Volume 141 — Wisconsin Reports

<p> Liens on logs, etc.: Enforcement by assignee: Pleading: Joinder of causes. </p> <p>1. A finding by a referee, confirmed by the trial court, that certain time checks were purchased, not paid, by the plaintiff bank, is held to be sustained by the evidence.</p> <p>2. Objection to the joinder in one action of claims on several time checks, if not taken by demurrer or answer, is waived.</p> <p>3. Under sec. 3333, Stats. (1898), an assignee of several time checks, though not himself an employee, may enforce- all the claims for liens in one action.</p>

Action to recover compensation for injuries, cMmed to have been caused plaintiff’s residence property by escape of water and sewage into the basement of his dwelling house, by reason of the negligent condition of defendant’s sewer system. • The complaint was to this effect, after stating the corporate existence of the defendant and describing the property in ■question: Adjoining the basement of plaintiff’s dwelling house, there was a well from which he was accustomed to…

<p> Partnership: Transfer of interest in “stock, fixtures, and, accounts'’ . does not include liability of embezzler: Apportionment of sum recovered: Evidence: Burden of proof: Hearsay. </p> <p>1. A bill of sale by which one partner transferred to the other all his interest in the “stock, fixtures,- and accounts” of a going retail business did not cover the liability, then unknown- and unsuspected, of an employee to the firm for property or moneys embezzled, or convey any interest in the amount afterwards collected upon a settlement with such employee, whether that amount be considered as reimbursement, as damages, or as a price of immunity from prosecution.</p> <p>2. The vendee in the bill of sale having been the active manager of the business, and having continued it after such sale, and having received the amount collected from the embezzler in adjustment of a liability in part to the firm and in part to himself on account of embezzlements extending through a period both before and after the dissolution, the burden was primarily ■» upon him, in an action for an accounting, to show what part belonged to himself as distinguished from that which belonged to the firm.</p> <p>3. An apportionment of the amount collected in such case equally over the whole period of the embezzler’s employment, both by the firm and by the partner' continuing the business, is held to be sustained by the evidence.</p> <p>4. Admissions by the embezzler to both parties, prior to the settlement, that the embezzlements had extended over the whole period of his employment, even if not competent evidence of the fact of embezzlements during the term of the partnership, are evidence tending to show that the settlement was made on the basis of embezzlements extending through that time, and that the amount collected belonged in part to the firm.</p>

<p>Appeal from a judgment of the circuit court for Jackson county: James O’Neill, Circuit Judge.</p> <p>This is an action for damages for personal injuries alleged to be due to the negligence of the defendant. Defendant is a railway company operating a railroad. At the time of the-trial of the action plaintiff was a woman thirty-three years of age. She had been married for eleven years. There were-no children. Prior to her marriage she had been employed as a nurse, and after her marriage she had done more or less of it during the four years she and her husband lived at Wi-nona, Minnesota, during the two years they lived at Gales-ville in this state, and during the three years they lived in Vernon county. She had done no nursing after the removal of herself and her husband to Black River Ealls, which was about four months before the injuries were received. AYhen she went out nursing she paid from her earnings for the help which was required to perform the household duties- in her home. For a while she had run a hospital of her own at. Galesville. Her earnings while nursing were from $10 to-$25 per week, depending on tbe nature and seriousness of tbe illness and tbe ability of the patient to pay. For upwards of a year before tbe trial sbe bad done no nursing, but sbe testified that sbe intended to start up a hospital in tbe spring. Plaintiff stated that sbe could not state bow many months or weeks sbe spent in nursing, but that sbe went out whenever sbe felt like it.</p> <p>Tbe injuries were received in alighting from a passenger coach of tbe defendant onto tbe depot platform at Merrillan, Wisconsin. Tbe distance from tbe outer edge of tbe lowest car step to tbe outer edge of tbe depot platform was thirteen and five-eighths inches. Tbe depot platform was five and three-fourths inches lower than tbe last car step, and tbe distance in a direct line from tbe edge of tbe lowest car step to tbe édge of tbe platform was fourteen and one-half inches. Tbe platform was twenty-one and five-eighths inches above tbe level of tbe ground underneath. Teu days previous to tbe day of injury the plaintiff had entered defendant’s train at this place in the daytime. The plaintiff on January 8, 1908, was a passenger on the train of the defendant from Taylor station, Jackson county, Wisconsin, to the village of Merrillan, Wisconsin. Tbe train was due' at Merrillan at 8 o’clock. Shortly before tbe train arrived at the station the station was called,' and upon arrival the plaintiff followed tbe conductor of tbe train through tbe door of the car onto tbe platform and down tbe steps. Tbe evidence is in conflict as to whether or not the conductor assisted tbe plaintiff in stepping from tbe eár step onto tbe platform and -as to whether or not the plaintiff’s foot touched the platform:. Plaintiff testified that she stepped into the open space between the car step and the platform ; that she fell to the ground, and then forward upon tbe platform. Some seventy feet from the place of inj ury an electric light of thirty-two candle power was fastened by a bracket over tbe entrance of tbe Campbell hotel. There is evidence that this light was dim and probably not more than ten candle power. The evidence is in conflict as to whether or not the conductor carried a lantern. Aside from this lantern, the electric light at the hotel entrance, which had a reflector above it to throw the light toward the place of injury, was the only light which could reach the place of injury directly. From the windows of the hotel and the depot building, which were from fifty-nine to seventy feet from the place of injury, some light shone indirectly. The lights of the train were also burning. The evidence is that the night was dark. Plaintiff testified that the darkness prevented her from distinguishing the depot platform from the opening between it and the car step. The conductor assisted the plaintiff to arise after she had fallen, and into the waiting room of the depot. About three hours later the plaintiff took a train on another line of railroad from the same platform for her home in Black River Falls. She walked from the conveyance which had taken her from the depot to her home into the house. In the afternoon of the next day the plaintiff called her physician. Tie found “a swelling of the right knee; a discoloration of the knee, extending up the thigh as far as the hip of the right side“a swelling of the right ankle“a swelling of the left ankle, 'and evidence of severe contusion at the junction of the lower third with the upper two-thirds of the leg, and discoloration of the whole leg from the ankle to the knee“a slight depression into the bony tissue of this" shin bone“a displacement backward of the womb, and considerable tenderness and swelling in the region in and about the womb and over it.” There was evidence that the displacement of the womb was probably congenital. The plaintiff lay abed for two weeks, the physician calling daily. For some time thereafter she called at her physician’s office every other day. The evidence was to the effect that the displacement of the womb would require a surgical operation for its correction.</p> <p>The court submitted ¡a, special verdict as follows:</p> <p>“(1) Was the plaintiff injured on the 8th day of January, 1908, at the station of the defendant, while alighting from the defendant’s train? A. (by the court) Yes.</p> <p>“(2) Did tbe defendant fail to exercise ordinary care in the manner in which the platform was constructed at the point where the accident occurred to the plaintiff, in respect to the relation of the platform to the car step ? A. Yes.</p> <p>“(3) If you answer the last question ‘Yes,’ then was such failure to exercise ordinary care in the construction of the platform a proximate cause of plaintiff’s injuries ? A. Yes.</p> <p>“(4) Did the defendant fail to exercise ordinary care in the lighting of the platform at the time and place of the accident, in that the platform was insufficiently lighted to enable a passenger in the exercise of care to descend from the car ■.steps to the platform with reasonable safety ? A. Yes.</p> <p>“(5) If you answer the last question ‘Yes,’ then was such failure to exercise ordinary care in the lighting of the platform a proximate cause of plaintiff’s injuries ? A. Yes.</p> <p>“(6) Was the plaintiff guilty of any want of ordinary care which proximately contributed to her injury. A. No.</p> <p>“(7) If the court shall be of opinion that plaintiff is entitled to recover, at what sum do you assess her damages? A. Two thousand five hundred dollars.”</p> <p>The court refused to submit a special verdict of twelve •questions as requested by the defendant. The special verdict which was submitted covers the questions embraced in the special verdict requested by the defendant with the exception •of five questions, which do not embrace any issues raised by the pleadings and refer to mere conflicts in the evidence. ■Judgment was entered upon the special verdict as found for the plaintiff. This is an appeal from the judgment.</p>

Reposted from the municipal court of Milwaukee county: A. C. Beazjde, Judge.

<p> intosoicating liguors: Statutes construed: Sale of “malt liguorf' Evidence: Gonstitutional law: Police power. </p> <p>1. The word “liquor” and the associated word “drinks”- in a statute regulating or forbidding the sale of intoxicants mean an alcoholic beverage.</p> <p>2. Sec. 1565c, Stats. (1898), forbidding the sale in no-license territory of “any spirituous, malt, ardent or intoxicating liquors or drinks,” forbids the sale of fermented malt liquor containing alcohol, whether intoxicating or not.</p> <p>[3. Whether in sec. 1565, Stats. (Supp. 1906; Laws of 1905, ch. 341),— providing that "in all cases proofs of the sale or giving away of any malt, spirituous, vinous or distilled liquor of any name or nature whatsoever shall be deemed proof of the sale or giving away of intoxicating liquors without proof that the liquor so sold or given away was in fact intoxicating,” — the words “shall be deemed proof” create merely a rebuttable presumption or mean conclusive evidence of the fact that the liquor was intoxicating, not determined.]</p> <p>4. In enacting a police regulation the legislature may include within the purview of the statute acts innocent and not in themselves the subject of police regulation, where the inclusion of such acts is necessary, in the opinion of the legislature, to make the police regulation effective.</p> <p>5. On the principle above stated it was competent for the legislature by sec. 1565c, Stats. (1898), to forbid the sale in no-license territory of any fermented malt liquor containing alcohol.</p>

J. Eeuit, Circuit Judge. Appeal by one Thomas F. Hyde from judgment of the circuit court affirming order of the county court admitting to probate a certain writing as the will of Thomas J. Hyde, deceased. According to the evidence of the proponent the will was drawn for Hyde by a layman while the former was in his last sickness, but able to sit up in bed.

J. Feuit, Circuit Judge. Action on policy for accidental death of John Bahalars on December 7, 1905, -whose body was found shortly after 1 o'clock in the morning beside a railroad track.

<p>Appeal from a judgment- of the circuit court for Sauk county: E. Kay Steveks,- Circuit Judge.</p>

’ ■ Appeal from a judgment of tbe circuit court for Fond du Lac county: E. Eat Steven's, Judge. ■ Action to recover damages for injuries alleged to bave been sustained by reason of a defect in a highway. Tbe plaintiff was riding in an automobile driven by one Eobert Hippe, on tbe main highway between the cities of Waupun and Fond du Lac. A culvert in tbe road was being replaced, leaving an opening therein about eight feet in width and nine feet in depth.

J. Eoote, Judg'e. ' The plaintiff corporation is a manufacturer and dealer in knitted goods at Milwaukee, and the defendant corporation is a jobber in the same line of goods at Ripon. In November, 190.5,- the defendant ordered of’ the plainti.fi, in writing, a -quantity of gloves of different kinds at fixed prices, aggregating $322.86, delivery to be made in the following May, bill to be dated as of November 1, 1906, payable in thirty days.

