affirmance: Majority not concurring as to error. (21) Rehearing: Inaccuracies. (6-20) Trusts: Expenses of litigation, from what funds payable: Guardians ad litem: Compensation: Necessary expenditures: Estates of decedents. (22) Corporations: Officers: Effect of resignation.</p> <p>x. Ch. 197, Laws of 1907, respecting, the competency of officers of a corporation to testify, deals with the status when the person is offered as a witness.</p> <p>2. One cannot acquire a vested right in a judicial remedy unless it is of the contract so that an invasion of the remedy necessarily impairs the property right.</p> <p>3. The exception noted does not apply to a mere rule of evidence which leaves other rules, ample to establish the remedial right by competent witnesses.</p> <p>4. It is competent for the legislature to prescribe a rule of evidence as by ch. 197, Laws of 1907, applicable to transactions which happened prior to the enactment, but incompetency of a witness resulting may he avoided by removal of the condition upon which it is based before the person affected is offered as a witness.</p> <p>5. On appeal from a judgment, unless there is a concurrence of a' majority of the participating justices in support of at least one material ground of error, the judgment must be affirmed of necessity.</p> <p>6. Generally speating, it is improper for a court to adjudge or order paid out of trust funds the expenses of litigation of a defeated party respecting such fund except to the extent of his interest in the fund.</p> <p>7. In general, representatives of owners of a trust fund have no authority to stipulate away the subject of the trust in payment of costs and expenses of litigation respecting the fund, and any such stipulation should not be recognized by the court as a basis for an order or judgment.</p> <p>8. Without plain legislative authority a trust fund should not, in any case, be depleted to pay the expenses of litigation in respect thereto of a person who has no interest therein.</p> <p>9. The legislature may make reasonable regulations for compensating out of a trust fund a representative, such as a guardian ad litem of an infant, required to be made a party to litigation, for his services and necessary expenditures, regardless t of whether the infant has any interest in such fund.</p> <p>10. In judicial proceedings to settle an estate, infant parties must be represented by guardians ad litem, regardless of any statute; moreover, the court rules require it.</p> <p>11. A proceeding to settle the estate of a deceased person is in the nature of an action in rem, and all parties interested in order to be bound are required to be made parties.</p> <p>12. In such proceedings adult persons are interested in having infant parties properly represented, as without that such adults could not safely possess themselves of the fund whether it belonged to them or not, hence the basis for depleting the fund ■ to pay the expenses of such representatives regardless of whether the wards have any interest in the fund.</p> <p>13. Compensation for services of a judicial assistant, such as a guardian ad litem, in the conservation of a trust fund, should be limited to the reasonable value of somewhat similar services in official life.</p> <p>14. The rules before stated having been well established prior to the enactment of ch. 267, Laws of 1907, it is presumed the legislature intended the measure of compensation to be the one established by judicial policy.</p> <p>15. The law referred to leaves the court broad discretion as to whether to allow compensation or not and the amount gauged by the judicial rule.</p> <p>16. The provision to the effect that the allowance must be fixed by the court in which the litigation is had is a limitation of authority.</p> <p>17. A judgment against the ward for costs is not a liability of the guardian ad litem. Payment thereof by him is not, under ordinary circumstances, to be recognized as a necessary expenditure of his.</p> <p>18. The words “payment can be directed by the court” limit the right of direction to property in custodia legis, leaving the balance, if any, allowed, collectible out of the property of the ward as his debt.</p> <p>19. The allowance is not required to be taxed after the manner of taxing costs. It may be fixed in any way within judicial discretion.</p> <p>20. In a proceeding to fix the allowance of a guardian ad litem he does not represent the ward. Whether in such cases the ward should he represented or left wholly to be protected by the court without assistance, not decided.</p> <p>[Syllabus by Marshall, J.]</p> <p> On motion for rehearing: </p> <p>21. Inaccuracy in statements of fact in an opinion by this court Is not ground for a rehearing where it did not affect the result.</p> <p>22. Even where the charter of a corporation provides that its officers shall hold until their successors are elected and qualified, or appointed and qualified, the resignation of an officer without any acceptance thereof vacates the office for all general purposes unless acceptance is specially required by the charter.</p>

<p> Constitutional law: Equal protection of the latos: Due process of law: Corporations: “Persons:” Classification for legislative purposes: Railroad companies: Liability for injuries tb employees: Questions for jury: Depriving courts of judicial power: Statutes: Partial invalidity: Police power: Contributory negligence: Comparative negligence,: Liberty of contract: Injuries in other states. </p> <p>1. Corporations are entitled to the same protection as individuals under the constitutional guaranties of liberty and equality, and are “persons,” within the meaning of the XlVth amendment, Const, of U. S., providing that no state shall deprive any person of property without due process of law or deny to any person the equal protection of the laws.</p> <p>2. The rule of equality before the law does not preclude classification for legislative purposes, if the classification is not arbitrary but is based upon substantial distinctions, is germane to the purpose of the law, is not based on existing circumstances only so- that there can be no change in the membership of a class, and provided the law applies equally to all members of each class.</p> <p>3. The necessity and propriety of such classification are to be determined by the legislature, and if made in conformity with the rules above mentioned it cannot be disturbed by the courts.</p> <p>4. The business of operating a railroad differs from others in its nature, in its relation to the public, and in its peculiar dangers to employees and to the public, so as to justify special regulation, and to that end the separation of railroad companies into a class for purposes of legislation having for its object the protection of their employees and the safety of the public.</p> <p>5. Ch. 254, Laws of 1907, — amending sec. 1816, Stats. (1898), and imposing upon every railroad company liability for all injuries, sustained by any employee thereof (except employees working in shops and offices) while engaged in the line of his duty as such, caused in whole or in greater part by negligence of any other employee of such company, — is designed to enforce greater care on the part of the companies in the selection of employees, and thereby to secure not only protection for the employees but. the safety of the public, and is not invalid under the constitutional guaranties as to due process of law and equal protection of the laws.</p> <p>6. It is not essential to the validity of such legislation that its operation should he confined to employees actually engaged in operating trains or incurring risks peculiar to the railroad business, — the special regulation having reference to railroad companies as a class, and not necessarily to any particular class of employees.</p> <p>7. Office and shop employees of railroad companies are sufficiently distinct in their employment and relation to the conduct of the business to justify the legislature, within the field of its discretion and with regard to public policy, in exempting them from the operation of the law.</p> <p>8. Subd. 5 of said sec. 1816, Stats., as amended by ch. 254, Laws of 1907 (providing that “in all cases under this act the question of nogligen.ee and contributory negligence shall be for the jury”), is merely declaratory of the law as it existed, namely, that when the court has found that there is legal evidence tending to show negligence or contributory negligence it is for the jury to determine from this evidence adduced whether negligence or contributory negligence in fact existed. It does not, therefore, deprive the courts of any judicial power vested in them by the constitution (art. VII, sec. 2).</p> <p>9. Even if said subd. 5 were construed as conferring judicial power upon juries its invalidity would not render the other portions of the act invalid, it being a separate and distinct provision, not the compensation for or inducement to the enactment of such other portions.</p> <p>10. Subd. 3, 4, of said sec. 1816 (providing, in effect, that contributory negligence of the injured employee shall be no bar to a recovery if the negligence of the company or other employee contributed in a greater degree to the injury) are within the legislative power of police regulation, and cannot be held so arbitrary and unreasonable as to be invalid under the constitutional guaranties of equal protection and due process of law.</p> <p>11. Subd. 6 of said sec. 1816 (providing that no contract, rule, or regulation shall exempt a railroad company from the full liability imposed by the act) is a proper provision, within the discretion of the legislature, to secure to employees the benefits of the rights created, and does not unduly infringe the company’s right to liberty of contract.</p> <p>12. Subd. 8 of said sec. 1816 (which seeks to extend the rights and liabilities created by the act to cases where the injuries were received in another state if the contract of employment was made in this state) deals with a subject independent of and severable from the other parts of the act, and if invalid does not render the whole law invalid. [Whether said subd. 8 is invalid or not is not determined.]</p> <p>Mabshall, J., dissents.</p>

