Volume 139 — Wisconsin Reports

'Appeal from orders of the circuit court for Outagamie county: John Goodland, Circuit Judge. In an action in ejectment plaintiff recovered judgment. It was affirmed on appeal to this court. In due course the remittitur was filed in the office of the clerk of the circuit court.

- ■ Appeal from a judgment of the circuit court for Shawano county: John Goodland, Circuit Judge.

This is an action to recover damages for the death of JacobZahradnik, a car-repairer employed by the defendant. The-general direction of the railroad tracks maintained by the defendant at Antigo, Wisconsin, is north and south. On the east lie its main track and switch tracks and on the west lie-the machine-shop tracks. Between these sets of tracks lie three parallel tracks which are used as repair tracks.

This action was brought to recover damages for false imprisonment. The complaint charges, in effect, that on the 13th day of March, 1908, at the city of Antigo, Wisconsin, the defendants unlawfully and maliciously imprisoned the plaintiff and restrained him of his liberty without right or authority and against his will, whereby he sustained damages in the sum of $5,000.

Williams, Circuit Judge. Action of ejectment commenced July 1, 1907, to recover •a tract of land on Jones Island claimed by tbe defendant to have been beld by bimself and privies in adverse possession ■for more than twenty years prior to tbe commencement of tbe action. Tbe premises are tbe same tract of wbicb a part was transferred by tbis defendant to Michael Jeka, and involved in Ill.

G. Ludwig, Circuit Judge. Petitioner seeks mandamus to compel the issuance by the commissioner of the bureau of labor and industrial statistics and the state bakery inspector of a license to conduct a bakery at 529 First avenue in the city of Milwaukee. Petitioner duly applied for a license under and pursuant to ch. 486, Laws of 1907. Petitioner alleges that on October 19, O1906, he established a bakery and confectionery at 529 First avenue, city of Milwaukee.

Abpeals from judgments of the circuit court for Milwaukee county: W. J. Turnee, Circuit Judge. Certiorari to review the action of the board of review in confirming an assessment against the holders of certain bonds of the Pabst Brewing Company.

Halsey, Circuit Judge. This action is brought to set aside a special assessment made to cover the cost of a second paving of a portion of State street in the city of Milivaukee. The new pavement constructed was of a permanent character and was laid on a concrete foundation. The expense of the former pavement was paid by the abutting lotowners.

Parish, Circuit Judge. The plaintiffs in error were, in due form, charged with the •offense of murder in the first degree, in that they, on the 18th day of March, 1906, at the town of McKinley in Taylor county, this state, feloniously assaulted Thomas McGowan with premeditated design to take his life and by such assault •effected such design.

Tarrant, Circuit Judge. Action to recover on a promissory note. The note sued on was for $10,000. It purported to have been made at Muskegon, Michigan, December 15, 1904, by the Chicago & Muskegon Transportation Company, payable four months after date to the order of the Hackley National Bank, at such bank, in Muskegon, with interest at six per cent, per annum. It was signed on the back by defendant. Peter Barry.

Williams, Circuit Judge. This is an action to recover damages for personal injuries alleged to be due to the negligence of the defendant. The defendant is a corporation engaged in the manufacture and printing of bags. Martha Kuich was fourteen years and seven months old at the time she was injured. She was about four feet seven and one-half inches in height and weighed between eighty-five and ninety pounds.

M. Webb, Circuit Judge. Action for causing death of plaintiff’s husband, William Sparks, by negligence. Deceased was a car inspector in defendant’s yards at Abbotsford, his duty being, among other-tilings, to make an inspection of the running gear of the cars in trains as they passed into the yards from their trip.

The complaint averred in substance that defendant sold to the plaintiff and the plaintiff paid for certain personal property, part of which defendant failed to deliver to plaintiff and part of which, was delivered to plaintiff bnt taken from her upon replevin by the true owner.

<p>Appeal from a judgment of the circuit court for Shawano county: John Goodland, Circuit Judge.</p> <p>Action brought by plaintiffs to set aside an administrator’s deed and to bar the grantee named therein, and his wife, of all right, title, and interest in the property conveyed thereby, and for such other relief as might be equitable. One William Steinberg died intestate on July 6, 1878, leaving a widow, and three children by a former marriage of the ages of six, seven, and nine years, respectively. The youngest child, - William, conveyed his interest in the premises in dispute to his brother, one of the plaintiffs in this action, his sister being the other. At the time of his death Steinberg was the owner of a farm of eighty acres and some personal property. One forty-acre tract was wild and uncultivated. The other was cleared and improved to some extent and had farm buildings thereon and was occupied as a homestead by decedent and his family. He had been married to his second wife, who is one of the defendants in this action, about four months at the time of his death. About four months thereafter she married August Salzman> her codefendant. A petition was presented by one Herman Kleeman to the county court, reciting, among other things, that it was necessary to sell the real estate of the decedent to pay his debts. A hearing appears to have been ordered upon such petition, and an administrator was appointed, and thereafter an order was entered directing that sale be made, and the property was sold to the defendant August Salzman for $1,300, the appraised value of the farm, which sale was confirmed August 5, 1879. A special guardian. for the minor heirs of the decedent was appointed May 20, 1879, and the widow of the decedent and the special guardian of the minors consented to the sale. The administrator’s deed was executed August 7, 1879. The personal property was inventoried at $485.92, and thereafter certain property was reported by the administrator as coming into his hands, but not inventoried, amounting to $279.77, making the total personal property $765.69. The homestead forty was appraised at $1,000 and the other at $300. Personal property was awarded to the widow of the inventory value of $292.80. In the final account rendered by the administrator he reports total receipts of $2,065.69. Of this he reports as paid to the widow $433 for her dower interest in the land sold and $292.80 for her personal property selection; $45.02 for expenses of administration and $978.90 for indebtedness. The remainder of $315.97 he reported as cash on hand.</p> <p>The administrator never paid any of the debts of the decedent. No notice to creditors was ever given and no accounts against decedent’s estate were ever legally allowed by the county court. The property purchased by August Salzman, and he appears to have purchased the personal property as well as the real estate, was purchased on time and with the understanding that he was to settle with and pay the creditors of the decedent. As a matter of fact he claims to have paid out more money on account of claims than the indebtedness amounted to as reported in the final account of the administrator. The evidence on this point is unsatisfactory, and the proceeding was entirely lawless both as to the manner of taking care of claims and as to selling the homestead, which was exempt from payment thereof and was the property of the minor heirs, subject to the homestead right of the widow. No part of the $315.97 reported in the hands of the administrator was ever paid to the heirs, and the administrator never received such sum of money, but received in lieu thereof the note of August Salzman, which was never paid, except as he ■claims he paid it by caring for the minor heirs. The two boys worked for him on the farm until they were nearly twonty-one years of age and the girl until she was past eighteen, and none •of them attended school except for a few days. The two .younger children can neither read nor write and the older one can read a very little. The defendants went into possession •of the farm under the administrator’s deed and have remained in possession ever since.'</p> <p>The circuit court held, among other things, that gross ■errors and glaring irregularities were committed in the administration of the estate, which amounted to constructive if not actual fraud; that the defendants, aided by the toil of the heirs of William Steinberg, have greatly improved the real ■estate, thereby enhancing its value several thousand dollars; that the debts of Steinberg were not properly proven, and the price for which the property was sold to pay the same was .agreed upon in advance, and no consideration was received hy the administrator when he executed the deed; that the fraud was not discovered by plaintiffs until June, 1905; that the real estate was sold for $200 less than its value; that-the note for $352.36 given to the administrator has never been paid, and that the children of the decedent were raised without any education, and were kept in ignorance of all facts pertaining to their father’s estate, and that they had by their labor for the defendant August Salzman more than earned the board and clothing furnished them' while living with said Salzman.</p> <p>As conclusions of law the court found: (1) The^administrator’s deed was void; (2) there was no authority in law to sell the homestead to pay debts and the debts were not legally proven; (3) constructive if not actual fraud entered into the sale of the real estate, and the defendant August Salzman was .a party thereto; (4) the plaintiffs’ right of action was saved under subd. sec. 4222, Stats. (1898), by reason of the fact that the fraud was not discovered until 1905; (5) that-in view of the very large increase in the value of the farm it would be inequitable to divest defendants of the title thereto, and that the defendant August Salzman should pay plaintiffs $200, with interest from August 7, 1879, being the-difference between the purchase price of the farm and what it was actually worth, and also the amount of the note given to the administrator, with interest from its date, making a. total of $1,586. i</p> <p>.Among other defenses interposed the defendants pleaded the following statutes of limitation in bar of the action: Secs. 4211, 4212, 4215, 4207, 3918, 4251, 4233, and subd. 4 of sec. 4221, Stats. (1898). They also interposed a counterclaim asking that their title to the premises in dispute be quieted. Numerous errors are assigned. Those material te a disposition of the case will be referred to in the opinion.</p>

<p> Sills and notes: Construction: Attorney's fees: Negotiability: Certainty as to amount:. Statutory provisions: Negotiable Instrument Law: Notice of dishonor: Time: Sufficiency </p> <p>1'. A provision in a note for “ten per cent, attorney’s fees if collected by an attorney, or if suit is brought upon this note,” is a promise to pay attorney’s fees only on collection by an attorney after dishonor, and the note is a negotiable instrument. '2. In all situations where the Negotiable Instrument Law (ch. 356, Laws of 1899) conflicts with the adjudications of the supreme court, as to instruments made subsequent to its passage the former prevails.</p> <p>3. Under sec. 1678 — 34, Stats, (ch. 356, Laws of 1899), notice of dishonor of a negotiable note is too late, where the notice with insufficient postage was deposited in the postoffice after ordinary business hours and the closing of the mail on the business day succeeding dishonor, and was not again sent on with sufficient postage until five days after its return by the postal authorities.</p>

Action of replevin for certain property under a claim of possession by virtue of a chattel mortgage executed by Etta H. Rogers, from whom the property in question was purchased by defendant, the chattel mortgage being duly filed in the town clerk’s office. The making of the mortgage was admitted.

M. Webb, Judge. This is an action to set aside an assessment of plaintiff’s real estate, on the ground that the assessment is illegal and void because it includes the value of a crop of ginseng growing on the land, and to restrain the collection, or the attempted collection, of taxes on this land on the alleged excessive assessment. Plaintiff is the owner of three fourths of an acre of land within the limits of the defendant city.

<p> Pleading: Allegations on information and, belief: Oral demurrer: Schools and school districts: Meetings: Notice: Proof of failure to notify: Evidence: School boards: Auditing accounts: Isstiing orders: Trial: Reception of evidence: Invalid orders. </p> <p>1. An answer denying upon information and belief that certain school orders mentioned in the complaint were legal orders or created any indebtedness, “but the same were void for the reasons hereinafter stated,” and thereafter averring positively the facts upon which such invalidity was predicated, is sufficient as against an oral demurrer.</p> <p>2. Such answer does not aver the facts pleaded upon information and belief, but pleads that upon those facts the defendant was informed and believed that such orders were not legal orders.</p> <p>3. The answer “yes” by a member of a board of school directors to the question whether or not there were any meetings of the board which he did not attend because not notified, is an insufficient mode of proving lack of notice.</p> <p>4. Under secs. 518 to 530, Stats. (1898), the power of the board of school directors under the township system, or the executive committee thereof acting as a board, to create obligations against the district and to audit claims and control the issuing of orders, carries with it the duty to do so where the public interests are concerned.</p> <p>5. In an action on school orders the burden of proof is upon the defendant to sustain an affirmative defense of invalidity of the meetings at which the orders were authorized, and such defense is not sustained by the offer of a page here and there from the records of meetings of the school board, without further showing that the meetings were in fact irregular, since there may have been audit and allowance of the claims or record of notices or of adjournments on the omitted pages.</p> <p>6. In the absence of evidence that the president and secretary of a school board were to receive no salary, or what orders covered their salaries, it cannot be said that orders issued to such officers for services are void.</p>

<p>Aureal from a judgment of the superior court of Douglas ■county: Charles Smith, Judge.</p>

<p>Appeal from a judgment of the superior court of Douglas county? Charles Smith, Judge.</p>

J. Vinje, Circuit Judge. The action was brought to recover a sum alleged to be due on a subscription contract. At the close of the testimony the court directed a verdict in plaintiff’s favor, and from a judgment entered on such verdict this appeal is taken. During the fall of 1906 certain parties circulated four subscription papers, alike in tenor and effect, which by their terms would constitute a single contract when completed.

Action to recover on facts stated, as follows: First. Plaintiff bas been, for nine years, a married woman, living witb her husband. / Second.

<p> Appeal and error: Review: Findings, when disturbed: F,vidence: Documentary evidence: Books of account: Time of making entries: Partnership contracts: Construction-: Accounting: Interest: Affirmance or reversal: Correction of errors. </p> <p>1. Where the correctness of an account between the parties as stated by the referee and lower court is sustained by the evidence, it will not be disturbed on appeal.</p> <p>.2. The making of entries in books of account whenever reported as paid or received is a substantial compliance with the rule that they should be made at the time of the transaction to make the books competent evidence.</p> <p>'3. In a contract by which one partner agreed to secure logs at a cost not exceeding $7 per thousand and to manufacture and pile the lumber at an additional cost of not more than $4 per thousand, said amounts were not mere estimates, but the partner assumed thereby an obligation to furnish the lumber in pile at a cost not exceeding $11 per thousand and to pay personally any excess over such cost.</p> <p>■4. When statements and accounts of a partnership upon which the partnership had to be closed and settled are in one partner’s possession, and at no time was the other partner informed of the actual amount due from him, except under special circumstances interest is not to be allowed on the amount so due prior to the commencement of the action for an accounting.</p> <p>•5, Error based on mere computation of interest can be corrected by the supreme court, and the judgment, modified so as to correct the error, will be affirmed.</p>

<p> Eminent domain: Invalid condemnation proceedings: Injunction be- ' fore entry: Dissolution: Appeal and error: Prejudicial error. </p> <p>Where a railroad company, acting under an invalid proceeding to condemn land for a right of way, had made no entry nor erected any structure on the land, hut threatened to enter and construct a track, the owner is entitled to an injunction restraining the company from entering the land without first making compensation, and it is therefore error to dissolve a temporary restraining order on condition that the company secure the owner for the damages resulting from the entry and construction of the road. McCord v. Eastern B. Co. 136 Wis. 254, followed.</p>