Appeals from an order of the circuit court for Fond du Lac county: Ohestek A. Fowlbe, Circuit Judge. Action to recover of tbe maker and guarantors of a promissory note.

<p>ArPEAL from an order of the circuit court for Fond du Lae county: Chesteb A. Fowdek, Circuit Judge.</p> <p>Plaintiff, a Wisconsin corporation, sued defendant, a corporation of, and located in, Montana, and not engaged in business -in Wisconsin, for a consignment of butter ordered from the plaintiff by mail and delivered free on board cars at Fond du Lac, Wisconsin. Service of summons was made upon A. P. Henningsen, treasurer and manager of defendant corporation, at Fond du Lac. Judgment was entered default. Defendant thereafter appeared specially, and moved upon affidavits to set aside and declare null said judgment for the reason that no jurisdiction was acquired over the person of the defendant. Defendant’s affidavit asserted that Henning-sen was not in this state in connection with any business or interests of the corporation, but merely as a visitor. Affidavits of the plaintiff asserted that at the moment of service he had come to Eond dn Lac for the purpose of adjusting and settling the controversy between plaintiff and defendant as to the latter’s liability forming the basis of this action. The court in an opinion expressed his conclusion from the affidavits that the cause of action arose within the state of Wisconsin, and that A. P. Henningsen, admittedly treasurer and manager of the defendant, was in this state for the purpose of adjusting, and was engaged in adjusting, said claim, and he was therefore in charge of and conducting the business of the/ corporation within this state. Accordingly order was entered denying the motion, from which order defendant appeals.</p> <p>Counsel for the appellant cited Fitzgerald & M. G. Go. v. Fitzgerald, 187 U. S. 98; Goldey v. Morning News, 156 U. S. 518; Gordey v. Malhieson A. Works, 190 U. S. 406; 13 Am. & Eng. Ency. of Law (2d ed.) 893; 19 Cyc. 1327, and cases cited to note 73; 12 Cent. Dig. § 2613 and cases; 3. Cook, Corp. § 759; Taylor, Priv. Corp. § 395; Latimer v. Union Pac. B. 43 Mo. 105, 97 Am. Dec. 378; Phillips v. Library Go. 141 Pa. St. 462, 21 Atl. 640, 27 Am. St. Eep. 304; Glows v. Woodstock I. Go. 44 Eed. 31; Good Hope Go. v. Railway B. F. Go. 22 Eed. 635; Case v. Smith, Lineaweaver & Go. 152 Eed. 730; Ladd M. Go. v. Am. M. Go. 152 Fed. 1008; Johnson v. Computing 8. Go. 139 Eed. 339; U. S. G. Go. v. Pacific G. Go. 68 Fed. 442; U. 8. v. Am. B. T. Go. 29/ Eed. 17; Carpenter v. Westinghouse A..B. Co. 32 Eed. 434; 8t. Louis W. M. Co. v. Consolidated B. W. Go. 32 Eed. 802; Bust v. United W. W. Go. 36 U. S. App. 167; State ex rel.. Bau Glaire D. Imp. Go. v. District Court, 26 Minn. 233; Middlebroohs v. Spring-field F. Ins. Go. 14 Conn. 301; Aid-rich v. Anchor G. Go. 24 Oreg. 32; Dillard v. Gentral Ya. I. Go. 82 Ya. 734; 2Bina Ins. Co. v. Black, 80 Ind. 513; New-ell v. G. IF. B. Co. 19 Mich. 336; Movlin v. Trenton Mut. L. & F. Ins. Co. 24 N. J. Law, 222; St. Clair v. Cox, 106 U. S. 350; 19 Cvc. 1267, 126S, and casos cited; Charter Oalc L. Ins. Co. v. Sawyer, 44 Wis. 387; 13 Am. & Eng. Ency. of Law (2d ed.) 869 et seq. and cases cited.</p> <p>besides other authorities: 10 Cyc. 924, 925, 928, 940; Jester v. Steam P. Go'. 131 N. O. 54, 42 S. E. 447; Pope v. Terre Uaide C. & Mfg. Co. 87 N. Y. 137.</p>

<p>Appeal from a judgment of the circuit court for Fond du Lac county: Oi-ibstee A. Fowler, Circuit Judge.</p> <p>besides other eases, Schrunlc v. St. Joseph, 120 Wis. 223, 97 E. W. 946; 29 Cyc. 513; Devine v. Fond du Lac, 113 Wis. 61, 88 E. W. 913; Goldstein v. C., M. & St. P. B. Co. 46 Wis. 404, 1 E. W. 37; Hausmann v. Madison, 85 Wis. 187, 55 E. W. 167; Fisher v. Franlelin, 89 Wis. 42, 61 E. W. 80; Collins v. Janesville, 111 Wis. 348, 87 E. W. 241, 1087.</p> <p>O. II- Fclce and W. W. Hughes, for the respondent, cited Jung v. Stevens Point, 74 Wis. 547, 43 E. W. 513 ; Luedlce v. Mulcwa, 90 Wis. 57, 62 E. WT. 931; and other cases.</p>

<p>Appeal from a judgment of the circuit court for Columbia county: Chestee A. Eowlee, Circuit Judge.</p> <p>The defendant supervisors on January 5, 1908, determined to lay out a highway across the lands of the plaintiff. At a-meeting of the board, called for the purpose of acting upon the application to lay out the highway, prior to any action being taken, and. prior to the- determination of the board to lay out the same, Supervisor Ott, after consulting with Supervisor Schultz, asked one Boyum whether, if the board determined to lay out the highway, said Boyum would haul material for the bridges free of charge. Boyum, with some reluctance, and after it was suggested that his neighbors would help him to do the hauling, replied that he would; whereupon a vote was taken upon the proposition and it was determined by the town board to lay out the highway. The plaintiff, being the owner of the lands through which it was proposed to-lay out said highway, brought this action to enjoin and restrain the defendants from entering upon his lands or taking' any steps to carry out the building of the highway described in the order of the supervisors. The ground upon which the-plaintiff sought relief in the original complaint was that the order was made as the result o-f a corrupt bargain between the defendant supervisors and Boyum, which was contrary to public policy, and that therefore the order was void.</p> <p>At the close of the testimony plaintiff asked leave to amend his complaint so as to allege that the order laying out the highway was not made or signed on June 5 th, but that on the contrary the supervisors separated on that day, and later the attorney for one o.f the parties interested in having the highway laid out drafted the order laying out the road, and that such -order was signed on the following Monday by the supervisors without holding any meeting; one of them signing in the city ■of Columbus, and the others signing at another place in the absence of the chairman. The court refused to permit the amendment. Erom a judgment dismissing the complaint plaintiff appeals.</p>

Eowleb, Circuit Judge. This is an action by tbe plaintiff, a banking corporation, to recover $59.80 of tbe defendant, its former casbier, wbicb sum it alleges be received and never accounted for. Tbe defendant denied any shortage, and also' alleged that if any shortage in fact occurred it was in bis absence when tbe bank was in charge of an assistant casbier, and hence that be was not responsible therefor. Tbe action was tried before a jury.

<p> Municipal corporations: Adoption of parts of general charter: What provisions of special charter .repealed: Injuries from defective sidewalks: Liability: Notice. </p> <p>1. Where, pursuant to sec. 926, Stats, (1898), a city has adopted sections of the general charter law “in lieu of the provisions of its special charter,” the adopted sections do not supersede any part of the special charter not within the same subject matter nor dependent upon the expressly displaced provisions.</p> <p>:2. Secs. 925 — 201 to 925 — 207 of the general charter law having, when . adopted by the city of Fond du Lac, superseded the provisions of its special charter which made it the duty of lotowners to keep the sidewalks in repair and made them primarily liable , for injuries caused by failure to perform that duty, the further provision imposing upon the’city a secondary liability for such defaults of lotowners was also, by necessary implication, superseded; and, the exemption of the city (under sec. 2, subch. 18, of its charter) from liability under the general law being dependent upon and compensatory of the liabilities above mentioned, the abolition of those liabilities abolished that exemption.</p> <p>■3. In the absence of any special exemption from liability for injuries caused by defective walks, and of any liability specially created, the liability of a city in such a ease is governed by sec. 1339, ' Stats. (1898).</p> <p>•4>. Sec. 6&, subch. 18, of the charter of'Fond du Lae (sec. 4, eh. 435, Laws of 1889), — requiring, as a condition precedent to the right to recover, notice to the city within thirty days after an injury caused by insufficiency or want of repair in any of the public ways of the city, — was not repealed by the adoption of secs. 925 — 201 to 925 — 207 of the general charter law, relating to the construction and repair of sidewalks.</p>

<p> Attachment: Waiver: Inclusion of other claims in judgment: Execution: Mortgages: Priority of liens: Equity: Subrogation. </p> <p>1. When an attaching creditor takes judgment upon an amended complaint including claims other than those secured by his attachment, he will be deemed to have waived his attachment and to have elected to accept merely the lien and rights resulting from the judgment, even where by reference to the pleadings it can. he known definitely what amount of indebtedness secured by the attachment is included in the judgment.</p> <p>2. Upon a judgment recovered by one who had attached land of the defendant, execution was issued in the form prescribed by subd. 1, sec. 2969, Stats. (1898), directing satisfaction out of any real property belonging to defendant at the date of the docketing-of the judgment, and the sheriff sold and conveyed the interest' which defendant had in the attached land at said date. The purchaser paid the full amount of the judgment, and all parties supposed that the procedure was such as to convey the whole interest of defendant at the date of the attachment. Upon foreclosure of a mortgage, the lien of which was subsequent to-' the attachment and prior to the judgment, it is held that the court properly imposed as a condition of the enforcement of the mortgage the recognition and satisfaction of a prior lien in favor of the execution purchaser for the amount paid by him.</p>