<p> Judgment obtained by perjury: Restraining enforcement: Degree of proof required. </p> <p>1. Equity will restrain tlie enforcement of a judgment obtained solely by fraud and perjury of tbe successful party if the defeated party was not guilty of any negligence or laches.</p> <p>2. Tlie enforcement of a judgment regularly entered after a trial in a court of law should not he restrained in equity unless the ground for interference is established beyond all reasonable controversy by evidence clear, convincing, and satisfactory.</p> <p>3. The evidence in this case is held insufficient, under the rule above stated, to establish the fraud and perjury alleged.</p> <p>Mabshai.l, X, concurring in the result, is of the opinion that in such a case the facts should not be required to be shown by any higher degree of proof than, as in ordinary cases of fraud, by clear and satisfactory evidence; that the proof was sufficient in this case: but that, in order to be .ground for relief, the fraud must have been extrinsic and have directly induced the judgment, and that the mere fact that the judgment was obtained by perjured testimony does not warrant equitable interference.</p>

<p> Action: Survival: Revival after death of party: Equity: Discretion: necessity: Limitation of actions: Laches. </p> <p>1. A cause of action at law for deceit and fraud resulting in damages by depletion of the estate of a bank in the hands of a receiver does not survive the death of the defendant.</p> <p>2. An application to a court of'eguity to revive and continue an action abated by death of a party is an appeal to judicial discretion, and should seldom be granted where unnecessary to tlie applicant, or when the burden cast upon the other party thereby will grievously preponderate over the benefits to the applicant, or where delay and laches have intervened so as to place the other party at serious disadvantage, and usually not where such delays have permitted a statute of limitations to run against the original demand.</p> <p>3. It was an abuse of judicial discretion in this case to revive in 1904, against the executrix of a defendant who died in 1902, an equitable action in which said defendant was charged with complicity in a fraud committed in 1897, — it appearing that without such revival complete justice could be done by compelling the return to a receiver of all the property which said defendant aided in wrongfully diverting from the estate of a bank (plaintiffs’ debtor); that if any money judgment against said defendant was essential it might have been obtained without resort to the court of equity; that the time limited for instituting a suit upon that cause of action had run; that serious inconvenience and burden to the estate of said defendant would result; and that the plaintiffs had been guilty of laches.</p> <p>Siebecker, X, dissents.</p>

<p> Account stated: Acquiescence: Conclusiveness. </p> <p>Defendant, being indebted to plaintiff for one half of the net profits-of the purchase and sale of lands after deducting expenses and “annual interest of seven per cent.” on moneys advanced in the transaction, sent to plaintiff a statement of account showing, his share of the profits to be a certain sum, and inclosed a check therefor. In such statement interest was compounded annually. Plaintiff acknowledged receipt of the statement without making any objection thereto, and retained and used the money. Within a short time he was informed of the fact as to the computation of interest, but not until two years and nine months after receiving the statement did he give defendant any notice that he claimed an overcharge of interest. Held, that he had assented to the settlement and accepted the money tendered as payment of the whole amount due him, and that, no fraud or mistake being claimed, the account so settled became conclusive on the parties. Baknes, Dodge, and Kekwiit, JJ., dissent.</p>

Eebob to review a judgment of the circuit court for Clark county: Chestee A. Fowleb, Judge. Writ of error to review conviction for rape and ten years’ sentence to the state reformatory.

B. Belden, Circuit Judge. Action for personal injuries. A section gang, of which plaintiff was a member, having been engaged in replacing old rails at some distance south of Kenosha, loaded the old rails upon a handcar and transported them to Kenosha, and, with the handcar standing upon the main track, were engaged in removing the rails to the ground; plaintiff standing astride of the west rail of the railroad track in order to lift and move the rail in question.

B. Beldeh, Circuit Judge. This is an action to recover damages for personal injuries alleged to be due to the negligence of the defendant. The defendant operated a brass foundry at Kenosha, Wisconsin. In the foundry the metal pots and crucibles for melting the brass were placed in a row containing thirty-two pots. Eonr cranes were provided for handling the pots of molten metal, each crane being expected to handle eight of the pots.

Halsey, Circuit Judge. This action was brought to recover damages for personal injuries alleged to have been sustained by plaintiff on account of the negligence of the defendant. The jury returned the following verdict: “(1) Was the plaintiff, while a passenger on defendant’s car, on the 20th day of June, 1903, injured?

Williams, Circuit Judge. The plaintiff in error (hereinafter called defendant) was convicted in the said circuit court of the offense of embezzlement and sentenced to imprisonment for three years in the state prison.

Appeals from orders of tbe circuit court for Milwaukee county: WaebeN D. TabbaNT, Circuit Judge. Tbey argued, among other things, that the court was right in refusing to vacate the judgment. The presumption is that the letter from plaintiff’s attorneys was received by defendant. Small v. Prentice, 102 Wis. 256; McDermott v. Jackson, 97 Wis. 64; 16 Cyc. 1069, 1071.

<p> Foreign corporations: Doing business in this state: Pleading: Findings of fact: Interstate commerce: Sales: Liability of agent's surety. </p> <p>1. In an action upon an agent’s bond, where the answer denied the corporate existence of plaintiff and alleged that it held itself out to be a foreign corporation, a further allegation that it had transacted business in this state under the contract in question in violation of see. 17706, Stats. (1898), did not show that the contract was void, since said section does not apply to cases of mere representation.</p> <p>2. Defendant might, however, prevail upon the defense so attempted to be pleaded, where the court found as a fact that plaintiff was a foreign corporation, and such finding was not excepted to.</p> <p>.3. Where goods are sold outright by a foreign corporation to a so-called agent in this state the transaction is interstate commerce, not affected by sec. 17706, Stats. (1898), but as to any indebtedness of the purchaser on such sales there is no liability on the part of the surety on a bond conditioned that such purchaser should “well and truly perform the duties of agent” for the foreign corporation, and pay over to it all moneys received by him “as such agent.”</p>

Williams, Circuit Judge. Plaintiff sued on a note dated May 24, 1905, due in 120 days, for $1,000, which was dply indorsed to him and of which he claimed to he an innocent holder for value in due course. Defendant set up that the note was given for certain mining stock of the Standard Lead & Zinc Smelting & Mining Company, for which he was induced to pay $1,000 in money and to give his four $1,000 notes by fraudulent representations of one Davidor, an officer of the company.

