Volume 140 — Wisconsin Reports

<p>Appeal from a judgment of the circuit court for Milwaukee county: ObRen T. Williams, Circuit Judge.</p> <p>Plaintiff was injured by being run down by defendant’s engine at a point south of Reservoir avenue and near Humboldt avenue in the city of Milwaukee. At that place the defendant maintained several substantially parallel tracks for various purposes. The railroad premises were bounded on the north by Reservoir avenue, a narrow unpaved street running east- and west. Coming from the north, Bremen street terminated in Reservoir avenue, and some two blocks east Humboldt avenue, a main business thoroughfare, crossed the railroad tracks. Reservoir avenue connected Bremen street and Humboldt avenue, but on the day in question was very muddy and unpleasant for passage. The railroad grounds were in better condition, and there was a much used foot-path along one of the tracks, the third or fourth south of Reservoir avenue. Plaintiff, a hoy about ten years old, of apparently average intelligence, was sent from his home on Bremen street near Reservoir avenue to a place on Humboldt avenue, also north of Reservoir avenue. He started southward on Bremen street, incumbered by a basket for groceries, and passed onto the railroad grounds and took the path •above mentioned along the so-called roundhouse track, where he was injured by an engine coming up behind him. The railroad grounds were not inclosed by any fence. The jury found by special verdict in the first answer that the place in ■question was not depot grounds, and, by answer to the sixth question, that plaintiff’s injury was caused in whole or in part by the fact that the defendant company had not fenced its right of way at the point where the plaintiff entered upon it. Other negligence was also found as the proximate cause ■of plaintiff’s injury, as also the absence of contributory negligence.</p> <p>[Plaintiff was drawn under the wheels of the engine or tender, which cut off his left arm close to the shoulder. Plaintiff also received a cut on the head, and his face was bruised and scratched, but he otherwise received no injury. The verdict was for $10,000.]</p> <p>After a motion for a new trial, and also a motion to reverse the answer to the sixth question, among others, had been overruled, judgment was entered for the plaintiff, from which the defendant appeals.</p>

<p>Appeal from a judgment of tbe circuit court for Milwaukee county: J. C. Ludwig, Circuit Judge.</p> <p>Tbe defendant railroad company laid out and surveyed its lines approximately north and south through plaintiff’s tract of nearly forty acres, so as to leave about eighteen acres to the eastward of the right of way separated from the farm buildings. A written contract of date April 27, 1907, was entered into, whereby the plaintiffs agreed to convey all east of the west line of the 150-foot right of way, and in consideration thereof the railroad company agreed to procure and convey to them approximately the same amount of land on the west side of its right of way, joining theirs on the south, and to pay $800 in money, each party to go into immediate possession and the deeds to be passed within thirty days upon completion of survey. The plaintiffs agreed to convey by warranty deed and to furnish abstract. The company agreed to convey “by good warranty deed,” but said nothing about the abstract. It was not, at the time of the contract, the owner of the land agreed to be conveyed by it. Possession was taken by each party and the railroad company proceeded to grade its right of way, making an excavation which is now-some twenty-seven feet in depth at the deepest point, and laying its tracks as a part of its line of railroad from Milwaukee-to Chicago. It procured the land on the west side of the track, taking title, however, in the name of an agent, Josie-Shenners, in trust for the company, in order that the record title should not be embarrassed by a general mortgage upon ■all its property then owned or thereafter acquired, under which, up to the present time, some $10,000,000 of bonds have been sold. It also paid to the plaintiffs the $800 cash consideration. On August 3d, after submitting satisfactory abstract, the plaintiffs tendered warranty deeds and demanded deed from the company. The latter offered conveyance by warranty deed from said Josie Shenners, who had' good record title. The plaintiffs refused to accept, and on> August 15th notified the company in writing of their election to rescind the contract, accompanying such notice with a tender of the money they had received from the railroad company. This suit was brought to declare rescission of that contract as a cloud upon the title of plaintiffs’ said real estate. Receivers of the railroad company having been appointed in some undisclosed proceeding in United States circuit court, they were joined as parties defendant. The defendants offered upon the trial to supplement the deed of Josie Shenners by full covenants of warranty on the part of the railroad company. The court rendered judgment that the written contract be rescinded, canceled, and declared null and void upon delivery to defendants of the said $800 and of a certain abstract delivered to the plaintiffs. Erom such judgment the defendants appeal.</p>

<p> ■Courts: Inherent powers: Appointments: Necessary attendants: Determination of necessity: Discretion: Compensation of special attendants. </p> <p>1.'The power to appoint necessary attendants upon tiie circuit court is inherent in that court in order to enable it to properly perform the duties delegated by the constitution, and is recognized by sec. 2431, Stats. (1898), as amended by ch. 224, Laws of 1903.</p> <p>2. In the exercise óf its inherent power to appoint necessary attendants it is for the presiding judge of the circuit court to determine the necessity. In that respect he is vested with a broad and liberal discretion.</p> <p>'(3. Whether the power of such judge in determining the necessity of appointment of attendants is subject to review in any case, not decided.]</p> <p>4. Where it seems necessary a circuit judge may appoint a court attendant in addition to the sheriff and his deputies for such time as the necessity exists, notwithstanding the statutory authority given the sheriff to appoint special deputies under a special order of such judge authorizing an additional number of deputy sheriffs.</p> <p>5. The compensation of necessary attendants appointed by the circuit judge is the per diem allowed deputy sheriffs for the time expended during sessions of the court, to be recovered by certification in the same manner as fees of jurors are paid.</p> <p>Maesiiaix, J., dissents.</p>

<p>Pleading: Demurrer: Constitutional law: Special laws: Defective municipal contract: Curative act: Ratification by municipality: Action: Quantum meruit.</p> <p>1. Where a taxpayer has brought an action against a city and a paving contractor to enjoin the collection of the contract price, an affirmative claim set up by the contractor by cross-complaint against the city for a recovery on implied assumpsit, if sustained, defeats the taxpayer’s action, and hence he may challenge the legal sufficiency of the cross-complaint on demurrer.</p> <p>2. Ch. 677, Laws of 1907, purporting to validate certain classes of paving contracts theretofore made by “any municipal corporation of the first class,” relates to the city of Milwaukee, which is the only city then or ever theretofore in the first class of cities by legislative classification according to population, and relates wholly to past conditions. It is therefore a special law amending the charter of that city and within the condemnation of secs. 31, 32, art. IV, Const.</p> <p>.3. Where a municipal paving contract is invalid for failure to comply with charter requirements, the city cannot thereafter validate it by ratification without compliance with such charter provisions.</p> <p>4. Where a street-paving contract is void for failure to comply with charter provisions, the contractor cannot go on and complete it and recover upon quantum meruit.</p>

<p>Appeal from a judgment of tbe circuit court for Milwaukee county: W. J. TueNER, Circuit Judge.</p>

B. Belben, Judge. The facts are stated in the opinion. On January 29, 1909, there was a motion by the respond■ents for an order restraining and enjoining defendants from ■disposing of or interfering with the custody of a certain fund belonging to defendant congregation, and from mortgaging or in any way disposing of any of its property until the determination of the appeal.

kee county: J. 0. Ludwig, Circuit Judge. Equitable action by the plaintiff, upon complaint of its building inspector, against the members of the Board of Normal School Regents of the State of Wisconsin, their contractors and architect, to prevent continuation of the erection of a normal school building in the city of Milwaukee, which had been partially constructed by them, upon the ground that a building permit had not been obtained from complainant pursuant to the…

<p> Health: Health offlcers: Necessary powers: Municipal corporations:Police power: Delegation to health officer: Licensing sales of millc: Revocation of license. </p> <p>1. Health, officers who are expected to accomplish results must necessarily possess large powers and he endowed with the right to take summary action, which at times trenches closely upon, despotic rule.</p> <p>2. Executive 'boards and officers who can deal at once with emergencies under general principles laid down by the lawmaking body must exist if the public health is to be preserved.</p> <p>3. Under charter authority to tax, regulate, and restrain vendors of milk and to regulate and restrain the sale of milk, a common council has power to pass an ordinance vesting the power of issuing and revoking licenses in the city health officers, with the right to exercise the power of revocation summarily and even without notice. Language in State ex rel. Sepic v. Milwaukee, 129 Wis. 562, that the words “regulate” and “restrain” do not in any sense mean “revoke,” considered and overruled.</p>

<p> Bankruptcy: Preferences: Trust funds: Appeal: Findings: Fvidence: Debtor and creditor: Trustee’s title to bankrupt’s property. </p> <p>1. Payments discharging a trust fund in the hands of one subsequently adjudicated a bankrupt cannot be recovered as preferences.</p> <p>2. In an action by a trustee in bankruptcy to recover alleged preferential payments, a finding that the relation of debtor and creditor existed 'between the defendant and the bankrupt is not sustained where the evidence clearly shows a trust relation by which the bankrupt took, received, and held defendant’s money for the purpose of loaning it, even though he may have mingled' it with his own money.</p> <p>3. Under the federal bankruptcy act the trustee is vested with no. better right or title to the bankrupt’s property than belonged, to the bankrupt at the time of the vesting of the trustee’s title.</p>

<p>Appeal from an order of the circuit court for Milwaukee-county: J. C.’Ludwig, Circuit Judge.</p> <p>The appeal is from an order sustaining a demurrer to the complaint.</p> <p>They cited, among other cases,. Boothby v. Scales, 27 Wis. 626; Woodle v. Whitney, 23 Wis. 55 ; Warder v. Fisher, 48 Wis. 338, 4 E. W. 470; Parry Mfg. Go. v. Tobin, 106 Wis. 286, 82 E. W. 154; Fairfield v. Madison Mfg. Co. 38 Wis. 346; Neave v. Arntz, 56 Wis. 174, 14 N. W. 41; Hahn v. Doolittle, 18 Wis. 196; Osborn v. Nicholson, 13 Wall. 654.</p> <p>Among other references they cited Merrill v. Nightingale, 39 Wis. 247; 30 Am. & Eng. Ency. of Law (2d ed.) 190; Smith v. Hughes, 50 Wis. 620, 7 N. W. 653; McLennan v. Prentice, 85 Wis. 427, 55 N. W. 764; Glementson v. Streeter, 59 Wis. 429, 18 N. W. 340; Falhner v. Woodard, 104 Wis. 608, 80 N. W. 940; Patton v. Taylor, 7 How. 132; Kelley v. Kelley, 80 Wis. 486¿ 50 N. W. 334; Deery v. McOlintoch, 31 Wis. 195.</p>

<p>Appeal from a judgment of the circuit court for Winnebago county: Geo. W. Burnell, 'Circuit Judge.</p> <p>This is an action brought to recover damages for personal injury. The plaintiff when injured was employed in removing pulp from the wooden roll forming a part of one of the wet machines used in the defendant’s pulp mill at Niagara. Such wet machine consists in part of two rolls, one being made of iron and the other of wood. The iron roll is set in a frame and is about fifteen inches in diameter. The bottom of the roll is about twenty inches above the floor of the machine room and parallel therewith. The wooden roll rests directly on the iron roll and is twenty-one and one-fourth inches in diameter. When the machine is in operation the bottom or iron roll revolves toward the operator, carrying an endless felt, which passes through a vat or receptacle containing water and ground wood pulp. A certain amount of pulp is removed from tlie vat by adhering to the felt. As the felt containing the pulp comes in contact with the wooden roll the pulp is transferred from the felt to such roll. The wooden roll is turned by means of contact with the felt revolving on the lower roll. By reason of the weight of the wooden roll a portion of the water is squeezed out of the pulp as it becomes attached thereto, but the pulp is sixty per cent, water after being wound on the roll and has very little adhesive power or cohesive strength. The wooden roll, being revolved by the iron roll, turns in the opposite direction, or away from the operator of the machine, and moves slowly, making fifteen or twenty revolutions a minute. After about forty revolutions a layer of pulp is formed around the wooden roll of convenient thickness, which is removed by inserting a sharp pointed wooden stick in a groove near one end of the roll and pushing it along the roll horizontally until the cylindrical sheet of pulp is severed. A part of the time the severed end will drop down of its own weight on a table in front of the machine, .and a portion of the time it is necessary to take hold of it with the fingers in order to remove it. Whether it will fall of its own weight, or some degree of force must be used to remove it, depends to some extent upon the position of the rent with reference to the top of the roll. If near the top, the sheet is not apt to drop of its own weight, although a slight amount of force will suffice to loosen it from the roll. The roll itself is about eighty-four inches in length, and the width of a sheet of pulp formed thereon is about sixty-three inches. The operator stands near to the right end of the roll and about twelve or fourteen inches therefrom, and there is no table between him and the roll, but there is one immediately to his left. The plaintiff had been working for about four months, on and off, at removing pulp from the roll of one of the wet machines of the defendant company. His work of this character would be about the equivalent of two months’ steady work. lie was twenty years of age and uneducated. In doing bis work be stood upon a platform three feet square and nine inches from the floor. From the top of this platform to the top of the wooden roll was forty-seven inches.. The plaintiff‘was injured by reason of his hand coming in contact with and being drawn in between the two rolls heretofore described. The plaintiffs hand necessarily passed over the top of the wooden roll and followed it around to the point of contact between the two rolls, such point of contact being on the side-of the rolls opposite from where the plaintiff worked. The-distance from the top of the wooden roll to the point of contact, measured along the surface of the roll, was about thirty-three inches. It seems to be conceded that the plaintiff, while-standing upon the platform, could not reach around the roll so as to bring his fingers in contact with the lower roll, and that such contact could only occur when the body was raised from the platform.</p> <p>The plaintiff testified that when he tore the pulp with his-stick he took the stick in his left hand and took hold of the pulp with his right hand, and that the pulp did not come off, and that it caught his hand and drew it into the rollers on the-opposite side from where he stood. He further testified that the pulp stuck to the roll. The witness was not conversant with the English language, and it is fair to assume that he intended to say that the friction produced by his hand coming-in contact with the pulp drew his hand between the rolls. Manifestly the pulp did not and could not otherwise draw his-hand, because there was nothing to prevent his letting go of' the sheet of pulp if he was unable to-detach it from the roll, and at best it is not claimed that such removal would require any considerable force or effort. A witness sworn for defendant saw the accident, and testified that plaintiff had placed some sheets of pulp upon the platform on which he was standing ; that after making the rent in the sheet he grabbed for it to detach it and missed it, and then made another grab and slipped and fell on the roll, and was carried over by it so that his hand got between the rolls.</p> <p>The foregoing states in substance all the material testimony as to how the accident happened. It appeared from the testimony that operators occasionally dropped the sticks used in skinning the rolls and that such sticks were carried over "and injured the felts. To prevent occurrences of this kind a board was placed in a position parallel with the upper roll, a space being left between the edge of the board and the roll of sufficient width so that the board would not interfere with the formation of a layer of pulp on the roll, but not wide enough to admit of the skinning stick passing between the roll and the board. This board was placed along the side of the roll opposite from where the operator worked, and a short distance beyond the apes of the roll. The evidence was undisputed that this board or guard was not put in place for the purpose of affording any protection to operators, and because, of its proximity to the operator it is manifest that, if the fingers of the operator rested on the roll and followed it any considerable distance beyond the top, they were liable to be pinched between the roll and the board. It is likewise apparent that if this board had been in place it would have prevented the particular accident that befell the plaintiff. Eor some reason the board or guard in question had been removed about two days before the plaintiff was injured and had not been replaced. The jury found that the defendant was negligent in not maintaining a guard so as to prevent the plaintiff’s hand being crushed between the rolls and also in failing to warn the plaintiff of the danger incident to his employment. The defendant moved for a nonsuit, and for a directed verdict, and to change the answers returned by the jury to certain questions in the special verdict and for judgment on the verdict as amended. These various motions were denied, and from a judgment rendered on the verdict defendant appeals to this court.</p>

<p> Statutes: Construction: “May:” Municipal corporations: Streets: Improvements. </p> <p>1. The ordinary and natural meaning of the word “may,” when used in a statute, is permissive and discretionary, not mandatory, although it is construed as mandatory when such construction is necessary to give effect to the clear purpose and intent of the statute.</p> <p>2. The word “may” in sec. 925 — 223, Stats. (1898), providing that whenever the city council shall order the paving or repaving of a street in which gas or water mains, or sewers, or either of them, have previously been laid, they may require service-pipes and house drains to he first laid to the curb line, and. that no street shall be paved or repaved by order of the council unless the water and gas mains and service pipes and necessary sewers and their connections shall, as required by the council, be first laid and constructed, — is used in its ordinary and natural meaning and is not mandatory. Gleason v. Wau-kesha Go. 103 Wis. 225, in so far as it indicates that a city cannot pave without first requiring such connections to be made, overruled.</p>

<p> Appeal from justices’ courts: Judgment without new trial: Appeal to supreme court: Review: Findings of fact: Presumptions: New trial after reversal. </p> <p>1. The circuit court when required to give judgment pursuant to sec. 3769, Stats. (1898), should act solely upon the evidence upon which the court helow acted, not considering any ruled out by the latter as improper or any conjecture as to evidence which might have been given by answering questions not permitted, because thought to be objectionable.</p> <p>2. On appeal to this court from the judgment of the circuit court given under sec. 3769, Stats. (1898), the rule obtains that the determination by such court as to facts should not be disturbed unless contrary to the clear preponderance of the evidence.</p> <p>3. A determination by the circuit court of issues of fact by application of wrong rules of law is not supported on appeal by the presumption in favor of its correctness, requiring a clear preponderance of evidence to the contrary to warrant disturbing it.</p> <p>4. Where, upon appeal to this court, findings of a trial court are condemned because made by application of wrong rules of law and the right of the matter does not clearly appear from the evidence, the case upon reversal will be remanded to the trial jurisdiction to find the facts, proceeding in the light of correct legal principles.</p> <p>[Syllabus by Maeshapl, J.]</p>

Appeals from a judgment of the circuit court for Mani-towoc county: Michael KlrwaN, Circuit Judge.