<p>Appeal from an order of the circuit court for Eacine •county: E. B. Beldeet, Circuit Judge.</p> <p>About May 1, 1907, the plaintiff contracted to erect a church building in the village of New Munster and to complete the building by the 1st of January, 1908. In the event of his not completing the building at that time he agreed to pay the church congregation the sum of $5 for each day the building remained uncompleted after the 1st day of January, 1908. On May 3, 1907, the defendant Knutson contracted with the plaintiff to do the excavating, mason work, plastering, and stucco work, and to furnish certain material and labor therefor for the sum of $6,806. This contract provided for the completion of the brickwork by the 15th day of August and the remainder of the work by October 15, 1907, and for the forfeiture to the plaintiff of the sum of $5 per day as liquidated damages for each day after either of said dates that the parts of the construction so undertaken by Knutson remained uncompleted, provided such delay was not caused by uncompleted carpenter work. The contract stipulates that if Knutson shall neglect or refuse to complete his contract, then the plaintiff,</p> <p>“after giving [Knutson] five days’ notice in writing, may take over said work, including all material, appliances, and staging on the ground, and may procure the necessary labor and material to complete this contract according to the provisions thereof; and, in case of [plaintiff’s] so taking possession, no further payments shall be made to [Knutson] hereunder until the completion of said work, and, upon the final settlement to be then made between the parties, [Knutson] shall only be allowed for the actual value according to this contract of the material and work he may have furnished, and in addition to the liquidated damages hereinafter mentioned he shall be liable to the [plaintiff] for all loss and damage and all increased cost of erecting and completing said building caused by his failure or neglect.”</p> <p>Knutson was to be paid in monthly instalments of eighty-five per cent, of the value of the work done during the month, the remaining fifteen per cent, to be paid, him upon the final completion, of the work and its acceptance by the plaintiff. To secure the performance of the agreement between the plaintiff and Knutson, a bond in the sum of $3,000 was given by the defendants.</p> <p>'On July 22, 1901, certain work which had been performed by the subcontractor was condemned by the supervising architect and it was taken down and reconstructed, thereby delaying the completion of the work. The brickwork was not completed by the 15th day of August. On October 5th, while the brickwork was still uncompleted, the defendant Knutson abandoned the work. On October 14, 1907, the plaintiff undertook the completion of the contract and completed the brickwork December 15, 1907.</p> <p>It is alleged in the complaint that owing to the failure of the defendant Knutson to complete his contract plaintiff has been delayed in carrying out his contract for 124 days, and that the defendant Knutson has become indebted to the plaintiff in the sum of $620 as the liquidated damages ; that the plastering, stucco, and concrete work on the building remain uncompleted and that it will cost the plaintiff $1,340 to complete them; that plaintiff expended $4,835.47 in completing the brickwork; that $1,826 was paid to the defendant Knut-son; and that Knutson is entitled to a credit of $50.89 for material left by him and used in the construction of the building.</p> <p>The bond given by the defendant the United States Fidelity & Guaranty Company provided, “That said principal [Knut-son] shall well and truly indemnify and save harmless the said obligee [Hoganson] from any pecuniary loss resulting from the breach of any of the terms, covenants, and conditions on the part of the said principal to be performed,” and also that the surety company should not be “subject to any suit, action, or other proceeding thereon that is instituted later than the 15th day of January, A. D. 1908.”</p> <p>This action was commenced on January 10,1908, while the building was still uncompleted. This is an appeal from the order of the circuit court overmling a general demurrer of the defendants to the complaint.</p>

<p> Contracts: Construction: “Audit:” Appeal: Findings of fact: Arbitrar tion and award: Scope: Conclusiveness: Effect on pending action: Evidence: Admissions: Arbitration agreement, when binding: Acceptance: Notice of hearings: Waiver of objection to arbitrator. </p> <p>.1. The., word “audit,” though sometimes restricted to a mere mathematical process, generally includes investigation, weighing o£ evidence, and deciding whether items should or should not be> included.</p> <p>2. In ascertaining the scope of a submission to arbitration under unambiguous agreement therefor, the negotiations betw¿en the.' parties and circumstances under which the agreement was-made may he considered.</p> <p>3. Where the proper construction of an ambiguous contract depends in a measure upon somewhat confused facts and upon the inferences of intention to he drawn therefrom, the conclusion of the trial court as to such construction is entitled to the weight, of the ordinary finding of fact'.</p> <p>4. Where by an arbitration agreement the parties submit to an auditor the question of the amount due to one of them, involving matters of fact and of law, the jurisdiction of such arbitrator is-as broad as that of a court, and his honest conclusion, even, though erroneous, within that jurisdiction is as binding upon, the parties.</p> <p>5. An agreement to submit to arbitration matters involved in a-pending action ipso facto dismisses that action.</p> <p>6. 'A recital in an arbitration agreement that it is made in consideration of the dismissal of an action amounts to an admission of such dismissal.</p> <p>7. Where by an arbitration agreement the amount due plaintiff is to be determined by plaintiff’s auditor after inspecting and auditing defendant’s books, the plaintiff by sending its auditor to examine the books accepts the agreement and becomes bound to do such acts as will give it full effect; and defendant cannot thereafter object that the agreement is unilateral and without consideration.</p> <p>8. Where a party to an arbitration agreement was given full opportunity to be present before the arbitrator at all material times and availed himself of such opportunity, he cannot thereafter complain that the agreement failed to provide for notice of ' hearings and that no notice was in fact given to him or to the other party.</p> <p>9. That the arbitrator was an employee of one of the parties is not a legitimate objection to the award, where both parties knew that fact when they agreed upon him as arbitrator.</p>

<p>Appeal from a judgment of the circuit court for Walworth county: E. B. Belden, Circuit Judge.</p> <p>For many years prior to' October 5, 1903, the firm of Douglass & Dunn was engaged in the business of selling Hour and feed at the city of Lake Geneva. For some months prior to said date the firm of Burton & Denison was engaged in a like business, the firm consisting of W. E. Burton and E. D. Den-ison. On said date the firm of Douglass & Dunn (consisting of the defendants' Horace G-. Douglass and Edward F. Dunn) agreed to sell and convey to Lucretia D. Burton certain real estate owned by them in the city of Lake Geneva as well as their stock in trade and the good will of their business. The stock in trade was to be paid for at its inventory value, based • 031 cost price. For the remainder of the property the vendee agreed to pay $10,000, of which amount $2,000 was presently paid and the balance was to be paid on November 5th. On the last-named date Lucretia D. Burton, John E. Burton, and Ebenezer Davidson formed a copartnership with the members-of the firm of Burton & Denison for the purpose of continuing the flour and feed and other business carried on by said firm .and also for the purpose of carrying on the business purchased by Lucretia D. Burton from the firm of Douglass & Dunn. A portion of the property purchased by Lucretia D. Burton ■from Douglass & Dunn was purchased by the new firm and a portion of it was leased to it. The trial court, in deciding the case, held that Lucretia D. Burton made the purchase from Douglass & Dunn as a mere intermediary and in behalf • of the firm of Burton & Denison. On the day the original ■contract between Douglass & Dunn was made (October 5th), a separate contract was entered into between the firms of Douglass & Dunn and Burton & Denison, as follows:</p> <p>“Whereas, Douglass & Dunn have this day contracted to •sell to Lucretia D. Burton their flour and feed business, together with the real estate upon which the improvements used to operate such business are situate; and, whereas, Burton & Denison, now in similar business, expect to repurchase such •business of said Lucretia D. Burton: Now, therefore, it is mutually agreed by and between Douglass & Dunn and each ■of them and Burton & Denison and each of them, that in case the above-mentioned contract shall be carried out and such •sale and purchase made, for value received, each in consideration of the promise of the other, that Douglass & Dunn or ■ either of them, for a terra'of ten years at Lake Geneva or vicinity, shall not enter into or engage in the flour and feed business without first making an attempt and in good faith •offering a reasonable price to purchase the flour and feed business of Burton & Denison; and Burton & Denison agree for a term of ten years that they or either of them will not dispose of the flour and feed business of said last-mentioned firm or of either party to any third party without first making an ■offer in good faith and for a reasonable price of said business to said Douglass & Dunn, but this agreement shall not preclude either partner of said last-mentioned firm from selling to the other pártner or in taking in a third partner prior to December 1, 1903.”</p> <p>The payments called for by the contract between Douglass- & Dunn and Lúcreüa D. Burton were made, and the title to the property purchased passed to- Lucretia D. Burton and her assigns, and thereupon the firm of Douglass & Dunn ceased to carry on its former business in Lake Geneva,</p> <p>On January 16, 1904, the defendants Horace G. Douglass- and Edward F. Dunn started a flour and feed business at the village of Williams Bay, located about six and one-half miles from Lake Geneva, and during the month of March following engaged in a like business at the village of Zenda, also located about six and one-half miles from Lake Geneva. In the meantime said defendants offered to repurchase the business sold to Burlón, Denison, and Davidson at Lake Geneva. The offers made were rejected, and the court found that such offers-were not reasonable. Said defendants advertised the business carried on at Williams Bay and Zenda in the Lake Geneva newspapers, and sold a small quantity of flour and feed from such places to customers at Lake Geneva. On January 20, 1908, the defendant Harold J. Douglass, a son of Horace G. Douglass and a nephew of Edward F. Dunn, started a flour and feed business at Lake Geneva. This business was started with money contributed, by the father,, mother, and uncle of Harold J. Douglass. Plaintiffs contended that this business was really that of the former firm of Douglass & Dunn, and that it was carried on under the name' of Harold J. Douglass for the purpose of evading the terms of the aforesaid contract. Until a short time before this action was begun, no claim was made by plaintiffs that the defendants had violated their contract by engaging in business at Williams Bay and Zenda.</p> <p>The action was brought to enjoin the defendants from en~ gaging in the flour and feed business at Lake Geneva, Williams Bay, and Zenda, and other places in the vicinity of Lake Geneva, and to compel the defendants to account for the profits of the business carried on in violation of the contract. The circuit court found that Harold J. Douglass was conducting his individual business at Lake Geneva, and that the members of „ the firm of Douglass & Dunn had no interest therein. The court further found that said firm did not engage in business in the vicinity of Lake Geneva within the intent and meaning of their contract, and judgment was entered dismissing the complaint, from which judgment this appeal is taken.</p>

Belden, Circuit Judge. Action for personal injuries. The plaintiff was a lineman in the employ of the defendant corporation at Kenosha, and was injured while his fellow workmen were drawing him up by rope and pulley to a platform midway between the telegraph poles, where he was to investigate some difficulty in a •cable.

<p> Attorney and client: Authority: Stipulations: Validity: Setting aside: Discretion: Evidence: Laws of other-states: Corporations: Power to hold property: Who may. object. </p> <p>1. The general retainer of an attorney in charge of litigation is sufficient to enable him in his honest judgment to control all matters of procedure in the action.</p> <p>2. A stipulation in ejectment that defendant might amend his answer, without costs, after his strict right to do so had expired, and that each party might at the trial prove any title acquired after the commencement of the action, without a discontinuance and without payment of costs, amounted to a mere waiver of the procedure required by sec. 3074, R. S. 1878, and a balancing of the claims for costs (which in this case were nearly equal in amount), and was within the power of the attorneys and binding upon the parties, irrespective of express consent or knowledge of the parties.</p> <p>3. A stipulation cannot be attacked by defendant as lacking mutuality because signed for plaintiff by attorneys other than, and who had not been substituted for, the attorney who signed the summons, where it appears that the attorneys signing had, with consent of the original attorney and with knowledge of defendant’s attorney, full authority from plaintiff to conduct the litigation, and had acted as his attorneys; also that the stipulation had been treated as effective by both parties and had been acted upon by defendant to his own advantage.</p> <p>4. The discretion of the trial court to relieve parties from stipulations when improvident and induced by fraud, misunderstanding, or mistake, or when rendered inequitable by the development of a new situation, is a judicial discretion, to be exercised in the promotion of justice and equity. A stipulation relating to matters of procedure and having the essential characteristics of a mutual contract by which each party granted to the other a concession of some rights as a consideration for those secured, and which has been acted upon by the parties so that the status quo cannot be re-established as to one of them, should be set aside only in a plain case of fraud, mistake, or oppression.</p> <p>5. It was not an exercise of judicial discretion to set aside a stipulation in ejectment under which defendant had been permitted to amend his answer without costs, and plaintiff was to have the right, without payment of costs, to prove title acquired after the beginning of the action, where defendant had enjoyed the rights so granted him for ten years, during which time defendant’s after-acquired title was of record, and such action of the court would practically preclude the proving of such title and cause plaintiff’s rights to the property to be barred by the statute of limitations.</p> <p>6. In the absence of proof as to the law of another state, the court cannot take judicial notice that it differs from that of Wisconsin.</p> <p>7. The objection that a corporation, foreign or domestic, has no power to hold title to property cannot be raised by a stranger claiming the property, unless, perhaps, such lack of power results from express statutory prohibition. If the acquiring of such property is merely ultra vires, it can be questioned only by persons directly interested in the corporation, or by the state.</p>