<p> Master and servant: Personal injury: Instruction as to operation of machine: Contributory negligence: Direction of verdict. </p> <p>In an action for injuries to an employee who, while operating a boring machine, was struck by a rapidly revolving hand crank which he had permitted to remain upon the crank shaft when he applied the power, direction of a, verdict for the defendant is held to have been proper, it being established beyond dispute by the evidence that plaintiff had-been properly instructed and knew that the. shaft revolved when the power was applied and that the danger from the revolving crank was obvious. Kekwin, X, dissents.</p>

Tarrant, Circuit Judge. Tbe appeal is from an ordei staying and restraining a proceeding by tbe plaintiff to examine tbe defendant’s actuary before issue joined, under sec. 4096., Stats. (1898), as amended by cb. 29, Laws of 1899, and cb. 244, Laws of 1901. Among other references upon tbe part of tbe appellant were tbe following: Sec. 4183, Stats. (1898); Schmidt v. Mena-sha W. W. Go. 92 Wis. 529, 66 N..

Tabeawt, Circuit Judge. Tbe court found tbat on October 4, 1904, the defendants executed and delivered to Ignate Kowalski their promissory note for $275, which became due January 2, 1905, and that on the same date they executed another note for a like sum, which became due March 2, 1905, and that the consideration for which said notes were given to said' Kowalski was an indebtedness due him from the Polish Publishing Company, a corporation in which the defendants were…

<p> "Executors and administrators: Claims not filed within time limited: Alloioance: Mortgages: Foreclosure: Deficiency judgment against executor. </p> <p>A judgment for deficiency on foreclosure of a mortgage, entered in tie circuit court against an executor as such and ordering payment out of the estate in Ms hands, may properly he allowed by the county court as a claim against the .estate, although not filed as such until after the expiration of the time limited for the filing of claims.</p>

C. Ludwig, Circuit Judge. In September, 1899, tbe Upbam Manufacturing Company entered into a land contract with tbe Rib River Farm Land Company for tbe sale to tbe latter of approximately 31,000 acres' of land, situated in Taylor and Lincoln counties, covered by timber so as to be unavailable to tbe purchaser for its known purpose of colonization and sale in small parcels to settlers.

C. Ludwig, Circuit Judge. Tbis is an action for tbe rescission and cancellation of tbe subscription for and tbe purchase of certain shares of stock in tbe defendant corporation (El Globo Mining and Milling Company) issued November 30, 1'906, and for tbe recovery of tbe money paid therefor, with interest, on tbe ground that tbe subscription and purchase of tbe stock were induced by tbe false and fraudulent representations of tbe defendants.

<p> Waters: Conveyance of water-power dam, canals, etc.: Title to lock: Easement or fee? </p> <p>1. Pursuant to an act of the legislature in 1847, a dam was constructed across the south, channel of Pox river, with a canal and a lock for the passage of boats. In 1862 the federal government built a canal on the other side of the river, and the lock thereafter fell into disuse. In 1867 the owners conveyed the dam, together with an easement over the lands occupied by its ends for the purpose of maintaining it; also all their right, title, and interest in and to the water held and water power created by the dam, and the land occupied by the canal and race used for carrying water from said dam to the mills in the village, to the width of 100 feet each, as specified, in the plat. It appeared, among other things, that the statute authorizing the dam required the construction and operation of the lock as a component part of the improvement; that the lock, though disused, was maintained until after the conveyance; that its maintenance or the construction of a new one by the owner of the water power could probably he compelled; that the lock was only thirty-five feet wide while the width of the canal and race was correctly stated in the conveyance as 100 feet; that the lock was located upon an arm of the canal and was not itself used to convey water to mills, hut the portion of such arm above the headgates had been so used; and that without the use or control of the lock the power conveyed might he largely impaired. Beld, that the lock constituted a part of the canal and was included in a conveyance thereof, though not specifically mentioned.</p> <p>2. The rights of the parties under such conveyance are to he determined as of the date thereof, and the subsequent filling up of the canal or lock could not operate to divest the title acquired.</p> <p>3. A conveyance of a dam and mill races or canals and the water power furnished hy the dam, reciting that it was intended thereby to convey the entire interest of the grantor in all said property, carried the grantor’s title to the fee of the bed and banks of the canals, including a lock, and not a mere easement to use the same for water-power purposes; and upon discontinuance of the use of the lock it did not revert to the grantor.</p>

<p> Deceit: Reliance on statements: Knowledge of falsity: Evidence: Nonsuit: Sale of corporate stoclc: Election between remedies: Rescission: Ratification: Witnesses: Redirect examination. </p> <p>1. An action for deceit cannot be maintained by one who acted blindly upon statements whose falsity he knew or by the exercise of ordinary observation would have known; but it is not essential that the person claiming to have been misled should have met every positive statement with incredulity and have made search to ascertain whether it was false.</p> <p>2. In determining whether the falsity of statements was obvious the intelligence or acuteness of the plaintiff and the extent to which he relied upon defendant by reason of acquaintance or confidence are matters to be considered.</p> <p>3. In an action for deceit in the sale of shares of stock in a dry goods company doing a retail business, the evidence — showing, among other things, that defendants were long-time acquaintances of plaintiff, that he had no adequate opportunity for the examination necessary to an understanding oí the boohs oí the company, and that the action of defendants was such as to divert him from such examination — is held not to justify a nonsuit on the ground that, by the exercise of ordinary care and observation, plaintiff should have known the falsity of defendants’ statements as to the assets, debts, business, and earnings of the company.</p> <p>4. One who has been induced by fraud to purchase property may elect not to rescind the contract but to retain what he has received and recover damages for the deceit; and such right of recovery is defeated by no lapse of time less than that prescribed by the statute of limitations.-</p> <p>5. In an action for deceit in the sale of stock in a corporation, a financial statement with which defendants were not shown to have been connected was not admissible to corroborate the charge of specific fraud.</p> <p>6. Upon redirect examination of a witness anything fairly explanatory of that which was drawn out on cross-examination is proper.</p>

W. BubNell, Oircu.it Judge. This is an action for tbe recovery of damages for personal injuries alleged to be due to tbe negligence of tbe defendant. Tbe defendant conducts a manufacturing plant for tbe production of ebairs, caskets, etc. In 1907 it was determined to-add a sawmill to tbe defendant’s plant. Tbe mill was to be built upon a marsby ground into which spiles were to be-driven as a foundation for tbe structure.