<p>Appeal from a judgment of tbe circuit court for Pepin county: E. W. Helms, Circuit Judge.</p> <p>On April 10, 1901, tbe plaintiff and defendant entered into a contract by tbe terms of which tbe plaintiff agreed to sell and tbe defendant agreed to buy all of plaintiff’s stock of soft elm lumber. Tbe contract recited that -a considerable portion of tbe lumber was tben sawed and in pile in tbe city of Durand, and tbat tbe remainder of tbe stock was to be sawed from logs at tbe Plummer mill in Durand, and at John Moy’s mill in tbe town of Canton, Buffalo county, Wisconsin, and at Julliot’s mill in tbe town of Waterville, Pepin county, Wisconsin, and at Gates’s mill in tbe town of Erankfort, Pepin county, Wisconsin, and tbat so much of tbe logs as were unsawed were to be sawed as soon as possible under tbe supervision of tbe plaintiff. Tbe plaintiff agreed to manufacture tbe portion of tbe logs not yet sawed into sucb thicknesses as tbe defendant might direct, and to cause tbe sawing to be done in a good and workmanlike manner; also to load tbe lumber sold (estimated at 550,000 feet more or less) into cars at Durand, Wisconsin, at sucb time as cars were provided by tbe defendant, but at tbe expense of tbe plaintiff. Tbe plaintiff agreed to ship tbe lumber as soon as same was in shipping condition. Tbe National Hardwood Lumber Association rules were to govern tbe inspection and scale, and the inspection and scale were required to be made at the-mill and were to be final. It was further provided that both of the parties shonld have their inspectors present when the-lumber was being loaded, if they so elected, but, in the event of the failure of the defendant to furnish an inspector, the-inspection made by the plaintiff should be final. In case any dispute as to scale or grade arose between the inspectors, for the parties to the contract, which could not be settled by them, it was agreed that such dispute should be adjusted by an inspector of the National Hardwood Lumber Association. It was further agreed that the lumber should be well sawed,, of proper thickness, edged and trimmed, and the logs so sawed as to produce as much of the upper grades of lumber as possible. The defendant agreed to ship all of said lumber on or before January 1, 1908. If any stock remained in the yard, after that time, it was agreed that it should be jointly estimated by the representatives of the parties and be paid for according to such estimate. Eor all water elm, red elm, and gray elm the defendant agreed to pay the plaintiff, f. o. b. Durand, for No. 3 common and better, $20 per thousand feet, upon the following terms of payment: “Cash fifteen days-from date of shipment, less two per cent. Sixty days from date of shipment, net.” It was further agreed between the parties that title to the lumber should remain in the plaintiff' until same was shipped out or paid for according to the estimate of January 1, 1908.</p> <p>On November 27, 1907, plaintiff shipped to defendant, at its request, one carloa-d of lumber. This car was invoiced at the contract price, and contained upper grades of lumber,, and was paid for at the contract price. On November 29, 1907, the defendant wrote plaintiff as follows:</p> <p>“It will be impossible for us to take the soft elm we bargained with you for, as the stock has not been sawed at all in accordance with our instructions. Our Mr. B. G. Harper, whom we sent there to take up a trial car of the stock, explained the matter fully to your Mr. Pierce, so yon know what our grounds for complaint are against the lumber. We regret to advise you of this, but if you will look up the correspondence we have had with you in reference to sawing this stock, you will find that we gave you explicit and positive instructions regarding it, and these instructions have not been observed. Under these circumstances we feel justified in turning the stock down.”</p> <p>On the day following the plaintiff acknowledged receipt of this letter, in which it denied that the lumber was not properly manufactured, and stated that if the lumber was not shipped out by the defendant in accordance with the terms of the contract it would cause the lumber to be estimated, and commence action to recover the contract price of the same. On January 14, 1908, the plaintiff again wrote the defendant, calling its attention to the provision in the contract providing for an estimate of the lumber by joint representatives of the parties, and notifying the defendant that it was ready to proceed with such estimate, and further stating that if the defendant did not appear on or before January 28, 1908, it would on that date proceed to take the estimate without the co-operation of the defendant, and bring suit to recover the contract price. The defendant did not elect to take any part in making the estimate, and the plaintiff caused an estimate to be made in accordance with the statement contained in its letter of January 14th. On February 29, 1908, the plaintiff forwarded to the defendant a bill for the contract price of the lumber in accordance with the estimate made by it. The amount of such bill was $11,078.16. The defendant refused to pay, and this action Avas brought to recover the contract price of the lumber and resulted in a verdict and judgment in favor of the plaintiff for such contract price, from which judgment this appeal is taken.</p> <p>They contended, inter alia, that contracts like the one in suit providing for the sale and delivery of a large quantity of lumber or other commodities in carload lots, with separate payments for the separate shipments, are manifestly severable; each delivery separates and executes the contract pro tanto, leaving what is still undelivered subject to any lawful objections, even though the lots already delivered and received were subject to the same objections. Such a partial delivery is not an acceptance of any part of the whole quantity not yet delivered. Ketchum v. Wells, 19 Wis. 25; McDonald v. Gardner, 56 Wis. 35 ; Hoffman v. King, 58 Wis. 314; 8. G. 70 Wis. 372; Gill v. Benjamin, 64 Wis. 362; McMillan v. Fox, 90 Wis. 173; Murphy v. 8agola L. Co. 125 Wis. 363; In re Kelly, 51 Eed. 194; Hubbard v. George, 49 Ill. 275; Gooh v. Brandéis, 3 Mete. (60 Ky.) 5£>5; Holl'field v. Blach, 20 Mo. App. 328; Ameñcan P. P. & B. Go. v. OaJces, 64 Mo. App. 235; Farmer v. Gray, 16 Keb. 401, 20 H. W. 276; Visscher v. GreenbanTc A. Go. 11 Hun, 159; Pacific Goast F. Go. v. Bravincler, 14 Wash. 315, 44 Pac. 544; Conway v. Fitzgerald, 70 Vt. 103, 106, 39 Atl. 63'5; Glarlc v. Wheeling 8. Works, 53 Eed. 494; Greswell R. & G. Go. v. Martindale, 63 Eed. 84, 86 ; Bennett v. Shaughnessy, 6 Utah, 273, 277, 22 Pac. 158; Eastern F. Go. v. Gorbin, 182 Mass. 590. The defendant had the legal right to renounce and repudiate the contract, so long as it remained executory; absolutely and without recourse if for good cause, but just as absolutely without any cause; in the latter case, however, subject to defendant’s liability to compensate the plaintiff for all resulting damages. Ward v. American H. F. Go. 119 Wis. 12, 25; Fountain City D. Go. v. Peterson, 126 Wis. 512 ; Engeldinger v. Stevens, 132 Wis. 423; Collins v. Delaporte, 115 Mass. 159, 162; Oklahoma V. Go. v. Garter, 116 Ga. 140, 94 Am. St. Rep. 112; Gibbons v. Beate, 51 Minn. 499, 22 L. R. A. 80. The measure of damages resulting from a wrongful renunciation of a contract of sale is never the contract price, but the difference between such contract price and the market value of the chattels. The title to the lumber never passed to the defendant. The plaintiff still owns it.. The contract provided that the title should not pass until the lumber was “shipped out or paid for according to the estimate ■of January 1, 1908.” Eliminating the element of a wrongful renunciation or repudiation of an executory contract of sale, it is still the law that the seller cannot recover the purchase price until after the title has passed.” Benj. Sales, sec. 311; 24 Am. & Eng. Ency. of Law (2d ed.) 1118 — 1120; Smith v. Barron Go. 44 Wis. 686; Ganson v. Madigan, 9 Wis. 146; S. G. 13 Wis. 67; S. G. 15 Wis. 144; Pike v. Vaughn, 39 Wis. 499; Hoffman v. King, 58 Wis. 314; S. 0. 70 Wis. 372; Ketchum v. Wells, 19 Wis. 25; Hill v. Ghipman, 59 Wis. 211; Manufacturers' Baníe v. Rugee, 59 Wis. 221; State ■ex rel. Vilas v. Wharton, 117 Wis. 558; Mason v. Decker, 72 1ST. Y. 595; Mitchell v. Be Glair, 165 Mass. 308; Brocklen v. Smeallie, 140 N". Y. 70; Jenkinson v. Monroe Bros. & Go. 61 Mich. 454, 28 N. W. 663.</p> <p>They contended, inter alia, that the authorities in this state and elsewhere sustain the proposition that the vendor in an executory contract of sale of personal property, on refusal of the vendee to accept the goods, may store the goods and recover the contract price. Nisbet v. Gill, 38 Wis. 657; Boyington v. Sweeney, 77 Wis. 55, 68; Pratt v. S. Freeman & Sons Mfg. Go. 115 Wis. 648; Hartman F. & G. Go. v. Krieger, 137 Wis. 650, 119 N. W. 347; Dustan v. Me Andrew, 44 N. Y. 72; Hayden v. Demets, 53 N. Y. 426; Mason v. Decker, 72 FT. Y. 595, 28 Am. Rep. 190; Bagley v. Findlay, 82 Ill. 524; McCormick H. M. Go. v. Markert, 107 Iowa, 340, 78 1ST. W. 33; Mitchell v. Le Glair, 165 Mass. 308; Van Brocklen v. Smeallie, 140 1ST. Y. 70, 35 U. E. 415, 416; Ganson v. Madigan, 15 Wis. 144. The rescission, if at all, must be total. Any act by the purchaser in recognition of the contract precludes his right to rescind. Churchill v. Price, 44 Wis. 540; Oream City Q. Co. v. Friedlander, 84 Wis. 53, 58, 59; Kingman & Co. v. Watson, 97 Wis. 596, 612; Zipp Mfg. Co. v. Pastorino, 120 Wis. 176; James Music Co. v. Bridge, 134 Wis. 510. A complaint or counterclaim for damages for breach of a contract is an affirmance of the contract, inconsistent with a claim that the contract has been rescinded, and is a waiver of any right to a rescission. Main v. Procknow, 131 Wis. 279; Pfeifer v. Marshall, 136 Wis. 51, 116 N. W. 871; Maxon v. Cedes, 136 Wis. 270, 116 IST. W. 758. Where the buyer accepts property and fails to object in a reasonable time that it does not comply with the contract, he waives his right to afterwards object that the property does not comply with the terms of the contract, and waives his right to recover damages on account of any alleged defects. Northern 8. Co. v. Wangard, 117 Wis. 624, 629; U. McCormick L. Co. v. Winans, 126 Wis. 649, 654; Ashland L., 8. & C. Co. v. Shores, 105 Wis. 122, 128; Forster, Waterbury Co. v. F. MacKinnon Mfg. Co. 130 Wis. 281.</p>

<p>Appeal from a judgment of the circuit court for Manito-woc county: Michael KiRWah, Circuit Judge.</p> <p>This action was brought to recover the sum of $606.12 for labor performed and materials furnished in August and September, 1902, at the special instance and request of defendant. The complaint alleges, in effect, that the plaintiff was-doing business under the name of Richards Iron Works, and that the defendant was a corporation operating a street interurban railway in the city of Manitowoc; that during August and September, 1902, plaintiff performed the labor and furnished the materials above referred to, and that a statement of the account was furnished on September 11, 1902,' and no payment has been made thereon. The defendant admits its corporate existence and business, and denies generally the other allegations of the complaint. The case was referred, and the referee made and filed his report, in which he found that plaintiff was entitled to recover $15 and costs. Plaintiff filed exceptions to the report and findings of the referee and moved the circuit court to modify the report and for judgment as modified in the sum demanded in the complaint. The circuit court denied the motion to modify, confirmed the report of the referee, and ordered judgment for the plaintiff in the sum of $75 and interest at six per cent, from November 9, 1907, to date of its order, together with costs and disbursements. Judgment was entered accordingly, from which this appeal was taken.</p>

<p> Extradition: Arrest on civil process. </p> <p>One who has been brought into this state by extradition proceedings based on a criminal charge is not subject to arrest in contempt proceedings to enforce compliance with a prior civil judgment against him, until he has had an opportunity to return to the state from which he was extradited, even though he was, when he absconded, a resident of this state and had not since acquired a residence elsewhere, and the court in which said judgment was rendered had, before his departure, obtained jurisdiction both of the subject matter of the action and of his person.</p>

<p> Wilis: Construction: Nature of estate created: Vested or contingent? Intermediate trust estate: Legal estates: Seisin: Dower. ■ </p> <p>1. In determining tlie nature of an estate created by will the will itself is to be first construed to ascertain the testator’s intention, and afterwards the statute is to be consulted to ascertain how far the estate intended is affected thereby.</p> <p>2. In the construction of a will the law leans, in doubtful cases, in favor of an absolute rather than a defeasible estate, and of a vested rather than a contingent interest.</p> <p>3. While the general rule is that a gift will be deemed contingent when it is found only in a direction to divide at a future time, this is subordinate to the primary rule that the intent, to be collected from the whole will, must prevail.</p> <p>4. A will gave the use of all testator’s property to his widow during her life, and provided that after her death the property should be held in trust for ten years, the net income during that time to be divided equally among his "children. It then provided that after the expiration of said ten years “all my estate and property then remaining in the hands of my said trustees I hereby give, devise, and bequeath unto all my children in equal parts, share and share alike.” Held, that the interests of the children became vested at the time of testator’s death, subject only to , the life estate of the widow and the ten-year trust.</p> <p>5. By "seisin” as the term is used in sec. 2159, Stats. (1898), relating to dower, is meant a fixed vested right of enjoyment of the estate, either immediately or at the termination of an intermediate estate.</p> <p>6. Sec. 2159, Stats. (1898), gives dower out of legal estates only, as was the case at common law.</p> <p>7. Under secs. 2086, 2087, Stats. (1898), when a trust in lands is created and the lands at the same time granted or devised subject to the execution of the trust, the trustee takes only such interest as the purposes of the trust require, and the grantee takes the entire title as against the world in general, and as against the trustee he takes the beneficial equitable interest subject only to the execution of the trust according to its terms.</p> <p>8. A devisee who, under the will, took a vested remainder in fee in land of the testator, subject only to a life estate and to a subsequent trust limited to ten years, and who died after the life estate had ended, was during his life “seised of an estate of inheritance” within the meaning of sec. 2159, Stats. (1898), and such estate being a legal estate as against all persons except the trustees, whose term was for years only, his widow was entitled to dower.</p>

<p> Construction of penal statutes: “Public highways:” Toll roads: Automobiles: Speed. </p> <p>1. A penal statute is open to construction when there is reasonable uncertainty as to its meaning.</p> <p>2. In case of there being two or more equally reasonable meanings of a penal statute, that one is to be regarded as expressing the legislative will which is the least severe as regards previous conditions.</p> <p>3. The rule of strict construction of a penal law is subordinate to the rule of reasonable, sensible construction, having in view effectuation of the legislative purpose.</p> <p>4. The term “public highway,” in the broad ordinary sense, includes every common way for travel by persons on foot or with vehicles rightfully used on highways, which the public have the right to use either conditionally or unconditionally.</p> <p>5. The term “public highway” in a limited sense means a way for general travel, which is wholly, public.</p> <p>6. In the general sense the term “public highways” includes toll roads; in its limited sense it does not.</p> <p>7. The term “public highway” in a general law should be regarded as having been used by the legislature in its general sense unless there is some efficient reason for believing it was used in the limited sense.</p> <p>8. A general law, regulating the operating of automobiles upon public highways in the interest of public safety, rather suggests use of the term “public highway” in the general than the particular sense, since the danger of personal injury is quite as great and immunity therefrom is quite as important as to travelers on the one as the other.</p> <p>L Syllabus by Mabshall, X]</p>