<p> Master and ,servant: Unsafe place to work: Pleading: Variance: Amendment: Evidence: Impeachment of witnesses: -Oross-exam.-ination: Immaterial'errors: Special verdict: Questions: Sufficiency: Proximate cause: Who are fellow-servants: Assumption of risk. </p> <p>.1. Under a complaint alleging that a large block of stone which, plaintiff was lettering when it fell over and injured him had been negligently set up on the earthen floor of defendant’s shop, evidence as to the condition of the ground where the stone stood was competent.</p> <p>'2. The rule that a party cannot impeach his own witness does not preclude him from showing that the testimony of any witness is incorrect or false in a matter material to the issue.</p> <p>.3. In an action for injuries caused by the falling of a large block of stone which plaintiff was lettering, it was not prejudicial error to exclude questions, asked him on cross-examination, as to whether he could think of anything that ought to have been done about the placing of the stone that was not done, whether he knew what was necessary to properly place stones, and whether, from what he noticed at that time as to the placing of stones to be lettered, the one in question needed bracing.</p> <p>-4. The negligence complained of in such action being the failure to furnish a safe place to work, and the defect not being obvious, defendant was not prejudiced by exclusion of questions, on cross-examination of a witness for plaintiff, as to whether blocks put under stones often shift and have to be replaced, and whether the craneman who placed the stones was not at times called to replace them. Vesick v. Chicago B. Go. 138 Wis. 342, distinguished.</p> <p>■5. It being alleged in the original complaint that the stone which fell and injured plaintiff was negligently erected “upon the earthen floor” of defendant’s shop, and that it sunk the blocks upon which it rested into the earth so unevenly as to throw it out of plumb and cause it to fall, there was no error in allowing an amendment making the Complaint read “upon the unsafe and unsuitable earthen floor.”</p> <p>6. It was not error in such case to refuse to submit to the jury at defendant’s request a question as to whether there were other places in defendant’s shop where the ground was reasonably safe and where defendant’s employees might have banked the stone, — the duty being upon defendant and not upon plaintiff to furnish a safe place.</p> <p>7. A crane crew whose special duty it was to place in proper and safe position in defendant's shop the stones which were to he cut and lettered represented the master in providing a reason-' ably safe place for the cutters and letterers, and hence were not. fellow-servants of a letterer who was injured by the falling of ’ a stone upon which he was working, which had been insecurely set up by such crew without his taking any part in the setting: thereof, although it appeared that the letterers ealled upon the crane crew to place the stones and in some cases, though not as a part of their duty, assisted the crew in that work.</p> <p>8. The evidence in this case is held, sufficient to show that the stone-by which plaintiff was injured fell because it was not properly and safely put in position in view of the nature of the ground upon which it stood.</p> <p>9. Plaintiff was not charged with the duty of inspecting the ground. upon which the stone was placed and, it not being shown conclusively that he knew of the unsafe condition of the ground,, and it not appearing that such condition was so obvious as to-charge him with knowledge of the danger, he cannot be held as matter of law to have assumed the risk.</p> <p>10.A special verdict finding that plaintiff was injured by the stone-falling upon him; that the ground upon which the stone was placed was not reasonably safe; that the blocks upon which it rested were not of sufficient size to make them reasonably safe,, considering the character of the ground; that defendant did not furnish plaintiff with a reasonably safe place to work; that defendant was guilty of want of ordinary care which was the-proximate cause of plaintiff’s injury; that ther.e was no contributory negligence on the part of plaintiff; and assessing-plaintiff’s damages, — is sufficient to support a judgment for the-pladntiff.</p> <p>It Such a verdict is not insufficient on the ground that it fails to-show definitely what negligence the jury found to be the proximate cause of the injury, where no request was made for more-specific findings upon that subject.</p> <p>Marshall, J., is of the opinion that the decision should be> based upon the fact that the working place furnished by defendant — meaning the ground' selected, and not including the: stone in position thereon — was not reasonably safe for the work in which plaintiff was engaged, and that it is unnecessary to-decide whether or not the crane crew were fellow-servants of the plaintiff.</p>

<p> 'Contracts: Rescission: Joint wrongdoers: Death of one: Judgment against representatives: Form: Necessary parties. </p> <p>1. In an action for rescission o'f an executed contract induced by fraud and undue influence, where one of the defendants dies and his executors are substituted, the court should find what part, if any, of the money or property wrongfully- taken under the contract was received by the deceased wrongdoer, and judgment may be rendered against the executors for that amount only, with an express direction that it be collected only out of their testator’s estate.</p> <p>■2. The executors in such a case are necessary parties to the action so far as it seeks to rescind or annul a contract to which their testator was a party, but the judgment, if any, against them should be de bonis testatoris, not de bonis propriis.</p>

<p> Negligence: Proximate cause of injury: Fright or shock. </p> <p>1. When physical injury flows directly from extreme fright or shock, caused by the ordinary negligence of one who owes the duty of care to the injured person, such fright or shock is a link in the chain of proximate causation as efficient as physical impact from which like results flow.</p> <p>[2. Whether, in a complaint alleging that through defendant’s negligence plaintiff received “a severe fright and shock” and that a miscarriage resulted therefrom, the word “shock” is used to mean a physical or a mental disturbance, or as meaning a condition partaking of both, not determined.]</p>

<p>Appeal from orders of the circuit court for Milwaukee county: Wabk-EN D. TabeaNt, Circuit Judge. .</p> <p>Action to enjoin execution of eh. 363, Laws of 1909, upon the ground that it is unconstitutional. A temporary injunction was granted on a verified complaint. There was a demurrer for insufficiency and a motion to vacate the injunction. The former was sustained and the latter granted. The appeal is from both orders.</p> <p>The complaint, among other things, stated, that plaintiff is 'a 'Wisconsin corporation, engaged, in this state, in dealing in products of petroleum, including kerosene oil, gasoline, benzine and naphtha; for illuminating, heating, and power purposes; all of which are subjects of interstate commerce, and are brought into this state to supply trade in which plaintiff is engaged; that defendant and his assistants, as state agents, under pretended authority of the legislative enactment mentioned, will, unless judicially prevented, interfere with plaintiff’s business, to its great pecuniary and irremediable detriment; that the act violates art. X, sec. 1, art. I, sec. 13, art. I, sec. 22, art. IV, sec. 18, art. VI, sec. 2, and art. VIII, sec. 1, of the state constitution; also art. I, see. 8, art. I, sec. 10, of federal constitution, and arts. V and NIV of amendments to the federal constitution; that the inspection fees are exorbitant and the act, generally, is unreasonable and indefinite.</p> <p>The material interferences authorized by the act are as follows:</p> <p>(1) All products, mentioned in the act, sold in this state for illuminating or heating purposes, shall be inspected by the state agents, mentioned, under such rules as the chief agent may make, consistent with the provisions of the act.</p> <p>(2) All packages or inclosures shall be niarked so as to evidence tbe inspection and under.such rules as to prevent such evidence being used a second time.</p> <p>(3) The inspection fees shall be deposited in tire state treasury and devoted wholly to expense of the inspection department.</p> <p>(4) Every product of which petroleum, or any product thereof, forms a constituent part, shall, before being offered for sale in this state for illuminating or heating purposes, be inspected and marked as provided.</p> <p>(5) Gasoline and like products of petroleum need only be inspected as to specific gravity, the result in each case to be stamped on the package or inclosure, provided, however, that ■such products, when sold or delivered in bulk from a tank' wagon, need only be safeguarded by the wagon having thereon the character of the product delivered therefrom, as indicated in the act.</p> <p>(6) The standard of test shall be as indicated, and shall be made, promptly, when demanded, and the fee therefor shall be paid by the demandant at ten cents per cask, barrel, package, or sample. In case of the products being in large inclosures there shall be a fee as for barrel lots of fifty gallons.</p> <p>(7) Illuminating oil shall be tested for temperature at which it will emit a combustible vapor and burn freely, and gasoline and like products of petroleum for their gravity, and if found to satisfy statutory requirements, shall be marked over the signature of the tester, if oil, “approved for illuminating, heating or power purposesand if such other products, tire specific gravity, specifying the district and date of the test; and a certificate shall be issued by tire tester, containing stated specifications. All products, not meeting the required test, shall receive a specified mark of condemnation.</p> <p>(8) The inspector shall have authority to enter any private premises of any manufacturer, refiner, or vendor of products requiring inspection, and malee the proper test and marking of any such product found not to have been so tested and marked, and examine tbe books and records of the parties for purposes of discovery.</p> <p>(9) Any shipment in a tank shall be inspected before unloading, provided the delay shall not be over twenty-four hours, in which case the testing may be done after unloading. In case of inspected oils being placed in stationary tanks, no other inspection shall be necessary, but the tank shall be duly marked by the inspector as provided.</p> <p>(10) In case of oils, after having been inspected, being shipped out of the state, the inspector’s fees shall be returned.</p> <p>(11) In case of shipment into the state of inspected oils, from points where the standards are the same as here, upon payment of the fees, the inclosures may be duly marked without retesting.</p> <p>(12) All retailers of gasoline or any similar product shall make deliveries in barrels or small designated inclosures, painted vermilion red, with a specified designation stenciled in English thereon. No such dealer shall make deliveries of kerosene in like manner.</p> <p>(13) Every vendor or user of gasoline shall keep the same in stenciled inclosures, as aforesaid, and not keep kerosene in like manner; provided, that in case of gasoline and the like, or any product containing the like as a constituent part, of not more than a quart for cleaning purposes, the inclosure may be marked by the name of the product and with the words “unsafe when exposed to heat or fire” painted in bright red ink in letters not less than one fourth of an inch in size.</p> <p>(14) Penalties shall be as follows:</p> <p>(a) Eor selling or offering, personally or otherwise, or in any manner disposing of or attempting to dispose of, any untested and duly stamped and approved product of petroleum for illuminating, heating, or power purposes, or knowingly using or furnishing the same for such use, a fine of from $5 to $500, in addition to liability to the party injured for all damages by him sustained.</p> <p>(b) For wilfully adulterating illuminating or beating oil? by adding thereto any substance, $50 to $500, or imprisonment in the county jail not more than six months.</p> <p>(c) For falsely marking an inclosure, personally or otherwise, altering or defacing in any'way any of the inspector’s markings; or using, in any way, as before, any marked inclosure, without first canceling the inspector’s markings, and having a new testing and marking; or offering for sale, or selling, any of the product “representing it to be in any respect other and different in quality or kind than as represented to the person purchasing the sameor without displaying conspicuously at the place of sale a notice of the “tests both flash and burning, according to the last certificate issued by the deputy inspector making the inspection of the products, as to explosive qualities, and the gravity test of gasoline, provided for in this act,” $5 to $500, or imprisonment in the county jail for not more than six months, or both fine and imprisonment.</p> <p>(d) For disposing, in any way, of any package without first thoroughly canceling, defacing, or removing the inspect- or’s marks, $5 to $500, or imprisonment in the county jail not exceeding six months.</p> <p>(e) For knowingly offering for sale or using any coal kerosene oil or product for illuminating or heating purposes, which will emit a combustible vapor or bum freely at a temperature less than a specified degree, by a particularly specified standard, or burning in a lamp or vessel or using for illuminating purposes, in any of specified places, any petroleum product which will ignite and burn under a specified temperature by a specified standard, $100 to $1,000, and liability for resulting damages.</p> <p>(f) For selling or offering for sale any condemned oil, .$100 to $1,000, or imprisonment in the county jail not more than six months, or both fine and imprisonment.</p> <p>(g) For neglect to keep any product, either by seller or user, or to deliver the same as required, $5 to $50, or impris-nnmp.Tit not to exceed three months, or both fine and imprisonment.</p>