<p> Pleading: Amendment of answer: Discretion: Appeal: Harmless error: Evidence: Opinions: Qualification of witness: Special verdict: Form of questions: Evidentiary matters: Death caused by negligence: Intoxication: Instructions to jury: Defining “ordinary care.” </p> <p>1. In the allowance of amendments to pleadings, especially to answers, a liberal policy should be pursued in furtherance of justice; and ordinarily, where material matter is omitted from an answer by mistake or inadvertence, an amendment should be allowed.</p> <p>2. In an action for death of one alleged to have been killed by falling, in the nighttime, into an opening where the sidewalk on a viaduct had been torn up by defendant, the allegations as to the time and manner in which decedent met his death were not denied in the answer. At the trial, more than three years after the answer was served, defendant asked leave to amend so as to put such matters in issue. It appeared that the failure to deny those allegations was due to the inadvertence of counsel, but also that prior to service of the answer plaintiff had found a witness who could testify to the facts so alleged; that such witness had been killed about two years later; that plaintiff had relied upon the fact that the averments in question were not denied, and could not now procure any witness to prove the necessary facts if the amendment were allowed. It did not appear that plaintiff was responsible for the delays in bringing the action to trial. Held, that the trial court might well have concluded that allowance of the amendment would not be “in furtherance of justice” (sec. 2830, Stats. 1898), and it' cannot be said that his refusal to allow it was an abuse of discretion.</p> <p>3. The admission of evidence as to how long plaintiff’s intestate had been dead when found was harmless where there was no denial of the allegations as to the time and manner of his death.</p> <p>4. A witness shown to have had considerable experience as assistant coroner might testify as to how long a person had been dead when he saw him, the objection that he was not a physician or qualified as an expert going rather to the weight of his testimony than to his competency as a witness.</p> <p>5. Questions for a special verdict need not cover mere evidentiary-matters, nor is there ordinarily any necessity for reciting evi-dentiary facts therein.</p> <p>6. Plaintiff’s intestate having been killed by falling through an open space in a viaduct, a question for special verdict, “Was the condition of such open space obvious to a traveler on foot crossing the viaduct from the east side toward such opening, exercising ordinary care?” is held to have fairly submitted the phase of contributory negligence sought to be covered by a question proposed by defendant, “Under the conditions as to lights, barriers, guard rails, etc., surrounding or adjacent to the open space, . . . was such opening obvious,” etc.?</p> <p>7. So, also, the question “Was such open space properly guarded at the time of the injury?” accompanied by a charge fully defining defendant’s duty to maintain suitable guards, fairly submitted the issue, and it was not error not to submit a proposed question, “Did the defendant fail to exercise ordinary care in leaving the opening ... in the condition as to lights, barriers, guard rails, etc., in which it was left,” etc.?</p> <p>8. So, also, intoxication of the deceased on the night in question was a mere evidentiary fact tending to establish contributory negligence, and was properly submitted to the jury by a general question on the subject of such negligence, accompanied by proper instruction.</p> <p>9. A charge defining ordinary care to be “such care as a man of ordinary care and prudence would have used under circumstances like those disclosed in the testimony,” is held, if inaccurate, not to have been misleading in this case merely because it did not say “such care as a man of ordinary care and prudence would ordinarily have used” and did not say “under the same or similar circumstances.” But the omission of the word “ordinarily” from the definition may sometimes be misleading.</p>

<p> Death caused by negligence: Defect in electric lighting wires: Sufficiency of special verdict: Instructions to jury: Evidence: Examination of hostile witness: Discretion: Damages. </p> <p>1. In an action for death of one who was killed by coming in contact with a guy wire charged with electricity, the special verdict — submitting to the jury the questions whether defendant was negligent in permitting the guy wire to become so charged; whether such negligence was the proximate cause of the decedent’s death; whether the primary wire which fed an electric light near by was displaced and in contact with other wires so as to render the guy wire dangerous; whether, if so, such condition had existed for such length of time that defendant, in the exercise of ordinary care, ought to have known and remedied the defect before the accident; whether the decedent was guilty of contributory negligence; and the amount of plaintiff’s damages — is held fairly to cover the issuable facts without further submission of more specific questions as to defendant’s negligence. Rowley v. O., M. & St. P. R. Co. 135 Wis. 208, distinguished.</p> <p>2. The finding that the defect had existed for such length of time that defendant, in the exercise of ordinary care, ought to have known and remedied it, is held to be sustained by the evidence — showing, among other things, that on Friday a falling tree caused a displacement and considerable slack in the primary wire carrying the high current; that on Saturday morn-, ing defendant’s employees attempted to repair the defect by merely taking up the slack at a point some distance therefrom without going to the guy post or to the pole carrying the primary wire, the view of which from the point at which they worked was somewhat obstructed by intervening trees; and that the accident occurred on the following Monday.</p> <p>3. The important question in such case was, not when the contact took place whereby the current passed into the guy wire, but when the wires became displaced so as to permit a contact to occur.</p> <p>4. Quaire whether, upon the facts of the case, defendant was not guilty of negligence as matter of law in failing to use some proper appliance which, in the event of defect or contact of wires, would prevent the passage of the current to the guy wire.</p> <p>5. Befu’sal to give requested instructions is not error where they are fairly covered hy the general charge.</p> <p>6. Independent of statute a party has the right to examine a hostile or adverse witness, and it is largely in the discretion of the trial court whether questions in the nature of cross-examination shall he allowed.</p> <p>17. Whether sec. 4068, Stats. (Laws of 1907, ch. 271), — providing that any agent or employee of a corporation which is a party may he examined upon the trial as if under cross-examination, at the instance of the adverse party, — is valid, not determined.]</p> <p>8. In fixing a widow’s damages for death of her husband the jury may include the value of her support and protection by him during the time he would probably have lived, and may consider the addition that his earnings would probably have made to his property, and her reasonable expectation of pecuniary advantage by ultimately receiving a share of such earnings as one of his heirs.</p> <p>9. An award of $7,000 for death of plaintiff’s husband, forty-six years old, a good business man, thrifty and industrious, who had accumulated an estate of $7,000, is held not excessive.</p> <p>10. In an action for death of plaintiff’s husband the admission of evidence as to the official position which he had held, and that at one time he had attended college to better qualify himself for business, was not error.</p> <p>11. It appearing that deceased was running a truck farm, raising berries and fruits, and that it was a profitable business, it was not error to permit a witness to state what would be “the average annual earning from an acre of strawberries, fairly cultivated and raised in that vicinity.” The objection that it had not been shown how deceased cultivated his berries, the variety he raised, or the character of his soil, etc., went rather to the weight of such testimony than to its competency.</p>