<p>Appeal from an order of tbe circuit court for Douglas ■county: A. J. Vinje, Circuit Judge.</p> <p>■ Tbe plaintiff, Hiram Hayes, filed bis petition in tbe circuit ■court for Douglas county, setting up, among other things, a •description of tbe property in Hayes’s Addition to West Superior, and that, being tbe owner and proprietor of tbe land described in said addition, be caused tbe same to be surveyed and platted as Hayes’s Addition to West Superior, and duly filed in tbe office of tbe register of deeds of tbe county of Douglas on tbe 30th day of August, 1890, such plat and caused tbe same to be recorded; that in platting tbe land ■described tbe petitioner dedicated streets, avenues, and alleys full three eighths of tbe whole piece, giving thereto or providing therefor Lamborn avenue or Grand avenue, North Third and North Fourth streets each seventy feet wide, and making alleys twenty feet wide as shown upon tbe plat; that petitioner is tbe owner of several lots, describing them, on Lamborn avenue; that afterwards a portion of Lamborn, avenue was widened' by tbe common council of tbe city of Superior from seventy feet to one hundred feet by taking fifteen feet from tbe lots on each side of Lamborn avenue; that tbe street was widened against tbe protest of the petitioner. The petition further alleges:</p> <p>“That said Lamborn avenue is a street paved sixty feet in width, from curb to curb, between North Third street and Belknap street, with a space of twenty (20) feet wide allowed on either side of the avenue for sidewalks. That the purpose of this application to the court -is to obtain its allowance of the application to alter the plat of said Hayes’s addition so as to take eight (8) feet in width off from the east side of said avenue a long and adjoining the west side of said lot one (1), block four (4), thus making such lot one (1) eighteen (18) feet in width, whereas it is now only ten (10; feet wide, for the purpose of widening the aforesaid space of thirty-eight (38) feet by the additional width of eight (8) feet, making the full breadth of forty-six (46) feet, and thus allowing the needed and indispensable width of sixteen feet for office space and thirty (30) feet for the width of the erecting floor described in such new addition, whose construction is compelled by the exigencies of the business, and is contemplated in the immediate future by the Superior Iron Works, as before stated. Tour petitioner further represents to the court that the growth and enlargement of said plant must by necessity, of the situation extend and is intended to be extended to the southward of its present location alongside and fronting Lamborn avenue upon and over said lots twenty-three (23) to thirty-two (32), inclusive, in block four (4-), in Hayes’s addition; that all of said lots belong to the petitioner, and he prays that the map and plat thereof may be so altered by the action of the court as to take off eight (8) feet from the east side of said avenue appurtenant to said lots— being in substance only eight (8) feet off of the sidewalk space of twenty (20) feet — so that such eight feet may be added to the length of each of said lots, making them 133 feet long, the same being now only 125 feet in length. That the narrowing of Lamborn avenue by eight feet along the entire length of block four (4), in Hayes’s addition, bordering on snch avenue, still leaves twelve (12) feet for ■sidewalk space, allowing for the sidewalk itself and alone the full width of eight (8) feet, and four (4) feet over to spare, though a sidewalk eight feet in width is now considered unnecessarily wide,‘inasmuch as all new cement sidewalks in that vicinity are at present being built by the city sis feet wide in place of the former eight-foot plank sidewalks.”</p> <p>It is further alleged that petitioner desires to procure an order from the court vacating a portion of Lamborn avenue described by metes and bounds in said petition, which portion narrows said Lamborn avenue eight feet at the point described. Written notice of the application to vacate was given, and the street committee of the city of Superior reported to the common council, recommending that no objection be made by the city to the granting of the prayer of the petitioner. On the hearing of the petition the city of Superior did not appear, but certain owners of property abutting upon Lamborn avenue appeared by attorney and objected to the jurisdiction of the court in the premises and opposed the granting of the prayer of the petition, and the court ordered the petition dismissed for want of jurisdiction, from which ■order this appeal was taken.</p> <p>To the point that statutes authorizing the vacation of plats by courts have often been construed to confer the power, upon application therefor, to vacate a single street or alley, or a part thereof, in such plat, they cited Case v. Frey, 24 Mich. 251; In re Albers’s Petition, 113 Mich. 640, 71 N. W. 1110; Townsend v. Underwood’s Second Addition, 91 Minn. 242, 97 N. W. 977; Detroit R. E. Inn. Co. v. Wayne Circuit Judge, 137 Mich. 108, 100 N. W. 271; Warren v. Wausau, 66 Wis. 206; Brandt v. Milwaukee, 69 Wis. 386; Mt. Carmel v. Shaw, 155 Ill. 37.</p>

The appeal is from an order sustaining a demurrer to appellant’s amended complaint. Among other references upon the part of the appellant were the following: Judd v. Fox Lake, 28 Wis. 583; Fan v. C., M. & St. P. B. Co. 95 Wis. 69, 69 N. W. 997; Spence v. Spence, 17 Wis. 448; Boe v. Lincoln Co. 56 Wis. 66, 13 N. W. 887; Williams v. Sexton, 19 Wis. 42; Bastían v. Fau Claire, 56 Wis. 172, 14 N. W. 55.

<p> Entire contracts: Breach: Pleading: Amendment to conform to proofs: Excessive damages. </p> <p>1. The rule that where performance of an entire contract is stipulated in exchange for a specified consideration, performance in full is a condition precedent to a rightful claim for such consideration, does not apply to release from performance in part of an entire contract which is easily severable and may be and is severed into parts to the advantage of the person who has paid for full performance.</p> <p>2. Where defendants sold two houses to plaintiff for a paid sum, agreeing to keep both houses rented for a certain period, the selling of one does not release defendants from their agreement to keep the other rented.</p> <p>3. Where evidence warrants a recovery in excess of the amount originally demanded, an amendment of the complaint to eon-form to the proof, increasing the amount of damages claimed, is proper.</p> <p>4. Where defendants sold houses to plaintiff, agreeing to keep them rented at a given sum for a definite period, and thereafter abandoned the contract, plaintiff, on obtaining the best rental possible, is entitled to recover the difference as damages.</p> <p>5. Where plaintiff recovered $15.54 more than the total amount lost by defendants’ breach of contract, and an allowance of interest from the commencement of the action would exceed that sum, the damages recovered are not excessive.</p>

Action for personal injuries. Tbe evidence tended to-show that plaintiff, a woman of ordinary intelligence, thirty-seven years of age, had been at work for the defendant for a period of seven years, with some intervals, at painting chairs-in a room where several other men and women were engaged in similar work. Benzine was used copiously in the process.

J. Vinje, Circuit Judge. This is an action to recover damages for personal injuries-claimed to he due to the negligence of an employee of the-defendant. The defendant was reconstructing a bridge in the city of Superior over which its track lay. A platform had been constructed beside the track about 100 to 150 feet from the site of the bridge and was being used in the construction work. The platform was about forty feet long, ten feet wide, and six feet high.

<p> Commerce: Interstate commerce: Foreign corporations: Contracts:■ Validity: Statutory inhibitions: Conditional sales: Rescission: Conditions precedent: Tender: Replevin. </p> <p>1. Where goods are shipped hy a resident of another state to his-commission agent in Wisconsin, not in response to an order from a purchaser, hut to he held as part of his stock of commission goods in Wisconsin, a sale and delivery thereof hy the-commission agent is not a transaction of interstate commerce.</p> <p>2. The place of payment specified in a note given for the purchase-of goods under such circumstances, even if in another state, has no hearing upon the question of whether or not the. sale- and delivery in Wisconsin was an act of interstate commerce.</p> <p>3. A conditional contract of sale of property located in Wisconsin,. made in Wisconsin on hehalf of an unlicensed foreign corpora- ( tion hy its resident agent, followed hy change of possession and. partial payment, under the provisions of sec. 17705, Stats. (1898), is void in behalf of the unlicensed corporation, but enforceable against it.</p> <p>■4. In such case the seller cannot assert that no contract ever existed and retake the goods in replevin without tendering a return of what has been received.</p> <p>.5. Although there is a limit beyond which the legislature cannot go in declaring one party to an illegal contract bound and the other free, yet such limit is not reached or passed in a case where such provision is an additional penalty for violation of law, or where the lawbreaking party seeks to assert the invalidity of the contract and recover back its property without returning the consideration received.</p> <p>•6. Where a contract of sale is invalid on account of mistake or fraud, and the seller seeks by replevin of the goods to rescind the contract, he must first return what he has received.</p>

This action was brought to oust the defendant from the office of city marshal of the city of Janesville, and resulted in a judgment in defendant’s favor. The city of Janesville was incorporated under ch. 221, Laws of 1882. Sec. 2 of ch. II of that act provided that one of the' officers of said city should be a city marshal.

<p>‘‘' Appeal from a judgment of the circuit court for Ozaukee .county: Martin L. Lueck, Circuit Judge.</p> <p>Action to determine compensation for taking land for railway purposes.</p> <p>The amount taken was 1.63 acres out of 65 acres.' The •strip left plaintiff’s premises in one part of 37 acres and another of 26.37 acres, the latter having thereon costly improvements including a stone house and bam. There was evidence on plaintiff’s part that the strip taken, as a part of the whole tract, not considering the added value by reason of buildings, was worth as much as $120 per acre, and with .such added value $300 per acre, and that the part not taken was diminished in value by the segregation as much as $2,500. There was evidence on defendant’s part placing the fair market value of the strip, considered as a part of the whole, and the damages to the part not taken as low as $291. 'The jury rendered a verdict of $1,150.</p> <p>There was a motion on the court’s minutes for a new trial made at the trial term which, by stipulation, was heard and decided at a special term in another county. Exceptions to the instructions were presented at the hearing and later filed with the clerk of the circuit court in the trial county, after .the date for the commencement of the next term of court -therein. The record does not show such trial term to have been, prior to such special term, terminated by special order. .The motion was denied, the ruling excepted to, and the exception preserved in the bill. Judgment was rendered for plaintiff. .... • . i ■ '</p>

Lueok, Circuit Judge. Action to determine the compensation due plaintiffs for land talien for railway purposes and depreciation of that part -of the entire parcel from which it was taken by reason of the appropriation. There was evidence on plaintiffs’ part fixing the value of the strip taken as high as $6,000, and the depreciation of the-remainder of the parcel, by reason of the talcing, at $3,000.

<p> Witnesses: Compensation: Experts: Counties: Criminal cases: Liability of county for witness fees: Defendant’s experts. </p> <p>1. The statute requiring all persons to obey the subpoena of a court, and fixing their compensation at $1.50 per day, applies to an expert witness, and hence from the mere subpoena and compulsion to testify results no implied contract to pay an expert witness anything in excess of the statutory fees, recognizing, however, that if he does perform work in preparation and qualification at the request of a party, an implied' contract for reasonable compensation may arise, and an express contract therefor will be valid.</p> <p>2. Liability cannot be imposed upon a county or other governmental subdivision of the state except in accordance with statute law, and hence, in the absence of a statute authorizing counsel for a defendant, charged with homicide, to contract with a physician as a witness for the accused to make preparation to testify as an expert at the county’s expense, no liability against the' county is created.</p> <p>3. In criminal prosecutions an order of the court for compulsory attendance of the accused’s witnesses is a necessary prerequisite to the existence of any liability of the county for witness fees, therefor, and in an action against the county for the statutory witness fees for attendance upon the trial of a criminal action a complaint which fails to allege such order fails to state a cause of action. — ' - - i</p>

Lueck, Circuit Judge. This is an appeal from a judgment dismissing the complaint and awarding costs against the plaintiff. The action was brought by the county of Washington to recover for the •support and maintenance of the defendant in its asylum for the insane and for the clothing furnished by the county to the defendant while he was an inmate of the asylum. The period covered by the claim is from June 30, 1901, to December 22, 1907.

<p>'Appeal from a judgment of the circuit court for Taylor ■county: John E. Parish, Circuit Judge.</p> <p>This action was brought to recover damages for breach of an agreement in an oral lease to defendants of plaintiff’s sawmill whereby defendants agreed to keep the same insured during the term of the lease in the sum of $800 for the benefit of the plaintiff. The complaint contained a second cause of action for material furnished, but this cause of action was withdrawn upon the trial. Defendants denied the agreec ment to keep the premises insured. The property was destroyed by fire. There was a verdict in favor of the plaintiff in the sum of $800, with interest. After motion to set aside the verdict and for a new trial was denied, judgment was rendered in favor of the plaintiff upon the verdict, from which this appeal was taken.</p>

33. Belden, Circuit Judge. This action is brought to foreclose a trust deed given by theKenosba Street Railway Company to secure a bond issue of $1,500,000, the bonds bearing date November 1, 1901. The-plaintiffs assert that they are the owners and holders of such bonds to the amount of $29,000. Three defenses were pleaded in the answer: (1) The bonds sued on were void, under sec. 1153, Stats.

Tarrant, Circuit Judge. This action was brought, to restrain the alleged unlawful use of the plaintiff’s trade-mark or'trade-name “Carbolin■eum.” The court below sustained the plaintiff’s claim and rendered an interlocutory judgment enjoining the defendant from selling his goods under the plaintiff’s trade-mark or trade-name “Carbolineum” or any word in imitation thereof. The appeal in this action is from such interlocutory judgment.

Williams, Circuit Judge. Action in ejectment. The issues litigated upon the trial concerned, in the main, whether defendant August Budzisz was, at the time of the-commencement of the action, the owner of the premises in dispute by reason of having been for ten years theretofore, uninterruptedly, in adverse possession thereof, under claim of' title exclusive of any other right, founding such claim upon a. written instrument as being a conveyance of the premises,, satisfying…

Halsey, Circuit Judge. This is an appeal from an order dissolving a temporary injunction.

<p>Atpeal from an order of the circuit court for Milwaukee county? Lawrence W. Halsey, Circuit Judge.</p>

<p>Appeal from an order of the circuit court for Winnebago-county: Geo. W. Burnell, Circuit Judge.</p> <p>The appeal is from an order sustaining separate demurrers of the respondents to appellant’s complaint.</p> <p>Among other references upon the part of the appellant were the following: 21 Am. & Eng. Ency. of Law (2d ed.) 461, 462; Unset v. J. I. Case T. M. Co. 120 Eed. 865; Schubert v. J. B. Clark Co. 49 Minn. 331, 51 N. W. 1103,15 L. E. A. 818; Watson v. Augusta B. Co. 124 Ga. 121, 52 S. E. 152 ; Bright ¶. Barnett & B. Co. 88 Wis. 299, 60 N. W. 418, 26 L. E. A. 524; Cameron v. Mount, 86 Wis. 477, 56 N. W. 1094; Anderson v. Smith, 104 Minn. 40, 115 N. W. 743; Thomas v. Winchester, 6 N. Y. 397; Norton v. Sewall, 106 Mass. 143; Bishop v. Weber, 139 Mass. 411, 1 N. E. 154; Elkins v. McKean, 79 Pa. St. 493. (</p> <p>Among other references upon the part of the respondent S. Eeymann Company were the following: Akers v. Over-beck, 18 Misc. 198, 41 N. Y. Supp. 382; Sheffer v. Willoughby, 163 El. 518, 45 N. E. 253; Green v. Ashland W. Co. 101 Wis. 258, 77 N. W. 722; McQuaid v. Boss, 85 Wis. 492, 55 N. W. 705.</p> <p>Among other references upon the. part of the respondent Armour .& Co. were the following: Winterbottom v. Wright, 10 M. & W. 109; Euset v. J. I. Case T. M. Co. 120 Eed. 865, 866; Lewis v. Terry, 111 Cal. 39, 43 Pac. 398, 31 L. E. A. 220; Wellington v. Downer K. O. Co. 104 Mass. 64; Slcinn v. Beutter, 135 Mich. 57, 97 N. W. 152; Savings Bank v. Ward, 100 E. S. 195; Peters v. Johnson, 50 W. Ya. 644, 41 S. E. 190, 57 L. E. A. 428; Ives v. Welden, 114 Iowa, 476, 87 N. W. 408, 54 L. E. A. 854; Eeaven v. Pender, L. E. 11 Q. B. Eiv. 503; Zieman v. Kieclchefer E. Mfg. Co. 90 Wis. 497, 63 N. W. 1021; Eeizer v. Kingsland & D. Mfg. Co. 110 Mo. 605, 19 S. W. 630, 15 L. R. A. 821; O’Neill v. James, 138 Mich. 567, 101 N. W. 828, 68 L. R. A. 342; Losee v. Clute, 51 N. Y. 494, 10 Am. Rep. 638; Loop v. Litchfield, 42 N. Y. 351; Nelson v. Armour P. Co. 76 Ark. 352, 353, 90 S. W. 288; Marvin 8. Co. v. Ward, 46 N. J. Law, 19; Mc-Caffrey v. Mossberg & Q. Mfg. Co. 23 R. I. 381, 50 Atl. 651; Salmon v. Libby, 114 111. App. 258; Slattery v. Colgate, 25 R. I. 220, 55 Atl. 639; Coodlander M. Co. v. Standard O. Co. 63 Fed. 400; Standard O. Co. v. Murray, 119 Fed. 572; Luhens v. Freiund, 27 Kan. 664.</p>

<p> Municipal corporations: Illegal contracts: Taxpayer’s action: Paving contracts: Injunction. </p> <p>1. A municipality upon hearing oí official misconduct of a member of its common council relative to a street-paving contract, violative of sec. 4475, Stats. (1898), bas power, and it is its duty, to refuse to consummate an executory contract tberefor, and this power and duty a taxpayer may enforce.</p> <p>2. An offer by tbe bolder of an executory contract for street paving to furnish a construction company, bidding on other street improvements, material tberefor at a less price than that quoted by manufacturers (even though such manufacturers have unlawfully combined to raise tbe price of such material), made for the purpose of inducing a member of the common council,, who was also interested, in the construction company, to withdraw his official opposition to such executory contract, and carried out by concessions as to price, is within the condemnation-of sec. 4475, Stats. (1898). The consent of the municipality to such executory contract, in part purchased by such concession, is unlawful and invalid, and a taxpayer may enjoin its execution.</p> <p>3. To hold that such transaction is void only as between the holder-of the executory contract and the construction company would be to make official immorality and consequent illegality a mere matter of judicial declamation. Nothing less than enjoining the execution of the executory contract is adequate to vindicate the law.</p>

<p> Building contracts: Incomplete performance: Necessity of showing-value on substantial performance. </p> <p>Where substantial performance of a contract to furnish and install a boiler for heating according to specifications is shown, the contractor seeking to recover need not produce evidence tending to show the reasonable value of the boiler installed. Timxih- and Babnes, JJ., dissent.</p> <p>Per Wixslow, C. J., concurring: Substantial performance means-strict performance in all essentials necessary to the full accomplishment of the purposes for which the thing contracted for-was designed.</p>

<p> Tax tilles: Quieting title of owner: LimAtation of actions: “Vacant or unoccupied:” Necessity of payment or tender of taxes paid by tax-title claimant. </p> <p>1. Where a tract of 120 acres of timber land was surveyed, stakes set at the corners, and the boundaries blazed on trees, one forty having on it a small clearing and farm buildings, occupation of the house from time to time while engaged in growing and harvesting crops and removing timber, leaving furniture in the-house and hay in the barn when away, together with occasional passing over the whole tract to guard against trespass and fires, warrant a finding that the land was not vacant and unoccupied within the meaning of sec. 1187, Stats. (1898), providing for constructive possession under recorded tax deeds.</p> <p>2. Constructive possession under a recorded tax deed only ripens. into an absolute title where the lands remain vacant and unoccupied continuously during the whole period named in the-statute.</p> <p>3. Sec. 1190, Stats. (1898), defining what shall constitute “possession” within the meaning of the preceding sections, relates to-the meaning of that word in secs. 1187 and 1189, rather than to the meaning of the words “vacant and unoccupied.”</p> <p>4. Where the statute of limitations has divested the title of the tax-deed claimant, in an action to quiet title the original owner is not required, as a condition of recovery, to tender or pay any part of the taxes.</p>

Parish, Circuit Judge. This action was brought to recover the amount for which-alleged illegal tax certificates were sold by the county treasurer of the defendant county, with interest thereon at seven per cent, from the date of sale, and resulted in a judgment for-plaintiff. Prior to December 15, 1902, the lands described in the-certificates involved in this action were owned by the Shores-Lumber Company.