Eowleb, Circuit Judge. At North Eond du Lac the defendant has an arrangement for handling cinders. The arrangement is the only one of its kind operated by the defendant. Under one of the defendant’s tracks is what is known as the “cinder pit.” On the bottom of the cinder pit, which lies nine or ten feet below the track, are two sets of parallel tracks running east and west. At the north and south of the tracks in the pit are abutments. The east end of the pit is closed.

<p>Appeal from a judgment of the 'circuit court for Rock</p> <p>county: Geoege Geimm, Circuit Judge.</p> <p>This action, commenced in August, 1882, was to redeem from certain mortgages Held by one Guy Carter on a valuable farm which had been-delivered over to him in 1872 to apply the rents and profits to the taxes ,and to the interest and principal of those mortgages; also to clear the title from those mortgages and from certain tax deeds and liens thereon fraudulently acquired by said Carter, who had died shortly before the commencement of the action. The ease was (January, 1883) referred to one Phelps to hear, try, and determine, and he made his report in 1891. Pretty much all the circuit judges of the Twelfth judicial circuit for the last quarter of a century were disabled to act in the case by reason of having been of counsel. The circuit judge of the First circuit seems to have been invoked to, hear the motions for modification and confirmation of this referee’s report, and the argument of those motions was finally had in 1894. On December 30, 1901, Judge Fish, having previously given a written opinion, signed findings and order modifying the report of the referee. Such findings and order convicted Guy Carter of fraud with reference to the acquirement of taK liens, of refusal to perform his duty in keeping accounts and not applying the income and in so obstructing the plaintiff in an opportunity to sell the land and in refusing to accept a conveyance at a given price in liquidation of his mortgages after having first promised to do so, that the court decided he was entitled to no interest after 1880, the date of such tendered conveyance, and ordered application of sums of money so that it was obvious that the mortgage was more than satisfied at the time of such decision. He also in said order directed a re-reference bo William Ruger, Esq., to restate the account in accordance with the court’s decision, and to take an account by defendants of all receipts and disbursements with reference to the farm subsequent to the prior reference, they having continued in possession and control. There appears to have been no attempt to bring official notice to Mr. Ruger of his appointment or to gain his acceptance, and, as a matter of fact, it was known that he had been consulted, if not retained, as counsel for certain interests in the litigation at the time of such order of reference or afterwards.</p> <p>In June, 1902, the defendants moved to set aside said order made by the judge of the First circuit for the reason that it was wholly without jurisdiction, it having been signed by him at his chambers in Racine and physically transmitted to the clerk of the Rock county circuit court at a time when he was not presiding in that court, but another judge was. This motion was heard before the judge of the Thirteenth judicial circuit, who on December 2, 1902, signed and filed an order that the motion be denied. This seems to have been supplemented or modified by an order on December 15th to the same effectj except that it awarded motion costs. This order was assailed because without jurisdiction, the judge having signed it at a time when he was in Dodge county and not presiding in Eoek county. This order of December 15, 1902, never reached the files of the circuit court for Eoek county until April 20, 19 OS, when it was found in the office of one of the plaintiff’s attorneys, and so filed. A motion to vacate that order was overruled in December, 1903.</p> <p>Erom that time until the 13th day of April, 1908, no steps were taken by either party in the case, except that it appears certain negotiations were in progress to fix inter partes the amounts which had been received by the defendant subsequent to the previous accounting, so that the further steps might be entirely arithmetical, which negotiation, however, came to naught. On the 13th of April, 1908, defendants moved to dismiss the action because of unreasonable delay on the part of the plaintiff; that more than two years have elapsed since the date of the referee’s report; that more than five years have elapsed since the issue was joined in November, 1882, and the action had not been brought to trial for the reason that the plaintiff had ceased to be the real party in interest; that he failed to prosecute with due diligence; that the executors of Guy Carter had been discharged as such; that it was inequitable that defendant should be further harassed; and that the plaintiff is not acting with diligence or in good faith, and that there is no equity in plaintiff’s complaint, and that he had been guilty of laches and had abandoned the action. That motion seems to have been heard upon certain affidavits and upon the record of the case and resulted in an order on May 5, 1908, by the present judge of the Twelfth circuit, that the action be dismissed with costs, because it appeared to the satisfaction of the court that plaintiff had been guilty of unreasonable neglect and inexcusable laches in the prosecution of this action. Erom judgment pursuant to this order plaintiff appeals.</p>

Fowler, Circuit Judge. This action was brought by an. infant under sixteen years of age through, his guardian to recover for personal injuries.

<p>Appeal from a judgment of tbe county court of Walworth: county: Jay E. Lyow, Judge.</p>

Halsey, Circuit Judge. Appeal by defendant from order overruling demurrer to tbe complaint on tbe ground of misjoinder of actions.

Appeals from orders of tlie circuit court for Milwaukee ■county: WaeeisN II. TaeuaNT, Circuit Judge. The respondent is an incorporated congregation of the Roman Catholic church. Erom January, 1905, to January, 1909, the appellants were the duly elected and qualified directors, and the secretary and treasurer, respectively, of the congregation.

<p> Contraéis: Proposal and acceptance: Mining lease: Agreement as to assignment: Construction: Forfeiture: Statute of frauds: Several writings. </p> <p>1. Plaintiff, lessee under a mining lease, made three different proposals to defendant to assign the lease and sell the equipment. Two of these gave defendant an option to purchase the equipment at a future date and provided for payment of a monthly rental until that date. It was afterwards agreed between the parties that defendant would accept one of three proposals and that until such acceptance he would pay the expense of development work by plaintiff, required by the lease. Before the time for acceptance had expired, defendant having failed to keep up the payments for development work, that work was discontinued and the lease forfeited. Held, that defendant was not liable for the monthly rental for the equipment, since under the agreement he might have accepted the proposal which did not require payment of rent.</p> <p>2. No purchase having been consummated, and the lease having been forfeited before the time for acceptance expired, defendant was not liable for any purchase money.</p> <p>3. Defendant was liable, however, under the agreement for the expense incurred by' plaintiff in development work.</p> <p>4. Although, before making the proposals to defendant, plaintiff had failed during one month to perform the full amount of development work required by the lease, such failure did not ipso facto forfeit the lease or terminate his title, since it might be waived by the lessor;' nor did such failure constitute an in-cumbrance on the leasehold.</p> <p>5. A provision in the lease requiring the approval of the lessor to any assignment did not disable plaintiff from contracting to assign it, and defendant, having had the lease in his possession, presumably contracted with reference to such requirement.</p> <p>6. Under the statute of frauds of Colorado relating to contracts for the leasing for a longer period than one year or for the sale of any lands (substantially the same as sec. 2304, Stats. 1898), several distinct and separate writings may be construed together as containing all the terms of the contract, though only one of them be signed by the party to be charged. Thus, in this case, proposals by plaintiff to assign a lease, the lease itself, and an undertaking by defendant to accept one of such proposals, taken together, are held to satisfy all requirements of the statute.</p>

Takraett, Circuit Judge. This action was brought to enforce specific performance of a contract in writing by the terms of which the plaintiff agreed to exchange a lot and pay $600 for another lot owned by the ■defendants, each, party agreeing to convey to the other by warranty deed the lot in question.

Appeal fpom an order of the circuit court for Milwaukee county: W. J. TueNee, Circuit Judge. The appeal is from an order vacating a temporary injunction.

Halsey, Circuit Judge. Action upon a promissory note, $2,500, dated April 21, 1900, signed by J. O. & W. S. Buckley, a copartnership, pay,.able to tbe order of Thomas F. Somers, at six months date, with six per cent, interest, and indorsed by Thomas F. Som-ers, Charles Buehner, John Graf, Peter J. Somers, John Zilg, C. S. Otjen, II. F. Bosworth, and ~W. F. Haslci/n, in the order aforesaid.

Halsey, Circuit Judge. Plaintiff is the duly appointed executrix of Lida Webb,, who died June 23, 1907. Eor some time prior to her death she was an invalid. She used crutches and required, assistance about her home. The defendant Buten cared for* her needs, with his own money purchased fuel, provisions, and medicines for her, and acted as her servant and nurse.