<p>Appeal from a judgment of the circuit court for Douglas county: A. J. Vihtje, Circuit Judge.</p> <p>Eor the year 1907 the Pittsburgh Goal Company of Wisconsin had in its possession on its dock at Superior, Wisconsin, $82,000 worth of coal. Such property, in due season, was placed on the assessment roll of the city of Superior for taxation for such year as the property of, or as properly assessable to, said company. Thereafter such company seasonably made application to the board of review of the city of Superior to have the assessment expunged from the assessment roll upon the ground that the company was neither the owner of said coal nor the agent for the owners. At the same time it submitted to said board due proof that the coal was on its dock for delivery to the Great Northern Railway Company, the Northern Pacific Railway Company, and the Chicago, St. Paul, Minneapolis & Omaha Railway Company, a particular proportion thereof having been set aside to be delivered to each such company pursuant to three several contracts, one being with each of said companies, of which the following copy of contract with the Northern Pacific Railroad Company is a sample:</p> <p>“Whereas, the Coal Company is engaged in the business of selling coal of the variety known as ‘Pittsburgh,’ and whereas the Railway Company desires to purchase of the Coal Company fifty thousand (50,000) tons of such coal, screened over three-quarter (£-) inch screens at the mines, it is agreed, therefore,</p> <p>“First. The Coal Company agrees to furnish the Railway Company fifty thousand (50,000) tons of best quality bituminous coal of the variety known as three-quarter (f) inch thin vein Pittsburgh, mined during the year 1906, the same to be handled and loaded on cal's from such docks as may be mutually agreed upon by the Coal Company and the Eailway Company, and delivered free on board cars on the trades of the Northern Pacific Eailway Company at Superior, Wisconsin, or Duluth, Minnesota, said coal to be screened over three-quarter (|-) inch bar screen at the mines and to be free from dust and other impurities, the same to be delivered in such quantities and at such times as may be required by the Eail-way Company, from the date of this contract to July 1st, 1907, but the Eailway Company agrees to take delivery in as nearly equal monthly proportions as may be practicable based on its requirements.</p> <p>“Second. The movement of the coal from the mines shall commence at once and the entire tonnage contemplated under this contract shall be stored on dock or docks as hereinbefore provided on or before the close of navigation on the great lakes for the season of 1906, unless by mutual consent in writing of the parties, a portion of the tonnage contracted for be allowed to come forward after the opening of navigation on the great lakes in 1907, it being understood that the coal is to be stored and cared for on docks at the head of Lake Superior until the end of this contract, viz., the first day of July, 1907, if the Eailway Company should so elect.</p> <p>“The Coal Company agrees that representatives of the Eailway Company shall have at all times free access to the mines from which said coal is to be mined and to the vessels and docks, for the purpose of inspection at the mines of the coal, and on vessels or docks of the method in which it is or Will be handled, and the Coal Company agrees that it will make good and pay to the Eailway Company all damage it may sustain by reason of the coal not being of the kind and quality provided for in this agreement when delivered on its cars subject to ordinary handling, and the Coal Company hereby agrees to give due and timely notice in writing if desired to the representative of the Eailway Company of the names of the vessels on which said coal is shipped in order that they may be enabled to make due inspection of the same and the manner of handling such coal, and the Coal Company agrees to furnish, the Railway Company, as directed, statements showing car numbers and weights, the mine and grade of each car loaded on vessels. After such notice and inspect tion such cargo, if accepted by the Railway Company, shall be duly stored and delivered under the terms of this agreement.</p> <p>“It is further agreed that representatives of the Railway Company shall have free access at all times to the scales over which the coal contemplated by this contract is being weighed and any inaccuracies discovered in the weight of the coal shall be immediately rectified.</p> <p>“Fourth. The Coal Company hereby agrees that the entire tonnage contemplated under this contract is to be kept entirely separate from any other coal which may be stored on the dock contemplated by this agreement, whether the property of the Coal Company, or coal being stored by them for others.</p> <p>“Eifth. In consideration of the delivery of said coal in accordance with the terms of this contract, the Railway Company agrees to pay to the Coal Company therefor, the sum of two dollars and eighty cents ($2.80) per net ton of two thousand (2,000) pounds, and to pay at such rate for the coal delivered in any month during the month following that in which such delivery takes place.</p> <p>“Sixth. It is further agreed that in case the Coal Company should fail to deliver on the docks the full amount of coal of the quality and kind provided within the time stipulated between the date of this contract and the close of navigation on the great lakes for the season of 1906, the Railway Company may, by written notice served upon the Coal Company within thirty (30) days after the first day of December, 1906, require the Coal Company to deliver a quantity of such coal equal to the amount remaining undelivered under the terms of this agreement, and the Coal Company agrees that it will make such delivery as the exigencies of the Railway Company may demand until the full amount called for by this contract is delivered, such delivery to be made during the closed season of navigation at St. Paul, Minnesota, or Superior, Wisconsin, at the option of the Coal Company.”</p> <p>The application was further supported by evidence given before the board to the effect that the coal was placed on the docks, part for each of the railway companies heretofore mentioned, in all respects as provided for in the contracts, and was considered accepted when placed in' the coal piles on the -dock; that as the coal was unloaded it was not put directly into the care of the vendees; that after it was so set aside the respective purchasers had jurisdiction over it. There was considerable evidence indicating performance of the contract according to its terms.</p> <p>The application was denied. Thereupon the proceedings before the board were, pursuant to a writ of certiorari> duly carried to the circuit court for Douglas county for review. In disposing of the matter in such court formal findings of fact were made in accordance with the contract and indisputed proofs presented to the board, with conclusions of law to the -effect that the coal was not subject to assessment in the city ■of Superior for 1907, because the property belonged to the three railway companies under the contracts before mentioned, the same being held by such companies for use in the •operation of their railroad business, and that the assessment •of said property to the coal company and refusal of the board •of review to strike the assessment from the assessment roll were illegal. The decision of the board was reversed and a judgment ordered and in due form rendered, from which this appeal was taken.</p>

<p>EeeoR to review a judgment of the circuit court for Marquette county: Chesteb A. Eowlee, Circuit Judge.</p> <p>This action was originally brought in justice’s court to recover a penalty for which it is claimed the plaintiff in error (hereinafter called the defendant) became liable by reason of violating the provisions of sec. 1326, Stats. (1898). The alleged violation consisted in placing fence posts in a certain highway in Marquette county in such a manner as to constitute an obstruction therein. The answer alleged title in the defendant by deeds of conveyance and also because of adverse possession for more than twenty years, and averred that a de termination of the controversy could not he had without the title to the lands referred to being put in issue, the defendant claiming to be the lawful owner thereof and to be entitled to the possession of the same. The proper undertaking was filed and the case was removed to the circuit court, and a trial in that court resulted in a verdict for the plaintiff, in which the amount of the forfeiture to be paid by the defendant was assessed at the sum of $1. The defendant prosecutes this writ of error from the judgment entered upon such verdict, and assigns as error (1) the erroneous admission of evidence on the part of the state against the objection and exception of the defendant; (2) the erroneous rejection of evidence offered by the defendant upon the objection of the state; (8) refusal of the court to grant a nonsuit; (4) refusal of the court to grant defendant’s motion for a directed verdict; (5) refusal to instruct the jury as requested by defendant; (6) error in the instructions given to the jury.</p>