<p>Criminal law and practice: Jurors: Conscientious scruples: Circumi-stantial evidence: Instructions to jury: Evidence: Weight: Competency: Questions for court and for jury: Harmless errors: Homicide: Motive: Informer as to other offense by accused: Hearsay: Impeachment of witness: Rejection of his testimony by jury: Presumption of innocence: Degrees of murder: Instructions as to importance of agreeing on verdict.</p> <p>1. A person called as a juror wlio discloses on the voir dire conscientious scruples against rendering a verdict on- circumstantial evidence alone, may properly he rejected as incompetent, with or without objection by counsel.</p> <p>2. While it would be w.ell to specially instruct a jury on the subject of circumstantial evidence where the truth of a controversy is to be discovered partly or wholly from such evidence, omission to do so is not fatal error unless proper instructions in respect thereto are presented and rejected.</p> <p>3. The rejection of evidence offered to prove that a person other than the accused committed the particular homicide in question is not harmful error, where it is manifest from the whole evidence that such person was in no way connected with the offense, in that he was not in the vicinity of the place thereof at the time of the occurrence.</p> <p>4. Circumstantial evidence is an instrumentality in the administration of justice quite as legitimate as direct evidence for the establishment of an evidentiary circumstance, or the main fact in controversy in a judicial trial.</p> <p>5. The degree of certainty respecting the existence of the main fact in controversy in a judicial trial, in order to warrant a finding in favor of the party affirming such existence, is the same where the evidence relied upon is partly or wholly circumstantial as where it is direct.</p> <p>'6. The weight of evidence to establish an evidentiary circumstance, and the weight of such circumstance as evidence when established, is for the jury.</p> <p>1. Whether evidence offered tends to establish an evidentiary circumstance, or such circumstance to establish the main fact in controversy, is a question for the court. The decision in that regard, being in the field of mere competency, should not be disturbed on appeal unless manifestly wrong, the matter to be viewed having regard to the superior advantages of- the trial' over the reviewing court for determining such question.</p> <p>8. In case the evidence, whether wholly circumstantial or not, produces a conviction to a moral certainty — that is, beyond a reasonable doubt — in the minds of the jury of the existence of the ultimate fact in controversy, a verdict is due accordingly the same as if conviction with like degree of certainty were produced by direct evidence.</p> <p>9. It is proper, though not necessary, in instructing a jury in a criminal case, where conviction is dependent partly or wholly on circumstantial evidence, to use this language or something similar: The accused is entitled to an acquittal unless the evidence satisfies' the jury to a moral certainty of the existence of all the material circumstances; that they are consistent with guilt and inconsistent with any other reasonable hypothesis.</p> <p>10. In a criminal case it is sufficient to instruct the jury in any appropriate language, as to the degree of certainty of guilt requisite to a conviction, to the effect that: In order to warrant a conviction each and all of the material circumstances and the fact of guilt should be established to the satisfaction of the jury beyond every reasonable doubt.</p> <p>11. Proof of motive is not essential to a conviction in a prosecution of a person upon a charge of his having committed a criminal offense, but circumstantially it is of more or less weight as to the material fact according to the nature of the situation; ■ and in a case resting wholly upon circumstantial evidence the presence or absence of motive may well be the deciding factor.</p> <p>12. In a prosecution for a criminal homicide dependent upon circumstantial evidence, as bearing on the question of motive of the accused for doing the deed of which he is accused, it is competent to show that prior, to the homicide the deceased reported that the accused had, to his knowledge, committed another offense, in the absence of any direct evidence that the accused knew who was the informant, if, from all the circumstances, it is reasonably inferable that he did know in fact, or had good reason to believe and did believe, the deceased to be his accuser; consideration of such evidence to be dependent upon belief of the jury that the defendant did, in fact, know or believe before the homicide that the deceased was the informer.</p> <p>13. In case a decision by a trial court on the question of competency when made was wrong, but is right viewed from the standpoint of the whole evidence at the close of the trial, the error Is harmless.</p> <p>14. A jury may be instructed that the evidence on the part of the' state tends to establish its claim and that on the part of the defendant the contrary, it being made plain that the real right of the matter is wholly for them to determine from all the evidence produced.</p> <p>15. A witness may be impeached by proving by the evidence of other witnesses that his evidence is false; also by proving he has-made statements out of court inconsistent with those made under oath in court. But a jury should not be instructed that if they believe from all the evidence that the testimony of any witness is false they may reject it, as if they had discretion whether to reject or not reject such evidence, nor be instructed' that whether to reject such evidence or not is conditioned upon whether the same is corroborated by other credible evidence.</p> <p>16. Belief upon the whole evidence that the testimony of any witness is false precludes the existence of its being corroborated by any credible evidence so as to be entitled to be believed. Any suggestion to the contrary involves absurdity and is to be avoided because of danger of the subject being confused with the rule of falsus in uno, falsus in omnibus.</p> <p>.17. If the jury believe that any witness has wilfully testified falsely respecting any material matter, they may, if they see fit, but are not bound to, reject all of such witness’s evidence on that ground alone, where not corroborated by some other credible • evidence.</p> <p>18. A person on trial, charged with having committed a criminal offense, is presumed to be innocent; and such presumption entitles him to an acquittal till overcome by evidence establishing his guilt to the satisfaction of the jury beyond a reasonable doubt.</p> <p>19. In case of a criminal homicide manifestly committed by an act imminently dangerous to human life, and indicative of depravity of mind and disregard of human life, so characterized as to show the grade of the offense to be murder in the first or second degree, any circumstance sufficient, reasonably, to at least cause reasonable doubt as to whether the act was pursuant to a formed design to take human life, warrants finding a verdict of guilty of murder in the second degree.</p> <p>20. In case of belief from the evidence beyond a reasonable doubt that the accused is guilty of the offense, of criminal homicide in either the first or second degree, but there is reasonable uncertainty between the two degrees, though belief of guilt of the offense at least in the second degree, a verdict of guilty in such degree is proper.</p> <p>21. A jury may properly be admonished of the importance of agreeing upon a verdict and told, if such appears reasonably to the trial judge to tie tlie situation, that the evidence is not so voluminous or hard to understand, hut that a conclusion can he reached one way or the other within a reasonable time, and that such result is expected, care being taken not to suggest which way is proper or to go further than to stimulate appreciation of jury duty.</p> <p>[Syllabus by Marshall, J.]</p> <p>Dodge, J., and Winslow, C. J., dissenting, are of the opinion that it was prejudicial error in this case to admit evidence that the deceased had reported to a third person that the accused, had committed another offense (see par. 12, supra), — such evidence being pure hearsay and there being no other evidence. that the accused had committed such other offense and no evidence warranting an inference that he knew or suspected that, the deceased had given such information.</p>

<p> Embezzlement of money: Evidence: Variance: Demand, when necessary: New trial: Supreme court. </p> <p>1. There is no material variance between an information charging embezzlement of sixty dollars in money and proof that defendant received a check for a larger sum in payment of sixty dollars upon a debt to a corporation of which he was president; that he paid the difference to the debtor and deposited the check in a bank in his own name; and that he afterwards drew the money from the bank.</p> <p>2. Proof of a demand for money alleged to have been embezzled is necessary only where a demand is necessary to show the fraudulent conversion embraced in the offense.</p> <p>3. Sec. 4719, Stats. (1898), vests in the supreme court a broad and liberal discretion in ordering a new trial in criminal actions where the justice of the case demands.</p> <p>4. A new trial is directed by the supreme court although it had been denied by the trial court, in a prosecution for embezzlement, where the only evidence of fraudulent conversion was defendant’s failure to report the collection of money for a corporation of which he was president, and it appeared that shortly after he collected it he applied the money, together with some of his own, upon an obligation of the company, and evidence discovered after the trial would have tended to prove that at the time in question the corporation was largely indebted to him.</p>

<p>Eeeok to review a judgment of tbe circuit court for Rich-land county: Geobge CleiieNtsoN, Circuit Judge.</p>

<p>Habeas corpus: Review of evidence on preliminary examination:Complainant need not he examined: Directory statute: Confession.</p> <p>1. In a proceeding by "habeas corpus to procure tbe discharge of one held for trial after a preliminary examination, tbe court can only examine tbe evidence sufficiently to discover whether there was any substantial ground for the exercise of judgment by the committing magistrate.</p> <p>2. A legal preliminary examination may be had without calling the complainant as a witness, the provision in sec. 4786, Stats. (1898), that the magistrate shall examine him being directory merely.</p> <p>3. A confession of guilt by the accused may be received and considered by the examining magistrate in connection with other evidence as tending to prove that an offense has been committed and that there is probable cause to believe the accused guilty thereof.</p> <p>4. The evidence (including the confession) on the preliminary examination of one charged with murder is held sufficient to justify the magistrate in holding her for trial.</p>

Rat SteveNS, Circuit Judge. Tbis is a certiorari proceeding brought by tbe relator, Northern Pacific Railway Company, to set aside and declare invalid an order made by tbe Railroad Commission of Wisconsin. Tbe matter was beard in tbe circuit court for Dane county upon a petition, writ of certiorari, and return thereto, and judgment was entered by tbe court below affirming tbe order of tbe Railroad Commission, from which judgment tbis appeal was taken.

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

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

<p> Master and servant: Death of servant: Unguarded opening in vat: Statutory duty of master: Negligence: Assumption of rislc: Contributory negligence: Evidence: Questions for jury: Instructions: Placing guards after accident: Order of proof: Burden of proof: Intoxication of decedent at other times. </p> <p>1. In an action for death of an employee in defendant’s factory who fell into an unguarded opening caused by the raising of a trap door in the top of a tank of hot water, it is held upon the evidence to have been a question for the jury whether such opening could have been guarded by barriers or other safeguards without unreasonably interfering with the work which was being carried on and which could not be performed with the door closed.</p> <p>2. Employees do not assume the risks arising from negligent failure of the employer to surround vats containing hot liquids with proper safeguards as required by sec. 1636.?', Stats. (1898).</p> <p>3. In an action for death of an employee caused by such negligence, contributory negligence of the deceased other than assumption of the risk may be shown and may constitute a defense.</p> <p>4.'Where in an action for death the question whether decedent was guilty of contributory negligence as a matter of law is under the evidence extremely close, the appellate court must place considerable reliance upon the decision of the trial court.</p> <p>6.Contributory negligence of the decedent is held not to have been conclusively established in this case, there being evidence from which the jury might infer that at the time he fell into an opening in the top of a vat containing hot water the steam arising therefrom was so dense that he became confused or partially lost his way. Babees and Maeshall, JJ., dissent.</p> <p>6. Evidence that after the accident defendant placed guards around the opening was not competent to show negligence in not having it guarded at the time of the accident, but when offered merely to show that it was feasible to place such guards was competent and was properly admitted as part of plaintiff’s case in chief.</p> <p>7. Failure to instruct the jury that such evidence was no proof of' defendant’s negligence was not error in the absence of a request for such instruction.</p> <p>8. Contributory negligence is an affirmative defense and the burden of establishing it is upon the defendant whether the evidence to establish it be given by witnesses for plaintiff or for defendant. Aohtenhagen v. Watertown, 18 Wis. 331, distinguished.</p> <p>9. In an action for death involving the question of decedent’s contributory negligence, evidence that he had been intoxicated on former occasions was inadmissible.</p>

<p> Deeds: Construction: Reservation or exception: Crowing timber. </p> <p>In a conveyance of land, a clause “reserving the pine and cedar timber now growing or being thereon and the right to cut and remove the same” is an exception, not a reservation. The timber remains the property of the grantor, together with a right in so much of the soil as is necessary to sustain it, and he is not bound to remove it within a reasonable time.</p>

<p>Appeal from a judgment of tbe circuit court for Clark county: Chas. M. Webb, Judge.</p> <p>Tbe’ material part of tbe complaint in tbe action alleged that on or about March 22, 1900, tbe plaintiff Lester Tilton-entered into a contract with tbe defendants, whereby said plaintiff was employed to show prospective purchasers such lands as either of said defendants should require him to show, and that defendants agreed to pay for such services, in tbe event of a sale being made of any lands in Clark comity which the said plaintiff should be called upon to show prospective purchasers, a commission of five per cent, of the selling price of the land as compensation for his services and expenses if the purchaser had been procured through defendants or their agents or employees, and ten per cent, of such selling price on sales made through the efforts of the plaintiff without aid from the defendants in procuring the buyer; that thereafter said Tilton formed a copartnership with his coplaintiff, Roberts, who assisted in carrying out said contract with the knowledge and consent of defendants; that plaintiffs sold lands pursuant to such agreement, and earned as commissions on account of such sales the amount of $6,000 oyer and above setoffs; and that plaintiffs did and performed all of the conditions of the contract on their part. Judgment was demanded for $6,000 upon the cause of action stated. A second cause of action was set up, but is not involved on this appeal.</p> <p>The portion of the answer material, in so far as the questions presented on this appeal are concerned, sets forth that plaintiffs breached their contract by failing to forward to defendants moneys collected and notes received on land sales, and by fáiling to work exclusively for defendants in selling their lands, all of which they were required by said contract to do. Eor a first counterclaim the defendants set forth the various breaches of the contract complained of, and averred that by reason thereof they suffered damages to the amount of $30,000. As a second counterclaim the defendants set forth that the copartnership between the plaintiffs was formed July 16, 1900, and that on such date the account between the plaintiff Tilton and the defendants was stated, and it was agreed that there was then due defendants $3,036.49, which sum the plaintiffs, for a valuable consideration, agreed to pay the defendants. Furthermore, that the plaintiffs failed to account for moneys and notes coming into their hands as agents, and sold lands other than those in which defendants were interested, and induced prospective customers, sent to Clark county by the defendants at their expense, to buy lands in which defendants had no interest. Certain items of advances made by defendants to plaintiffs were also set forth as part of the counterclaim. The defendants’ damages on the second counterclaim are placed at $5,667.47, wbicb sum includes tbe amount of tbe alleged account stated.</p> <p>■ For tbe most part tbe reply consists of denials of tbe foregoing allegations of tbe answer. It admitted, however, that by virtue of tbe contract tbe plaintiffs were obliged to work exclusively for tbe defendants, but alleged a subsequent modification of sucb contract, by tbe terms of wbicb plaintiffs were permitted to make sucb sales as they did make of lands belonging to parties other than tbe defendants.</p> <p>Tbe case was referred to a referee to bear, try, and determine. Tbe referee found, among other things, (1) that after tbe written contrast (wbicb consisted of two letters passing between tbe parties) was made it was so modified that plaintiffs were authorized to sell other lands than those of tbe defendants, where tbe prospective purchasers refused to buy defendants’ lands; (2) that plaintiffs made sales for defendants under said contract, upon wbicb sales they were entitled to commissions amounting to $5,215.95; (3) that there was paid plaintiffs on account of their services $806.47, and no more; (4) that plaintiffs performed all tbe terms and conditions of their contract; (5) that plaintiffs were justified in refusing to continue work under tbe contract by reason of tbe failure and refusal of the defendants to pay past-due commissions for services thereunder, and that defendants were not entitled to any damages because of plaintiffs’ refusal to continue work; (6) that defendants failed to sustain tbe allegations of their second counterclaim; (7) that tbe attachment levied in this action upon tbe defendants’ property was not levied maliciously, and that defendants suffered no damages therefrom other than tbe costs and expenses incurred for counsel fees and disbursements in procuring the dissolution of tbe attachment, wbicb damages were found to be $500. Tbe referee found as a conclusion of law that tbe plaintiffs were entitled to judgment for $3,911.50, with interest and costs.</p> <p>The defendants moved the court to vacate certain portions of the referee’s report and to modify other portions thereof, and for judgment upon the report as modified. ' The plaintiffs likewise moved to modify the report in certain particulars and for judgment thereon as modified. The circuit judge disallowed one item of commission amounting to $120 which had been allowed by the referee, and allowed another item of commission which had been disallowed by the referee, amounting to $300. The total payments made by the defendants to the plaintiffs or either of them after the contract was made amounted to $2,806.81. This sum was also allowed defendants by the court as a payment upon the transaction sued on. The referee disallowed a large portion of this amount because he held that the defendants were indebted to the plaintiff Tilton in a large amount of money for services rendered prior to the 22d of March, 1900, when the written contract was made, and offset a portion of the payments made after that date against the indebtedness which he found existed at that time. No other modifications were made in the referee’s report by the court, and judgment was entered in plaintiffs’ favor for $2,426 damages, besides interest and costs, from which judgment defendants appeal.</p>