<p>Appeal from a judgment of the circuit court for Bayfield county: •John K. Parish, Circuit Judge.</p>

<p>Appeal from a judgment of the circuit court for Bayfield county: •John K. Parish, Circuit Judge.</p>

<p>Appeal from a judgment of tbe circuit court for Bayfield ■county: John E. Parish, Circuit Judge.</p> <p>Tbe plaintiff brought action in tbe municipal court of Bay-field county against tbe defendant Beecher and bis wife upon -a promissory note for $55. Tbe Beechers answered admitting tbe execution and delivery of tbe note, but claiming that thereafter tbe American Bank Trust Company, an Iowa corporation, agreed for value to pay tbe note, and that plaintiff thereupon released tbe defendants from liability. Tbe defendants bad judgment in tbe municipal court and tbe plaintiff thereupon appealed to tbe circuit court and made application to tbe latter court that the American Bank Trust Company be brought in as a party defendant. The application was based on an affidavit of plaintiffs attorney, stating the-claims made by the Beechers, and denying that he agreed to - the alleged novation, but claiming that a complete determination of the controversy could not be had without the presence of the trust company as a party. The motion was granted, the trust company made a party defendant, and the plaintiff ordered to serve an amended complaint. The amended complaint, after alleging the execution, delivery, and nonpayment of the note, set forth in full the answer made by the defendants Beecher in the municipal court, and then alleged that the plaintiff had no knowledge of the novation claimed by the • Beechers, and denied that he ever -released them from liability, but that he was unable to determine which of the defendants was liable on the note, and demanded judgment against such defendant or defendants as the court or jury should determine to be liable on the note. The trust company answered the amended complaint, denying any knowledge as to the execution or existence of the note, and further denying each and every allegation of the amended complaint. No further pleadings were served or filed. At the opening of the trial' the trust company objected to any evidence tending to charge it with liability on the note, because no claim or cause of' action was stated against it in the complaint, but the objection was overruled. The jury by special verdict found (1) that there was $90.57 due on the note; (2) that the defendant American Banh Trust Company promised for value to pay the note; (3) that the plaintiff, Uemenway, agreed-with the defendant F. F. Beecher to accept the trust company for the payment of the note; (4) that Uemenway also agreed to release Beecher from all liability on the note. Motions to-set aside the verdict and for judgment for the defendant trust, company notwithstanding the verdict were overruled, and judgment rendered against the trust company for the amount, of the note and costs, from which judgment the trust company;appeals.</p>

<p> Reference: Review by court: Oonclusiveness of findings: Appeal and error: Findings of trial court, when disturbed: “Clear preponderance:” Partnership: Dissolution: Accounting: Valuing assets: Evidence: Good will: Elements. </p> <p>1. Finding's of a referee, as regards being disturbed by tbe trial court on review, bave tbe same dignity as findings of tbat court when challenged in tbe supreme court for error.</p> <p>2. On appeal to tbe supreme court all reasonable doubts are to be resolved in favor of tbe findings of tbe trial court, and, unless wrong rules of law bave been evidently applied to tbe evidence, if there appears to be substantial credible evidence in favor of tbe findings, a clear preponderance of tbe evidence is required to warrant weighing conflicting evidence and reversal of tbe findings of tbe court below.</p> <p>3. “Clear preponderance” of tbe evidence requires tbe preponderance to be so apparent as to manifestly outweigh any probable legitimate influence upon tbe trier of those advantages for discovering tbe truth wbicb tbe reviewing tribunal cannot bave. "</p> <p>4. On an accounting to determine the value of firm assets after the-death of one partner, it is error for the trial court to disregard the findings of the referee appointed to hear, try, and determine the cause, based on a carefully verified appraisement of the firm property, made in a judicial proceeding, and also verified upon the trial by the same appraisers, and modify such findings, basing such ruling upon the usual inventory and appraisement last made by the deceased for the purpose of determining the state of his business with reference to the condition a year previous. F. Dohmen Oo. v. Niagara F. Ins. Co. 96 Wis. 38, distinguished.</p> <p>5. On an accounting to determine the value of the firm assets after the death of one partner, the survivor is entitled to his share in the whole as an organized going business with its line of customers and connections with sellers as well as buyers, the merchandise, book accounts, and good will, such as there is, which can pass with a transfer of the whole as practically one' thing.</p> <p>6. Although one partner dies, elements of good will remain in the business where there is opportunity for a purchaser to continue the same as a going business as successor of the decedent part proprietor, whose name has for years distinguished it, and opportunity to continue in the old stand, and otherwise to locate so near as to obtain substantial advantages from the reputation of the old business in connection with the old place, and thereby secure more out of the stock and accounts by dealing therewith in the usual way of a going business than in a closing-up transaction.</p>

<p>Appeal from a judgment of tbe circuit court for Bayfield' county: John K. Parish, Circuit Judge.</p> <p>Action for personal injury. Defendant was tbe proprietor-of a large plant at Barkesdale, Wisconsin, for tbe manufacture of dynamite and other bigb explosives. Plaintiff and a co-employee were charged with tbe duty of conducting tbe process of manufacturing nitroglycerine in one of tbe bouses adapted to that purpose. Tbe process consisted of drawingglycerine through one pipe into a tank called a “nitrator,” and in drawing mixed nitric and sulphuric acid through another pipe to mix therewith. The acid was first drawn in a charge of 7,000 pounds into a scale tank about eighty feet away and ten to twenty feet higher up, and then, by the opening of a gate valve at the outlet of that tank, flowed by .gravity to the nitroglycerine house and into the nitrator. The pipe through which it was conducted was three or four inches in diameter, and near the open end thereof, emptying into the nitrator, was located an earthenware spigot, the core of which was slightly conical, extending vertically through the walls of the spigot with a two and a half inch hole through the core, which, being turned in line with the pipe, opened it and permitted the acid to run, and, being turned at right angles to the line of the pipe, closed it. This spigot was about eight feet from the floor of the nitroglycerine house and was lower than the scale tank from which the acid started, so that there were about eleven pounds upward pressure of the acid upon this conical plug, which weighed some nine and a half pounds. This pressure was of course greatly reduced when the plug was turned so as to permit the acid to flow through it. The •core or plug fitted accurately into its socket, with the smaller ■end downward, but, as the persistent upward pressure of the acid was liable to raise it, it was fitted with a swinging board •about ten inches in length, called a “chuk,” which was cut on the lower end so as to be slightly eccentric, so that the longer side or the lower corner thereof should rest firmly on the plug and prevent its raising in its socket. If it rose so as to leave •a space between the core and the walls of the spigot, the acid was likely to escape through such space, either dripping to the floor'or being ejected with more or less force upward •around the core. The same result was likely if a particle of dirt or sand got between the core and the walls of the spigot. The hanging chuk was so worn as to barely touch the top of this core at one point, and there was evidence that, by vibration in the building, it might become disengaged, all of which was fully apparent to observation. Plaintiff was a thor•oughly skilled workman with this and similar apparatus. On the day in question lie bad filled tbe scale tank outside of tbe building, and, at a signal from bis fellow workman, bad opened tbe valve at that tank to allow tbe acid to run. Tbe fellow workman at tbe time of giving sucb signal bad opened tbe earthenware spigot sufficiently to allow tbe acid to run through it, and, as bis duty was, bad attempted to arrange ■ tbe banging cbuk so as to press upon tbe core and bold it in place. Plaintiff, after opening tbe gate valve, bad returned to tbe nitric acid bouse, and thereupon discovered a slight leakage from tbe bottom of tbe earthenware spigot. He thereupon, according to custom, mounted a stool about four feet in height to remedy this defect, presumably by pressing more ■firmly in place tbe core. As be mounted tbe stool and brought bis face above tbe spigot, acid spurted upward therefrom into bis face, causing him severe injury. No similar event bad ever been known in tbe use of sucb spigots, which were common in similar processes elsewhere in tbe factory. At tbe close of tbe plaintiff’s evidence tbe court rendered .judgment of nonsuit, from which plaintiff appeals.</p>

<p> Railroads: Injuries to employees: Scope of employment: Operation of locomotive: Negligence of engineer: Sufficiency of evidence: Contributory negligence. </p> <p>1. A railway employee directed by his foreman to place certain engines on a designated track is within the proper course of his duty in throwing a switch so as to permit the engines to run thereon.</p> <p>2. A railway employee in the line of his duty has a right to have a locomotive, operated In connection with his duties, operated and managed with ordinary care and prudence.</p> <p>3. Evidence that an engineer started his locomotive before any signal to start was given, it being customary to give such signal, permits the inference that the locomotive was mismanaged and negligently started.</p> <p>-1. The test of contributory negligence is whether or not the person injured exercised the degree of care at the time that ordinarily careful persons exercise under the same or similar circumstances.</p>

<p>Appeal from a judgment of tbe municipal court of Marathon county: Louis Marchetti, Judge.</p> <p>This action was brought upon a special contract for the sale of a stallion by the defendant to the plaintiffs for the agreed price of $600. The contract contained the following stipulation or warranty:</p> <p>“I warrant the Perdieron stallion, this date traded to A. W. Smith, B. R. Wright, and W. R. Ranchett, to be an average foal getter if rightly managed, and in case he does not prove to be so I will replace him with another horse of the same breed and age, equally as good, or refund the six hundred dollars ($600), and take the horse back at my option. This guaranty to hold good one year from date.”</p> <p>It is alleged in the complaint that the stallion was not according to warranty and not an average foal getter when rightly managed, and the plaintiffs so notified defendant. The original complaint alleged a rescission of the contract, but this allegation by leave of court was stricken out, leaving the complaint one for breach of contract. Defendant in his .answer admitted the contract of sale, denied the other allegations of the complaint, and further alleged that he offered plaintiffs another stallion which complied with his agreement, but that plaintiffs refused to accept him; that negotiations between plaintiffs and defendant respecting supplying another horse continued until November, when defendant offered plaintiffs their choice of three stallions which complied with the warranty, but plaintiffs refused to accept any of them; and that defendant had been always ready and willing to comply with the terms of the warranty. At the close of the evidence defendant moved for a directed verdict, which was denied. A general verdict was returned in favor of plaintiffs, assessing their damages at $600 and interest at six per cent, from March 16, 1907. After verdict defendant moved for judgment dismissing the complaint and for a new trial. These motions were denied and judgment entered for plaintiff on the verdict, from which this appeal was taken.</p>

<p> Appeal and error: Estoppel to allege error: Drawing jury: Refusal to discharge jury: Harmless error: Street railroads: Negligence: Pleading: Injuries to persons using the street: Duty of motorman: Negligence of motorman: Gross negligence: Questions for jury: Proximate cause: Instructions to jury: Notice of injury: Amendment of answer: Requests for instructions: Admission and exclusion of evidence: Duplication of damages: Measure of damages: Domestic animals: Bill of costs: Items. </p> <p>1. The drawing of a jury for the trial of the cause, after issue joined but before filing the summons and complaint, is not error of which one who has participated in the selection of the jury can complain.</p> <p>2. In the absence of proof of actual misconduct on the part of the jury, it is not prejudicial error to refuse to discharge the jury and grant a venire de novo upon the ground that the trial, interrupted by adjournment, had been continued over a period of six weeks, although but six days of that time was spent in actual trial.</p> <p>S. In an action for injuries alleged to have been caused by the negligent management of a street car, a complaint charging acts of the motorman to have been done “negligently, carelessly,” etc., not intentionally, does not charge gross negligence, although it is also averred that the motorman knew the probable consequence of his acts.</p> <p>4. To constitute gross negligence the act or omission causing the injury must itself have been wanton or wilful.</p> <p>5. Where the only negligence which could be charged against a street railway company consisted in the motorman unnecessarily continuing to sound his gong after he saw the frightened condition of a team of horses or in failing to stop or slacken the speed of his car under the same circumstances, and while the mere fact that the horses took fright at the approaching car gave no right of action, if the condition of the team running away was so visible to the motorman that he must have known the cause of their fright, and took no precaution to slacken the speed of his car or stop ringing his gong, or both, the railway company is liable.</p> <p>6. A motorman of a street car is required to keep a proper lookout to avoid collision with, persons or vehicles also using the streets, and to do all that an ordinarily prudent and careful person under like circumstances would do to avoid injuring others lawfully using the streets.</p> <p>7. Whether or not, considering the shortness of time that a motorman rang his gong and the shortness of the distance traversed after he was aware of the frightened condition of a team oí horses, the motorman was negligent in failing to slacken his speed or stop ringing his gong, is for the jury.</p> <p>8. Where a prohable potential cause is shown which may be identified as the proximate cause and made to answer the legal definition thereof by inferences of fact from direct or circumstantial evidence before the jury, the jury may identify this as a proximate cause, although strict logic might discover other causes which the jury might from the same evidence have found to be the proximate cause.</p> <p>9. What is the proximate cause of an injury is usually and ordinarily a question of fact, and probative inferences from facts in evidence cannot be disposed of by styling them conjectures.</p> <p>10. In instructions to the jury the use of the adjective form “ordinary” instead of the adverbial form “ordinarily,” to qualify or modify the adjective “prudent,” is not ground for reversal unless the jury were misled thereby.</p> <p>11. A street railway company is not one of the railroad corporations covered by sec. 18165, Stats. (1898), and an action for injuries to a team of horses is not one to recover damages for injury to the person mentioned in subd. 5, sec. 4222. Hence it is proper to deny an application for leave to amend an answer interposed in an action for damages arising from the killing of a team of horses by the negligence of a street railway company, so as to allege the commencement of the action more than one year after the injury, and that no notice of the injury was given.</p> <p>12. Refusal to give correct requested instructions is not error where the instructions given fairly cover the points contained in the requests.</p> <p>13. Error in rejecting competent evidence is harmless where the same witness is permitted to give such evidence fully on cross-examination. V</p> <p>14. The supreme court will not consider an assignment of error to the admission of evidence in the absence of sufficient exception.</p> <p>15. Where, in addition to evidence tending to show a depreciation in value of a horse by reason of an injury sustained, the plaintiff offered evidence of the value of its use over and above the cost of keeping, an instruction permitting the jury to assess damages consisting of the depreciation in market value, plus the value of the use of the horse during the time it was incapacitated, plus the cost of doctor’s services and medicines and services of others necessarily performed, plus reasonable and necessary cost of maintenance, not exceeding all together in any case the actual value of the horse when injured, does not authorize duplication of damages, since the value of lost use mentioned, construed with reference to the evidence, means the value of the use of the horse over and above the cost of its keeping.</p> <p>16. Where there is a recovery of the full value of a horse there can be no additional recovery for loss of use of the horse.</p> <p>17. Items of a bill of costs consisting of charges for drafting requests for instructions, drafting affidavits on motion to modify an order, drafting notice of examination of adverse party, drafting order denying motion to limit examination of adverse party, attending motion out of term to limit the examination, and attending on examination of witnesses out of court, are “necessary entries, pleadings and proceedings in an action according to the practice of the court,” within the calls of sec. 2921, Stats. (1898), and are properly allowed.</p>