<p> Principal and surety: Subcontractor’s bond: Release of surely. </p> <p>1. Whenever a creditor has a right and opportunity to apply property of the principal debtor to the satisfaction or security of the debt, he owes to the surety a duty to do so, and release or waiver of that right to the prejudice of the surety and without his consent will discharge the latter, at least pro tanto.</p> <p>2. A contractor, having the right under his agreement with a subcontractor to discharge the debts of the latter for material or labor out of each instalment when it became due to the subcontractor, or to withhold payment until receipts were produced, released that security and paid the subcontractor without requiring payment for the materials or labor which had been furnished to him. Meld, that a surety upon the subcontractor’s bond was thereby discharged from liability to the principal contractor for sums thereafter paid by him in discharge of claims for such material and labor.</p>

<p> Ilailroads: Injury to traveler at highway crossing: Contributory negligence: Duty to loolc and listen: Unmanageable horses. </p> <p>1. Where from the time when a traveler on the highway could first, by looking and listening, have known that a train was approaching a crossing in front of him (sixty-eight feet distant, in this case) his horses were so frightened by the train that they were beyond his control and he was unable to stop them or prevent their continuing in their course and colliding will! the train, he was excused from performance of the usual duty to look and listen and to stop if necessary before attempting to cross the track.</p> <p>2. To establish that the team was beyond the driver’s control in such a case it is enough to show that he was unable, by the use of all reasonable efforts, to control and prevent them, under the impulse of their fright induced by the noise and speed of the train, from proceeding onto the track.</p>

This action was brought to recover damages alleged to have been caused by fraudulent representations inducing plaintiff to purchase stock in a certain mining company.

<p>Appeal from a judgment of tire circuit court for Iowa county: Geobge Clementson, Circuit Judge.</p> <p>They cited, .among other authorities, III. 8. Oo. v. Jeha, 119 Wis. 122, 95 N. W. 97; sec. 161-7, Stats. (1898) ; 8obey v. Thomas, 39 Wife. 317; Booh v. Justice M. Oo. 58 Eed. 106; Gascaden v. Barlolis, 146 Eed. 739; Lange v. Robinson, 148 Eed. 799; Tipping v. Robbins, 71 Wis. 507; 37 N. W. 427.</p> <p>cited Ganter v. Athinson, 35 Wis. 48; Be Pere Go. v. Reynen, 65 Wis. 27l, 22 N. W. 761, 27 N. W. 155; Furlong v. Garrett, 44 Wis. Ill; Sydnor v. Palmer, 29 Wis. 226; Meyer v. Hope, 101 Wis. 123, 77 N. W. 720; Raisbech v. Anthony, 73 Wis. 572, 4-1 N. W. 72.</p>

Writ of error to review a conviction for the offense of receiving money into a bank for the credit of a depositor with knowledge, or good reason to know, that the bank was unsafe or insolvent, contrary to sec. 4541, Stats. (1898). The accused, during the time stated in the indictment, was president of the Security Savings Bank, a duly organized banking corporation under the laws of tbis state, located at Ashland, Wisconsin.

-A. M. Bashford, for $500 as balance of bis salary as justice of tbe supreme court for tbe period 'from January 1, 1908, to July 1, 1908. Hon. John B. Oassoday, pursuant to election and qualification, entered upon a full term of ten years as justice of tbis court on tbe first Monday of January, 1900. Tbe salary fixed by law for a justice of sucb court was $5,000 per year, payable quarterly in advance. Tbe office became vacant by bis death, prior to January 4, 1908.

CeRtipied from the circuit court for Vilas county: A. H. Reid, Circuit Judge. Both defendants were in due form charged with the crime-of rape. The proof was to the effect that Brooks had carnal knowledge of the body of the prosecutrix, the act being characterized by all essentials of the crime charged, that Burns-was present and aided and abetted Brooks in the commission of the offense, but did not himself have carnal knowledge of the woman.

Rat SteveNS, Judge. Tbe appeal is from a judgment rendered in a suit in equity brought to rescind an instrument of assignment and recover an amount collected thereunder. Tbe cause was first argued on October 23, 1908.

Beported from the municipal court of Milwaukee county: A. C. Beazee, Judge. Action reported from the municipal court of Milwaukee •county under sec. 4721, Stats. (1898). The question involved in the action was whether the defendant was guilty of having violated ch. 82, Laws of 1905. The cause was duly submitted on the charge made in due form and a plea of not guilty and a stipulation of facts.

W. BueNELl, Circuit Judge. Tbe plaintiff publishes a newspaper at Oshkosh, Wisconsin, and the defendant is a railway company. Eor several years preceding 1906 the plaintiff did advertising for the defendant, which was paid for in 'transportation. The advertising in a general way consisted of publishing time cards and such announcements as the railway company desired to make.

J. Ebuit, Circuit Judge. This action was brought to recover damages for injury to person and to property. Only so much of the controversy as relates to injury to the person is involved on this appeal. The plaintiff loaded a car containing household goods, a cow, and some chickens, at Whitehall, Wisconsin, for shipment to Keokuk, Iowa.

J. Eeuit, Circuit Judge. Action for damages alleged to have resulted from a fire negligently started by defendant on his own premises and negligently allowed to escape unto the plaintiffs timber land lying to the east of him. The evidence disclosed, without much dispute, that about 1:30 or 2 o’clock a forest fire was discovered upon a forty acres belonging to defendant, covered with a growth of brush and small timber.

J. Eeuit, Circuit Judge. After making certain bequests, concerning 'which no question is raised, the will in question provided as follows: “Third.