<p>Appeal from a judgment of tlie circuit court for Wal-worth. county: E. B. B-elbbn, Gircuit Judge.</p> <p>Action to enjoin a destruction of or interference with a ■cement sidewalk constructed by plaintiffs in front of their business premises on Mill street in the village of Genoa Junction. The facts were stipulated, whereby it appeared that in 1903 a survey was made by one Child, giving grades for walks in the village, which was “accepted and adopted by the village board.” August 16, 1904, Ordinance JsTo. 21 was adopted “permanently establishing the grades and curb lines of certain streets and avenues,” which prescribed the grades of the centers of said streets and established the grades of “the parking on said streets and avenues” in following words:</p> <p>“The grade at the parkings at the curb line shall be the same as the established grade at the middle of the street or avenue opposite; and said parking shall rise from such curb line to the lot line at a uniform grade of not less than one fourth of one inch to each foot.”</p> <p>The grade of the -parking under this ordinance in front of plaintiffs’ premises was about nine inches lower than the grade specified at that place in the Child survey. In 1905 plaintiffs proceeded to build -upon their premises a brick building for a retail store, which, owing to the defective drainage, was several feet above the natural surface of the ground and above the prescribed grade for the street. About September, 190,6, the plaintiffs proceeded to construct a permanent cement walk in front of said store within the limits of the street substantially in accordance with the grade specified in the Child survey, which did not correspond with other walks in said block, being higher than some and lower than others, but considerably above the actual surface’ of the ground.</p> <p>Upon commencement of the construction of said cement walk and about August 24, 1906, the village hoard notified in writing to the plaintiffs that their sidewalk was in defiance of Ordinance No. 21 and ordered them to lower the same in accordance therewith; and on October 15, 1906, the board passed a resolution requiring such conformity and directing the village board to rebuild it in case of noncompliance within twenty days, all of which was notified to the plaintiffs. Further notice was ordered to the same effect on October 25th and again on November 15th; the last in attempted compliance with ch. 115, Laws of 1905, after which, the plaintiffs not complying, the village officials proceeded to remove the old sidewalk for the purpose of rebuilding it in accordance with such resolutions, and the present action to enjoin them and the village was brought.</p> <p>The court decided that the Child survey still remains effective to establish and prescribe the grades for sidewalks, and that, plaintiffs having erected a permanent sidewalk in accordance therewith, the same cannot be demolished by the village authorities, and entered judgment permanently enjoining them from destroying and removing or in any way interfering with the sidewalk in its present condition until the street shall be graded; from which judgment all of the defendants appeal.</p>

<p>Appeal from a judgment of the circuit court for Trempea-leau county: J. J. Feuit, Circuit Judge.</p> <p>Action by a beneficiary to recover on an insurance policy. The policy was issued by defendant, an Iowa corporation, June 15, 1903, at Whitehall, Trempealeau county, Wisconsin. It required payment of a premium of $156.10 at the issuance of the policy and the same annually thereafter, or a specified amount semi-annually or quarterly, the latter rate being $41.35 per quarter. It provided in case of default for an extension of thirty days with the privilege of making payment by adding ten cents per thousand dollars of the insurance, otherwise for a lapse subject to reinstatement of the policy upon the assured furnishing a satisfactory certificate of good health signed by the assured and a reputable physician on a form furnished for that purpose and approval by certain specified officers; also that the policy should be incontestable after two years in case of all premiums up to that time having been duly paid; further, in case of the policy having lapsed after full payment of premiums for three years, that the assured should have certain specified rights. The incontestable clause was satisfied. The policy was issued pursuant to an application stipulating that all statements contained therein should be regarded as material to the risk and warranties.</p> <p>Accompanying the policy there was a special agency contract, entitling the assured, so long as the contract was kept in force, to a fro rata proportion annually Tor a period of twenty years of seven per cent, of all premiums paid for the ensuing ten years on business written in this state, the same to be taken from the expense element of such premiums and apportioned annually within sixty days after the 1st day of January in each year, and paid within thirty days after the anniversary date of the contract. Eebruary 17, 1904, defendant gave the assured notice of an apportionment in his favor of $13.23. Seasonably it gave him the usual premium notice of the due date of the annual premium for 1904, deducting the $13.23, though it was not payable till July 15th thereafter. He «sent the balance pursuant to the notice. It was accepted. Seasonably for 1905 defendant gave the' assured written notice of an apportionment in his favor under the agency contract of $14.60, payable July 15, 1905. Notice of the next annual premium was given, crediting thereon the $14.60, in harmony with the transaction of the previous year. The assured elected, as h© had a right to do, to pay June 15, 1905, a quarterly premium. Eor that he remitted the proper amount less the apportionment of $14.60. He was thereupon notified, he could not be permitted, in such a case, to deduct more than a quarter of such apportionment and to remit $10.95 to make up full quarterly payment. He failed to do so or claim any right under the thirty-day extension element of the policy, and was thereupon notified that it had lapsed, leaving him the privilege of reinstatement as provided therein, and sent him, at the same time, a form for the requisite health certificate. He furnished the certificate properly executed. He stated therein that he was of sound constitution, in good health, and that since the date of the original application he had not been afflicted with any sickness or disease whatever, nor consulted or been attended by any physician, and warranted such statements to be true, agreeing that otherwise the insurance should be void. Attached thereto was a physician’s certificate of good health and risk. Due payment of the requisite amount was made, the application for reinstatement approved, and a certificate accordingly issued July 28, 1905, providing that its validity-should depend upon the warranties contained in the application therefor being true, and the assured being in good health, and of temperate habits on the date of the reinstatement. He died February 10, 1906.</p> <p>Conditions precedent to the commencement of the action were satisfied. The pleadings put in issue the question of whether the policy lapsed for nonpayment of the premium of' June 15, 1905, whether the declarations in the application for reinstatement that the assured, at the date thereof, was. in good health, and that since the date of the original application he had not been afflicted with any disease or sickness, whatever, nor consulted or been attended by any physician, were true, and pleaded that immediately upon discovering such declarations to be untrue it disclaimed any intention to-appropriate the money paid for the reinstatement' and that it was, thereafter, at all times in readiness to return the same-to the person, or persons, entitled thereto.</p> <p>The cause was submitted to the jury on the evidence in respect to the issues raised as aforesaid, resulting in a special verdict, as follows:</p> <p>“(1) Was said A. J. McUaughton of sound constitution on the 25th day of July, 1905, when he signed the certificate-of reinstatement? A. Tes.</p> <p>“(2) Was said A. J. McUaughton in good health on the 25th day of July, 1905, when he signed the certificate for-reinstatement ? A. Yes.</p> <p>“(3) Had said A. J. McUaughton been afflicted with any disease or sickness whatever between the date of his application for the policy of insurance in question and the date when he signed the certificate for reinstatement of lapsed policy on the 25th day of July, 1905.? A. Uo.</p> <p>“(4) Had said A. J. McUaughton consulted or been attended by any physician at any time between the 15th day of June, 1903, and the 25th day of July, 1905 ? A. Uo.”</p> <p>The court, on motion, changed the answer to the fourth question from “Uo” 'to “Yes,” refused to change the answer to either the first, second, or third question, and rendered judgment dismissing the action with costs. The plaintiff appealed.</p>

Lueck, Judge. The complaint in this action alleges that the plaintiff was the owner and holder of a note of the face value of $6,400, upon which there was due and unpaid $4,960, and that the'… Held: they cited Lewis v. Mott, 36 N. T. 395; Tatty v. Freedman's S. & T. Oo. 93 U. S. 321, 326; Oooley, Torts (2d ed.) 531; Jones, Pledges, § 571. They cited Meyer v. Doherty, 133 Wis. 398; 20 Cyc. 87, note 83 and cases cited; Pryor v. Foster, 130 N. Y. 171; Gould v. Cayuga Go. Nat.

<p>Villages: Street improvements: Powers of village board: Injunction: Pleading: Presumptions: Talcing of private property.,</p> <p>1. In an action to restrain a village from making certain street improvements pursuant to petition, it will he presumed on demurrer to the complaint, in the absence of allegations to the-contrary, that the village authorities are proceeding according, to law.</p> <p>2. The general power in respect to streets and sidewalks conferred-upon the village board by subd. 11, sec. 893, Stats. (1898), includes the power to determine the width of the traveled track in a street.</p> <p>3. Allegations in a' complaint that a village board intends and' threatens to compel plaintiff to build a sidewalk outside of the street and upon his residence lot, and that in order to do so-he will be deprived of his land without due process of law and without compensation, do not show a right to an injunction where it is evident from the facts pleaded that defendants-do not intend to compel plaintiff to build a walk by force or otherwise than by legal procedure regularly instituted and. carried on.</p>

<p>Appeal from a judgment of the circuit court for Vernon county: J. J. Fbuit, Circuit Judge.</p> <p>They cited, among other cases, Twitchell v. G. T. B. Go. 39 Eed. 419; BandeTcow v. G., B. & Q. B. Go. 136 Wis. 341, 117 N. W. 812; Groth v. Thomann, 110 Wis. 488, 86 N. W. 178; Ilill v. Fond du Lac, 56 Wis. 242, 14 N. W. 25; Kelley v. G., M. & St. P. B. Go. 53 Wis. 74, 9 N. W. 816; Sherman v. Menominee B. L. Go. 77 Wis. 14, 45 N. W. 1079; McGowan v. 0. & N. TP. B. Go. 91 Wis. 147, 64 N. W. 891; Bloch v. Milwauhee Sí. B. Go. 89 Wis. 371, 61 N. W. 1101; Boioley v. O., M. & St. P. B. Co. 135 Wis. 208, 115 N. W. 865; Jones v. Q. & N. TP. B. Co. 49 Wis. 352, 5 N. W. 854; Bourda v. Jones, 110 Wis. 52, 85 N. W. 671; Peat v. G., M. & St. P. B. Go. 128 Wis. 86, 107 N. W. 355; O’Brien v. G., St. P., M. & O. B. Go. 102 Wis. 628, 78 N. W. 1084; Dowd v. G., M. & St. P. B. Go. 84 Wis. 105, 54 N. W. 24; Boyce v. Wilbur L. Go. 119 Wis. 642, 97 N. W. 563; 6 Thomp. Comm, on Neg. § 7635; Athinson v. Goodrich T. Go. 60 Wis. 141, 18 N. W. 764.</p> <p>Among other authorities, they cited III. Geñt. B. Go. v. Griffin, 80 Eed. 278, 25 C. C. A. 413; Hupfer v. Nat. D. Go. 114 Wis. 279, 90 N. W. 191; Bennett v. L. & N. B. Go. 102 U. S. 577; Barow-slci v. Schulz, 112 Wis. 415, 88 N. W. 236; 3 Thomp. Comm, on Neg. §§ 2678, 2709, 2710; Bremer v. Pleiss, 121 Wis. 61, 98 N. W. 945; 1 Thomp. Comm, on Neg. § 993; Banderola v. Wis. Gent. B. Go. 133 Wis. 249, 113 N. W. 738; 26 Am. & Eng. Eney. of Law (2d ed.) 512; Hartwig v. C. & N. TP. B. Go. 49 Wis. 358, 5 N. W. 865; Bloor v. Delafield, 69 Wis. 273, 34 N. W. 115; Garshe v. Bidgeville, 123 Wis. 503, 102 N. W. 22; Morey v. Lahe Superior T. & T. Go. 125 Wis. 148,103 N. W. 271; Howard v. Beldenville L. Go. 129 Wis. 98, 108 N. W. 48.</p>

<p> •Constitutional law: Statutes: Private and local acts: Sufficiency of title: Location of dam authorized to be built: Granting corporate powers: Special act: Franchises not corporate: Assignment to corporation: Statute construed: Purposes for which corporations may be formed: Dams on navigable rivers: Legislative grant: Who may question: Public purposes: Eminent domain: Circuit judges: Holding court for one another: Orders at chambers. </p> <p>1. The title of a private or local act should he liberally construed, and the act should not be declared void under sec. 18, art. IV, Const., merely because such title does not express the subject as fully or as unequivocally as possible.</p> <p>2. A private or local act should not be held invalid because of insufficiency of its title unless, giving such title the largest scope which reason will permit, something is found -in the body of the act which is neither within the literal meaning nor the spirit of the title nor germane thereto.</p> <p>■3. The title to ch. 462, Laws of 1901, is “An act to authorize [certain persons named] to build and maintain a dam across and to improve the navigation of the Wisconsin river,” etc., the particular place where the dam is, to be built not being specified. Held that, assuming the act to be local rather than private, the subject of the act is sufficiently localized in its title to meet the requirements of sec. 18, art. IV, Const. DurJcee v. Janesville, 26 Wis. 697; Anderton v„ Milwaukee, 82 Wis. 279; and Milwaukee Co. v. Isenring, 109 Wis.' 9, distinguished.</p> <p>4. A franchise granted by the legislature to construct and maintain a dam across a river is not a corporate power or privilege within the meaning of sec. 31, art. IV, Const., prohibiting the legislature from enacting any special or private law granting corporate powers or privileges except to cities. Especially is this so where the act granting such a franchise (in this case ch. 462, Laws of 1901) specifically provides that no corporate powers are granted or intended to be granted' by it.</p> <p>5. A franchise, such as the right to build a dam across a river, which is not a corporate franchise may be conferred by a special or private law upon a corporation already existing. Stevens Point B. Co. v. ReiTly, 44 Wis. 295, so far as it holds to the contrary, overruled.</p> <p>6. The franchise to huild a dam across the Wisconsin river granted by ch. 462, Laws of 1901, being expressly made assignable, a corporation organized for the purpose under ch.' 86, Stats. (1898), had the right, under sec. 1775a, to take an assignment of such franchise.</p> <p>7. Under sec. 1775a, Stats. (1898), the acquirement and use of such a franchise is a lawful business or purpose, for which, under sec. 1771, a corporation may be organized.</p> <p>8. The provision in sec. 4, ch. 462, Laws of 1901, that no corporate powers are granted or intended to be granted by that act, does not prohibit a corporation otherwise created from acquiring, and exercising the rights and franchises granted by said act.</p> <p>9. A statute authorizing individuals “to build and maintain a dam across and to improve the navigation of the Wisconsin river above the same and for the purpose of creating hydraulic power” is not in violation of sec. 1, art. IX, Const, (providing that the navigable waters leading into the Mississippi “shall be common highways and forever free,” etc.), and in the absence of legislation on the subject by Congress is within the plenary power of the legislature.</p> <p>10. When the legislature has granted such authority, and the state-does not question that the improvement made is in conformity with the power delegated, neither the necessity nor the usefulness of the improvement, nor the manner in which it is-made, can be called in question by private parties, even those whose land is sought to be condemned in aid of the- improvement. .</p> <p>11. Whether the particular use for which property is sought to betaken by right of eminent domain is public or private is a question the ultimate decision of which rests with the courts; but this does not preclude the courts from according proper deference to legislative declarations as to what constitutes a public purpose.</p> <p>12. Where the legislature authorizes the building of a dam across. a river to improve the navigation thereof and also for the purpose of creating hydraulic power, either of such purposes is a public one, so that the power of eminent domain may be-legally conferred upon the owners of the franchise.</p> <p>13. The provision in sec. 11, art. VII, Const., that “the judges of the circuit court may hold courts for each other,” should be liberally construed, the authority so conferred being intended to-include generally the judicial business which a circuit judge is authorized by law to transact. One circuit judge may, therefore, in a proper case make orders at chambers in another circuit.</p> <p>14. Even if the provision above quoted expressly authorizes a circuit judge to hold court only at a regular term outside of his circuit, it does not preclude the legislature from conferring larger powers, as has been done in sec. 2432, Stats. (1898).</p>

<p>Appeal ir-om an order of the circuit court for Juneau county: James O’Neill, Judge.</p>