<p> Parties: Joint tortfeasors: Witnesses: Cross-examination: Rehuftalr Railroads: Injuries to employees: Negligence of engineer: Instructions to jury: Damages: Measure: New trial: Grounds: Perjury of witness: Death: Statutory limit of damages: Amendment of statute: Retroactive construction: Appeal and error:Modification and affirmance: Costs. </p> <p>1. In an action against two railroad companies for the negligent hilling of plaintiff’s intestate, testimony produced by plaintiff tending, in turn, to convict one railroad of negligence and exonerate the other, and convict the other and exonerate the one, justifies proceeding against both tortfeasors and the submission of the question whether or not the injury was due to concurrent negligence, or the unaided negligence of one, and, if so, which one.</p> <p>2. In such situation the plaintiff, who had not seen the accident, was not obliged to try the case in advance and determine at her peril which testimony was true.</p> <p>3. In an action against a railroad company for the death of a switch foreman, where the defendant’s engineer had testified that his engine could not move at the time the foreman was killed because the air was on and the brakes set, it is not error to admit, on .cross-examination, testimony that the engineer had had trouble with that engine five days before, that the engine would not stand still at that time, and that it then had a broken brake hanger.</p> <p>4. In an action for the death of a switch foreman, alleged to have been due to negligence of an engineer in backing his engine, the complaint not charging negligence by the use of defective machinery, it is not prejudicial error for the court to charge, among other things, that “how far other facts in evidence bear on the question of the moving of the engine you will consider," when the court by various instructions impressed on the jury that they were to consider only whether or not the engineer failed in his duty to hold his engine in place.</p> <p>5. Where a locomotive engineer is using a defective engine which could not be held in place by brakes, he may be guilty of negligence in approaching so close to cars as to be unable to check an involuntary movement of the engine until too late to avoid injury to one between the cars.</p> <p>6. In an action by a widow, as administratrix, for negligence causing the death of her husband, it is not error to instruct the jury that plaintiff can recover the value of her “support and protection” by her husband during the time he might have lived.</p> <p>7. It is not ground for a new trial that a witness admits that he testified falsely at the trial upon a material fact.</p> <p>8. Where at the time of a negligent injury causing death the damages recoverable were limited by statute to $5,000, the amendment of that statute before the trial, increasing the limit to $10,000, does not increase the amount of damages recoverable.</p> <p>9. Ch. 581, Laws of 1907, increasng the amount recoverable for death caused by negligence, creates a new right and does not merely change the remedy, and is not applicable to prior transactions.</p> <p>10. Where the only prejudicial error affects the amount of damages, which can be corrected by reduction to the proper amount, the judgment is modified and affirmed..</p> <p>11. V/here the printed case does not comply with Supreme Court Rule 6, no costs will be taxed therefor.</p>

Action to recover on a promissory note of $150 given by the defendant to plaintiff. The defendant answered that the note was without consideration, in that it was given pursuant to and in consideration of a promise, on the part of plaintiff, who is a physician, to cure defendant of a dangerous disease of which he was, and still is, afflicted, and plaintiff has failed to do so.

<p>Appeal from a judgment of the circuit court for Jackson •county: James O’Neill, Circuit Judge.</p> <p>The appeal is from judgment admitting to probate a lost or destroyed will. The evidence tended to disclose that E. E. •Jacobs died October 31, 1904, leaving his widow, the contestant, as only heir at law, but also leaving him surviving the proponent of the will, J ohn TL. J acobs, or Koch, and the latter’s sister, Annie Jacobs, wife of a brother of the deceased, who had been taken into the testator’s family as children and reared by him, hnt not legally adopted; that the decedent in his last illness and a few days before his death handed the contestant an envelope understood to contain his will, of which he had frequently made mention; that she put it in a satchel, and after the death made diligent search, but was unable to find the same; that deceased was incapable from the time of such delivery of gaining access to such paper without assistance; that on August 26, 1889, said decedent duly executed a will giving all of his property to his widow for life, and after her death to John H. Jacobs and Annie Jacobs, in certain contingencies; that a will was found recorded in the office of the register of deeds which corresponded in appearance and contents with the will so executed; and that decedent had at various times thereafter referred in general terms to having made such disposition of his property. The court found as facts the execution of such will, and that the same had never been revoked or canceled, and had either been lost or destroyed, by accident or design, and not by the act of the decedent. The appeal is brought by Louisa Maria Jacobs, the widow.</p>

This is an action to recover damages for personal injuries •alleged to have been sustained because of the negligence of the defendants in failing to guard and fence a saw and to provide a safe place for plaintiff to work.

Lac county: Chester A. Fowler, Circuit Judge. This is an action for divorce brought by plaintiff, appellant, against respondent on the ground of desertion. The respondent counterclaimed and asked for a divorce on the' ground of cruel and inhuman treatment and failure to support. Respondent asked leave to amend by pleading the counterclaim by way of defense as well as counterclaim. This motion does not appear to have been ruled upon.

Eowleb, Circuit Iudge. The appeal is from a judgment rendered in an action to recover damages for assault and battery.

Eowler, Circuit Judge. The appeal is from a judgment rendered on the claim filed by Garl Heber against the estate of his father, Charles Heber, deceased. . .......

<p> Parent and child: Board of parent: Cause of action. </p> <p>Where there is no express agreement by a father to pay for board furnished by his son, the latter cannot recover for such board.</p>

<p> Wills: Construction: Title devised: Codioil: “Other disposition:” Beneficiaries: Adopted children: Status: Remainder to “children” of devisee: Assignment of estate. </p> <p>[ 1. A will devising to a granddaughter of the testator a life estate, remainder to her children and descendants of such, in case there were children or their descendants at the time of her death, with a power in trust to terminate the 'contingent remainder in her discretion, by conveying the property to such children, or any of them, upon the happening of a specific event, and with a further power in trust to dispose of the remainder by will to whomsoever she might see fit, in case of her decease leaving no children or descendants of children, supplemented hy a codicil providing that in case the granddaughter died childless or without descendants of children, and making no will or other disposition of the property, it should go to a nephew of testator’s wife, indicates an intention of the testator that the property should not go to strangers of his hlood, without choice on his part, and hence the title of the granddaughter is not enlarged by the codicil, while the power in respect to such title is restricted.</p> <p>2. Sec. 4024, Stats. (1898), relating to the status of adopted children, while it may aid in discovering the meaning of a will' which is obscure, cannot control or defeat its true construction.</p> <p>3. Every person of mature years and of sound mind may make a will, and having made one, legally, the law, written or unwritten, cannot unmake it or change it by injecting into it something the testator did not intend.</p> <p>4. Whether or not a will in favor of the children of any particular person means adopted children as well as children of the blood depends upon the intention of the testator, and adopted children may be included or excluded according to circumstances.</p> <p>5. A will devising lands for life to a young unmarried granddaughter, remainder to her children or their descendants living at her death, followed in about one month by a codicil devising, in case the granddaughter died childless, the property to testator’s relation by marriage, repels the idea that an adopted daughter of the granddaughter is a child within the calls of the will.</p> <p>6. The assignment of an estate in the ordinary closing order assigning property according to the terms of a will does not operate to enlarge or abridge the rights of devisees who take by virtue of the will.</p>

<p> Deeds: Death of grantor: Delivery to third person for grantee: Sufficiency. </p> <p>The delivery of a deed to a third person, with instructions to give it to the grantee after the grantor’s death, is a valid delivery, if it was the grantor’s intention to presently pass the title.</p>

<p>Appeal from a judgment of the circuit court for Walworth county: E. B. Beldbn, Circuit Judge.</p> <p>This is an appeal from a judgment affirming the judgment ■of the county court of Walworth county setting aside an order previously made by that county court appointing a special administrator in the estate of John Tobin, deceased, for the purpose of assigning a note and mortgage in the name of John Tobin to Joseph Tobin, on the ground that such order was procured by fraud and that the county court had no juris-diction. In 1901 Joseph Tobin resided in Whitewater, Wisconsin, and made a loan to one James Brady of $4,800, and caused the note and mortgage to be made to John Tobin, his son. The mortgage was in the usual form and ran to John Tobin, his heirs and assigns. Joseph Tobin always held the note and caused the mortgage to be recorded. In 1903 John Tobin, who then resided in Pueblo, Colorado, returned to Whitewater, Wisconsin, and died there a short time after his arrival. Shortly after his death a petition was presented to the •county court of Walworth county by J oseph Tobin setting up that John died when a resident of Walworth county, leaving him surviving his widow, Marie, and a minor son, Cyril, as his only heirs at law; that Cyril resided with his mother at Whitewater, Wisconsin; that deceased left no debts unpaid; that Joseph Tobin had loaned to James Brady the sum of $4,800, and that the note and mortgage had been taken in the name of John Tobin, who never had any interest therein; and that the same belonged to J oseph; and prayed for an order appointing a special administrator for the purpose of assigning the note and mortgage to J oseph Tobin. The widow ■of John Tobin joined in the petition, and his minor son was represented by a guardian ad litem. The court appointed a special administrator in accordance with the prayer of the petition, and assigned the note and mortgage to J oseph Tobin October 5, 1903, in accordance with sec. 3813a, Stats. (1898). Thereafter Marie Tobin, widow of John Tobin, petitioned the county court of Pueblo county, Colorado, for the ■appointment of an administrator on the estate of John Tobin, ■deceased, and on November 13, 1906, she was appointed administratrix. On March 16, 1907, Marie Tobin petitioned the county court of Walworth county, Wisconsin, setting forth the previous proceedings had in said county, her appointment as administratrix, that she was the widow of John Tobin, deceased, and that she and the minor child, Cyril, were the only heirs at law; that John Tobin was a resident of Pueblo, Colorado, at the time of his death; that she was also a resident of Pueblo at the time she joined in the petition of Joseph Tobin, and that Cyril was not in Wisconsin at that time; that the note and mortgage were the property of' John Tobin when, he died; that her assent to the petition of' J oseph Tobin had been obtained by false representations; and that she did not know the contents thereof, and prayed that, the order appointing the special administrator and all proceedings thereunder be set aside and Joseph Tobin be required to account. On this petition the county court ordered service of notice of hearing upon J oseph Tobin and the guardian ad litem of Cyril, which was made. Hearing was had and judgment entered for the petitioner, Marie Tobin, in accordance with the prayer of the petition. An appeal was taken by Joseph Tobin to the circuit court, and an answer filed by him setting up that there was no delivery to or acceptance by John Tobin and no intent to deliver by Joseph, and further alleging ownership of the note and mortgage in. Joseph Tobin. The matter was tried, and the court found, among other things, that on the 12th day of March, 1901, Joseph Tobin made a loan of $4,800 to James Brady, taking his promissory note secured by mortgage of even date; that the money was the property of Joseph Tobin; that the note and mortgage have remained in the physical possession of' Joseph Tobin since their execution, except during such time as the mortgage was with the register of deeds of Walworth county; that the note and mortgage were taken in the name of John Tobin, deceased, and stood in his name at the time of his death; and that such mortgage ran to John Tobin and' his heirs and assigns; that during the lifetime of John Tobin, Joseph Tobin collected the interest on the note for the years 1902 and 1903 and remitted the same to John Tobin, who-accepted it; that after the death of John Tobin, J oseph Tobin collected the interest for the years 1904 and 1905 and has never accounted for it to the estate of John Tobin, deceased; that John Tobin never knew of the existence of the note and mortgage in his lifetime and never claimed any title thereto ; that Marie Tobin was not advised of the facts in the matter-at the time she joined in the petition of J oseph Tobin, and was not informed that the title to the note and mortgage had vested in her husband and remained in him at the time of his death; and that she was misled by the concealment and misrepresentations of the facts, and the legal effect of the facts and proceedings had in the county court.</p> <p>The court found as conclusions of law that the order of the county court vacating its former order appointing a special administrator for the purposes specified was proper, and that when Joseph Tobin recorded the mortgage the title thereto and the debt thereby secured passed beyond his recall or control, and that the title to the note and mortgage vested in John Tobin at the time they were executed and delivered by Brady; that the recording of the mortgage was a sufficient delivery and acceptance by John Tobin; that Marie Tobin was not estopped from bringing the proceedings; that the proceedings upon petition of J oseph Tobin were a constructive fraud upon Marie Tobin; that the minor son, Cyril To-bin, was not bound by the proceedings, and that the prayer of the petition of Marie Tobin should be granted, and ordered judgment as follows: (1) Affirming thé order of the county court; (2r) requiring Joseph Tobin within thirty days to transfer and deliver the note and mortgage to Marie Tobin as administratrix; (3) requiring him to pay her in said ca- • pacity the sum of $480, being two years’ interest unaccounted for; (4) requiring him to pay all costs and disbursements of this action. Judgment was entered accordingly.</p>

<p>Appeal from a judgment of the circuit court for Walworth county: George Grimm, Judge.</p> <p>The appeal is from a judgment of the circuit court for Walworth county reversing a judgment of the county court ■of that county made on final settlement of the administrator’s account distributing and assigning the estate of Michael Cleary.</p> <p>cited, among other cases, Brader v. Brader, 110 Wis. 423, 85 N. W. 681; Jackman v. Inman, 134 Wis. 297, 114 N. W. 489; Hagan v. McDermott, 134 Wis. 490, 115 N. W. 138; Howland v. Blake, 97 U. S. 624; Komp v. State, 129 Wis. 20, 108 N. W. 46.</p> <p>Among other references upon the part of the respondent were the following: Carroll v. Bohan, 43 Wis. 218; Bradley ■v. Dells L. Co. 105 Wis. 245, 81 N. W. 394; Cox v. Palmer, •3 Fed. 16; Abbott v. Dow, 133 Wis. 533, 113 N. W. 960; Pym v. Pym, 118 Wis. 662, 96 N. W. 429; Bawson v. Milwaukee Mut. L. Ins. Co. 115 Wis. 641, 92 N. W. 378; Dumke v. Puhlman, 62 Wis. 18, 21 N. W. 820; Wolf v. Theresa V. Mut. F. Ins. Co. 115 Wis. 402, 91 N. W. 1014; Schultz v. Culbertson, 125 Wis. 169, 103 N. W. 234; Wollman v. Buehle, 104 Wis. 603, 80 N. W. 919.</p>

<p>Appeal from a judgment of tbe circuit court for Milwaukee county: Orren T. Williams, Circuit Judge.</p> <p>Tbe plaintiff, while stepping from one of defendant’s street cars in tbe city of Milwaukee on tbe 30tb of March, 1901, fell to tbe pavement and was severely injured. He claimed' that tbe car started while be was in tbe act of alighting, thus throwing him to the ground, while on tbe other band it was claimed that tbe plaintiff attempted to get off tbe car before it stopped. This was practically the sole issue in tbe case. Tbe jury returned a special verdict, by which they found:-(1) That tbe plaintiff was injured while alighting from the-car; (2) that the car started while be was alighting and thus caused him to fall to tbe pavement; (3) that tbe starting of tbe car was tbe proximate cause of bis injury; (4) that plaintiff did not alight before tbe car bad stopped; (5) that the plaintiff was not guilty of contributory negligence; and' (6) that plaintiff’s damages were $3,000. The defendant moved to change tbe answers to tbe second and third questions and for judgment on tbe verdict as amended; also for-judgment notwithstanding the verdict; also that tbe verdict, be set aside and a new trial be granted for all tbe usual reasons. These motions being overruled and judgment entered for the plaintiff on the verdict, the defendant appeals.</p>