<p> Highways: Insufficiency: Personal injury: Location of defect: Amendment of complaint: Special verdict: Instructions to jury: Ground of action: negligence: Remarles of court: Immaterial errors. </p> <p>1. In an action against two towns for injuries alleged to have been caused by a defect in an east and west highway, the stone constituting the defect was alleged to have been on the north and south town line between the towns. On the trial it appeared that such stone was about eighteen inches west of the town line, wholly within one town, and a nonsuit was granted as to the eastern town. It appeared also that the stone was within the limits of a north and south highway, wholly within the western town, at the point where it was intersected by the east and west road. Held, that it was not error to permit the complaint to be amended, after plaintiff had rested, so as to describe the defect as being in the north and south highioay at the intersection of the east and west road, and to admit further evidence as to the location and condition of such north and south highway.</p> <p>'2. It was immaterial in such case whether plaintiff was traveling along or across the defective highway.</p> <p>3. A question in the special verdict, “Was the highway at the place where and time when plaintiff was injured insufficient for public use?” is held to have fairly submitted the issues, so that it was not error to refuse to submit the question, “Was the road running north and south, where the same intersects the east and west road, insufficient for public travel?” although it was claimed that the defect was at a considerable distance from the north and south traveled track.</p> <p>•4. An instruction, relative to admissions testified to as having been made by certain of plaintiff’s witnesses at the time of the accident, to the effect that such admissions are considered in law as the weakest kind of evidence, is held, even if not giving fully the law on the subject, not to have been prejudicial to defendant. If more specific instructions were desired by defendant they should have been requested.</p> <p>.5. There being evidence that the stone constituting the alleged defect was near the east line of the north and south road, but in such close proximity to the traveled track at the point of intersection with the east and west road as to constitute a defect in the highway at such intersection, an instruction stating that “notwithstanding a road may contain a smooth traveled track of sufficient width, still, if there is an obstruction or declivity so close to the traveled track as to render the road or highway unsafe for those traveling thereon in the exercise of ordinary care, the highway may be insufficient,” is held, though not entirely clear, not to have been harmful.</p> <p>6. An instruction that the action is based upon negligence of the-town authorities in failing to lay out, open, and keep in repair the highway so as to render it reasonably safe for travel, and that the jury were to determine under all the evidence whether such insufficient condition was not only negligence on the part of the defendant town, but also whether such condition was the-proximate cause of plaintiff’s injury, is held not to have been prejudicial to the defendant, although not strictly a correct statement of the law, in that the liability of the town does not rest upon its negligence but upon the statute declaring it liable-if the damage happens by reason of insufficiency of the highway. Marshall, J., is of the opinion that, inasmuch as the action is not founded upon insufficiency of the highway as originally constructed but upon failure to keep it in repair, it was strictly correct, under the decisions of this court, to say that the action was based on negligence.</p> <p>7. Language of the trial court, after giving instructions requested by the parties, “Now, I will come back to my own instructions,” is disapproved but held not prejudicial error.</p>

<p>Appeal from an order of the circuit court for Wood county: Cecas. M. Webb, Circuit Judge.</p> <p>The appeal is from an order sustaining a demurrer to the remonstrance of the appellant, Ohandos.</p> <p>Among other references upon the part of the appellant •were the following: 10 Am. & Eng. Eney. of Law (2d ed.) 253, 255; Stone v. Little Yellow D. Disi. 118 Wis. 388, 95 N.. W. 405; 23 Cyc. 861; Van Dresar v. Coyle, 38 Wis. 612; Pier v. Storm, 37 Wis. 241; Egan v. Sengpiel, 46 Wis. 703, 1 N. W. 467; Main v. McLaughlin> 78 Wis. 449, 47 N. W. ■■938.</p>

<p> Corporations: Veterans’ Some: Discharge of inmate for misconctucrt: Security for costs: Discretion. </p> <p>1. Corporations organized for purposes akin to that for which the Board of Trustees of the Wisconsin Veterans’ Home was organized have the right to prescribe reasonable rules governing the admission and discharge of inmates; and under sec. 178S, Stats. (1898), the proper officers may at any time discharge any such inmate when, in their judgment, it shall be for his interests or the interests of the corporation.</p> <p>2. In an action against said corporation for damages for a wrongful discharge from the. Home, it is 7ield that a verdict was properly directed for defendant, — it appearing that the board of trustees had proceeded regularly, within its statutory powers, and in accordance with its by-laws, rules, and regulations in discharging plaintiff because of misconduct in circulating false and scandalous reports concerning 'officials of the Home, to the detriment of the institution.</p> <p>3. The fact that plaintiff was able to furnish the required security shows that there was no abuse of discretion in an order requiring him to give security for costs; and in the absence of such abuse the order should not be reversed.</p>

<p> .Life insurance: Who may assign policy: Bights of assignee: Exclusion of beneficiaries. </p> <p>1. A person who obtains insurance on his life and pays the premiums for the benefit of another may assign or dispose of the policy in any manner not inconsistent with its terms, to the exclusion of the beneficiary named therein.</p> <p>2. A daughter applied for insurance on the life of her father, and was named as beneficiary in the policy, which further provided that in case of her death before the death of her father the insurance should be payable to his heirs at law. Either she or her father paid the premiums. Held that, as owners and in control of the policy, the daughter and her father had full power to assign it.</p> <p>.3. The daughter, with the assent of the father, assigned the policy “and all . . . sums of money . . . now due or hereafter to arise or to be had or made by virtue thereof, and subject to all ‘ the terms, conditions, and provisions of said policy.” Held, that such assignment was not restricted to any interest less than all the rights and interest inhering in the contract, and that thereunder the right of the assignee to the policy and its proceeds became absolute and the interest of all persons named ■■therein as beneficiaries ceased.</p>

<p> Appeal: Former decision: Law of the case: Witnesses: Competency: Transactions with persons since deceased: Strilcing out testimony: Estoppel: Instructions to jury: Harmless errors. </p> <p>1. The decision of this court on a former appeal as to the admissibility of evidence is the law of the case on a subsequent trial and appeal.</p> <p>2. A defendant in ejectment was incompetent, under sec. 4069, Stats. (1898), to testify that at a certain time he saw the deed under which the plaintiff claims in the possession of the grantor, where he obtained such information in a transaction with said grantor, since deceased, in which the deed was shown to him by the grantor for the purpose of examination.</p> <p>3. It is not error to strike out the answer of a witness which is not responsive to the question.</p> <p>4. Evidence, introduced as supporting a defense of estoppel, as to a statement made by plaintiff, but which was not shown to have been known to or acted upon by the defendant or to have influenced him in any way, was immaterial and it was not error to strike it out.</p> <p>5. In ejectment where there was not sufficient evidence to support a verdict for defendant on the defense of adverse possession, error in the charge upon that subject was harmless as to him.</p> <p>6. Where it was held on a former appeal that under the evidence at the first trial the question whether a deed was delivered was for the jury, and on the second trial the evidence to show delivery was fully as strong, a finding by the jury that the deed was delivered cannot be disturbed.</p>

<p> Contracts: Validity: Public policy: Enforcement: Comity: Telegraphs: Stipulation against responsibility for negligence: Defense. </p> <p>1. Though it is a general rule that the lex loci governs as to the validity of a contract, yet comity does not require recognition or enforcement, either as a basis of attack or defense, of a contract which, though valid under the lex loci, contravenes the public policy of the state in which such recognition or enforcement is sought.</p> <p>2. A stipulation against responsibility of a telegraph company for negligence in transmitting or delivering a message is contrary to the public policy of this state, declared both in judicial decisions and in sec. 1778, Stats. (1898); and in an action in the courts of this state based on such negligence a stipulation of that sort is not available as a defense, even though it was valid in the state where the contract was made and valid in the state where the message was to be delivered and where the tort in failing to deliver it promptly was committed.</p>