<p>'Appeal from an order of the circuit court for Monro© county: E. W. Helms, Judge.</p> <p>Mandamus proceedings to require drainage commissioner» to repair the ditch under their charge.</p> <p>An alternative writ of mandamus was issued in due form which, on motion duly made, was quashed because (1) tlm facts stated as a basis for the proceedings were insufficient;. (2) such facts were insufficient to show relator to be entitled to prosecute the proceedings.</p> <p>The facts relied upon are, in brief, as follows: Relator is-the owner of certain lands through which a portion of a drainage system has been constructed and put in operation under the laws of the state of Wisconsin. It has been the duty of the drainage commissioners since the installation of the drainage system to keep such system in repair and, since the passage of ch. 419, Laws of 1905, on or about the first. Tuesday of June each year to file with the clerk of the circuit court having jurisdiction of the matter a report specifying in detail the repairs necessary and the sum to be assessed to make the same against each tract, lot, easement, or corporation. About a year after the completion of the drainage' ditch through relator’s land it commenced to fill up with sand. The deposit therein has increased till it nearly fills the-ditch, causing large quantities of water which would otherwise be carried down the same, to be deposited on relator’s-land, rendering it valueless for farming purposes, to his great damage. The commissioners have often been requested to-put the ditch in a proper state of repair but have wholly refused to do so. They have not filed any report as required by the law aforesaid or raised any money to make necessary repairs upon the ditch.</p> <p>An alternative writ was issued as requested requiring the commissioners to repair the drainage ditch where it passes through relator’s land, or show cause to the contrary before the circuit court for Monroe county.</p>

<p> Deeds: Construction: Conveyance of standing timber: Time limit on-removal: Agency: Change in deed before delivery: When grantors bound,. </p> <p>1. Under a deed conveying timber standing or situated on certain lands, "with the right to the” grantee “to enter upon said lands and remove said timber ... at any time on or before” a. certain date, only such, timber passes as is removed during the time specified.</p> <p>2. A person intrusted with a deed for the purpose of obtaining the signatures of the grantors and making delivery for them, was clothed at least with apparent authority to close the deal on their part; and where, on his presenting the deed to the grantee, the latter objected to the date specified therein as the expiration of the time within which a corporation must remove from the land certain standing timber which the grantor had conveyed to it, and the agent thereupon changed such date to correspond with that specified in the conveyance to the corporation, the grantee had a right to rely upon the agent’s apparent authority and to accept the deed as thus changed, and the grantors were bound thereby.</p>

<p>Appeal from a judgment of the circuit court for Waupaca county: Chas. M. Webb, Circuit Judge.</p> <p>cited, among other cases, Bickley v. Commercial Bcmlc, 39 S. 0. 281, 17 S. E. 977; 8. C. 43 S. 0. 528, 2Í S. E. 886; Jumper v. Commercial Bunk, 39 S. 0. 296, 17 S. E. 980; Bostwiclc v. Mut. L. Ins. Co. 116 Wis. 392, 89 N. W. 538, 92 N. W. 246.</p> <p>cited, among other authorities, Heim v. First Nat. Bank, 76 Neb. 831, 107 N. W. 1019; Coleman v. First Nat. Bank, 53 N. Y. 388; Ziegler v. First Nat. BariSc, 93 Pa. St. 393; Stechel v. First Nat. Baric, 93 Pa. St. 376, 39 Am. Hep. 758, and other cases.</p>

Appeau from a judgment of tbe circuit court for Dunn county: E. W. Helks, Circuit Judge. The appeal is from a judgment granting a divorce upon “the ground of wilful desertion for the period of one year next preceding the commencement of the action.

<p>Appeal from a judgment of tbe circuit court for Dunn county; E. W. Helms, Circuit Judge.</p> <p>Action of ejectment.</p> <p>Tbe matter litigated and basis for judgment as indicated in tbe findings may be concisely stated tbns: Plaintiff bolds tbe legal title to tbe premises in dispute consisting of eighty acres of land. He is tbe father of Charles Harley, who died intestate August 12, 1903,-leaving surviving the defendant, bis widow, and three children. Prior to the marriage of defendant and Charles plaintiff gave the latter the real estate mentioned with the understanding that he and defendant should become man and wife and move upon, occupy, and improve the premises as the property of Charles. The legal title was never parted with by plaintiff. The marriage contemplated took place and all conditions of the gift were satisfied by defendant and Charles taking possession of said premises as property of the latter and their occupying and using the same as such thereafter with plaintiff’s approbation ■till Charles died, during which time he made valuable improvements upon the land supposing that he was the real ■owner thereof and that plaintiff would convey the same to him as he had promised to do. September 23, 1901, and long after the commencement of this action, defendant became the wife of one Johnson. She was in possession of the premises in dispute with her children at the time this action was commenced and has been so circumstanced since the death of her husband. No assignment of dower has been made to her.</p> <p>On such facts, notwithstanding defendant pleaded all the -facts stated as aforesaid as a defense and also as a counter•claim and prayed for judgment requiring plaintiff to carry ■out his agreement with Charles by conveying the premises vesting in her and her children the title which would have come to them upon the death of Charles had he died seised of the legal title, the court decided that, since plaintiff held the legal title, defendant could not prevail in ejectment on her equitable defense, neither could she prevail on her counterclaim without presence in the litigation of her children, .and that though plaintiff had no right to possession of the premises as against the heirs of Charles, since she was not entitled to possession by virtue of any dower interest, plaintiff was entitled to recover.</p>

<p> Agency: Liability of principal for purchases: Secret agreement limiting authority. </p> <p>Defendants having sold the stock of liquors and glassware used in a saloon business and turned the business over to the purchaser, to be continued by him in their name, under licenses issued to .them, until the purchase price and cost of the licenses was repaid, a private and undisclosed agreement that he should not commit them to liability for supplies purchased by him for the business would not protect them against a claim for such supplies by one who dealt with him in the ordinary line of such business without knowledge of the restriction.</p>

<p> Wills: Mental capacity: Undue influence: Evidence. </p> <p>£. Evidence showing, among other things, that although the faculties of a testatrix were somewhat impaired by age she still had mental powers sufficient to call to mind the particulars of her business and to hold them in mind for such a time as to perceive and understand their obvious relations and to form a rational judgment in respect to them, is held to sustain a finding that she had sufficient mental capacity to make a will.</p> <p>2. Evidence which, among other things, fails to show any solicitation by any one for the making of the will, or that the testatrix was susceptible to the influence of others in such matters, is held to sustain a finding that the execution of the will was not procured by undue influence.</p>

<p>Appeal from a judgment of the circuit court for Dane county: James O’Neill, Judge.</p> <p>This action was brought by the administrator to recover damages for the alleged negligence of the defendant- causing the death of plaintiff’s intestate. The negligence alleged is in the careless operation of defendant’s car and the failure to warn the deceased of the approach of said car. The answer denies generally the allegations of the complaint and alleges contributory negligence of plaintiff’s intestate. The ease was submitted to tbe jury and tbe following verdict returned :</p> <p>“(1) At wbat rate of speed was defendant’s car moving at tbe time of tbe. accident ? A. Eight miles per hour.</p> <p>“(2) At wbat rate of speed was tbe deceased driving bis team at tbe time of tbe accident? A. Three and one-balf miles per hour.</p> <p>“(3) After turning from Emerald street into Parle street and while approaching tbe place of accident, was: tbe bell or gong of tbe defendant’s car sounded? A. Yes.</p> <p>“(4) Did tbe motorman try to stop tbe car as soon as it was apparent that there might be a collision ? A. Yes.</p> <p>“(5) Was tbe motorman guilty of any want of ordinary care in tbe operation of bis car at tbe time of tbe accident ? A. Yes.</p> <p>“(6) If you answer tbe last question ‘Yes,’ then was such want of ordinary care tbe proximate cause of tbe death of tbe deceased? A. Yes.</p> <p>“(7) Did tbe deceased, before bis team entered upon the track or went so near it tbat tbe car could not pass him without bitting bis wagon, look and listen for tbe approach of a car from the rear? A. Uo.</p> <p>“(8) Could tbe deceased, in tbe exercise of ordinary care and prudence, have seen tbe approaching car in time to have avoided tbe accident? A. Yes.</p> <p>“(9) Was tbe deceased guilty of any want of ordinary care which contributed to tbe accident ? A. No.</p> <p>“(10) In case tbe court should be of tbe opinion that tbe plaintiff is entitled to recover, at wbat sum do vou assess bis damages? A. $6,000.”</p> <p>Before tbe special verdict was submitted to tbe jury plaintiff objected to questions Eos. 1, 2, 4, and 7 for tbe reason tbat they did not call for a response to any issue raised by tbe pleadings, but called for a finding of an evidentiary character, and also requested tbe court to submit a question, to be numbered 3-}, as follows: “If your answer to tbe third question is ‘Yes,’ then wbat distance was the motorman from deceased’s vehicle at tbe time tbe bell or gong was sounded? ” And also requested, -that the court substitute for question/ No.l two questions as follows:</p> <p>“No. 1. Was deceased, just before the accident, intending to drive upon or across the track of the defendant ?</p> <p>“No. I-}. If you answer the last question ‘Yes,’ then did deceased, before nearing or entering upon said track, look, and listen for the approach of a car from the rear ? ” — ■</p> <p>which requests were denied and due exceptions taken.</p> <p>The usual motions were made for judgment on the verdict and to change the answers to questions in the. ver diet. The-court changed the answer “Yes’’ to question No. 5 to “No,” and changed the answer “No” to the ninth question to “Yes,”' and granted the defendant’s motion for judgment on the verdict dismissing the complaint. Plaintiff moved for a new-trial, which was denied, and judgment was rendered for the defendant dismissing the complaint, from which this appeal was taken.</p>

<p>Officers: Tested rights: Power of removal: Review by courts: Civil service law construed: Presumption ■ as to obedience to laws: Mandamus: Exercise of discretion: Costs.</p> <p>1. Where no definite term of office is fixed hy law, the power to remove an incumbent is incident to the power to appoint, in the absence of some constitutional or statutory provision to the contrary.</p> <p>2. An office is not regarded as property, nor is the right to hold office a vested one.</p> <p>3. The power of amotion from office is not a judicial but an administrative power, though it be exercised in a judicial manner.</p> <p>4. See. 22, ch. 363, Laws of 1905, provides that certain employees in the civil service of the state shall not be removed or discharged except for just cause, vests the power of removal for such cause in the appointing officer, and makes no provision for any review of his action by any other body or tribunal. Held, that where an appointing officer in removing an employee acted within his jurisdiction, % e. when the cause assigned is a “just cause” within the meaning of the statute, and there is nothing to show that he acted arbitrarily or in bad faith, the courts will not review his decision as to the fact of the existence of such cause.</p> <p>5. The presumption is that public officers will obey the laws and not wantonly or criminally violate them.</p> <p>•6. Mandamus will not lie to control or review the exercise of the discretion of any court, body, or officer when the act performed is judicial or gwasi-judicial; although it may be invoked to compel the exercise of such discretion.</p> <p>7. Witness fees paid to jurors for attendance upon the hearing of a motion for a new trial, which was based in part on alleged misconduct of one of the jurors, are held to have been properly allowed in the taxation of costs.</p>

<p> Costs: Statute construed. </p> <p>'That part of subd. 6, sec. 2918, Stats. (1898), allowing costs to the plaintiff in an action on contract when be shall recover $100 or more, is not a qualification or repeal of subd. 7, although it was originally enacted later than'subd. 7 and overlaps the ground covered thereby; and in a case coming within the terms of subd. 7, where the recovery was more than $50 but less than $100, plaintiff was entitled to costs.</p>

<p>Appeal from a judgment of the circuit court for Dane county: E. Eat Stevens, Circuit Judge.</p> <p>The city of Madison, being authorized to maintain and operate a system of waterworks, built its system in 1885. About 1890 a water tower was constructed on Washington avenue. It is claimed that this tower was chiefly constructed to equalize the pressure. As originally planned, the connection between the pipes of the waterworks system and the tank in the water tower was controlled by a valve located inside the base of the tower. In time the dampness and the dripping water rusted the bearings and it became impossible to operate the valve. Attempts to remedy the matter were unsuccessful, and in 1891, upon the advice of an expert hydraulic engineer, the valve at the base of the tower was discontinued and a new valve to control the water supply to the tank in the tower was placed at the junction of the supply pipe for the tank and the main pipe line at the junction of Pinckney street and Washington avenue about a block from the tower. Plaintiffs conducted a grocery on Washington avenue in a building located between the valve at the junction of Washington avenue and Pinckney street, and the water tower, and stored part of their stock of groceries in the basement of this building. About 7 :30 in the morning of January 17, 1907, plaintiffs observed that water was flowing into the basement, presumably from a broken water pipe. The officials of the waterworks department were notified:, and as rapidly as possible employees cut off the supply of water from the pipes in that section of-the city. The valve at the junction of Pinckney' street and Washington avenue, controlling the supply of water to the tank in the water tower, was also closed. This work took more than two hours and did not stop the flow of water into plaintiffs’ basement. A small drain pipe from the tower tank was then opened and with the disappearance of the water from the tank the flow of water into plaintiffs’ basement ceased. Considerable damage was done to plaintiffs’ stock of groceries by tbe water and tbey bring this action to recover for tbe damage suffered. Subsequent investigation showed tbat the ten-inch pipe supplying tbe tank in tbe water tower bad broken. On the trial in the circuit court of the action for tbe recovery of tbe damages suffered, tbe jury were instructed as to tbe law of negligence, and were informed tbat if city authorities in charge of tbe water department acted upon the advice of men skilled in tbe work in question, and if tbe city officials in good faith and in reliance upon tbe advice of such experts in waterworks construction bad constructed a waterworks system according to their best judgment, then defects in tbe construction became mere errors in judgment and tbe city would be relieved from liability f&r any damages resulting therefrom. Under tbe instructions of tbe court tbe jury found tbat tbe defendant was not guilty of any want of ordinary care in failing to keep the valve in tbe base of tbe water tower in such condition tbat it could be used to shut off tbe water from tbe tower. Tbe jury also found tbe amount of tbe damages sustained by tbe plaintiffs. Tbe court awarded judgment in favor of tbe defendant for its costs. This is an appeal from such judgment.</p>

Ray Stevens, Circuit Judge. This is an action of replevin brought to recover possession of an automobile.

<p> ■ Highways: Defects: Personal injuries: Pleading: Variance: Nature of injuries: Evidence: Opinions: Hypothetical Questions: Cross-examination: Discretion: Instructions to jury: Damages for loss of time: Married women: Costs. </p> <p>"1. In an action for injuries caused by defect in a highway the complaint alleged that plaintiff received “permanent injuries; was rendered sick, sore, bruised, maimed, and her life endangered, and has suffered and still does suffer severe and excruciating pains.” The complaint included the notice of injury served as required by see. 1339, Stats. (1898), and stated that it set forth the injuries. This notice stated that plaintiff was thrown to the ground, “causing severe bruises to my legs and shoulders, and inflicting severe internal injuries.” The claim for damages required by sec. 824, Stats. (1898), also made a part of the complaint, was for “injuries, suffering, both mentally and physically.” Held, that the complaint, notice, and claim should be construed together as a pleading, and so construed the allegations were sufficient to permit the admission of evidence of injuries to plaintiff’s side, back, and ribs, and also of an atrophy or wasting of the muscles of the back, causing curvature of the spine and having a tendency to increase.</p> <p>'.2. A defendant who neither demands a bill of particulars nor moves to make the complaint more definite and certain cannot, by objection at the trial, exclude evidence which is comprehended within the broad generalities of the complaint.</p> <p>3. The notice required by sec. 1339, Stats. (1898), need not specify the particulars in which the party is injured nor contain any description of the injuries.</p> <p>4. In an action for personal injuries, a question to an expert witness as to how the injury affected the plaintiff was proper, the word “injury” being used to designate the contusion, bruise, or trauma in question, and not the invasion of legal rights which might have occurred at the time of the accident.</p> <p>5. An objection to a long hypothetical question on the ground that. it does not contain all the elements of fact testified to will be considered on appeal only so far as it specifies the facts claimed to be omitted.</p> <p>6. In a hypothetical question as to whether the injury sustained by plaintiff was a sufficient producing cause of her physical condition as found by the witness, it was not necessary to include the fact that plaintiff had given birth to seven children, all of whom died in infancy or shortly thereafter.</p> <p>7. It was not error to exclude the opinion of a witness as to whether it would have been possible or practicable for plaintiff to drive-over a part of the highway lying outside of the traveled track at the place of the accident, in the absence of evidence that, plaintiff had an opportunity to leave the traveled track and had such knowledge of the defect therein as would require a person exercising ordinary care to leave the track and drive outside-thereof.</p> <p>8. Where, from the questions asked, an attempt to extend a cross-examination to matters not covered by the direct examination ■ could fairly be inferred, it was not an abuse of discretion to limit the cross-examination rather strictly.</p> <p>9. An instruction that, in determining whether or not the highway was defective at the place in question, the jury should consider the amount of labor and money which must be expended to obviate the alleged defect, and whether such expense would be so-excessive as to render the change impossible or impracticable, is held (whether correct in law or not) to have been properly refused as inapplicable to the facts in this case. '</p> <p>10.Refusal to instruct the jury that plaintiff was not entitled to recover for loss of her time was not error in this case, in view of other instructions given and of the fact that no claim for such, recovery was made and no evidence offered on the subject</p> <p>[11. Whether, under sec. 1339, Stats. (1898), as amended by ch. 305, Laws of 1899, providing that a husband shall have no right of' action on account of injuries received by his wife by reason of a defect in a highway, a wife may recover damages for loss of : her time, not determined.]</p> <p>12. Costs taxable for drawing a bill of exceptions should not be held to include that part thereof composed of a transcript of the reporter’s notes, drawn by the reporter, for the cost of which the successful party has already been fully reimbursed by the other party.</p> <p>13. Although the costs taxed for drawing a hill of exceptions may in this case have included something more than the improperly allowed costs of the reporter’s transcript, this court will not count folios to determine that fact, counsel having furnished no separation or basis for separation of the items.</p>

Rat SteveNS, Circuit Judge. The appeal is from an order refusing to confirm the preliminary report of certain drainage commissioners theretofore appointed. The commissioners reported in favor of the creation of a drainage district in the towns of York and Medina in Dane county, Wisconsin. The drainage system recommended by the commissioners contemplated the removal of a dam known as Marshall dam and the destruction of a pond created thereby known as Marshall pond.