<p> Master and servant: Fellow-servants: Subcontractor’s servants: Negligence: Appeal and error: Remarles of court: Harmless error: Instructions to jury: Trial: Special verdict: Special interrogatories: Ordinary care: Damages: Burden of proof. </p> <p>1. The servant of a general contractor and those of his independent subcontractor, all being engaged in executing a particular enterprise, are not fellow-servants.</p> <p>2. There is no relation of master and servant between a general contractor and the servant of his independent subcontractor.</p> <p>8. In an action against a principal contractor, where the servant of a subcontractor was injured by the falling of a hoisting apparatus which replaced a safe and suitable apparatus originally used, remarks of the court, in the presence of the jury, that no actionable negligence could be found unless the unsuitable apparatus was erected with the knowledge of the principal contractor or the change was seasonably brought to his attention before the injury, and also remarks in submitting the case to the jury, that unless there was negligence on the part of the principal contractor’s agent in charge of the work respecting the unsuitable apparatus the question relating to defendant’s wrongful conduct should be answered in the negative, if erroneous, are so significantly in defendant’s favor as to be harmless on his appeal.</p> <p>■4. In an action for injuries to a servant caused by an unsuitable hoist, where knowledge, actual or constructive, of the defendant of the unsuitable character of the hoist was charged in the complaint and denied in the answer, if that issue was a vital matter it should be submitted as a special question of the sper cial verdict, if requested.</p> <p>•‘5. While it is better that the law governing special verdicts be administered according to its spirit and letter and to a somewhat technical degree where specific questions are requested covering well defined vital facts in issue, it is permissible for trial courts to exercise a considerable measure of discretion in that regard, which is not subject to review unless the statutory right is prejudicially invaded.</p> <p>6. In a personal injury case an instruction to the jury: “By ordinary care is meant such care as a man of ordinary care and prudence would have used under circumstances like those disclosed in the testimony in this case,” while it may be harmlessly inaccurate under the circumstances of the particular case, had better be phrased: “Ordinary care in the abstract is such care as the great mass of mankind ordinarily exercise, and as applied to any particular case it is such care as the great mass of mankind ordinarily exercise under the same or similar circumstances.”</p> <p>"7. In a personal injury case an instruction to the jury: “In assessing damages in this case you may alloio plaintiff, by way of compensation, such sum as will reasonably compensate him for such pain and suffering and for such loss of time as the evidence satisfies you with a degree of reasonable certainty, is the natural and probable consequence of the injury which he sustained,” while faulty in that it is in form as if the jury were expected to award compensation to the plaintiff instead of merely to find, as a fact, what sum in money was equivalent to his loss, and also in that it contemplates the existence of two or more degrees of reasonable certainty, with the jury left to imagine the nature of the different degrees, is not necessarily prejudicial.</p> <p>8. Material facts in issue in a civil case, in order to be found in favor of the party upon whom the burden of proof rests, must be established to the satisfaction of the jury by a preponderance of the evidence to a reasonable certainty.</p>

<p>Reported from the circuit court for Milwaukee county: Orren T. Williams, Circuit Judge.</p> <p>The defendant having been inspector of the house of correction in Milwaukee county for more than six years prior to December 30, 1903, on that day indictment was found against him containing two counts, the first of which was that on December 31, 1897, he, being charged with the duty of controlling and managing the business affairs of the house of correction subject to laws, rules, and regulations adopted by the board of supervisors, which business included the manufacture of chairs, did on that day, in discharge of his duties, receive and take into possession one certain promissory note of the Hardy Manufacturing Company, dated December 3, 1897, and also a certain fund of $299, proceeds of the payment of two promissory notes of A. J. Warren, dated October '21, 1897, tbe property of tbe county, and that he on said day unlawfully and feloniously embezzled said note and said fund. The second count alleged the same state of facts, except that the defendant on said December 31, 1897, had the custody of the two Warren notes and a fund of $307.30, proceeds of the Hardy Eurniture Company note, and did ■embezzle said notes and said fund. The verdict was guilty under the first count and was silent as to the second count. The court reported that certain questions of law were doubtful and requested their answer by this court under sec. 4721, Stats. (1898). He certifies that there was certain undisputed evidence to the effect that under the regulations of the county 'board a bookkeeper had been appointed to keep all books and accounts under defendant’s supervision; that the custom of business was that when notes were received for goods sold they were retained in the custody of the bookkeeper until near their maturity, when .they were handed over to the defendant and by him placed with a certain bank for collection and the proceeds credited to an account kept by such bank in the name of Fred Heiden, Jr., and entered, with proper designation, in an ordinary bank passbook which was retained by defendant; that periodically he handed this passbook to the bookkeeper, whose duty it was therefrom to make ■credits to the bills receivable account on his books for the amount so collected, charging them presumably to the defendant; that the three notes mentioned in the indictment were received during defendant’s incumbency of the office; that they were not credited upon the books of the county by the bookkeeper; that in 1902 a new bookkeeper discovered discrepancy between the total balance of the bills receivable •account and the actual notes then on hand and called defendant’s attention thereto. He, apparently surprised, asserted ■that the discrepancy must have arisen before his day without checking up to ascertain what notes had failed of credit.. Thereafter the bookkeeper made an entry in the journal:</p> <p>“Chair acct. dr. $-.</p> <p>“To bills receivable, cr. $-.</p> <p>“Amount charged Bills Receivable for which there were no-notes on hand when books were turned over to Inspector Heiden; this discrepancy appears to run back for many years.”</p> <p>Defendant resigned his position September 28, 1903, and on December 30, 1903, before the indictment was found, he-paid the amount of the three notes to the county treasurer.. The questions will be stated in the opinion.</p>

J. Fruit, Circuit Judge. This action is before this court on a writ of error to review the judgment of the circuit court which sentenced the plaintiff in error to imprisonment at the state prison for the term of six years, he having been found guilty of “wilfully, feloniously, and burglariously” breaking and entering “in the nighttime of a certain day a certain building and schoolhouse, not adjoining with nor occupied as a dwelling house, . . . the joint property of joint…

<p> Assault regardless of human life: Admissibility of evidence. </p> <p>In a criminal prosecution for assault regardless of human life,, where the evidence was sharply conflicting as to whether defendants, or one of them, did the shooting charged, or whether one Or. did it, and there was evidence that G. and his brother left the scene immediately after the shooting, it is error to exclude testimony of a witness tending to show that, within half an hour after and in the immediate vicinity of the affray, G.’s brother handed the witness two revolvers, one loaded and one; empty.</p>

<p>Courts: Jurisdiction of supreme court: Mandamus: Grounds: Existence of another remedy.</p> <p>1. The supreme court has jurisdiction hy mandamus to require a municipal court to exercise its rightful jurisdiction, where refusal works injury to relator.</p> <p>2. Where relators have an efficient remedy hy writ of error to review a final order of a municipal court, the supreme court will not exercise its extraordinary jurisdiction by mandamus to correct such order.</p> <p>[3. Timlin, Kerwin, and Barnes, JJ., are of the opinion that the-statutory right of appeal from the district to the municipal court of Milwaukee county applies to judgments of conviction for violation of city ordinances, although the prosecution is hy a civil action.]</p>

Action commenced in this court against the state. They contended, inter alia, that the addition to the tax assessed upon the plaintiff of any amount computed on the first $25,000 of the transfer was unwarranted by the terms of the law. The language of the statute is unambiguous, and hence the rule applies that it is only where 'the language of the statute is fairly capable of two or more meanings that any latitude of construction is allowable.