<p> Sales: Fraud: Knowledge with which purchasers are chargeable: Unsoundness of horse: Questions for jury: Tender of rescission: Defects: Waiver: Nonnegotiable notes: Signature procured by fraud: Delivery: Appeal: Costs: Printed case violating rule. </p> <p>1. Purchasers of a horse, defending on the ground of fraud an action on a note given for the price, are chargeable with knowledge, at the time of purchase, of such facts only as were obvious to them in view of their capability to observe and the opportunities accorded them.</p> <p>2. Upon the evidence in such an action it is held that the questions whether the purchasers of a stallion represented as sound and as having been newly imported had such notice of physical defects or such opportunity for observation that they were chargeable with knowledge thereof, and whether, after discovery of the unsoundness, there had been an election to retain the stallion or such unreasonable delay in notifying the vendor of an election to rescind the sale as would estop the purchasers from their right to rescind, should have been submitted to the jury.</p> <p>3. Technical insufficiencies in a tender of rescission and return by purchasers may be waived by a categorical and absolute refusal of the vendor to entertain the proposal at all.</p> <p>4. Where the signers of a nonnegotiable note, or some of'them, were induced to sign it upon the understanding that, although it remained in the hands of the payee to obtain more signatures, it was not to be delivered so as to take effect until signed by a certain number of responsible makers, and it was not in fact so signed, it had no effect or existence as a promissory note as against the signers.</p> <p>5. No costs are allowed for the printing of a case which contains the whole testimony in extenso, in violation of Supreme Court Rule 6.</p>

<p>Appeal from a judgment of the circuit court for Outa-gamie county; Johit G-oodlahd, Circuit Judge.</p> <p>This is an action to recover damages claimed to he due to a fall caused by a defective bridge crossing the Sehioc river. It is alleged that the bridge constituted a part of a highway on a town line which was maintained by the defendant town.</p> <p>The bridge in question crosses the Schioc river. A highway has been laid out and leads up to the river on the west, so that the north line of the bridge and the south boundary of the highway as laid out practically meet and make one line. The bridge was constructed by the owners of the land situated' on the east side of the river under an arrangement with the town that if the town would lay out the road to the river they would build the bridge. In approaching the bridge from the east it is necessary to drive over private property, there being no highway leading to the bridge from the east. An order of ten years ago laying out the highway to the hank of the river was defective, and the road was closed by one of the owners of the property over which it was laid out. About five years ago the highway was legally laid out to the west bank of the river. About five years ago the planks on the bridge had become rotted, and parties having land on the east side of the river placed a layer of boards over the bridge on top of the old rotted boards. There was evidence on the trial of the instant action that these boards were some old planks which had been in use on an abandoned culvert or bridge of the town, and that the parties who had built and used the bridge obtained permission from the town officers to take and use them for repairing the bridge. 2sTo work was •ever done on the bridge by the town. The town had expended money upon repairs on the road to the west of the bridge.</p> <p>The bridge had been constructed to enable the owners of the land to the east of the river to cross to the highway with loads ■of hay and wood from their lands, and at the time of the accident the plaintiff was hauling hay for an owner of land to the east of the bridge. The distance between the outer edges •of the outside timbers of the bridge was about six feet. As •originally constructed, the planks which made the roadway projected beyond the timbers three or four feet. The planks which were used to repair the bridge and were laid on top of the old planks were about six feet long and projected but little ■over the outer edges of the timbers. The plaintiff testified that he had driven onto the bridge and that the wagon slipped upon some ice and was thrown over the edge of the top layer of planks onto the old rotted ones, that these planks gave way, and that he and his load of hay were precipitated upon the ice on the river, and that he sustained severe injuries. The horses broke loose with- the front wheels of tlm wagon, ran away, and were cut and seriously bruised and injured.</p> <p>The instructions of the court left the jury to determine whether or not the town had suffered the bridge to remain and to be used by the public as a highway or crossing in connection with the public highway to such an extent and for such a length of time as to have become a thoroughfare or public highway. The court submitted the following question to the jury: “Was the place where the plaintiff was injured a public highway?” To this the jury answered “Tes.” The jury found for the plaintiff on the various questions submitted in a special verdict, and the court awarded judgment on the verdict. This is an appeal from the judgment so awarded.</p>

<p>(1) Appeal: Order granting new trial 'for error of law: Review. (2, 3) Contracts: Validity: Lacle of mutuality: Executed, contract.</p> <p>1. Where it is plain that a new trial was granted, not in the exercise of discretion, but because .of supposed error of law committed by the trial court, the supreme court, on appeal, will review the question of law so presented.</p> <p>2. A contract which is not enforceable while executory because of want of mutuality becomes valid when executed.</p> <p>3. A contract whereby a brewing company, to induce a saloon-keeper to sell its beer, agreed to erect a beer depot in the city and deliver its beer therefrom every morning, and that until such depot was built he was not to pay for the beer furnished to him, is valid after performance by the saloonkeeper and, the company having failed to build the beer depot, is a complete defense to an action for the value of the beer furnished.</p>

<p>(1) Appeal: Review: Assumption as to facts. (2-4) Towns: "Purchase of half interest in hall: Land included: Petition construed: Town officers: Liability for money received: Authority to Tfring action.</p> <p>1. Upon appeal from a judgment entered on a directed verdict, the-assumption as to matters of fact whereon the evidence was conflicting must he most favorable to the appellant.</p> <p>2. A petition of freeholders, emanating from an association which owned a hall and the lots upon which it stood, asking submission to the electors of the question of raising a certain sum to buy “a one-half interest in the hall,” means, prima fade,. an undivided one-half interest in the building and in the grounds on which it stands, free from incumbrances.</p> <p>3. The chairman of a town board, who was also an officer of an association owning a hall and the land on which it stood, presented to the town clerk a petition of freeholders asking submission to the electors of the question of raising money to buy a half interest in such hall. This petition was not filed nor the notices given a sufficient time before the town meeting, but the proposition was carried at such meeting. The chairman,, acting both for the association and for the town, procured a town order for the amount to be paid, receipted for it as an officer of the association, and delivered it to the association without requiring any conveyance from the association to the town, and thereafter, as a creditor of the association, had the order transferred to him and obtained the money thereon. Held.. that his dereliction, in duty as a town officer in failing to obtain the conveyance, combined with the defects in the proceedings, rendered him liable to the town for the return of the money, with interest.</p> <p>4. A resolution adopted at town meeting instructing the town officers to start an action against two persons named unless satisfaction as to a certain matter was obtained, was sufficient to authorize an action against one or both of such persons.</p>

This action is brought to set aside a deed from one Perry W. Winters to Nelson W. Winters, his stepfather, on the ground that the grantor was mentally incompetent to execute such deed and because fraud and undue influence had been used by the grantee to procure the execution and delivery thereof. It was also contended by the appellant that the deed was not delivered.