Ray SteveNS, Circuit Judge. Proceedings for the construction of a will. Albert Bowker died testate. His will was duly admitted to probate in the county court of Dane county, Wisconsin, May 5,1891. He died seised of certain real estate and owner of certain personal property. After settlement of his estate-there was left in the hands of the executrix for distribution $253.59.

Ray Stevehs, Circuit Judge. Condemnation proceeding for the extension of Jackson ■street across the existing right of way and tracks of the appellant. It .was stipulated by the parties, and found by the court, that the diminished value of appellant’s land was $1 and that the cost of planking the crossing in perpetuity would be $99. Tbe court awarded as damages $1 and refused to allow tbe $99, from wbicb refusal tbe railroad company ’brings this appeal.

This is a proceeding’ for acquiring a strip of land across the farm of the respondents as a right of way for the appellant railway company. Upon the appeal from the award of the commissioners appointed to appraise the damages, the jury in the circuit court awarded the respondents $115 as the value of the strip of land taken and $575 as the damages suffered by the remainder of respondents’ farm by the taking.

This action was brought to recover $521.61 paid November 19, 1904, in redemption of a tax certificate alleged to be outstanding against the real estate of plaintiff, purchased from the defendant through one T. I). Kellogg.

<p>Subscriptions: Conditions: Acceptance: Withdrawal: Religious societies: Corporations de facto.</p> <p>1. A subscription for the building of a church, made upon condition that the subscriber should not be called upon for certain work and that the church corporation should accept it as being in full of his share of the expense of building, was a mere offer until accepted as stipulated.</p> <p>2. Where no other kind of acceptance is stipulated for, a subscription may be accepted by expending money and erecting a building in accordance with the offer.</p> <p>3. The evidence in this case is held not to show, as matter of law, acceptance of a subscription upon the condition stipulated, before a withdrawal thereof.</p> <p>4. Notwithstanding informalities in its articles of incorporation, a religious society which has accepted from a member thereof a subscription to a building fund is, as to the subscriber, a corporation de laclo.</p>

The appeal is from an order denying the application of the petitioners for an order incorporating the village of Kimberly.

J. TuiíNee, Circuit Judge. Mandamus. Relator asserts bimself to be a citizen and' taxpayer of tbe city of Milwaukee and that be petitions on bebalf of bimself and all others similarly situated; asserts-various acts of misconduct on tbe part of tbe chief engineer of tbe fire department of said city, and that in September, 1908, be filed with tbe respondent, then and now mayor of’ tbe city of Milwaukee, certain charges of such misconduct; that thereupon said respondent called…

Atpeal from a judgment of tbe circuit court for Trempea-leau county: J. J. Ebuit, Circuit Judge. Tbe defendant in this case was tbe cashier of tbe Bank of Arcadia. He bad been cashier for twenty-five years and was tbe executive head of tbe banls:. In response to tbe request of tbe state commissioner of banking tbe defendant on December 3, 1907, made a report of tbe condition of the bank under his charge.

<p>Appeal from a judgment of the circuit court for Shawano •county: JohN GoodlaNd, Circuit Judge.</p> <p>Action to recover on a contract for a claimed balance for sawlogs sold defendant by plaintiffs at a stipulated price.</p> <p>Defendant answered putting in issue plaintiffs’ claim as to the agreed price for the logs and as to there being a balance due. It pleaded as a defense that, for the purpose of supplying its mill with a stock of sawlogs for the manufacturing season, of 1906, it contracted in writing with, plaintiffs to cnt into sawlogs and deliver to it at a specified place, during the winter of 1905 and 1906, all the sawlog timber on certain specified land at a price per thousand feet named, final payment therefor to be made upon all the logs being scaled and full performance by plaintiffs; that in partial performance 276,230 feet of logs wersi duly delivered, scaled, and paid for ■during the winter of 1906; that notwithstanding defendant was ready and willing to accept and pay for the balance of the sawlogs agreed to be delivered, plaintiffs neglected to make delivery thereof during the time limited in the contract; that thereupon such time was extended to include the ■next logging season; and that plaintiffs have received full ■payment for all logs delivered.</p> <p>.Defendant, for a counterclaim, pleaded the aforesaid facts and that the amount of timber which plaintiffs failed to • deliver during the logging season of 1906 and 1907 was 191,880 feet of short and 11,310 feet of long hemlock logs, to its damage in the sum of $406.38. The counterclaim was •duly replied to. Upon the trial plaintiffs claimed that the written contract did not cover the operations of the season of 1906 and 1907; that during the season they delivered to defendant the sawlogs it claimed should have been delivered ■ during the previous season, but made such delivery under an oral agreement increasing the price for the logs $2 per thousand feet. ¡3uch increase coincided with th$ amount claimed in the complaint.</p> <p>There was proof that, at the close of the first logging season, defendant settled with plaintiffs for all logs delivered during such season, without objection because of the contract not having been fully performed, and that the price claimed by plaintiffs for logs delivered the second season was the going price thereof and the amount defendant verbally agreed to :-pay therefor.</p> <p>There was evidence on the part of defendant that, before the logging operations commenced the second season, it gave plaintiffs written notice that it claimed the contract covered the balance of the timber, hut later promised that, if it should turn out otherwise, it would pay the going price.</p> <p>At the close of the evidence the court, on motion, directed a verdict for plaintiffs upon their theory of the case; holding-that by paying in full at the close of the first season without objection, notwithstanding the contract had been breached as-claimed in the answer, such breach was waived and the contract extinguished; and that the agreement to pay the price-for the logs delivered the second season, in case the contract, as to such season was of no effect, entitled plaintiffs to recover. Judgment was entered accordingly.</p>

II. Byan, Judge. Action upon a fire insurance policy. Tbe servant of plaintiff built a fire in the furnace with paper and cannel coal, not used or intended to be used for such purpose, wbicb fire developed within a few moments to such a degree of fury as to fill tbe bouse with great volumes of smoke, soot, and excessive and intense heat, and damage the personal property therein, to the amount as found by the jury $562.

<p> Sales: Pleading construed: Special verdict: Evidence of market value: Appeal: Errors affecting substantial rights. </p> <p>1. The complaint alleged that the defendant was indebted to the plaintiff for thirty-four loads of gravel “hauled and delivered’’ at $2.50 per load “for hauling the same.” The answer admitted this, but averred that the agreed price was $2 per load. At the trial the complaint was amended so as to claim what the gravel was reasonably worth per load. The court construed the complaint, taken with the answer and the evidence, to present a case for the recovery of the reasonable market value of the gravel sold and delivered by the load, and not an action on contract for services performed. Held, that there was sufficient duplicity in the pleadings to make this construction admissible and conclusive on the parties on appeal.</p> <p>2. Under such pleadings, questions submitted for special verdict asking whether there was an express agreement for $2 per load, and, if not, what was the reasonable value per load, sufficiently covered the issues.</p> <p>3. To establish the market value of gravel sold and delivered by the load to the defendant,' plaintiff introduced evidence as -to what other persons had paid him per load and of the comparative size of the loads. Held, that such evidence was incompetent because going farther than general evidence of sales and tending to prove the terms of specific contracts with other persons; but, its introduction having been permitted, it was error to exclude testimony, offered by defendant in rebuttal thereof, that as to some of such sales the amount paid was less than plaintiff’s evidence showed, and that the loads delivered to .defendant were smaller than those delivered to the other persons.</p> <p>4. Where erroneous rulings on evidence vitally affect the whole amount in controversy the judgment cannot be affirmed under ch. 192, Laws of 1909, on the ground that the substantial rights of the appellant are not affected, although the actual difference t between the parties will not cover the cost of a new trial; nor can the appeal be dismissed or the judgment be affirmed under the rule de minimis non curat lex, so long as the parties have the right of appeal regardless of the amount involved.</p>

The appeal is from an order overruling a demurrer to a complaint.

<p>Appeal from a judgment of the circuit court for Outa-gamie county: Oi-iester A. Eowler, Judge.</p>

<p>Appeal from a judgment of the circuit court for Shawano ■ county: Joiot Goodlamd, Circuit Judge.</p> <p>Equitable action to set aside deeds to real estate and quiet .title.</p> <p>The issues passed upon in closing the case by judgment may be concisely stated, as follows: The title to the particular land in question and others, aggregating twenty-two tracts, was in Joseph Kathan at the time of his death, May 26, 1901. He died intestate, leaving as his only heirs his widow, Hattie P. Kathan, and three minor children, the plaintiffs herein. The title to said land was vested in them on the death of Mr. Kathan, subject to six tax deeds thereon in the name of defendant Pier. The title to the particular tract was vested in Mr. Kathan many years before he died. It was occupied and used by him, in the main, as a wood lot and for cutting and removing timber therefrom, continuously, for several years .after his ownership commenced. During such time a small part was cleared, cultivated, and inclosed by a fence. The land was thereafter used by Mr. Kathan, continuously, down to 1891 in connection with an adjoining tract on which he owned and operated a brickyard. It was thereafter occupied, • continuously, down to the time of the commencement of the action by defendant Eagle River Bride Company in connection with the brickyard forty, under an agreement with the ■owner to convey the same to it for $200, as soon as cleared of back taxes. The plaintiffs did not know of the occupancy .aforesaid till after the conveyance, hereafter mentioned, to •defendant Comstodc. Some time subsequent to the death of .Mr. Kathan, under an agreement with one Colman, county judge of Vilas county, that title to all the lands should he vested in one George in the interest of plaintiffs and the particular tract then he hy him conveyed to the "brick company of which Colman was a stockholder, proceedings were had, in form, in the county court of Vilas county, hut in fact in the county of Shawano, resulting in such title being, in form, so vested, whereupon George conveyed the particular tract to said brick company pursuant to such agreement.</p> <p>The first of the aforesaid tax deeds was made and recorded in May, 1889, and the last one in May, 1898. After the proceedings aforesaid, in form vesting the title in George, defendant Pier represented and caused to he represented to plaintiffs that the statute of limitations- had run in favor of her tax deeds, effectually divesting the title to said lands from plaintiffs and vesting the same in. her. She did that for the purpose of inducing them to convey, in form, the twenty-two-tracts of land to defendant Comstock for the sum of $30. The particular tract then, and at the time of the commencement of this action, was worth at least $200. Kelying upon such representations which were in fact false, the tax-deed titles as to such particular land having been extinguished by the statute of limitations, the same having been occupied, as aforesaid, such proceedings were taken in the circuit court for Shawano county that the title of plaintiffs in all the-lands for the consideration aforesaid was vested in Gomsbock, the deed to that effect being duly recorded. That was-accomplished in the interest of said Pier so that she might control the patent title as well as the tax title to all said lands. The next day after the conveyance to said Comstock said Pier caused the particular tract to be mortgaged to her daughter, the defendant McIntosh, ostensibly to secure $250, but in fact to give her standing to commence an action to quiet the title as against the brick company. Such action was commenced, and, during the proceedings therein, plaintiffs became possessed of information as to the possession. aforesaid extinguishing the tax-title claim. Thereupon this action was brought against .all parties adversely interested to vacate said deeds made by plaintiffs and the mortgage as well, establish the title to said particular land in plaintiffs according to the facts, and remove all clouds existing thereon created by the deed to George, the deed by him to the brick company, the deed to Comstock, and the mortgage.</p> <p>On such facts judgment was awarded to plaintiffs wholly annulling the deed to Comstock, conditioned upon the consideration paid by him as aforesaid being paid into court for his use, and decreeing that the possession by the brick company was lawful but under a license revocable at the pleasure of plaintiffs. Costs were.awarded in plaintiffs’ favor in one bill against Comstock, Pier, and McIntosh, and in favor of the brick company against the same parties.</p>

<p> Law of the case: Decision on former appeal: Tax titles: Setting aside void tax deeds: Repayment by mortgagee of taxes paid by claimant after acquiring equity of redemption: Appeal: Review: Orders: Exceptions: Costs for printing. </p> <p>1. The decision on a former appeal is the law of the case and, whether right or wrong, is controlling upon a second appeal in the same action.</p> <p>2. Where under a mortgage or trust deed the owner of the equity of redemption is hound to pay all taxes upon the land he cannot, as against the mortgagee, ascribe such payment to his attitude as claimant under a tax title, especially where the tax title is void as a title and effective merely as a lien.</p> <p>3. In an action by the holder of notes secured by a trust deed to set aside certain tax deeds of the lands it was decided on a former appeal that the tax deeds were void and that plaintiff was entitled to have them set aside on payment of the amounts for which the lands were sold and “the amounts of subsequent taxes paid by the tax-title claimant,” with interest, as provided in sec. 12107i, Stats. (1898). Before the action was commenced defendant had acquired the fee title to the equity of redemption from the grantors in the trust deed, which deed contained the usual covenant for payment of taxes. Held, that taxes paid by defendant after acquiring such fee title were not “paid by the tax-title claimant” within the meaning of the former decision, and plaintiff was not bound, either by sec. 121071 or by the mandate on the former appeal, to reimburse defendant therefor.</p> <p>4. An order confirming and adopting a referee’s report as to the amounts to be paid by the plaintiff as a condition precedent to his right to judgment setting aside tax deeds, is. an order involving the merits and necessarily affecting the judgment, and therefore, under sec. 2898, Stats. (1898), is a part of the judgment roll and under sec. 3070 is reviewable on appeal from the judgment, whether excepted to or not.</p> <p>5. The conclusion of law involved in such order is reviewable on appeal without exception to the findings of fact upon which it is based or settlement of a bill of exceptions containing all the evidence.</p> <p>6. Costs are not allowed for printing of a case not in compliance ■with Supreme Court Rule 6.</p>

Action for personal injuries. In 1907 and 1908 the defendant maintained gasoline pumping engines at two of its stations on the Ashland division, about fifteen miles apart, viz., Monico Junction and Summit Lake, for the purpose of supplying its tanks with water. In August, 1907, the plaintiff, a young man eighteen years of age, was employed to operate the two engines.

J. Vinje, Circuit Judge. This is an appeal from a judgment quashing a writ of cerJ iiorari. The writ was issued to review an assessment of plaintiff’s property in the city of Superior. The city clerk of the city of Superior made return to' the writ showing the action of the hoard of review respecting the assessment, including the evidence taken before the board.

<p>Appeal from a judgment of tbe superior court of Douglas county: Chables Smiith, Judge.</p>

J. .Vimwe, Circuit Judge. Action to recover damages for a personal injury. Plaintiff was.employed by defendant on its coal dock. Coal was. elevated and screened at such, dock, and tbe necessary power-was furnished by electric motors. Plaintiff had been in charge of one of such motors for about eleven months before the injury. The motor was stopped and started by plaintiff' on signal, and it was his duty to oil the machinery connected therewith and keep it in running order.