Tabeant, Circuit Judge. Tbis action was brought to recover commission on sale of real estate based upon the following contract: “Whereas, John R. De Wolf has undertaken to procure a lessee or purchaser for the Wisconsin Lahes Ice & Cartage ■Company, of the real estate in the city and county of Milwaukee, Wisconsin, known and described as lot nine (9), in section sixteen (16), town seven (J) north, of range twenty-two (22)'east, in the Eighteenth ward, west of the right of…

<p> Master and servant: Injury from defective appliance: Evidence: Contradiction of physical laws: Questions for jury: Appeal: Presumptions in support of verdict: Negligence of master: Common usage: Special verdict: Separate question as to assumption of rislc: Request: Opinions. </p> <p>1. The proposition that testimony as to the manner in which an injury was inflicted is in contradiction of known physical laws and therefore impossible and incredible must be supported by demonstration, not by mere conflict of evidence; and all the necessary data for demonstration must appear affirmatively and not depend upon mere credibility of other witnesses.</p> <p>2. In an action for personal injuries caused by the spilling of molten iron from a crane ladle in defendant’s foundry, the evidence is held not to furnish data sufficient to demonstrate that the injury could not possibly have happened in the manner testified to on the part of plaintiff; and the question whether it did so happen was one for the jury.</p> <p>3. If necessary to support tlie verdict, it will be presumed on appeal that the jury were satisfied of „the existence of a fact properly before them for determination.</p> <p>4. In an action for personal injuries to an employee caused by the spilling of molten iron from-a crane ladle in defendant’s foundry, the fact that the ladle was in substantially as safe condition as similar ladles used in such foundries generally is competent and proper to be considered upon the question of whether defendant exercised ordinary care in furnishing such appliance for use by its employees, but is not conclusive upon that question, as the appliance, though in common use, might be inherently, and to the employer obviously, dangerous.</p> <p>'5. The master cannot escape liability for injuries caused by his failure to exercise ordinary care to furnish his servants reasonably safe appliances by proving that all other masters in the same line of business and using thé same appliances are equally negligent.</p> <p>6. Although the question of plaintiff’s assumption of the risk should properly have been submitted for special verdict separate from the question of his contributory negligence, a failure so to submit it cannot be assigned as error by defendant, where he did not present a question properly covering the matter and the verdict as found did in legal effect cover it.</p> <p>f. A question which the court was asked to submit ’or special verdict, “Was the spilling of molten iron which caused plaintiff’s injuries a common occurrence in the business of molding and one incident to plaintiff’s work as a bench molder in defendant’s foundry?” did not properly cover the question of plaintiff’s assumption of the risk, since it did not embrace the question whether plaintiff knew, or in the exercise of ordinary care ought to have known, of such occurrences.</p> <p>8. The opinion of a witness as tó the, extent to which certain gearing was worn two years before the time in question should have been excluded in the absep.ce of data upon which to base it, there being no uniformity of progress in such wearing.</p>

Appeals from a judgment of the circuit court for Milwaukee county: J. O. Ludwig, Circuit Judge. The deceased, Joseph Deller, was married on May 23,. 1895, to the petitioner herein. At that time he was a widower aged sixty-six and she was a spinster aged forty-one. The deceased had several children by his former wife, who were living at the time of his marriage in 1895 and are still living. No issue was born of the marriage which took place-at that time.

<p>Appeal from an order of the circuit court for Milwaukee county: W. J. TiteNee, Circuit Judge.</p>

C. Ludwig, Circuit Judge. Action commenced by one nonresident against two others to enforce a cause of action for wrongful conversion of personal property. Service of the summons was made on J ames S. Stoll, one of the defendants, while he was temporarily in this state solely to obtain medical treatment for something skin to insanity. Service was not made on the other defendant. The one served was duly arrested, pursuant to the statute in such cases.

Halsey, Circuit Judge. Action to foreclose as a mortgage an interest claimed to he held by the plaintiffs by virtue of a warranty deed from the appellant and her husband, Edward M. Daniell, of the latter’s homestead.

<p>Appeal from, a judgment of the circuit court for Milwaukee county: W. J. Tubeteb, Circuit Judge.</p> <p>In March, 1886, the parties to this- action entered into a ■contract of insurance, whereby the defendant, in consideration of the annual payment for twenty years of the sum of $33.26, insured the life of the plaintiff, under the semi-tontine plan, in the sum of $1,000; the tontine dividend period for the policy to he completed in the year 1906.</p> <p>The plaintiff possessed two sheets of paper pinned together (Exhibit 1, pages A and B), and-alleges that they together embody the contract The larger sheet (Exhibit 1, page A), which was partly written and partly printed, was in the usual form of a life insurance policy. Upon the hack of this sheet, among the requirements and provisions of the contract of insurance, was printed the following:</p> <p>“5. That upon the completion of the tontine dividend period on March 19, 1906, provided this policy shall not have' been terminated previously by lapse or death, the said William II. Timlin shall have the option either: First, to withdraw in cash this policy’s entire share of the assets: i. e. the accumulated reserve, which shall be five hundred and fourteen and 31-100 dollars, and in addition thereto, the surplus apportioned by this society to this policy; secondly, to' convert the-same into a paid-up policy for an equivalent amount, provided always that if the amount of said paid-up policy shall exceed the original amount of the assurance, a satisfactory certificate of good health from one of the society’s medical examiners shall be required; thirdly, to withdraw in cash the share of the accumulated surplus apportioned by said society to this policy, and continue the policy in force on the ordinary plan; or fourthly, to continue the assurance for the original amount, and apply the entire tontine dividend tO' the purchase of an annuity, the amount derived from such annuity, together with the annual dividend on this policy, shall be paid in cash to-said William II. Timlin, or assigns.”</p> <p>The smaller sheet, attached by a pin to- the larger sheet, was partly printed and partly written and was- as follows:</p> <p>“The Non-Fokeeitable and Incontestable Semi-Tontine Policy.</p> <p>“Equitable Life Assurance Society of 2Vew YorJc.</p> <p>“(These estimates are the authorized figures of the society.)</p> <p>“Policy, $1,000.00. Age 34. Annual Premium $33.26. Total cost in 20 years, $665.20. Kind of policy — Life in 20 payments; Tontine 20-years.</p> <p>“If policy-holder is alive and policy is in force at the end of ton-tine period, you are then entitled to either of the following options:</p> <p>1st. Withdraw in cash—</p> <p>Guaranteed legal reserve in policy is. g514 31</p> <p>Guaranteed surplus is estimated at. 591 69*</p> <p>Total, Cash. SI, 306 00</p> <p>2nd. Take paid-up policy, if in good health, for. S2,350 00</p> <p>3d. Take a life annuity, increasing annually, beginning with. 53 47</p> <p>And besides have your original policy carried till death, free of cost, for... $1,000 00'</p> <p>“This pays you-per cent., simple interest, or 4.40 per cent., com-</p> <p>pound interest, besides you have been insured 20 years for $1,000.00, without cost.”</p> <p>Along the side of this smaller sheet was the following:</p> <p>“Tontine is a premium on living, not on dying.</p> <p>“The best insurance ever devised for successful men.</p> <p>“No technicalities — if we insure you we will pay your claim.” - ,</p> <p>The annual payments of premiums were made as required, and at the expiration of the twenty years the plaintiff notified the defendant that he elected to take a life annuity and to have his policy carried until his death at the sum of $1,000, in accordance with the third option and upon the terms agreed upon and embodied in page B, the smaller of the two sheets of paper. The defendant refused to allow the plaintiff an annuity of more than $19.85 per year. Plaintiff brought action to enforce his claim, alleging that it had been stipulated in the agreement that the annuity, beginning at $53.47 and increasing annually, should be for life, and that he was entitled to its value, namely, $750.</p> <p>There is no controversy but that plaintiff performed the conditions of the policy by furnishing a proper health certificate and by giving notice of his election. The plaintiff testified that he received the policy at about the time it bore date or shortly thereafter; that the two pages are now and have remained attached while in his possession, in the form and manner they were in when produced on the trial; that its condition is now the same as it was when he received it; that he made his payments in reliance upon the conditions and stipulation of bbth pages A and B; and that the agent with whom he carried on the negotiations for the policy is now dead.</p> <p>This is an appeal from the judgment rendered on the verdict which was directed by the court in favor of the plaintiff.</p> <p>They contended, inter alia, that the paper in question, construed as a promise on the part of the defendant to pay a fixed sum as surplus, in cash or in the form of an annuity, at the expiration of the tontine dividend period, was wholly inconsistent with the policy applied for by plaintiff, and directly contradicted the terms of the paper signed and authenticated as the contract, and which corresponded precisely with what plaintiff applied for. Bogardus v. New Yorlc L. Ins. Go. 1011ST. T. 328, 338; Avery v. Equitable L. Assur. Soc. 117 1ST. T. 451; Langdon v. Northwestern Mwt. L. Ins. Go. 116 App. Div. 558, 101 FT. Y. Supp-. 914; Untermyer v. Mwt. L. Ins. Go. 128 App. Div. 615, 12Í FT. Y. Supp. 221; Ilorncastle v. Nquitable L. Assur. Soc. 22 Times Law Rep. 735; Ruse v. Mwt. B. L. Ins. Go. 23 FJ. Y. 516; Clinton v. Nope Ins. Go. 45 FT. Y. 454; Vilas v. New Yorlc Cent. Ins. Co. 72 FT. Y. 590; Planters’ Mwt. Ins. Co. v. Rowland, 66 Md. 236, 7 Atl. 257; Stone’s Adm’rs v. ü. S. G. Go. 34 FT. J. Law, 371.</p>

<p> Bills anti, notes: Consideration: Services: False representations: Evidence: Presumptions: Matters of opinion. </p> <p>1. An agreement to perform services is a sufficient consideration for a note.</p> <p>2. Proof that more than a year after plaintiff represented that she was the only person who could teach dermatology other schools of dermatology were advertised, did not show falsity of the representations, there being no presumption that such schools existed at the prior date.</p> <p>.’[3. Whether or not such a representation related to a mere matter of opinion and hence, even if false, did not constitute actionable fraud, not determined.]</p>

<p>Appeal from an order of tbe circuit court for Milwaukee county: W. J. TueNee, Circuit Judge.</p>

<p> Master and servant: Injury caused by incompetent fellow-servant: Evidence: Reputation, for carelessness: Notice to master: Questions for jury. </p> <p>1. Sufficient evidence to warrant a jury in finding that a servant was incompetent sliould be offered before evidence of bis reputation for incompetency or carelessness should be received for the purpose of showing that the master was chargeable with knowledge of such incompetency.</p> <p>2. The reputation which may be shown in such a case is the servant’s general reputation among those acquainted with his work, not his reputation' among a particular class which includes a • part only of those having such acquaintance.</p> <p>3. The fact that the servant alleged to be incompetent and other employees of defendant avoided careless acts of the character in question while defendant’s foremen were about, might be significant on the question of actual notice to defendant, but cannot render incompetent the evidence as to general reputation.</p> <p>4. Evidence tending to show facts calculated to give notice to the master of the habitual carelessness of a servant in the use of gasoline, together with evidence that the servant had a general reputation for such carelessness among those with whom he worked, is sufficient to make it a question for the jury whether, in the exercise of ordinary care, the master should have discovered that the servant was incompetent, and whether the master was negligent in failing to discharge him.</p>

<p> Master and, servant: Injury to inexperienced servant: Duty to instruct: Contributory negligence: Instructions to jury: Credibility of witnesses. </p> <p>1. With no experience, as defendant knew, in machinery save in the operation of an electric traveling crane, and without instruction as to his duties or warning as to the dangers, plaintiff was . set to assist the operator of a machine for boring steel in defendant’s factory. The power for the machine was turned on or off by moving gear wheels on their shafts, but there was no mechanism for doing this other than a raised rim or bead, not particularly noticeable to an inexperienced person, on the hub of the wheel, which the employee was expected to take hold of with his fingers. Upon evidence tending to show'that plaintiff was ordered by the operator to pull off the gears and made an attempt to do so; that he told the operator that he did not know how, and was again ordered to throw them off, but was given no instructions; and that in attempting to do so by taking hold of the circumference of one of the wheels his fingers were caught and crushed in the cogs, it is held that it was a question for the jury whether defendant was negligent in failing to give proper instruction or warning as to the danger.</p> <p>2. The question whether plaintiff was guilty of contributory negligence was also, upon such evidence, for the jury.</p> <p>3. The jury were properly instructed in such case that the presumption in case of an adult employee is that he has sufficient intelligence to comprehend the-dangers of his employment, but where there is ignorance, inexperience, or lack of intelligence on the part of the employee, which is or ought to be known to the master, and ¡which tends to prevent the employee from comprehending the dangers, it is the duty of the master to properly instruct and warn the employee thereof.</p> <p>4. An instruction, requested by defendant, that if plaintiff did not tell the operator that he did not know how to pull off the gears the verdict must be for the defendant, was properly refused.</p> <p>5. While it is proper to instruct the jury that in weighing the testimony of a party they should consider his interest, this ought to be done in connection with a general instruction that considerations of interest, appearance, manner, and the like apply to the party in common with all other witnesses; and the jury should not be told that the testimony of a party is looked upon with distrust and suspicion.</p>