<p>Appeal fr'om a judgment of the circuit court for Milwaukee county: Warren D. Tarrant, Circuit Judge.</p> <p>This appeal-is from the judgment of the circuit court for Milwaukee county in favor of the state and against Gustav Pabst, Fredericlc Pabst, Jr., Maria Goodrich, and Fmma Soehnlein for $28,353.72 each. The case had been appealed from the county court to the circuit court, and the judgment rendered is for the amount of the inheritance tax found due and unpaid upon the transfer of the estate of Frederick Pabst, deceased, after making allowance for payments already made.</p> <p>Frederick Pabst resided, in Milwaukee and died there testate on January 1, 1904. On July 17, 1903, he executed and delivered a deed of trust and conveyed to the trustees for the purposes set up in the deed 2,840 shares of stock in the Pabst Brewing Company, a corporation organized under the laws of this state. The stock of the Pabst Brewing Company was divided into 10,000 shares of the par value of $1,000 each. The trust deed was as follows:</p> <p>“I, Frederick Pabst, of Milwaukee, Wisconsin, for and in consideration of love and affection, do hereby give and transfer twenty-eight hundred and forty (2,840) shares of the capital stock of the Pabst Brewing Company, a corporation, as per stock certificate No. 902, this day duly issued to my wife, Maria Pabst, and my sons, Gustav G. Pabst and Fredericls Pabst, Jr., in trust, subject to the limitations and terms and conditions herein stated:</p> <p>“First. I reserve to myself the dividend which shall be earned and declared on said stock for the year 1903.</p> <p>“Second. I reserve to myself the right to control the vote of said stock on all questions and at all elections which shall occur in said corporation during my lifetime, and hereby direct said trustees, at all such times, to vote said stock in such manner and for such parties or purpose as I shall direct. After my decease, said trustees shall vote the stock held by them under this instrument, as they or a majority of them shall determine.</p> <p>“Third. Said trustees shall collect and receive the dividends paid on said stock from time to time. The dividend . for the year 1903 is to be paid to me. All subsequent dividends are to be paid over by said trustees during my life and that of my wife, Maria Pabst, or either of us, one fourth to my son Gustav G. Pabst, one fourth to my daughter Maria Goodrich, one fourth to my son Prederich Pabst, Jr., and one fourth to my daughter Pmma Soehnlein, and their respective heirs; provided, however, that in case any of said parties shall die without leaving surviving issue, his or her share of ■said dividends shall be paid in equal distribution to the other of said parties or their respective heirs.</p> <p>“Fourth. Upon the decease of both myself and my wife, Maria Pahst, the surviving trustees shall transfer one fourth of said stock to Gustav G. Pabst, one fourth to Maria Goodrich, and one fourth to Frederich Pabst, Jr., or their respective heirs in case of the death of any of said parties. In case my said daughter, Emma Soehnlein, shall, at such time, have a child or children living, such child or the oldest of such children being not less than ten years of age, then the remaining one fourth of said stock shall he transferred to said Emma Soehnlein, if she be then living, and said trust shall thereupon cease. If at such time said Emma Soehnlein shall have no living issue, or her issue shall not have attained the aforesaid age, said trust shall continue as to one fourth of said stock, and the dividends thereof shall be paid to said Emma Soehnlein during her life, provided, that if she have a child ■or children and the same or any of them attain the age of ten years, she being living, said stock shall then be transferred to her and the trust cease. In case of the death of said Emma Soehnlein during the continuance of said trust, leaving issue •surviving her, such issue shall receive said dividends during life and said stock shall be transferred to such issue upon the .arrival of the oldest thereof at the age of twenty-one years. In case of the death of said Emma Soehnlein without issue surviving her, or the subsequent decease of all such issue prior to the transfer of said stock, pursuant to the provisions herein ■ contained, the same shall be transferred to my other children herein named, or their respective heirs by representation. 'The book value of said stock is four million dollars, and this transfer is intended, subject to the limitations stated, as a gift of one million dollars to each of my said children.</p> <p>“Done at the city of Milwaukee, this 17th day of July,. 1903. [Signed] Feed Pabst.</p> <p>“In the presence of</p> <p>“F. O. Winkler.</p> <p>“O. W. Henning.”</p> <p>On the day the trust deed was executed the deceased surrendered to the Pabst Brewing Company certificates for 2,840 shares of its stock and caused new certificates for the same number of shares to be issued to the trustees named in the deed. On the same day he also made and executed his last will and testament, disposing of all the rest of his property. ^ The will provided as follows:</p> <p>“I, Frederick Pabst, of the city of Milwaukee, in the state of Wisconsin, being of sound mind and memory, do hereby revoke all testamentary dispositions heretofore made by me,, and declare my last will and testament as follows :</p> <p>“First. I give and bequeath to my beloved wife, Maria Pabst, my homestead, consisting of the premises fronting on Grand avenue, in the city of Milwaukee, and extending to-Wells street, house and grounds, outbuildings and stables, with all their contents and all furnishing belonging thereto and in use therewith, both useful and ornamental, to have and to hold during her lifetime, and with power to dispose of any of the personalty without accountability.</p> <p>“Second. I give to my said wife the annual sum of fifty thousand dollars ($50,000), to be paid to her as long as she' shall live, in such instalments and at such times as she may desire.</p> <p>“Third. Subject to the above provisions I give, devise, and bequeath all the property which I may have at the time of iny decease, or be in any way interested in, to my executors, in trust during the life of my said wife, the trustees out of' the income of said property to pay her said sum of fifty thousand dollars ($50,000) per annum; and also out of said income or said property to them conveyed, to pay all proper expenses for the suitable support and education of my granddaughter and adopted daughter, Emma Maria Pabst, commonly called Elspeth Pabst, until she shall arrive at the age of twenty-one years, and to divide the net income of said, property after said payments, annually, or at such times as-may be convenient, in equal shares among my children, Gustav G. Pabst, Maria Goodrich, Frederick Pabst, Jr., and Emma Soehnlein, or their respective issue; in case of the death of any of them, such issue to take a parent’s share by right of representation. In case any of my children shall die without leaving issue, such income shall be divided among; the remaining children or their issue. After her arrival at the age of twenty-one years, said Elspeth shall take an equal' share with the other of said children in said distribution of income, subject to the same conditions above provided.</p> <p>“Fourth. Upon the decease of my said wife the entire estate shall be divided into as many parts as there are children then living, counting the living descendants of any deceased child as the representative of its parent in case of the latter’s decease. Said parts shall be equal, except that there shall be transferred to one of said parts, designed for the benefit of my granddaughter, Elspeth, as provided in paragraph sixth of this instrument, such number of shares of the capital stock of the Pabst Brewing Company as shall represent a book value of one million dollars, according to the regularly kept books of said Pabst Brewing Company, so that said part shall exceed each of the other parts by the amount of said shares of stock. The reason for this discrimination is, that I transfer, by way of gift, a like amount in book value of said stock for the benefit of each of my children, Gustav G. Pabst, Maria Goodrich, Frederick Pabst, Jr., and Emma Soehnlein, contemporaneously with the making of this will. One of' said equal parts shall be paid over and transferred to my son-Gustav G. Pabst or his heirs; one to my daughter Maria Goodrich or her heirs; and one to my son Frederick Pabst,. Jr., or his heirs.</p> <p>“Fifth. In case my said daughter, Emma Soehnlein, shall, at the time of the decease of my wife, have a child or children living, such child or the oldest of such children being not less than ten years of age, then and in such case said Emma Soehnlein shall be entitled to and receive one of said equal parts of my estate. If at the time of the decease of my wife-said Emma Soehnlein shall have no living issue, or her ÍRRUftshall not have attained the aforesaid age, then said part of my estate shall continue to be held in trust by my executors and trustees, said Emma receiving the income thereof until a child of said Emma, either living at the time of my wife’s decease or thereafter born to her, shall arrive at the age of ten years, whereupon, such child being living, said Emma shall become entitled to and receive one part of my estate. In case said Emma shall not have a child of said age at the time of my wife’s death, and no child of hers shall, after that time, reach said age, then said part of my estate shall continue to be held in trust by my executors and trustees during the life of said Emma, and the income thereof annually paid to her, and the body or principal of said part shall, in such case, upon her decease, go in equal shares to my other children or their respective issue in the same manner and subject to the same conditions herein provided in reference to other parts of my estate. In case said Emma shall die leaving a child or children before the transfer to her of said part of my estate pursuant to the provisions hereof, the net income of said part shall thereafter be paid to such child or children in such equal shares until the oldest shall attain the age of twenty-one years, whereupon said part shall be transferred and paid over to such child or children in equal shares. In case all of said children shall die before reaching said age and without leaving lawful issue, said part of my estate shall be disposed of in the same manner as if said Emma had died without leaving surviving issue. If issue of any child survive, it shall take by representation what its parent would have taken if living.</p> <p>“SixtH. The remaining part of my estate, being the one increased by the transfer thereto of shares of stock as herein-before provided, shall, upon the decease of my wife, continue to be held in trust by my executors and trustees, provided said Elspeth be living at that time; and the annual income thereof shall be paid to said Elspeth during her life. In case of said Elspeth’s death without leaving issue surviving her, said part of my estate shall be added in equal shares to the remaining parts thereof and disposed of as parts thereof as heretofore directed. If said Elspeth shall have died prior to the decease of my wife, leaving a child or children who shall survive my wife, or if she shall die after my wife’s death, leaving a child •or children, then also said part of my estate shall continue to be held in trust by my executors and trustees, and the annual income thereof shall lie paid to such issue in equal shares for the term of twenty-one years after the death of said Elspeth, and shall thereupon be paid to such child or children and the issue of any of them who may have died, according to the rule of representation. In case of the death of said Elspeth without leaving issue surviving her, or the extinction of her issue prior to the expiration of. twenty-one years from the time of her decease, said part of my estate shall be added in equal shares to the other parts as herein directed and pass to my other said children or their respective issue or heirs, subject to the same conditions and limitations herein prescribed as to said other parts. In case said Elspeth shall attain the age of forty-five years and shall then have living a child or children, the whole of said part of my estate shall pass and be transferred to her.</p> <p>“Seventh. In making distribution both of the income and the principal of my estate as above directed, advancements heretofore made by me to any of my children and charged against them on my private books, shall be taken into account and charged respectively against the share of the child to whom they were made, reducing such share by the amount thereof. This provision, however, shall not apply to certain shares of stock of the Pabst Brewing Company which I have heretofore made over by way of gift to my sons, Gustav G. Pabst and Prederich Pabst, Jr.</p> <p>“Eighth. I give to my wife, at her option, in lieu of the aforesaid fifty thousand dollars ($50,000) per annum, an equal one-sixth share of my entire estate, such option to be exercised by her in writing within one year from the time of my death. In case she shall so exercise this option, my executors and trustees shall, instead of paying to her said fifty thousand dollars ($50,000) per annum, pay to her the income of such one-sixth of my estate and transfer and make over to her the body or part thereof whenever she may so request. This my will to remain in other respects unaltered, and such portions of such one-sixth share as she may not have requested to be transferred to her to pass as part of my estate as herein provided.</p> <p>“Ninth. I nominate and appoint my beloved wife, Maria Pabst, and my sons, Gustav G. Paid and Frederick Pabst, Jr., executors of this my will and trustees of the trust thereby created; and I hereby confer upon said executors and trustees full power and authority to manage and control said property according to their judgment and discretion, and to-sell and dispose of any portions thereof, including any real estate, also said homestead, during the life of my wife, if she sha1! desire it and consent thereto. And-1 give them full authority to invest the trust properties in such manner as they shall deem best, with no responsibility for losses, provided they act honestly and in good faith. In case any of said executors or trustees shall die, the surviving two shall have authority to nominate a successor, who shall be clothed with the same authority as was enjoyed by the deceased executor or trustee; provided, that until the legal appointment of such third executor or trustee, the survivors shall have full powei" and authority in all respects to act under the provisions of' this will. I request that no bonds shall be required from my said executors or trustees. And I direct that no inventory of my estate shall be required to be filed in the county court or any public office; but it shall be the duty of said trustees to keep, for the benefit of all parties interested in my estate, full and accurate books of account of my said estate and all their dealings therewith.”</p> <p>The will was admitted to probate February 3, 1904, andón the same day the appraisers in the probate proceedings were appointed and letters testamentary issued to the executors named in the will. About May 20, 1904, the appraisers were furnished with an inventory of the estate by the executors, and on December 31, 1904, they completed their appraisal and made their report valuing the estate at $2,734,475. The executors, under the advice and as directed by their counsel, computed the inheritance tax upon the-transfer of property under the will on this appraisal at $58,714.72, after deducting the five per cent, discount allowed for payment within one year from the testator’s death, and on the same day paid this sum to the treasurer of Milwaukee county, upon condition that they would have a right. to demand restitution if the tax should be found invalid. December 13, 1905, the secretary of state petitioned for a. re-appraisal of the estate, and on the following 27th day of September a supplemental inventory was filed, whereby omitted items of the property of the estate, amounting to-$180,833, as found by the court, were added to the value of the estate. On October 3, 1906, Maria Pabst, the widow of the testator, died. Letters of administration upon her estate were issued to the Wisconsin Trust Company of Milwaukee, and this company was also named in her stead as one-of the executors of the will and as a trustee under the trust deed of Erederick Pabst, deceased. The executors in making their estimate of the value of the estate for payment of' the inheritance tax omitted some property belonging to the estate which passed under the will, but this was afterward added. They listed the stock of the brewing company which belonged to the estate at its par value and took no account of the stock transferred by the deed of trust.</p> <p>/The county court valued the stock in the brewing company at $1,408.45 per share. This was somewhat less than the value as carried on the books of the company, but was the value derived from the statement in the trust deed that the-value of the shares of stock so placed in trust was $4,000,000. It appeared from the evidence in the circuit court that the-stock in the brewing company was not for sale in the market ( generally, and that it was held very largely by members of the family. There was evidence of the amount paid per share in five transfers of stock during the six years before the death of the testator and of the amounts paid per share in five transfers thereafter. The prices at which these transfers were made varied from $1,050 per share to $1,500 per-share. Evidence showed that the book value of the corporation increased from $11,262,731.51 on January 1, 1896, to $14,810,728.60 on January 1, 1904, the date of Erederick Pabst’s death, and that it was $15,347,643.46 on January 1,, 1905, and $15,753,286.36 on January 1, 1906, the two years succeeding his death. The dividends declared and paid upon the stock from 1896 to 1901 averaged three and two-ninths per cent., and the net earnings, according to the books, were lis follows: 1897, $852,087; 1898, $653,891; 1899, $829,300; 1900, $801,165; 1901, $706,565; 1902, $718,012; 1903, $804,170; 1904, $829,903; 1905, $845,841. It appeared that the good will of the corporation was not carried upon the books as an asset, and that the various purchases of real estate were carried as assets at the •cost price. Experts on the market value of stocks, called by the defense, variously estimated the stock as having a market value of from eighty per cent, of its face value to par value. / As bearing on the question of whether or not the trust deed had been executed in contemplation of death, there was evidence that the deceased had suffered from diabetes for fifteen years, that he had watched the progress of the disease during that whole period, and that frequent urinalyses kept him informed of his physical condition and the state of the malady. He was frequently examined by physicians and had them in almost constant attendance and on their advice dieted and went to various health resorts in Europe and this country seeking relief. In the early part of the year 1903, in the hope of restoring his impaired health or at least of checking the decline of his strength, he went to the milder climate of southern California. While there he was very seriously ill and his son was sent for. Early in the summer he came home to Milwaukee accompanied by this son and his wife. After his return his declining vitality necessitated that his physicians frequently consult together on his case. On July 17, 1903, while in this physical condition, he executed the deed of trust and his will. Later in the year his condition became so serious that the leading specialist in the country on the disease from which he suffered was called by Ms family. Generally speaking, he was of a cheerful, optimistic disposition, loving to his family and friends, and, although probably better informed concerning his serious condition than any but a professional man or specialist, was cheerful and encouraging, although he told some of his attendants that he required their assistance to prolong his life. Eor sometime his sons had had the active management of his business, with his constant advice and participation with a view to acquaint them with the business and to prepare them to manage-the large interests of the family without his assistance. -v</p> <p>The court found that the testator died January 1, 1904; that he left surviving him certain heirs, the facts as to the probate of the will, the death of the widow, and the substitution of the Wisconsin Trust Company as executor in her place; that the deceased had been afflicted for about fifteen years with diabetes; that he knew during the last year of his. life that he could not recover from the diabetes and the inter-current diseases from which he suffered; that he therefore-executed the trust deed in contemplation of death; that it was intended to take full effect only upon his death; and that the deceased reserved to himself for a period the dividends of' the stock thus conveyed by him and retained the right to vote and control the stock during his lifetime. An inventory of' the estate as disposed of by the trust deed and by the will is among the findings, and the amount of the debts, funeral expenses, and expenses of administration to be deducted from the value of the estate before computing the inheritance tax is found to be $212,247.55.</p> <p>As conclusions of law the court found that the property transferred by the deed of trust was so transferred in contemplation of death and was intended to take effect at the time of death of the donor; that the tax upon the property transferred by the deed and by the will accrued January 1, 1904, the time of the death of the donor; that there should be imposed a penalty of ten per cent, per annum of the amount of the tax due and unpaid, computed from the date of the death of the-■deceased to the time of appeal from the judgment of the county court; that interest at the rate of six per cent, should be allowed upon the amount due for taxes after the date of the appeal; that the county court of Milwaukee county was the proper tribunal to fix and determine and to apportion the amount of the inheritance tax to be paid by the estate or the beneficiaries of the trust deed and the will; and that there was due as such tax from Gustav Pabst, Frederick Pabst, Jr., Maria Goodrich, and Fmma Soehnlein, each, the sum of $28,328.72. p</p> <p>This is an appeal from the judgment entered on the findings.</p> <p>contended, inter alia, that the act in question imposes a tax not on the property but on the transfer of the property, or, in other words, a tax is imposed on the transfer or right to receive each separate estate transferred to individual legatees ■or donees. Matter of Westurn, 152 N. Y. 93, 99; Matter of Vanderbilt, 172 N. Y. 69, 73; Matter of Hoffman, 143 N. Y. 327, 331, 332; Matter of Corbett, 171 N. Y. 516; Matter of ■Costello, 189 N. Y. 288, 292; Matter of Sloane, 154 N. Y. 109; McElroy, Transfer Tax, secs. 279, 329, 334, 335, 503; Dos Passos, Inheritance Tax Law, §§ 57, 58; Matter of Brez, 172 N. Y. 609; Matter of Hosack, 39 Misc. 130, 78 N. Y. 'Supp. 983; Miller v. Tracy, 86 N. Y. Supp. 1024; In re Le Brun’s Estate, 80 N. Y. Supp. 486. If the Wisconsin act be construed as authorizing the taxing of expectant estates, contingent or defeasible, at the time of the death of the testator, and before the contingent remaindermen are ascertainable, ■and before such estates are vested in possession or enjoyment, and as making the tax, both on the life tenant’s interest and ■on the interest of the contingent remaindermen, payable forthwith out of the property and imposing the tax as a lien -on the property, it cannot be supported on the theory of the nature of the tax adopted in the Nunnemacher Case (129 Wis. 190), as it would tax an incomplete transfer before it is received and before there are persons in esse capable of receiving it and when it might not be received at all. So construed, in so far as the payment of the tax depleted the property and reduced the life tenant’s income, it would amount to taking the life tenant’s property without due process, contrary to the state and national constitutions. So construed, it would require an appraisal of an estate or interest before any transfer — before there were persons in esse capable of receiving; and before it could be ascertained when it would be received or whether it would be received at all; and before it could be ascertained what amount of property, if any, would be received at the uncertain future date. An appraisal under such circumstances would be difficult, if not impossible. 27 Am. & Eng. Ency. of Law (2d ed.) 352, 354; Matter of Vanderbilt, 172 N. Y. 69, 75, 76; Matter of Brez, 172 N. Y. 609, 612. The Wisconsin act may be construed ■as imposing the tax after the amount of the tax has been fixed by an appraisal and as authorizing the postponement -of the taxing of estates in expectancy which are contingent or -defeasible unitil the persons entitled thereto can be ascertained .and the amount received by such persons definitely determined. McElroy, Transfer Tax, see. 716; 27 Am. & Eng. Ency. of Law (2d ed.) 340, 351, 352, 355; Herold v. Blair, 158 Eed. 804, 806; People v. Koenig, 37 Colo. 283, 85, Pac. 1129; English’s Estate v. Crenshaw (Tenn.) 110 S. W. 210; Lynch v. Union T. Co. 164 Eed. 161, 165; Matter of Gordon> 186 N. Y. 471, 483; McKenney v. Minaban, 119 Wis. 651; Matter of Gihon, 169 N. Y. 443; Matter of Westurn, 152 N. Y. 93; Matter of Zefita, 167 N. Y. 280, 283; Matter of 1Clinch, 99 App. Div. 298, 180 N. Y. 300; Welch v. Saclcett, 12 Wis. 243; Matter of Wolfe, 89 App. Div. 349, 85 N. Y. Supp. 949; Matter of Lansing, 182 N. Y. 238; In re Estate of Stone, 132 Iowa, 136, 109 N. W. 455; In re Haggerty, 112 N. Y. Supp. 1017; Matter of Sloane, 154 N. Y. 109, 115; Cooley, Taxation (3d ed.) 597; ITill, Taxation, 290, 291, §§ 2, 3 • U. S. v. Marion T. Go. 113 Eed. 301; Clapp v. Mason, 91 Ü. S. 589, 592; Mason v. Sargent, 101'U. S. 689, 693; Land T. & T. Go. v. McCoacK', 129 Eed. 901; Tilghman v. Erdman, 131 Eed. 651; Eidman v. Tüghman, 136 Eed. Ill, 113, aff’d 203 U. S. 580; Gill v. Austin, 157' Eed. 231; People v. McGormiclc, 208 111. 137, 70 N. E. 350; Vanderbilt v. Eidman■, 196 U. S. 180; Shanley v. Herold, 111 Eed. 123, 116 Eed. 20; Howe v. Howe, 179 Mass. 516, 61 N. E. 225; Stevens v. Bradford, 185 Mass. 139; Billings-v. People, 189 111. 172; Harrison v. Johnston, 109 Tenn. 215, 70 S. W. Ill, 116; Commonwealth’s Appeal, 127 Pa. St. 135,139, 17 Atl. 1091; Comm. ex rel. v. Barker, 211 Pa.. St. 610, 615, 61 Atl. 253; Stale ex rel. Hale v. Probate-Court, 100 Minn. 192, 110 N. W. 865; Slate ex rel. Basting v. Probate Court, 101 Minn. 185, 112 N. W. 878; Dunbar v. Dunbar, 190 U. S. 310, 315, 23 Sup. Ct. 757; Matter of Lansing, 182 N. Y. 238; Matter of Bamsdill, 190 N. Y. 192, 195; Kingsbury v. Chapin, 196 Mass. 533, 82 N. E.. 700; Eury’s Ex’rs v. State, 72'Ohio St. 118, 71 N. E. 650; Nunnemacher v. State, 129 Wis. 223; Matter of Smith, 10 App. Div. 180, 58 N. Y. Supp. 128; Matter of Seamm, 117 N. Y. 69, 71, 75; In re Naylor’s Estate, 105 N. Y. Supp. 667. No proper appraisal has been made of such interest or estates as were appraisable at the time the court acted in-the matter, and the assessment of all future contingent estates which could not practically be appraised at said time should have been deferred until the parties entitled thereto-came into the actual possession ox enjoyment thereof on the happening of the contingencies upon which they were limited. Ayers v. Chicago T. & T. Co. 187 111. 12, 58 N. E. 318; Matter of Davis, 119 N. Y. 539; Matter of Vanderbilt, 172" N. Y. 69; Matter of Brez, 172 N. Y. 609. The act in question is an unjust and unreasonable exercise of the taxing power and violates the guaranties of the state constitution. and of the XlVth amendment of the national constitution, (a) It attempts to impose a transfer tax — a tax on the right to receive — when there is no transfer. People v. McCormick, 208 HI. 437, 70 N. E. 350, 353; Matter of Vanderbilt, 172 N. Y. 69, 76. (b) The act attempts to make a forced loan from parties presently entitled to a defeasible estate of the amount of the tax imposed on the transfer of the remainder, (c) It attempts to impose on one person the tax in respect to a transfer to another. 27 Am. & Eng. Ency. of Law (2d ed.) 354; Fitzgerald v. Rhode Island H. T. Co. 24 R. I. 59, 52 Atl. 815; State ex rel. Hale v. Probate Court, 100 Minn. 192, 110 N. W. 865; Herold v. Shanley, 146 Eed. 20, 24; Rogers-Ruger Co. v. Murray, 115 Wis. 267, 270; Hartman v. Qreenhotu, 102 U. S. 672; Knoxville T. Co. v. McMillan, 111 Tenn. 521, 65 L. R. A. 296; Boston v. Beal, 51 Eed. 306; Matter of Tracy, 179 N. Y. 501. (d) It attempts to impose a penalty before an opportunity is afforded the taxpayer to pay the tax. County of Redwood v. Winona & St. P. L. Co. 40 Minn. 512, 42 N. W. 473; Gallup v. Schmidt, 154 Ind. 196, 56 N. E. 443; State v. Jersey City, 37 N. J. Law, 39; Lufkin v. Galveston, 73 Tex. 340, 11 S. W. 340, 341; Louisville & N. R. Co. v. Comm. 94 S. W. 655; Gager v. Front, 48 Ohio St. 89, 26 N. E. 1012; Victoria L. Co. v. Rives, 115 La. 996, 40 South. 382; U. S. T. Co. v. New Mexico, 183 U. S. 535; Litchfield v. Webster Co. 101 U. S. 773; Lake Shore & M. S. R. Co. v. People, 46 Mich. 193, 212; 2 Oooley, Taxation (3d ed.) 903; Matter of Davis, 149 N. Y. 539, 547; McElroy, Transfer Tax, 192-197. (e) The penalties imposed by the act in question, as construed by the court below, are of such a nature as to intimidate and deter a taxpayer from either contesting the validity of the law or seeking its construction in the courts or resisting an overvaluation of his property by the appraisers or by the court. Bonnett v. Vallier, 136 Wis. 193, 116 N. W. S85; Fx parte Young, 209 U. S. 123. The act unreasonably and unjustly discriminates between persons similarly constituted or situated: (a) Discrimination between specific and money legacies, (b) Discrimination between life tenants. Matter of Sloane, 154 N. T. 109. (c) Discrimination in the matter of valuation. Lynch v. Union T. Co. 164 Eed. 161, 167; Shanley v. Herold, 141 Eed. 423, 429; ludson, Taxation, §§ 292, 463, 470. Tbe act is prohibited by secs. 31, 32, art. IV, Const., for two reasons: (a) It is a special law by reason of the exemptions it contains. Chicago & N. W. B. Co. v. Forest Co. 95 Wis. 80; Milwaukee Co. v. Isenring, 109 Wis. 9; Clark v. Janesville, 10 Wis. 135, 180; Sutherland, Stat. Constr. §§ 116, 120, 127-129; Words & Phrases, 6577-6584; note in 21 Am. St. Rep. 780; 32 Am. L. Reg. 721, 725; Slate ex rol- Baltzell v. Stewart, 74 Wis. 620; State ex rel. Church Mut. Ins. Co. v. Cheek, 77 Wis. 284; State ex rel. Turner v. Bell, 91 Wis. 271; Budd v. Hancock, 66 N. J. Law, 133, 48 Atl. ■ 1023, 1024; Slate ex rel. Sanderson v. Mann, 76 Wis. 469; Dundee M. T. Inv. Co. v. School List. 19 Eed. 359, 371; Estate of Cope, 191 Pa. St. 1, 71 Am. St. Rep. 740; Black ®. Slate, 113 Wis. 205; Nunnemacher v. Slate, 129 Wis. 190. (b) If regarded as a general law, it is not uniform in its operation throughout the state, by reason of its exemptions ■and also by reason of its discriminations above mentioned. Wis. Cent. B. Co. v. Taylor Co. 52 Wis. 37; Chicago & N. W. B. Co. v. State, 128 Wis. 553; Magoun v. III. T. & S. Bank, 170 U. S. 283; Pollock v. Farmers’ L. & T. Co. 157 • XT. S. 429; Kelley v. State, 6 Ohio St. 269; State ex rel. v. Bargus, 53 Ohio St. 94-, 53 Am. St. Rep. 628; State ex rel. v. Spellmire, 67 Ohio St. 77, 65 N. E. 619; Milwaukee Co. v. Isenring, 109 Wis. 9, 28.</p> <p>contended, inter alia, that the evidence clearly shows the maximum value of the brewery stock at the time of testator’s death to have been par. (a) The statute on this subject is subd. 6, sec. 1, ch. 44, Laws of 1903, which provides: “Basis of tax: (6) The tax so imposed shall be on the clear market value of such property,” etc. (b) In the ascertainment of the meaning of the words “market value” we may safely apply the criterion furnished by the statutes relating generally to the valuation of property for the purpose of taxation; they, being in pari materia, should be considered and perhaps be controlling. Secs. 1052, 1055, Stats. (1898) ; Walker v. People, 192 111. 106; Matter of Smith, 71 App. Div. 602, 76 N. Y. Supp. 185. (c) In the absence of other clear and satisfactory evidence the par value of the stock is presumed to be the true value. Moffit v. Hereford, 132 Mo. 513; Meinell v. Kirkpatrick, 29 Kan. 679, 685. (d) The general rule on the construction of the inheritance tax law is applicable in determining the value of the property to be taxed. The rule is this: “Doubt should be resolved in favor of the taxpayer as against the taxing power.” Matter of Fayer-weather, 143 N. Y. 114; Matter of Harheck, 161 N. Y. 211; Matter of Enston, 113 N. Y. 174. (e) The testimony of experts was competent. Murray v. Norwood, 77 Wis. 405; Whitney v. Thacher, 117 Mass. 523; 1 Whart. Ev. § 446; Am. F. & F. Go. v. Settergren, 130 Wis. 338, 342; Erd v. G. & N. W. B. Go. 41 Wis. 65, 68; Baxter v. G. & N. W. B. Go. 104 Wis. 307. The deed of gift was not made in contemplation of death within the meaning of the inheritance tax law. Ch. 44, Laws of 1903, riot only copies the New York inheritance tax law which was in force in 1899, omitting the unconstitutional feature pointed out in Black v. State, 113 Wis. 205, but copies changes therein made subsequently by the legislature of that state. The rule of adoption by Wiscom sin of the construction of the New York courts applies, therefore, to all the decisions of such courts prior to the year 1903. The New York courts repeatedly held, prior to 1899 and prior to 1903 with a single qualification, that the clause of the law making taxable transfers in contemplation of death referred only to gifts causa mortis. Matter of Seaman, 147 N. Y. 69; Becker v. Chester; 115 Wis. 90, 127; Matter of Masury, 28 App. Div. 580, 159 N. Y. 532; Matter of Edger-ton, 35 App. Div. 125, 158 N. Y. 671; Matter of Swift,. 137 N. Y. 77; Matter of Hoffman, 143 N. Y. 327; Matter of Spaulding, 49 App. Div. 541, 158 N. Y. 671; In re Bostwick, 160 N. Y. 489; Matter of Baker, 83 App. Div. 530, 178 N. Y. 575; Matter of Bullard, 76 App. Div. 207. In Matter of Cornell, 66 App. Div. 162, 169, the court holds that the only exception to the rule that the inheritance tax statute applies only to gifts causa mortis is where fraud or an attempt to cheat the law is shown. See, also, Matter of Bird-sail, 22 Misc. 180; Matter of Palmer, 117 App. Div. 360. A careful study of the Illinois cases will show that while apparently in conflict with the New York cases it is rather in form than substance. Rosenthal v. People, 211 111. 306, 307; Merrifield v. People, 212 111. 400; People v. Kelley, 218 111. 515. The transfer of testator’s interest in the stock was in prcesenti and was a gift inter vivos. Rountree v. Dixon, 105 N. C. 350, 11 S. E. 158; Fetters v. Humphreys, 19 N. J. Eq. 471, 479; Cooper v. Jackson, 4 Wis. 537; Cal-kins v. Equitable B. & L. Asso. 126 Cal. 531, 59 Pac.- 30; Dickerson’s Appeal, 115 Pa. St. 198, 8 Atl. 64; Stone v. Hacketi, 12 Gray, 227; Zillmer v. Landguth, 94 Wis. 607; Danforth v. Oshkosh, 119 Wis. 262, 278, 279; Thornton, Gifts, see. 435; Vandenberg v. Palmer, 4 K. & J. 204. If any interest was taxable it is only the interest reserved, viz. voting power. People v. Kelley, 218 111. 509. The attempted retention of the right to control the vote of the stock was ineffectual as a legal right. Sec. 1760, Stats. (1898) ; 2 Cook, Corp. § 611; 1 Beach, Priv. Oorp. § 306; Shepaug, Noting Trust Cases, 60 Conn. 553, 579; Robotham v. Prudential Ins. Co. 64 N. J. Eq. 673, 701; Kreissl v. Distilling Co. 61 N. J. Eq. 5, 14; Clowes v. Miller, 60 N. T. Eq. 179; 186; White v. Thomas I. T. Co. 52 N. J. Eq. 178.</p> <p>They contended, inter alia, that tbe good will of a business is taxable. Fallows, Transfer Tax, 13; Matter of Jones, 69 App. Div. 237. Eor definitions of good will, see Washburn v. Nat. W. P. Go. 81 Eed. 17; Matter of Brandreih, 28 Misc. 468, 59 N. Y. Supp. 1092; Roiuell v. Rowell, 122 Wis. 1. Good will is a valuable asset. Lindeman v. Rusk, 125 Wis. 210; In re Keahon’s Estate, 113 N. Y. Supp. 926. Tbe certificate of death of testator was properly admitted. Sec. 2, cb. 415, Laws of 1903, amending sec. 1024, Stats. (1898) ; sec. 1024a, •Stats. (1898), as amended by cb. 384, Laws of' 1903; subd. 24, sec. 3, cb. 4, Milwaukee 'City Charter; sec. 4160, S. & B. Ann. Stats.; see. 4160, R. S. 1878; McKinstry v. Collins, 74 Vt. 147, 52 Atl. 438; Krapp v. Metropolitan L. Ins. Co. 143 Mich. 369, 106 N. W. 1107; Hennessy v. Metropolitan L. Ins. Co. 74 Conn. 699, 52 Atl. 490; National Council v. O’Brien, 112 Ul. App. 40; Reynolds v. Prudential Ins. Co. 88 Mo. App. 679; Keefe v. Supreme Council, 55 N. Y. Supp. 827; Markowitz v. Dry Dock E. B. & B. R. Co. 33 N. Y. Supp. 702; Woolsey v. Trustees, 84 Hun, 236, 115 N. Y. Supp. 573; Knights Templar & M. L. Ind. Co. v. Crayton, 110 111. App. 648, 70 N. E. 1066, aff’d 209 111. 550; Howard v. III. T. & S. Bank, 189 111. 568, 572; 9 Am. & Eng. Ency. -of Law (2d ed.) 882, 883; 1 Greenl. Ev. (14th ed.) §§ 483, 484; 24 Am. & Eng. Ency. of Law (2d ed.) 187. A gift must be complete and irrevocable to avoid taking effect at death. Reish v. Comm. 106 Pa. St. 521. Possession defined. Rice v. Erayser, 24 Eed. 460, 463; Sullivan v. Sullivan, 66 N. Y. 37, 41; Booth v. Small, 25 Iowa, 177, 181; 28 Am. & Eng. Ency. of Law (2d ed.) 238. Enjoyment defined. Clark v. Maguire, 16 Mo. 302, 314. Tbe possession ■of tbe stock under tbe trust deed was not absolute until after testator’s death. In re Johnson’s Estate, 19 N. Y. Supp. 963; In re Sharer’s Estate, 73 N. Y. Supp. 1057; In re Cruger, 66 N. Y. Supp. 636; Appeal of Siebert, 110 Pa. St.. 329, 1 Atl. 316; Wright’s Appeal, 38 Pa. St. 507; Beish v.. Comm. 106 Pa. St. 521; Appeal of Du Bois, 121 Pa. St. 368,15 Atl. 611; Line’s Estate, 155 Pa. St. 378, 26 Atl. 728. The right to vote upon stock can be separated from the ownership of the stock unless the objects sought to be reached by the separation are unlawful. Smith v. S. F. & N. P. B. Co. 115 Cal. 581, 35 L. R. A. 309; Mobile <& O. B. Co. v. Nicholas, 98 Ala. 92, 12 South. 723, 731, 732; Brightman v. Bates, 175 Mass. 105, 55 N. E. 809; Chapman v. Bates, 61 N. J. Eq. 658,17 Atl. 638; Clowes v. Miller, 60 N. J". Eq. 179, 17 Atl. 315. The following cases have held inheritance tax laws-constitutional: Nunnemacher v. State, 129 Wis. 190; Knowlton v. Moore, 178 U. S. 11, 59, 60; Kochersperger v. Drake, 167 111. 122; Minot v. Winihrop, 162'Mass. 113, 123, 121; Slate v. Alston, 91 Tenn. 671, 682; State ex rel. Fath v. Henderson, 160 Mo. 190; Campbell v. California, 200 U. S. 87; State ex rel. Foot v. Bazille, 97 Minn. 11, 106 N. W. 93;. Matter of McPherson, 101 N. Y. 306, 10 N. E. 685; In re-Hickok’s Estate, 78 Yt. 259, 62 Atl. 721; Magoun v. III. T. & S. Bank, 170 U. S. 283, 12 L. Ed. 1037. The time of the transfer by will or the intestate laws is at the death of the decedent, and the tax occurs at that time. Matter of Sloane, 151 N. Y. 109; Matter of Davis, 119 N. Y. 539; Matter of\ Westurn, 152 N. Y. 93, 102; Matter of Oreen, 153 N. Y. 223, 228; McCurdy v. McCurdy, 197 Mass. 218, 83 N. E. 881; People ex rel. Ati’y Oen. v. Bice, 10 Colo. 508, 91 Pac. 33; Shelton v. Campbell, 109 Tenn. 690, 72 S. W. 112; Line’s Estate, 155 Pa. St. 378, 26 Atl. 728; People v. Prout, 53 Hun, 511, 6 N. Y. Supp. 157; Commonwealth’s Appeal, 31 Pa. St. 201; Comm. v. Bousman (Pa. 1879) 12 Lane. Bar, 189.</p>