J. Vinje, Circuit Judge. Action for personal injuries. The facts were not materially in controversy. In July, 1908, the Kelley-Atkinson Company were engaged in repairing the draw span of the interstate bridge between Superior and Duluth which had been wrecked two years previously.

Venue, Circuit Judge. This action was brought by plaintiffs, as executors of Ella J. Potter, a stockholder in the Webster Manufacturing Company, to… Held: at which the three defendant directors and Brigham voted that the corporation purchase the remaining 364 shares upon the option, and accordingly that stock was assigned to the corporation, the certificates canceled and new certificates issued, and the purchase price paid to Brigham, who is not made a party to this action.

J. Viúje, Circuit Judge. About December 1, 1905, tbe defendant contracted to employ tbe plaintiff for ten years as a district agent in several of tbe counties in tbe northern part of tbe state for the sale-of life insurance on commission. Plaintiff entered upon tbe performance of tbe contract, devoted himself to tbe work of building up a business, and expended bis earnings in furtherance thereof.

<p>Appeal from a judgment of tbe circuit court for Chippewa county: A. J. ViNje, Circuit Judge.</p> <p>This is an appeal from a judgment recovered against the defendant town in a-personal injury action. The plaintiffs horse shied at a piece of iron culvert pipe placed in a public highway by authority of the town officers, and the plaintiff was thrown from a buggy and injured. The jury returned the following verdict:</p> <p>“(1) Was the pipe in the position and condition it was allowed to remain by the defendant an object likely to frighten horses of ordinary gentleness driven along the highway % A. Yes.</p> <p>“(2) Was the defendant guilty of any negligence in allowing the pipe to remain in the position and condition it did remain ? A. Yes.</p> <p>“(3) If your answer to question 2 is 'Yes,’ then was such negligence the proximate canse of the plaintiff’s injury? A. Yes.</p> <p>“(4) Was plaintiff guilty of any want of ordinary care that contributed to produce his injury ? A. Ho.</p> <p>“(5) If the court is of the opinion that plaintiff is entitled to recover, then in what sum do you assess his damages? A. $200.”</p> <p>At the close of the evidence on the part of the plaintiff the defendant moved for a nonsuit, which was denied. Motions were made by defendant to change the answers to question Ho. 2 from “Yes” to “Ho,” and to question Ho. 4 from “Ho” to “Yes,” and for judgment on the verdict as so amended, and also that the verdict be set aside and for a new trial, which motions were denied.</p>

<p>Appeal from a judgment of the circuit court for Chippewa county: A. J. Vinje, Circuit Judge.</p> <p>They cited, among other cases, Boelter v. Boss L. Co. 103 Wis. 324, 79 N. W. 243; Stork v. Charles Stolper C. Co-. 127 Wis. ■318, 106 N. W. 841; Dowd v. C., M. & St. P. B. Co. '84 Wis. 105, 54 N. W. 24; Hardt v. C., M. & St. P. B. Co. 130 Wis. 512, 110 N. W, 427; Polashi v. Pittsburgh C. D. Co. 134 Wis. 259, 114 N. W. 437; Horn v. La Crosse B. Co. 123 W.is. 399, 101 1ST. W. 935; Mauch v. Hartford, 112 Wis. 40, 87 N. W. 816; Buscher v. Stanley, 120 Wis. 380, 98 N. W. 223; Hocking v. Windsor S. Co. 125 Wis. 575, 104 N. W. 705; Yazdzewski v. BarJcer, 131 Wis. 494, 111 N. W. 689; Bandelcow v. C., B. & Q. B. Co. 136 Wis. 341, 117 N. W. 812; Bloor v. Delafield, 69 Wis. 273,- 34 N. W. 115; Anderson v. Chicago B. Co. 127 Wis. 273, 106 N. W. 1077; Legue v. Madison Cr. <& H. Co. 133 Wis. 547, 113 N. W. 946; Clemons v. C., St. P., M. & O. B. Co, 137 Wis. 387, 119 1ST. W. 102; Olwell v. SJcobis, 126 Wis. •308, 105 U. W. 777.</p> <p>Resides other authorities, they cited Poluclcie v. Wegenlce, 137 Wis. 433, 119 IST. W. 188; Jlyer v. Janesville, 101 Wis. 371, 77 K W. 729; Xlatt v. N. G. Foster L. Go. 92 Wis. 622, 66 U. W. 791; Holt v. G., M. & St. P. B. Go. 94 Wis. 596, 69 1ST. W. 352; Kucera v. Merrill L. Go. 91 Wis. 637, 65 IST. W. 374; Bejfhe v. Patten P. Go. 136 Wis. 535, 117 IST. W. 1004; Nass v. Schulz, 105 Wis. 146, 81 1ST. W. 133; Dean v. G. & N. 17. B. Go. 43 Wis. 305 ; Goltz v. Milwaukee, L. S. •& W. B. Go. 76 Wis. 136, 44 K W. 752; McKeon v. O., M. & St. P. B. Go. 94 Wis. 477, 69 K W. 175 ; Montanye v. Northern E. Mfg. Go. 127 Wis. 22, 105 1ST. W. 1043.</p>

<p> 'Trial: Questions for jury: Death: Presumption from absence: Resilience: Evidence: Parent and child: Life insurance: Waiver of proofs of death. </p> <p>1. On a jury trial where different minds might reasonably draw different conclusions from the evidence as to a fact in issue, the jury, rather than the court, should draw the inference.</p> <p>2. Proof of diligent search and inquiry is not required to establish the presumption of death of a person who has been absent from his home or place of residence for seven years without being heard from.</p> <p>3. Upon evidence that a son resided with his widowed mother until his majority and thereafter returned to her home frequently and made it his headquarters, and in the absence of any evidence that he acquired or intended to acquire a different home or place of residence, the trial court properly assumed that his residence was with his mother.</p> <p>4. Refusal of a benefit association to recognize any claim based on the presumption of death resulting from absence was a waiver of its right to insist upon proofs of death as a condition precedent to an action on the benefit certificate.</p>

<p> Telephone companies: Location of poles: Removal by city officers: Obstruction in streets. </p> <p>1. Where a telephone company, operating under a city ordinance requiring it to locate its poles as directed by the council, paid no attention to a resolution of the council, served upon the company, directing removal of a pole set without previous authority, it cannot complain because the mayor and other officers carried out the directions of the council and removed the pole.</p> <p>>[2. Whether the mayor and aldermen were justified in summarily removing the pole as an obstruction in the public streets under secs. 1326, 1347, Stats. (1898), not determined.]</p>

GeoRG-e Grimm, Circuit Judge. The Beloit, Delavan Lalce & Janesville Baalway Company was incorporated March 4, 1901.

Tbis action was brought by plaintiff as assignee of the Agricultural Educational Society, a foreign corporation, to recover the amount agreed to be paid under the following-contract : “This order is not valid unless signed by the majority of the Board. *‘To the Agricultural Educational Society, “356 Dearborn St., Chicago, Ill. “GENTLEMEN: Please ship-, prepaid, freight one set of Country Life and Agricultural Education to Mr. Theo.

<p> Appeal: Assigments of error: Immaterial errors: Evidence: .pleading: Counterclaim: Waiver of objections: Boundaries: Adverse possession. </p> <p>1. Assignments of error that the court erred in the admission of evidence, in the rejection of evidence, in its findings of fact, in conclusions of law, and in not finding that defendants committed the trespass alleged in the complaint, are inadequate because too general.</p> <p>2. Upon a trial by the court, errors in the admission of evidence are not material if the findings are supported by other evidence properly admitted.</p> <p>3. The objection that certain counterclaims could not properly be-pleaded in the action was waived by failure to demur or reply-to them.</p> <p>4. In an action involving the location of a boundary line, evidence-of adverse possession is admissible as tending to show the true-location of the disputed line.</p>

Luece, Circuit Judge. This is an appeal from parts of three alleged orders. One of such orders quashes an alternative writ of mandamus sued out to compel the mayor and common council of the city of Beaver Dam to levy the amount of school taxes certified by the school board to the city council for the year 1908.

Lueok, Circuit Judge. Action, to recover compensation for damages claimed to have been caused by negligence in failing to send and deliver a telegram. Plaintiff applied by letter for employment as a second miller in a mill in Venezuela. He addressed the letter to a firm in New York in response to an advertisement inviting applications for the place.

LubcK, Circuit Judge. Action on two promissory notes given by defendant for a corn huslcer and shredder manufactured by the plaintiff under an order containing a warranty as to quality and efficacy, but conditioned that, in case of failure to comply with the warranty, the plaintiff should have opportunity to supply any defective parts and to malee all reasonable efforts to remedy the difficulty, the buyer to render necessary and friendly assistance, and, if then it cannot be…

Appeal front a judgment of the circuit court for Wau-kesha county: Martin L. Lueck, Circuit Judge.

Lueck, Circuit Judge. This action was brought by the plaintiff and respondent against the defendants as supervisors of the town of Ocono-mowoc, Waukesha county, Wisconsin, to enjoin and restrain them from interfering with plaintiff in constructing a fence along the east line of his premises, the defendants claiming that the plaintiff was placing his fence within the limits of the highway.

W. Burnell, Judge. Eor the appellant there was a brief by Kronshage3 McQ-ov-m, Goff, Fritz &■ Hannan, and oral argument by G. D. Goff and F. E. McGovern. They contended, inter alia, that the remedy by injunction was proper: 22 Cyc. 903; 16 Am. & Eng. Ency. of Law (2d ed.) 372; 5 Pom. Eq. Jur. 632, 636; Fennoyer v. McConnaughy, 140 U. S. 1, 11 Sup.

<p> Criminal law: Pleading: negativing exceptions: Statutes: Sale of adulterated milk. </p> <p>1. Where an exception is stated in a separate section of tlie statute and constitutes no essential part of the definition or, description of an offense, it need not he negatived by the prosecution, hut is a matter of defense.</p> <p>2. Thus, in a prosecution under sec. 4607, Stats. (Supp. 1906; Laws of 1905, ch. 13S), for having in possession adulterated milk, with intent to sell it, the state need not allege or prove that it was not to he sold as and for “skimmed milk,” within the exception stated in sec. 4607a.</p> <p>3. Having in possession seventeen cans of milk with intent to sell the same, in six of which cans the milk contained less than the prescribed percentage of milk fat, was a violation of the statute, although the average of the entire lot was above the legal standard.</p>

<p>ERROR to review a judgment of the circuit court for Jefferson county: George Grimm, Circuit Judge.</p>

<p>Appeal from a judgment of the circuit court for Milwaukee county: J. '0. Ludwig, Circuit Judge.</p> <p>The appellant, Eliza E. Sanborn, a nonresident of this state, but a sister of the alleged incompetent, who together with another sister and a brother are the next of kin, applied to the county court for the appointment of a guardian to conserve the property of Sarah A. Carpenter, alleging her incompetence. The county court decided in favor of the application, which decision, on appeal to the circuit court, was reversed and cause remanded, whereupon the county court entered its order denying the petition, from which order this appellant appealed to the circuit court, where, no evidence '.being offered in support of the petition, judgment was entered affirming the order of the county court, from which judgment said petitioner appeals. Sarah A. Carpenter moves to dismiss the appeal on the ground that Eliza JE. Sanborn has no interest and is not aggrieved and is therefore incompetent to bring the appeal.</p>

<p>Appeax. from a judgment of tlie circuit court for Milwaukee county: J. C. Ludwig, Circuit Judge.</p> <p>This appeal is in the same matter as In re Carpenter, ante, p. 572, 123 N. W. 144: presents first an appointment of a special guardian by the county court before hearing on the application for a general guardian. Subsequently, upon finally denying the petition for general guardian in compliance with the mandate of the circuit court, the county court entered order canceling and setting aside its former order appointing a special guardian. From that order the petitioner appealed to the circuit court, where, on May 14, 1909, judgment was entered affirming said order of the county court, from which judgment said petitioner appeals. Sarah A. Carpenter, the respondent, moves to dismiss said appeal for the same reason stated in In re Carpenter, ante, p. 572, and other reasons.</p>

<p>Appeal from a judgment of the circuit court for Ozaukee county: W. J. Turnee, Judge.</p> <p>An action for damages wherein plaintiff alleges he was injured by the defendants maliciously conspiring together to bring about his illegal commitment to an asylum for the insane for the wrongful purpose of preventing publication of the fact that adulterous relations existed between plaintiff’s wife and the defendant Henry A. Albers. The court dismissed the action as to the defendant Herman Heuer. The jury found that the defendant Theodore Hollnagel acted in good faith and without malice^ and no judgment was awarded against him. Judgment was awarded against the other defendants for the damages found by the jury, amounting, with the costs, to $578.83. The defendants made various motions which raised the question of the sufficiency of the evidence to sustain the findings of the jury, the correctness of the instructions given, and other alleged errors. This is an appeal from the judgment.</p> <p>Eor the respondent there was a brief by Boden & Beuscher, and oral argument by F. X. Boden.</p>

<p>(1) Appeal: Review: Findings of fact. (2-5) Pension moneys: Exemption: Conversion into other property.</p> <p>1. Findings of fact which, are not against the clear preponderance of the evidence are to he regarded as verities on appeal.</p> <p>2. Under sec. 4747, R. S. of U. S., as construed hy the federal supreme court, pension money is only exempt from claims of a pensioner’s creditor while it is “due, or to become due, to any pensioner.”</p> <p>3. By such construction the words of the statute, “shall inure wholly to the benefit of such pensioner,” relate to the words “due, or to become due,” and have no force after the public obligation has been discharged by delivery of the money to the pensioner or his agent.</p> <p>4. Whether Folschow v. Werner, 51 Wis. 85, holding to the contrary of the federal construction, should be adhered to, this court may properly decline to state, further than is necessary to facts as presented, requiring a decision.</p> <p>5. Notwithstanding Folschow v. Werner, pension money, under the federal statute, is not exempt from claims of creditors of the pensioner after the money has been paid to him and converted into other property.</p> <p>[Syllabus by Mabsiiaix, J.]</p>

<p> Wills: Construction: “Unmarried” persons: Public policy: Tested future interests. </p> <p>1. A will bequeathed money in trust for the support of an insane son of testatrix, and provided that after his death the residue thereof he divided among her nieces “who may he unmarried at that date.” At the death of the son six nieces of the testatrix were living, four of whom had never been married and two had been married since before the date of the will. Held that, applied to such situation, there could be no ambiguity in the word “unmarried.”</p> <p>2. Whether such bequest, by being in restraint of marriage and by offering inducement to the married nieces to become unmarried by divorce or otherwise, is so contrary to public policy as to be invalid, not determined. The married nieces not being shown to be next of kin or beneficially interested in the estate are not prejudiced by a decision of the circuit court holding the bequqst valid.</p> <p>3. It cannot be considered that such bequest gave a vested estate from testatrix’s death to all the nieces (including those then married) as a class, with simply a condition subsequent divesting such interest in the event of marriage, and that such condition is void as against public policy. Under the terms of the will the married nieces were never members of any such class.</p>