<p>Appeal from an order of the circuit court for Milwaukee-county: WabbeN D. TabhaNt, Circuit Judge. '</p> <p>Action to recover damages for fraudulently inducing the making of an option contract between the defendant White-Bode Mineral Bpring Oompany and its stockholders, particularly the defendant 'Welch, on one side, and persons named as defendants on the other, for the sale by the former to the latter-of the property of such corporation. Plaintiffs, by purchase, became owners in severalty of a three-sevenths interest in the-contract. They claimed that Welch and the corporation misrepresented material matters on the faith of which the contract was made and, for value, came in part to them to their damage which they sought to recover.</p> <p>Those charged as liable to respond in damages answered, among other things, to the effect that all claims under the alleged option contract, long prior to' the commencement of the action, were adjusted, settled, and discharged as part consideration for a second option contract.</p> <p>After trial of the cause had progressed to a considerable extent, an adjournment was granted, on motion of plaintiffs’ attorneys, for a brief period. Upon its being again taken up, one of plaintiffs’ attorneys announced that be was satisfied, from his investigation, that the second contract, mentioned in the answers, was given and taken as claimed; that it precluded any recovery of damages on the first contract, and, therefore, that he would move the court for leave to discontinue. A motion was then made, or regarded as pending, for judgment in favor of the answering defendants, on the pleadings. The motion for leave to discontinue was granted. Subsequently a formal order was entered discontinuing the action with costs and denying defendants’ motion. Later the costs were paid and the money retained. After such payment this appeal was taken.</p>

TabeaNt, Circuit Judge. One Flora B. Scheftels having presented and procured the allowance of a claim for $2,560, and the time for filing claims having expired, and only one other small claim having been allowed, and the inventory showing personal property in the hands of the executor far in excess of said claims, said Flora made petition to the county judge showing such facts' in detail and praying that the executors be ordered to pay her claim.

<p>'(1) Appeal: Objections to form of pleading. (2-4) Corporations: Insolvency: Sequestration: Judgment: Fraudulent conveyance: Liability of grantees.</p> <p>1. Objection to mere matters of form in pleading cannot be made for tbe first time on appeal.</p> <p>.2. In an action under sec. 3216, Stats. (1898), for sequestration of the property of an insolvent corporation, based on judgment and execution returned unsatisfied, it is an irregularity to render a new judgment against the corporation; but other defendants are not prejudiced thereby.</p> <p>3. In such an action a judgment might properly be rendered against a fraudulent grantee of the property of the insolvent corporation and against other defendants who assisted in perpetrating the fraud, for the amount of the original judgment; but a judgment granting that relief and also appointing a receiver to pur- . sue the assets of the insolvent corporation can be sustained only by construing the first part thereof as interlocutory and conditional upon the receiver being unable to collect from the assets of the insolvent company, and only for the amount of the deficiency, if any, appearing from his report.</p> <p>4. Where an insolvent corporation, with intent to defraud a creditor,, conveyed all of its assets to another corporation whose officers, assisted in perpetrating the fraud, such grantee and its officers-cannot avoid payment of the whole claim of the defrauded creditor on the ground that, at the request of the grantor and as consideration for the fraudulent conveyance, they have paid to other creditors of such grantor an amount exceeding the value of the assets received.</p>

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

<p>Appeal from a judgment of tlie circuit court for Milwaukee county: J. C. Ludwig, Circuit Judge.</p> <p>Personal injuries. Tlie plaintiff liad his left hand crushed while operating an embossing machine in the defendant’s trunk factory June 25, 190G. He was twenty-four years of age at the time. In his complaint he charged that the machine was defective and that he was not warned of the danger when set at work. Both grounds of negligence were put in issue by the answer, and contributory negligence was alleged.</p> <p>There was little dispute as to the essential facts. The plaintiff bad been a hand worker at trunkmaking in Austria, and came to Milwaukee in 1903, and worked first at a tannery, then* at a cement block factory, then as carpenter’s helper, and then obtained employment at the defendant’s factory on the morning of the accident. He was sent at once to operate a machine for embossing leather. This machine is about five feet high and nearly or quite three feet in width. The die faces downward and is stationary. The sheet of leather to be pressed is placed on a large platen or ram plate about two and one-fourth inches below the die, which by the application of steam power is caused to rise up and press the leather against the die. The power is applied by means of a clutch, and the clutch is controlled by a hand lever at the right-hand side of the machine as the operator stands in front of it. To start the machine the operator pulls this lever towards him to the left. This causes the clutch to operate upon a gear wheel, to which is attached an irregular and heavy cam of three-cornered shape. As the projecting portion of this irregular cam turns upward, a cam roller above it is also forced upward, and this in turn, through a lever and link, moves the ram plate upward against the die. The pressure is thus accomplished by the first half of the revolution of the cam gear. As the last half of the revolution commences, the projecting portion of the cam turns downward, and the cam roller sinks and allows the ram plate to descend to its normal position. If the power is left on, this operation is repeated about every four seconds regularly. In order, however, to stop the press after the operation, the hand lever is thrust to the right and the clutch removed. The proper time to do this is when the ram plate has reached its lowest point, because at this time the heavy, irregular*, projecting portion of the cam is also at its lowest point and will not oscillate back and forth, or will only slightly oscillate. If, however, the lever be thrown and the power be taken off just as the ram plate leaves the die, the great weight of the cam will cause it to suddenly drop, and it will oscillate back and forth several times like a pendulum, and in response to this oscillation the ram plate will jump, going back almost or quite to the die the first time, and making two or three more, lesser, jumps. The same effect follows, but iu a less degree, if the power be thrown when the ram is half way down. The cam and its mechanism are not visible from tbe front of the machine. The proper way to- operate it is to place the wet leather on the ram plate (which is some two feet square) and then pull the lever, and when the revolution is complete thrust back the lever. When operated in this way there is no second return of the ram plate, and the hand may then he inserted to remove the stamped leather and'put in another sheet, when the lever may be again pulled and the operation repeated. When thus operated there is a slight motion or “floating” of the ram plate after it returns to its lowest point and the power is removed, caused by tbe slight oscillation of the cam which takes place.</p> <p>An employee named Schrubbe was sent to show the plaintiff how to operate the machine. Leather gussets were being stamped, and Schrubbe operated the machine for half an hour or more, and told the plaintiff to watch and see how he did it. Neither he nor any one else told plaintiff of the effect which would follow if the lever was thrown before the ram plate had fully descended, but Schrubbe undoubtedly always threw it at the right time. After this plaintiff worked successfully for half an hour or so in the forenoon, and in the afternoon continued to work on the machine (no one else being with him, as it was supposed he knew how) ; and after working an hour or so his hand was crushed by a return motion of the ram plate, while he was reaching in and attempting to remove the leather after it was embossed. Amputation of all the fingers became necessary, except the index finger and thumb.</p> <p>A special’ verdict was returned by which the jury found: (1) The plaintiff was injured by getting his left hand crushed between the die and the ram plate; (2) when the power was shut off before the plate had fully descended the plate was liable to go upward of its own momentum so close to the die as to become dangerous to an employee performing the work plaintiff was doing; (3) the defendant, before the accident, knew that such action of the machine was liable to occur and increase the ordinary hazards of operation of .the machine; (4) the plaintiff did not know, nor ought he in the exercise of ordinary care to have known, that such action of the machine was liable to occur if the power was shut off before the ram had descended; (5) the defendant knew or ought to have known that plaintiff was unacquainted with such action of the machine and the enhanced hazard thereby resulting; (6) the defendant did not sufficiently instruct the plaintiff so that he should, in the exercise of ordinary care, have known or appreciated the enhanced hazard; (I) the omission to so instruct was the proximate cause of the injury; and (8) the plaintiff’s damages were $6,502. Erom judgment on the verdict for the plaintiff the defendant appeals.</p>

Williams, Circuit Judge. Action to recover for a personal injury. Plaintiff’s claim wasi that on a dark night she approached the defendant’s double track in'terurban railway, one track being for east-bound and one for west-bound cars, to take, and on the proper side for taking, an east-bound car, at a customary place for receiving and discharging passengers, the roadbed and the land adjacent having been leveled and somewhat raised for convenience of patrons of the company.

J. Tupjseb, Circuit Judge. Appeal from order sustaining a general demurrer to plaintiff’s complaint, which alleged that defendant is the owner off certain real estate in Waukesha county; that on February 23, 1906, a judgment was entered of strict foreclosure of a land contract which had previously been given by defendant to plaintiff j that such strict foreclosure was subject to the condition that plaintiff pay to defendant on or before August 23, 1906, certain sums of money…

<p>Appeal from a judgment of the circuit court for Milwaukee county: ORReh T. Williams, Circuit Judge.</p> <p>In 1885 the plaintiff became the owner and he has since occupied a parcel of land having a frontage of 132 feet on both Miller and Concordia avenues in- the city of Milwaukee. In 1901 Island avenue was a public street, thirty feet wide, between Miller and Concordia avenues. Lying between the land'of the plaintiff and Island avenue was a strip of land ten feet wide and 029.34 feet long owned by C. E. Walworth. On January 14,1901, a resolution, approved by the aldermen from the ward, reciting that it was “necessary for the public interest without unnecessary delay to open, widen, and extend Island avenue from Concordia avenue to Miller avenue,” and that it would “be necessary to take for the public use certain lands” in the Twenty-first ward, was adopted by the common council. The resolution states that the reason why it was necessary to make the contemplated improvements was that the facilities, for water and sewer service and for travel were inadequate and insufficient for the public use. Ho petition had been filed requesting the improvements, and the common council acted on its own initiative. On February 11, 1901, the city engineer was directed by a resolution “to make and file with the city clerk an accurate survey and plat of the proposed change and improvetíient and of the lands proposed to be taken therefor, defining separately each parcel, and indicating upon such plat the location of. any improvements upon said premises.” On March 11, 1901, a resolution was adopted by the common council reciting that the plat and survey had been returned by the city clerk to the common council and directing him to give notice that the city attorney would apply for the selection of a jury to view the premises and to determine whether it was necessary to take them. It was proposed to take the whole of the ten-foot Walworth strip and a strip of plaintiff’s land twenty feet wide, running from Miller avenue to Concordia avenue. The notices were given and a jury was selected. They viewed the premises and reported that public necessity required the taking of the lands as proposed. June II, 1901, a resolution was adopted approving ihe report of the jury and directing the board of public works within ninety days to view the premises, to assess the benefits and damages caused by taking the lands required, and to make report to the common council.</p> <p>Under date of October 18, 1901, the board of public works reported that on September 26, 1901, they had viewed the premises and made an assessment of the benefits and damages 'occasioned by the proposed improvements. The damages to O. E. Walworth were assessed at $800 without any benefits; the damages to the plaintiff were assessed at $1,600 and the benefits at $1,950; other lands were assessed as benefited to the extent of $541.10. Expenses of $97.'70 were included in the report as part of tire damages which were to be paid as benefits arising out of the improvements. The resolution of January 14, 1901, was filed in the office of the register of deeds. On January 29, 1902, the plaintiff.paid the $350, the excess of the benefits over damages to his property caused by the improvement, which was assessed with other taxes, in the tax roll against his property. The plaintiff protested against being compelled to pay this amount, but on the refusal of the collector to receive the other taxes assessed against bis land •with this sum unless this amount were also paid, be paid this amount under protest.</p> <p>Tbe complaint asks that tbe defendant be enjoined from entering upon plaintiff’s premises or from doing any work tbereon for tbe purpose of opening Island avenue, that all tbe proceedings taken by tbe common council and tbe board of public works with reference to opening Island avenue be declared void, and that tbe plaintiff recover back tbe $350 paid by him.</p> <p>Tbe court found, in addition to tbe facts above stated, tbat tbe assessment of damages for tbe taking of tbe Walwortb strip was excessive and tbat it was not worth more than $200, tbat tbe damages assessed to tbe plaintiff were not adequate, and tbat tbe assessment of benefits was excessive. On tbe grounds tbat the entire proceedings were illegal and void because of tbe failure of tbe defendant to file a plat or map giving a description of tbe lands proposed to be taken for tbe proposed improvement, because tbe assessment was not made within ninety days after the resolution was adopted, as was provided in the resolution, and because of the unfairness of the assessment as regards tbe plaintiff, tbe court ordered judgment as prayed for in tbe complaint. This is an appeal from tbe judgment.</p>