<p>Appeal from a judgment of tbe circuit court for Winnebago county: Geo. W. Burnell, Circuit Judge.</p>

<p>Appeal from a judgment of the circuit court for Wood county: Cuas. M. Webb, Circuit Judge.</p> <p>Action to recover damages claimed to have been caused by deceit.</p> <p>The claim of the plaintiff was this: On and for some time prior to January 18, 1905, plaintiff was an employee of the Nekoosa Paper Company as a laborer in its mill. On such day, while engaged in his employment loading logs on flat cars by means of a steam log carrier, a cable, which was a necessary part of the appliance, broke, causing a derrick boom to drop upon his head, severely injuring him to his great damage. The cable, to the knowledge or reasonable means of knowledge of the company, was defective, unsafe, and dangerous at the time of the accident. By reason of the facts the company became liable to plaintiff to compensate him for his injuries. At such time the company held a policy of casualty insurance in the defendant company as to liability to its servants from injuries received in the course of their employment. After the injury defendant’s agent, by falsely and fraudulently misrepresenting to plaintiff, at a time when by reason of his infirmities he was unable to make investigation of the matters, the condition of the cable when it broke, and also by falsely and fraudulently misrepresenting to him the extent of his injuries and the consequences thereof, which he believed to be true, plaintiff thereby was induced, without negligence on his part, to accept the sum of $119 in full settlement for all claims for damages against his employer on account of his injuries and to execute a formal release accordingly. Such agent, at the time he so obtained such release, well knew plaintiff had a valid claim for damages to an .amount many times the sum so accepted, and that such small sum was accepted in ignorance of the facts, which ignorance ■as indicated, without negligence on plaintiff’s part, was produced by the said false and fraudulent representations. By reason of the facts plaintiff suffered damages in the sum of :$20,000.</p> <p>Defendant answered putting in issue all allegations of the complaint respecting the release having been obtained by fraud and alleging that it was signed and the settlement made by plaintiff freely and voluntarily, with full knowledge of the-facts.</p> <p>At the'close of the evidence, the court, on motion of counsel for defendant, directed the jury to render a verdict in its favor upon the ground that such evidence was insufficient to-show, reasonably, any false representations as to matters of fact having been made to the plaintiff for the purpose of inducing, or which did induce, him to sign the release, and, therefore, that there was no case made for avoiding the-release.</p>

<p> Appeal and error: Findings, when disturbed: Foreign corporations: Wisconsin contracts: Offer to sell stoclc: Acceptance: Completed contract: Rights of subscribers: Void contracts: “Personal liability” of corporation: Commerce: Interstate commerce: Contracting and transacting business in Wisconsin: Amendment of statutes. </p> <p>1. Where a foreign corporation had not complied with the requirements of sec. 1770&, Stats. (1898), as amended hy ch. 506, Laws of 1905, findings of the trial court that its contract was made in Wisconsin and affected its personal liability, supported by sufficient evidence, must be affirmed, regardless of whether the corporation was or was not transacting business in this state within the meaning of subd. 2, sec. 1, of the amendment of 1905.</p> <p>2. Contracts inhibited by subd. 10, sec. 1, ch.. 506, Laws of 1905, are not limited to those made by a foreign corporation doing business in this state within the meaning of subd. 2 of that section.</p> <p>3. An offer by a foreign corporation to sell its stock and sell it in Wisconsin, when accepted by a subscriber residing in Wisconsin, completes a contract, and such contract is made in Wisconsin, although it might be afterwards avoided by failure or refusal to perform conditions, which as a matter of fact were performed.</p> <p>4. An organized corporation, as such, has the right to offer for sale its unsubscribed capital stock and to make a valid sale of the same.</p> <p>5. Where an organized corporation offers to sell its capital stock at a stipulated figure, an acceptance of the offer makes a binding contract. An acceptance of the acceptance is unnecessary.</p> <p>6. Subscribers to unsold capital stock of a corporation become members thereof, and the corporation becomes bound to deliver the muniments of title showing the interest the subscribers have acquired in the corporation, which may be compelled by appropriate proceedings in courts.</p> <p>7. A subscriber for unsold capital stock of a corporation, by virtue of his contract of purchase, becomes entitled to enforce the ordinary rights of stockholders against the corporation.</p> <p>8. A single contract falls within the ban of the statutes, when made by a foreign corporation which has failed to comply with the requirements of sec. 17706, Stats. (1898), as amended by ch. 506, Laws of 1905.</p> <p>9. A contract by a foreign corporation for the sale of its unsold capital stock to a subscriber affects the personal liability of the corporation within the calls of sec. 17706, Stats. (1898), as amended by ch. 506, Laws of 1905, and is void.</p> <p>10. A sale of shares of a corporation is really the sale of a fractional interest in the corporation, and where made by a foreign corporation to a resident of Wisconsin involves no question of interstate commerce.</p> <p>11. Ch. 506, Laws of 1905, does not amend the law as it then existed so as to relieve all foreign corporations that do not have a portion of their capital stock invested in Wisconsin from complying with the statutes, if such corporations actually transact business within the state, or make contracts therein upon which they assume personal liability.</p>