<p>Appeal from a judgment of the circuit court for Wauke-sha county: Maetin L. Lueck, Circuit Judge.</p> <p>The original plaintiff died after bringing the action and it was continued in the name of the present plaintiffs. June 17, 1892, the original plaintiff in this action became the owner of certain real estate situated in the S. of section 3 and in the 1ST. W. of section 10, town 8, range 20 E., in the village of Menomonee Falls, Waukesha county, Wisconsin. The deed conveying the property is recorded in volume 81 of Deeds, pages 551-554 inclusive, in the office of the register of deeds for Waukesha county, Wisconsin. In the assessment roll and the tax roll for the taxes of 1895 the lands are described as follows: “Owner, E. W. Eoberts, SW pt SE 'I SW ¿ and pt FW ¿ as per description in deed, Vol. .81, page 551, sec. 3-10, town 8, range 20.” Instead of “as per description in deed, Vol. 81, page 551,” the assessor used “as described in deed” in 1896, and “as per description in deed” in 1897. In the assessments of 1898, 1899, 1900, 1901, and 1902 no words referring to the deed were used in the description. In 1899 and thereafter “SW J” was also omitted from the description as previously given, and in 1900 and thereafter instead of “NW the assessor used “S pt NW i ”</p> <p>The plaintiff paid no taxes upon his property for any- of the years enumerated above. At the tax sales for the sale of lands for unpaid taxes for the various years enumerated, except the year 1902, tax certificates were issued according to the descriptions in the assessment and tax rolls. In 1902 the holder of the tax certificates issued in 1896, 1897, and 1898 on the sales for the unpaid taxes for 1895, 1896, and .1897, having discovered the misdescription, applied to the county hoard for a refund of the money paid for the tax certificates. The county board on December 2, 1903, ordered the refund, the cancellation of the tax certificates, and that the county clerk in the next apportionment of county taxes should include the sums refunded, with the interest allowed under the statutes, as a special tax to he collected from the land which should have paid the original tax. The mis-description in the assessment and tax rolls for the taxes of 1902 was discovered too late for the correction to be made in the assessment for that year, but the lands were withheld from sale at the tax sale in 1903 on this account. The assessment for 1903 included the taxes regularly assessed for that year, a reassessment of the taxes for 1902, and the taxes for the years 1895, 1896, and 1897 with the statutory interest. These taxes were not paid, and at the'sale in 1904 the lands were sold to the county for the taxes and a tax certificate was issued to the county. On December 11, 1905, the county board ordered a refund of the taxes to the holders of the respective tax certificates of 1899, 1900, 1901, and 1902, and that the taxes so refunded, together with the statutory interest, should be levied as a special tax with the 1905 taxes upon the property of the plaintiff. The tax so levied was not paid, and at the tax sale in the succeeding year the lands were sold to the county for the taxes and a tax certificate issued to the county.</p> <p>Plaintiff brought this action to restrain the issuance of tax -deeds based on the tax certificates so held by the county. The trial court held that the orders of the county board ordering the reassessment of the taxes which were invalid for misdescription were invalid and void, and ordered the cancellation of the tax certificates. The court also prohibited the issuance of tax deeds based on the tax certificates on condition that the plaintiff pay the taxes levied for 1903 and 1905. This is an appeal from the judgment.</p>

<p> Indians: Heirship: Jurisdiction of state courts: Paternity of illegiti-mates: Evidence: Declarations of parents: Statutes: Construction. </p> <p>1. In proceedings for administration of the estate of an Indian allottee of lands, the title to which was held in trust hy the federal government, there being other property warranting the administration, the parties hy stipulation submitted to the county court the question whether a certain person was the son and sole heir at law of the deceased. Held, sufficient to give the court jurisdiction.</p> <p>2. The order or judgment of the court in such a case does not transfer the title or disturb the possession of the allotted lands; and the United States, as trustee, may recognize or refuse to recognize it as evidence, conclusive or prima facie, of heirship.</p> <p>3. Under a federal statute (26 U. S. Stats, at Large, 794, ch. 383) making illegitimate children lawful heirs of their Indian father, paternity is to he established by a preponderance of evidence, and need not be established beyond reasonable doubt nor by evidence clear and convincing beyond reasonable controversy.</p> <p>4. In such a case declarations of the deceased mother and of the alleged deceased father respecting the paternity of an illegitimate are competent, and when they are the best evidence the nature of the case will admit of, and are not overcome by other more convincing evidence, they are sufficient.</p> <p>5. The construction given to the federal statute (26 U. S. Stats, at Large, 794, ch. 383) in In re Heirs of House, 132 Wis. 212, is adhered to.</p>

<p> Equity: Injunction: Grounds of relief: Irreparable injury: Multiplicity of actions: Adequate remedy at lam: Pleading construed: Ejectment: Easements. </p> <p>1. Plaintiff alleged that defendants, a town and its supervisors, wrongfully entered upon a strip of plaintiff’s land and constructed a "highway and drain thereon, to her damage; that they have continued unlawfully to use the land thus appropriated, and threaten that if plaintiff attempts to fence up said highway and drain they will tear down the fences and continue to use the same; that they have permanently deprived plaintiff of the use and enjoyment of that portion of the premises appropriated hy them; that plaintiff has suffered irreparable injury and will be put to the necessity of bringing a multiplicity of suits to protect her rights. The relief asked was that defendants be enjoined from taking possession or attempting to take possession of the strip of land in question and from interfering with plaintiff’s enjoyment,- use, and occupation thereof, and for damages. Held, that the facts stated did not entitle plaintiff to the interference of equity to prevent either irreparable injury or a multiplicity of actions at law.</p> <p>2. The averment that plaintiff has been permanently deprived of the use and enjoyment of the strip of land in question is construed as equivalent to a statement that she has been deprived of the possession of said strip; and it appearing that what she seeks to recover is the possession of the land, not of a mere easement over it, she has an adequate remedy at law in an action of ejectment.</p> <p>3. Where the owner in fee has been wrongfully deprived of the possession of land he may maintain ejectment to recover that possession, and it is immaterial whether such deprivation has been caused by the exercise of an easement which wrongfully excluded -him from possession, or otherwise.</p> <p>4. Where land has been wrongfully taken for a highway, and the only right which the owner may exercise over it is the right to use it as a highway in common with all others, he has been deprived of his possession.</p>

<p>(1, 2) Larceny: Negotiable note: Felonious intent: Talcing by triclc. (3, 4) Malicious prosecution: Probable cause: Special verdict: Omitted finding: Appeal: Presumptions. (5) Witnesses: Credibility: Conviction of contempt of court.</p> <p>1. Although the maker of a negotiable note had perhaps a right to rescind, for failure of consideration, an entire contract as part of which such note was executed and delivered, yet, until such rescission at least, the note was the property of the payee and was subject of larceny.</p> <p>2. A felonious intent to deprive the possessor of the thing taken being essential for larceny, if one openly takes property under the honest though mistaken belief that he himself has title, the act ordinarily will not he larceny; hut the claim of title must he at least colorable and he made in entire good faith. A taking hy artifice or fraud or accompanied hy acts of concealment will raise a strong inference of felonious intent.'</p> <p>3. In an action for a malicious prosecution of plaintiff for larceny of a note, it appeared that the note was given hy plaintiff to defendant as part of an entire contract-providing for the renting of a building and assignment of a liquor license hy defendant, to plaintiff; that defendant had no such license; and that plaintiff, without rescission of the contract for failure of consideration, had hy a trick got the note from defendant’s possession and carried it away. Held, that defendant had probable cause for the prosecution.</p> <p>4¡. ■ In an action for malicious prosecution the special verdict did not contain any finding as to whether or not there was probable cause for the prosecution, hut judgment was rendered thereon for plaintiff. Held, under sec. 2858m, Stats. (Laws of 1907, ch. 346), the case must be treated on appeal as though the court had found as a fact that there was lack of probable cause > and appellant had excepted to the finding.</p> <p>5. Contempt of court, either civil or criminal, is not a “criminal offense” within the meaning of sec. 4073, Stats. (1898), which permits “conviction of a criminal offense” to he proved to affect the credibility of a witness, either hy the record or hy cross-examination.</p> <p>6. Where, under sec. 4073, Stats. (1898), the credibility of a witness is sought to he affected hy proving hy the record his conviction of a criminal offense, such proof should consist of the record of the conviction and judgment alone, and not the full record of the case.</p> <p>7. A single isolated act of contempt of court committed twelve years prior to the trial does not properly come within the rule which permits, upon cross-examination, inquiries into the previous life, habits, and occupation of a witness, as tending to throw light on his veracity.</p>

D. Hastikgs, Circuit Judge. Action to recover, on contract, the reasonable value of plaintiff’s services and expenditures in supporting his father. The action was against a sister upon the theory that she became obligated to the father to support him by reason of his having agreed to make her his heir, and that she employed plaintiff to aid her in satisfying her obligation, which he did, rendering the services and incurring the expenses in question.

D. Hastings, Circuit Judge. This is an action brought to recover the value of a horse 'killed by one of defendant’s trains through the alleged negl'i-genee of the defendant in not maintaining a suitable cattle-guard on tbe northeasterly side of its right of way where a highway crossed the same.

<p>Appeal from a judgment of the circuit court for Rusk county: Johf K. Parish, Circuit Judge.</p> <p>cited, among other cases, Zuriker v. Kuehn, 113 Wis. 421, 88 N. W. 605; Bird v. Kleiner, 41 Wis. 134; Beyer v. St. Paul F. & M. Ins. Co. 112 Wis. 138, 88 N. W. 57; Cotz-hausen v. Simon, 47 Wis. 103, 1 N. W. 473; Qastenholz v. Heller, 82 Wis. 30, 51 N. W. 432; Kaiser v. Nummerdor, 120 Wis. 234, 97 N. W. 932; Combs v. Scott, 76 Wis. 662, 45 N. W. 532; Parle v. M., St. P. & S. S. M. B. Co. 114 Wis. 347, 89.N. W. 532; Ludingtonv. Patton, 111 Wis. 208, 86 N. W. 571; Gates v. Parmly, 93 Wis. 294, 66 N. W. 253, 67 N. W. 739.</p> <p>cited, besides other authorities, Bailey v. Costello, 94 Wis. 87, 68 N. W. 663; Ingersoll v. Seatoft, 111 Wis. 461, 87 N. W. 460; Bice v. Jerenson, 54 Wis. 248, 11 N. W. 549; Harrigan v. Gilchrist, 121 Wis. 127, 99 N. W. 909; Fleischfresser v. Schmidt, 41 Wis. 223; Neff v. Paddock, 26 Wis. 546; Gil-mcm v. Brown, 115 Wis. 1, 91 N. W. 227; Standard Mfg. Co. v. Slot, 121 Wis. 14, 98 N. W. 923; Peterson v. Chase, 115 Wis. 239, 91 N. W. 687; Shawano v. Cayouette, 134 Wis. 31, 114 N. W. 93; My Laundry Co. v. Schmeling, 129 Wis. 597, 109 N. W. 540.</p>

PaRish, Circuit Judge. This was a certiorari proceeding brought to review the action of the county board of Sawyer county in rescinding a former resolution passed by it adopting the provisions of ch. 651, Laws of 1907. By a single resolution adopted by the county board at a meeting held on March 4th the provisions of ch. 651, Laws of 1907, were adopted and a special municipal court for said county was created.

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

<p> Railroads: Liability to laborers for contractors: Notice of claim, upon whom served: Assignment of claim: Real party in interest. </p> <p>1. Sec. 1815, Stats. (1898), — providing that a laborer to whom a contractor for the construction of a railroad shall he indebted for labor performed in such construction may make the railroad company directly liable by serving notice of his claim upon “an engineer, agent or superintendent” in the employment of the • company, “having charge of that part of the road on which such labor was performed,” — does not require the notice to "be served, upon the particular employee in charge of the construction worlc on that part of the road; the intention being that service should be made upon an employee who would be likely promptly to bring home to the company knowledge of the existence of the claim, rather than upon one who would know whether the claim was legitimate or not.</p> <p>2. Delivery by the laborer of his time check to another person for collection, writing his name on the back thereof as evidence of the authority, and borrowing a small sum from such person on the claim, did not constitute such a transfer of title as took the claim out of the protection of the statute.</p> <p>3. The creation of such a mere agency, though coupled with an interest, to collect the claim for the benefit of the laborer, did not make the agent the real party in interest who must be plaintiff in an action to enforce the claim.</p>

<p>Tax titles: Notices of tax sale: Posting and publication: Affidavits: Sufficiency: “Public place: ” Nonoccupancy: Rights under successive tax deeds: Appeal: Briefs.</p> <p>1. If the affidavit of the posting of notices of a tax sale declares conduct of the treasurer in the posting which complies with the statute, the validity of that step in the proceedings is established prima facie. A statement therein that the notices were posted in four public places, accompanied by a specification of places not inherently non-public, is such evidence as, undisputed, establishes the fact required by sec. 1130, Stats. (1898).</p> <p>2. The term “public place” in sec. 1130, Stats. (1898), means a place where the public resort, so that the posting oí a statement there is likely to give notice.</p> <p>3. An affidavit stating that the place in the county treasurer’s office at which one of the notices was posted was a conspicuous place, satisfies the statute, and it is not necessary to define with particularity the exact spot in that office upon which such notice was posted.</p> <p>■4. A printer’s affidavit stating that the notice of a tax sale which took place on May 17 was printed and published in a certain newspaper “once in each week for four successive weeks, commencing on the 15th of April and terminating on the 6th of May,” shows a publication once in each week for four successive weeks prior to the date of sale, as required by see. 1130, Stats. (1898), although the printing terminated in twenty-two days.</p> <p>5. An affidavit of nonoccupancy, made five days before the tax deed was issued, which declared both that at the time it was made, May 16, there had not been thirty days of continuous actual occupancy, and that on that day there was no occupancy, establishes the fact that there could not have been the thirty consecutive days’ occupancy within the meaning of sec. 1175, Stats. (1898), on May 21, the date of the deed.</p> <p>•8. Upon appeal infirmities claimed to exist in affidavits made in tax proceedings should be pointed out by counsel. The court cannot assume the duty of searching for them.</p> <p>7. The holder of a tax certificate issued in 1902 who purchased .the land at the tax sales in 1903 and 1904 did not thereby pay the taxes so as to prevent him from claiming title under either of the tax deeds based on such sales.</p>

Appeal -from a judgment of tbe circuit court for Ashland •county: JohN K. PARisn, Circuit Judge. This is an action to foreclose a real-estate mortgage ex•ecuted by tbe defendants to secure tbe payment of a promissory note also executed by tbe defendants to tbe plaintiffs.

<p>Appeal from a judgment of tlie circuit court for Lincoln county: A. H. Reid, Circuit Judge.</p> <p>They cited, among other cases, Oconto B.-Go. v. Gayouette, 138 Wis. 664, 120 N. W. 497; Wheeler v. Bussell, 93 Wis. 135, 67 N. W. 43; Swedish Am. Nat. Bank v. Koebernick, 136 Wis. 473, 117 N. W. 1020; Linden L. Go. v. Milwaukee E. B. &■ L. Go. 107 Wis. 493, 83 N. W. 851; Drake v. Scheu-nemaivn, 103 Wis. 458, 79 N. W. 749; Plano Mfg. Go. v. Basey, 69 Wis. 246, 34'N. W. 85; Eixon v. Oneida Go-. 82 Wis. 515, 52 N. W. 445; Douglas Go. v. Walbridge, 36 Wis. 643; Musbach v. Wis. G. Co-. 108 Wis. 57, 84 N. W. 36; Yazdzewski v. Barker, 131 Wis. 494, 111 N. W. 689; Larson v. Knapp j Stout & Go. Go. 98 Wis. 118, 73 N. W. 992; Holloway v. II. W. Johns-Manville Go. 135 Wis. 629, 116 N. W. ■635; Gay v. Milwaukee B. B. & L. Go. 138 Wis. 348, 120 N. W. 283; Sherman v. Menominee River L. Go. II Wis. 14, 45 N. W. 1079; Kreider v. Wis. River P. & P. Go. 110 Wis. 645, 86 N. W. 662; Olwell v. Skobis, 126 Wis. 308, 105 N. W. 777; Wysocki v. Wis. Lakes I. & G. Go. 121 Wis. 96, 98 N. W. 950.</p> <p>Among other authorities, they cited Gamer on v. Sullivan, 15 Wis. 510; Bonesteel v. Bonesteel, 30 Wis. 151; Maxwell v. Kennedy, 50 Wis. 645, 7 N. W. 657; Kayser v. Hartnett, 67 Wis. 250, 30 N. W. 363; Shafer v. Eau Claire, 105 Wis. 239, 81 N. W. 409.</p>

<p>Appeal from a judgment of the superior court of Lincoln county: AlmoN A. Helms, Judge.</p> <p>In February, 1905, B. C. Kingsley and John Ross were the owners of certain real estate in the city of Merrill on which had been erected a business block. During that month a portion of the block was leased by the plaintiffs W. F. and A. F. Peterman for a period of five years at an annual rental of $1,200, payable monthly in advance. Other portions of the' block were leased to other tenants, and a portion of the real estate was not leased to any one at tbe time tbis action was commenced. Tbe said lessees, together with B. J. Peter-man, on or about March 1, 1907, purchased the interest of John Eoss in such real estate. Since such purchase the lessees have been paying to the defendant B. G. Kingsley one half the amount provided for in their lease. One half the rent received from the other tenants has been paid to the defendant Kingsley, and the remaining half to the purchasers-of the Eoss interest. This was an action for partition, in which it was prayed that á sale of the premises be made in case partition could not be had without prejudice.to the owners of the property. The court found that the property could not be partitioned and ordered a sale thereof. The-defendants B. G. and Margaret Kingsley appeal from such order.</p>