<p>Appeal from a judgment of the circuit court for Milwaukee county: S. D. Hastings, Judge.</p> <p>This action was brought to recover damages alleged to have been sustained by reason of the publication of a series of alleged libelous articles by the defendant the Milwaukee Free Press Company in reference to the plaintiff, and resulted in a verdict for $10,000 compensatory damages and $5,000 punitory damages in favor of the plaintiff. Judgment was entered upon the verdict, and from such judgment this appeal is taken.</p> <p>Theodore Kronshage, Jr., James K. Ilsley, Howard Greene, James H. Tweedy, and H. A. J. Upham, alleged stockholders, officers, and directors of the Free Press Company, were originally named as defendants, but the action was-discontinued as to such defendants. The original complaint embraced nine causes of action based upon nine different alleged libelous articles. The third, sixth, and eighth causes of action alleged in the complaint were dismissed before trial.</p> <p>On August 4, 1905, a grand jury of Milwaukee county returned an indictment against the plaintiff charging him with having committed the crime of larceny as bailee by unlawfully, feloniously, and fraudulently having stolen, carried away, and converted to his own use the sum of $14,000, the-property of the Wisconsin Rendering Company, a corporation. The indictment further recited that said sum of money was placed in the hands of the plaintiff by said corporation to-be kept, used, and expended by plaintiff for the purpose of obtaining for the corporation a large and valuable contract from the city of Milwaukee for the disposal of garbage, and that if the money was not so used it was agreed that the same should be returned to the Wisconsin Eendering Company. Upon the return of this indictment the plaintiff issued and furnished to all the newspapers published in Milwaukee a statement denying his guilt and asserting his innocence. At the time said indictment was returned the Wisconsin Eendering Company was indebted to the Eirst National Bank of the city of Milwaukee in a considerable sum of money, which indebtedness was evidenced by overdue paper, and immediately thereafter the plaintiff purchased such paper from the holder and commenced an action thereon. In connection with the suit a statement was issued and given to the press by plaintiff’s counsel to the effect that if plaintiff was indebted to said Wisconsin Eendering Company it might set up such indebtedness by way of offset or counterclaim and thus determine the question of whether the plaintiff was guilty of conversion or larceny in a civil suit, where the defense interposed might be established by a mere preponderance of evidence. The alleged libelous articles related mainly, though not entirely, to the aforesaid indictment and to the guilt of the plaintiff of the crime therein charged, or else of the crime of bribery in corruptly using the moneys deposited with him, if the same were not in fact converted by him.</p> <p>The various causes of action set forth three general classes of charges: (1) The plaintiff was guilty of the crime of larceny as bailee, as charged in the indictment returned against him, or was guilty of the crime of bribing members of the common council with the moneys deposited with him by the Wisconsin Eendering Company for the purpose of procuring a favorable contract for said company with the city of Milwaukee for the disposal of its garbage; (2) the plaintiff purchased a controlling interest in the Milwaukee Sentinel, a newspaper published in the city of Milwaukee, to prevent disclosures damaging to his reputation, which were about to be made in a libel suit he had commenced against that paper prior to Ms buying tbe controlling interest therein; (3) tbe plaintiff, by buying tbe outstanding overdue paper of tbe Wisconsin Rendering Company and bringing suit thereon, was endeavoring to confuse tbe public and to conceal bis guilt by diverting attention therefrom.</p> <p>Tbe complaint further alleged that tbe defendant tbe Milwaukee Free Press Company was a corporation engaged in tbe business of publishing tbe Milwaukee Free Press, a newspaper having a large circulation in tbe city of Milwaukee and 'in tbe state of Wisconsin; that the defendant Harry P. My-rick was tbe managing editor of said newspaper at tbe time tbe alleged libelous articles were published and still is such «editor, and as such bad tbe immediate direction and control of •all matters published therein, and bad and has tbe active management of tbe publication of said newspaper; that for many months tbe said newspaper bad pursued a policy of defaming and vilifying plaintiff, and had from day to day caused violent and inflammatory articles to be published of and concerning him, in which it was insinuated that be was guilty of various illegal acts; that such matter was published with tbe linowledge, acquiescence, and consent of tbe members of tbe governing body of tbe corporation; and that such policy was actuated by malice toward plaintiff and for the purpose of wantonly degrading him in tbe public esteem and of injuring bis reputation and business; that tbe articles which formed tbe basis for this action were actuated by tbe same malicious purpose and were published in execution of it; that plaintiff was a man prominent in tbe business affairs of tbe city of Milwaukee, bolding many positions of trust and confidence in moneyed, manufacturing, transportation, industrial, and other corporations and enterprises, as well as being tbe owner ■of a majority of tbe stock in tbe Sentinel Company, and that by reason of the defamatory publications be bad suffered damages to bis reputation and credit to tbe amount of $250,000.</p> <p>Three separate defenses were interposed by tbe Milwaukee Free Press Company to eacb of tbe nine causes of action originally set out in the complaint, and a general plea in mitigation of damages was interposed as to all of tbe causes of action. Tbe first defense to tbe first cause of action set forth in substance that portions of tbe article published were omitted from tbe first cause of action, and that it was necessary to read tbe omitted portions in connection with tbe portion included in tbe complaint in order to arrive at tbe true tenor and meaning of tbe article, and such omitted portions were set forth as part of tbe first defense. Tbe answer then alleged that between July 7, 1897, and February 23, 1898, there was pending before tbe board of public works of tbe city of Milwaukee, and with tbe common council of said city, tbe matter of disposing of garbage by contract with tbe lowest bidder for tbe period of five years; that said contract involved tbe expenditure of more than $250,000; that tbe Wisconsin Rendering Company was a bidder on said contract in its own name, its bid being $368,750; that it was also a bidder on said contract in tbe name of Cooper & Burke, such bid being $300,000; that John J. Crilley and James O’Donnell jointly bid on tbe same contract, their bid being $271,500; that eacb bid was accompanied by a bond or deposit of $20,000; that tbe contract was awarded to Crilley & O’Donnell ; that thereafter Crilley filed with tbe city clerk and laid before tbe common council a petition purporting to be signed by Crilley & O’Donnell, asking to be relieved from said bid and tbe accompanying bond for certain reasons stated in such petition; that thereafter such proceedings were bad that tbe petitioners were released and tbe contract was awarded to Cooper & Burke for tbe sum of $300,000; and that Crilley & O’Donnell were released without payment or consideration. While proceedings for release were pending, O’Donnell filed an affidavit with tbe city council, in which be set forth that be bad not signed or authorized any one to sign tbe petition asking for relief, and did not know of its existence until January 31, 1898, and that on February 2d following he was informed by Crilley that he had an agreement with the Wisconsin Rendering Company by the terms of which said Crilley was to receive $12,000 from the Wisconsin Rendering Company as soon as the contract was awarded on the Cooper & Burke bid; that in connection with said affidavit O’Donnell filed with the city, council a communication stating that he was ready to carry out said contract according to the terms of the bid of Crilley & O’Donnell,* that in pursuance of such communication a committee of the common council was appointed to investigate said matter, and a large amount of testimony was taken in reference thereto; that evidence was offered tending to show- that the Wisconsin Rendering Company agreed to pay Crilley & O’Donnell the sum of $25,000 in the event of their failure to go on with the contract; that the foregoing matters were published in the official proceedings of the common council and in the public press of the city of Milwaukee, and were publicly known throughout said city and the state of Wisconsin prior to August 6, 1905; that aside from the report of the indictment and arrest of the plaintiff, the published article, according to its true intent and meaning, had reference only to the garbage contract transaction and the unlawful payments of money by the plaintiff to Crilley. The answer then proceeds to deny that the words published meant or were intended to have the meaning attributed to them by the innuendoes of the complaint.</p> <p>The second defense interposed pleaded the same matter by way of justification that was contained in the first defense.</p> <p>The third defense adopted the averments of the first defense, and further alleged that, while the proceedings were pending before the common council of the city of Milwaukee with reference to the letting of the garbage contract, plaintiff, together with the Wisconsin Rendering Company and John J, Crilley, combined, confederated, and agreed together to defraud the city of Milwaukee out of the sum of $25,500 by bribing said Crilley not to make good his bid and to refuse to enter into said contract, by the payment to said Crilley of a large sum of money, and thereafter and thereby procuring said contract to be let to the Wisconsin Rendering Company on the bid of Cooper & Burke; that in pursuance of such conspiracy the Wisconsin Rendering Company delivered to the-plaintiff the sum of $25,000 in money, under an agreement, ■with plaintiff and Crilley that, if Crilley & O’Donnell would, not comply with their bid, the plaintiff would pay to said Crilley the sum of $15,000 out of the amount so deposited,, and that if in consequence of said default the said contract, should be awarded to the Wisconsin Rendering Company on the bid of Cooper & Burke, the plaintiff would pay to said. Crilley the full sum of $25,000. The answer then alleged that Crilley did default; that he was paid by plaintiff for-making such default the sum of $15,000; and that the contract for disposing of the garbage was awarded to the Wisconsin Rendering Company on the bid of Cooper & Burke. The-answer further alleged, on information and belief, that the-plaintiff at all times had knowledge of the unlawful and fraudulent character of the transactions aforesaid and participated therein with such knowledge, and that he paid over-said money to Crilley as a bribe to induce him to default on. his contract.</p> <p>The separate answers interposed to the other causes of action were substantially the same as those pleaded in defense-of the first cause of action set out in the complaint.</p> <p>The general defense to all of the causes of action in mitigation of damages set out in detail the transaction in reference to the letting of the garbage contract. It also alleged that the plaintiff was a director in the Milwaukee Electric Railway & Light 'Company and in the Milwaukee Heat, Light & Traction Company, and that on May 26, 1899, there was verified by. the mayor of Kenosha, and thereafter filed in the office of the clerk of the circuit court for Kenosha county, an an-swer in a certain suit, the contents of which answer were published in the public press prior to the publication of the articles complained of; that such answer set forth, on information and belief, that the vote in favor of the passage of a certain ordinance passed by the common council of the city of "Kenosha, granting a franchise to the Milwaukee, Nacine & Kenosha Nailway Company, was procured by either giving or promising to give to the members of the common council voting in favor of said ordinance, or some of them, either money or things of value; that the Milwaukee Light, Heat & Traction Company actually participated in such corrupt action; .■and that the plaintiff was active in the management of said •corporation and had full knowledge of its affairs. Such defense also set forth that during’ the year 1901 the Milwaukee Electric Nailway & Light Company was engaged in negotiations with the county of Milwaukee for the purchase of a parcel of land from said county for the purpose of erecting a power house thereon; that fOr the purpose of bringing about said purchase said company unlawfully and corruptly agreed to pay one August Puls, a supervisor of Milwaukee county, the sum of $750 as a bribe, for the purpose of influencing his vote on the sale of said real estate, and did in fact pay said ■sum to said Puls after1 he had voted in favor of making such ■sale; that the plaintiff, with knowledge of the corruption and as director of' said corporation, retained and still retains such property, and, through a newspaper owned and published by him, ratified and approved of' such corruption and bribery and ■discouraged and discountenanced all efforts to uncover or prosecute the same. The answer alleges substantially the same facts in reference to the corruption of' Otto Siedel and Edward E. Strauss, members of the county board of Milwaukee county, in reference to the same transaction. The arn■swer further sets forth that in the year 1901 plaintiff became prominent in a political organization known as the “Eleventh JFloor League,” and that said league received from the plaintiff large sums of money to be used for the purpose of purchasing the support and influencing the opinions of country newspapers, and that various editors and owners of country newspapers entered into a contract with said league for the-purpose of deceiving the electors of Wisconsin and of corrupting the electors of the state, and that plaintiff aided and advised said league in so doing and contributed more than $30,000 for the unlawful purpose aforesaid. The answer further contains various allegations tending to show that the 'Milwaukee Electric Railway & Light Company corruptly used money for the purpose of securing a franchise from the city of Milwaukee, that plaintiff was actively identified with the management of said corporation, and that the corrupt practices resorted to were employed with his knowledge and consent. The answer further alleged that plaintiff aided, countenanced, and advised one Ered C. Schultz to pay money to-Herman J. Pomrenning, a member of the Assembly for the state of Wisconsin, to induce him to vote in opposition to a bill pending before the legislature of the state of Wisconsin in the year 1901, which bill was entitled “A bill to provide-for political nominations by direct vote.”</p> <p>The answer of the defendant Myrick did not set up any plea in mitigation. It pleaded substantially the same facts in justification that were pleaded by his codefendant the Milwaukee Free Press Company.</p> <p>A defense was set up in the original answer which was denominated a third defense to each of the causes of action set out in the complaint. A demurrer thereto was sustained. The allegations thereof which are material to a consideration of the ruling of the court on the demurrer will be found in the opinion.</p> <p>The trial court excluded evidence tending to show that plaintiff was connected with the Crilley & O’Donnell garbage transaction and also all evidence tending to show that the Milwaukee Electric Railway & Light Company or the Milwaukee Light, Heat & Traction Company had been guilty of bribery or other criminal acts in connection with the procurement of franchises or the purchase of the power-house site •from Milv ikee county, and also all evidence tending to •show the other alleged nefarious transactions with which the general answer in mitigation of damages alleged that the plaintiff had been connected. The trial resulted in a general verdict in plaintiff’s favor for $10,000 compensatory damages and $5,000 punitory damages. Erom judgment rendered on such verdict the defendants appeal.</p>

<p> Mortgages: Foreclosure: Personal liability: Judgment: Appeal and error: Review: Appeal from final judgment: Vacation of judgment: Plexo trial: Order: Fiffect. </p> <p>1. An order for a judgment for deficiency is necessarily a part of a judgment of foreclosure, and is tlie final adjudication of tlie defendant’s common-law liability for the debt, the formal judgment therefor being rendered and docketed as of course on the coming in and confirmation of the report of sale showing the amount of the deficiency.</p> <p>2. That part of a foreclosure judgment ordering a judgment for deficiency is appealable.</p> <p>3. An appeal from a judgment for deficiency, entered after confirmation of the sale under a foreclosure judgment, does not enable tbe appellant to review the question of personal liability adjudicated by the foreclosure judgment, in the absence of an appeal from that judgment.</p> <p>4. Where the time for appeal from a judgment of foreclosure and sale has expired, a judgment for deficiency rendered thereon is not subject to review.</p> <p>5. A motion to vacate a judgment for deficiency, entered after confirmation of sale on foreclosure, is properly denied where the motion does not also include the vacation of the foreclosure judgment.</p> <p>6. An order granting a motion for a new trial made after the entry of the judgment does not ipso facto vacate the judgment, and should not be entertained unless eounled with a motion to vacate the judgment.</p>

Tarrant, Circuit Judge. Defendants appeal from order overruling a? demurrer totbe complaint, wbicb alleges tbat tbe plaintiff, a surgeon, and unfamiliar with dealings in stocks, between tbe 6th and 20tb day of January, 1908, placed in tbe bands of the defendants, who were stock brokers in New York, tbe sum of $12,800,. with direction to purchase certain specified stock at tbe market price, for cash, such deposit being sufficient for tbat purpose; tbat defendants, in…