<p> Appeal and error: Immaterial errors: Criminal law: Summarily overruling plea in abatement: Preliminary examination: Doclcet entries: Waiver of arraignment and plea: Instructions to jury: Credibility of witnesses. </p> <p>1. Immaterial errors and inconsequential defects have been and will be disregarded by this court both in civil and criminal cases, under sec. 2829, Stats. (1898), and under sec. 3072m, Stats. (Haws of 1909, ch. 192).</p> <p>2. Where the record transmitted to the circuit court by the examin ing magistrate showed that there had.been a legal preliminary examination, the summary overruling of a plea in abatement, to the effect that there had been no such examination, without requiring issue to be joined on such plea, was not prejudicial, even though irregular.</p> <p>3. It is not essential that the examining magistrate should enter-in his docket a finding that an offense had been committed and that there was probable cause to believe the defendant guilty thereof. It is sufficient if the record shows that defendant was. held to bail and gave bail.</p> <p>4. An entry in the docket of the examining magistrate, that “the court bound the defendant over to the circuit court,” sufficiently shows that the defendant was' held to bail; and where it appears that a bail bond was given and approved it is immaterial that the amount thereof is not stated in the docket.</p> <p>6. The right of arraignment and plea is waived by the defendant by his silence when he ought to' demand it, in all cases (except capital cases) where he is fully informed as to the charge against him and is not otherwise prejudiced in the trial of the-case by the omission of that formality. Douglass v. State, 3 Wis. 820, and other cases, overruled. Tnarar, J., doubts.</p> <p>6. Where the jury had been expressly charged that they should convict only in case they were convinced beyond a reasonable-doubt, a subsequent statement to them that cases are to be decided upon the weight of evidence, not by counting witnesses, and that a single witness may be more satisfying than a half dozen witnesses who contradict him, was not erroneous.</p> <p>7. Where a witness on one side is contradicted by one on the other side as to the pivotal fact on which the case turns, and there is no possibility that the .testimony of either can be the result of a mere mistake, it is not prejudicial error to say to the jury that one or the other has committed perjury, and to suggest that a motive should be found for such perjury. Babnes, J.,. dissenting, is of the opinion that in this case (an action for selling liquor to a minor) an additional charge, given after the jury had reported that they were unable to agree, in which,, besides telling, them that they should consider the motive, if any, of the complaining witness in making a false charge, the-trial judge stated that there was nothing in the evidence to shpw why the witness should say that the defendant sold the-liquor to him, rather than some other saloonkeeper, was argumentative and prejudicially erroneous.^</p>

Rat SteveNS, Circuit Judge. Action to enjoin defendant telephone company from dis-•eontinuing maintenance of telephones in plaintiff’s city and . public library buildings under the agreement to do so free of ■charge to it pursuant to which they were placed therein, and nullify action of the State Railroad Commission requiring *uch discontinuance.

J. ViNje, Circuit Judge. Action by a creditor of the Superior Produce Company, a Wisconsin corporation, to recover of its stockholders upon the-ground of their being personally liable for indebtedness incurred by the corporation in business carried on before one-half of its capital stock was subscribed for.

Taxpayer’s action to restrain the officers of a town, in which is located an unincorporated village, from carrying out a sidewalk and a street-lighting contract These facts were established, as stated in the trial court’s decision, in addition to such, as appertain to the capacity of plaintiff to maintain the suit and of defendants to be parties r The town of Milton, in Bock county, contains the unincorporated village of Milton Junction.

Appeau from an order of the circuit court for Brown county: S. I). HastiNgs, Circuit Judge. This is an appeal from an order sustaining a demurrer to the complaint for want of facts sufficient to constitute a cause of action.

<p>Appeal from a judgment of tbe circuit court for Brown ■county: S. E>. Hastings, Circuit Judge.</p>

<p>Appeal from a - judgment of the circuit court for Brown county: S. D. Hastings, Circuit Judge.</p> <p>Plaintiff was the rear brakeman on the defendant’s extra freight train, consisting of -fifty-four cars, a caboose, and an engine, which left Green Bay, Wisconsin, September 28,1907, at 10:10 p. m., bound for Milwaukee. It had a full crew of trainmen, consisting of the engineer, fireman, conductor, and two brakemen. The train proceeded south through De Pere at 11:05 p.’m., and through Askeaton, and when about one and one-fourth miles from Hilbert Junction the engine ran out of water and was unable to- pull the train to Hilbert Junction. The plaintiff was in the caboose when the train stopped. The engineer, fireman, conductor, and other brakeman, without informing plaintiff of their intention, cut the engine from the train and proceeded with it to Hilbert Junction to get a ■supply of water without giving a signal to the plaintiff, as required by the following rule of thehompany:</p> <p>“Rule 26. The one long, two short, and one long blast of the whistle thus,-,--, will be given by engineers when they find it necessary to stop between stations and to notify conductor, thus enabling him to drop off and send back a fiagman.” ' , --■</p> <p>As soon as plaintiff observed that the train had stopped he left the caboose and went forward-to about the middle of the train to ascertain the cause of The stopping. He there observed that the engine had been cut off and had left with the rest of the crew, and he then started back. The plaintiff stated that while going forwarcPand coming back he observed the odor of a hot box, and he tapped the boxes to find the one, and immediately upon his return he went into the caboose to get his dope bucket to fix it. He testified that he took no- more time than was necessary to make this, trip.- “Special rules for train and engine men” of the defendant contains the following : ,</p> <p>“Rule B4. Conductors and brákemen must examine their trains, whenever there is an opportunity to do so, looking particularly for hot boxes and defective draft and brake rigging.”</p> <p>. Meanwhile the defendant’s regula?' passenger train bound for Milwaukee on the same line as that on which the freight was proceeding had arrived at Grrfeen Bay at about 12:30 a. m. and had left a few minutes later.- At Be Pere it was permitted to enter the block which was occupied by the freight train. One of the rules of the defendant u^as as follows: “Rule 3. Trains must not pass a block signal- at danger except under authority of a clearance card form 168.” The conductor and engineer were given permissive and clearance cards under the following rules, which trainmen axe supposed to know and obey:</p> <p>“Rule 4. When the block signal stands at danger, the operator issues a clearance card which states that he has no orders or no further orders for the train named. The train receiving clearance card may proceed if its time-table rates or special orders permit it to do so.</p> <p>“Rule 5. The permissive card is used when trains are permitted to pass a block signal at danger and enter the section ■under notice that the preceding train has not cleared the same section. This is to be used only by direction of the train dispatcher.</p> <p>. “Rule 6. When a train is to proceed under a permissive card, the conductor and engineer must each have a card of the following form properly filled out and signed by the train dispatcher.”</p> <p>“Rule 10. Trains running under the authority of a permissive card or caution signal must run with great care and at reduced speed to insure against collisions with trains ahead.”</p> <p>A special caution order was issued to the conductor and engineer in these words:</p> <p>“Extra east, Dietzler conductor, left De Pere at 11:42 p. m. and has not yet arrived at Hilbert Junction. Proceed cautiously, expecting to find them on main line at any point without flag protection.”</p> <p>The passenger proceeded south — or east as it is called in railroad parlance — and, when running at a speed of about thirty miles per hour, collided with the rear end of the freight train which had stopped on the main track a mile and one-quarter from Hilbert Junction. The freight train crew had not been specifically informed that the passenger train had been permitted to enter the same block or section of track as was occupied by the freight train. The plaintiff, who was in the caboose of the freight train, was seriously injured by the collision. The fireman of the passenger train was killed and the engineer was injured. There was a straight and unobstructed stretch of track back of the caboose of 3,000 feet. Whether or not the red lights were burning on the caboose was a disputed question on the trial.</p> <p>The following rules of the defendant regarding the operation of trains were in force at the time of the collision:</p> <p>“Rule 62. When a tr' in stops between stations, a flagman must immediately go back with proper signals to stop any trains that may be following. Not a. moment must be lost in inquiry as to tbe cause of stoppage or its probable duration. Tbe flagman must go back instantly’ and shall take not less tban three torpedoes, also a red flag by day and a red and white light by night, and shall place one torpedo on the rail on the engineer’s side when three-fourths of a mile (twenty-three telegraph poles) distant from the rear of train, and at a further distance of one-fourth of a-.'mile (eight telegraph, poles), he shall place two torpedoes on the rail on the engineer’s side. He will then, selecting a place where the view is long and clear, remain until the train is stopped or he is recalled. Returning he will leave two torpedoes at the most distant point from his train and take up-the rest. Whenever-it becomes necessary, the forward end of the train shall be protected in the same manner.” _ .</p> <p>“Rule 50. Train and engine men will be held equally responsible for violation of any of the rules governing the safety of trains, and they must take every-precaution for the protection of trains, even if not provided for by the rules.”</p> <p>“Rule 26. Conductors will be held responsible for the faithful performance of the duty required on the part of their brakemen.”</p> <p>“Rule A58. Trains moving under permissive card will beheld responsible for an accident in the nature of colliding with the train occupying the section which required movement under the permissive card. Engineers wilknot be censured for-moving at a speed to insure against accident.”</p> <p>The defendant alleges that the collision was caused by the failure of the passenger engineer to observe its train orders- and the rules and regulations known -to him, together with the contributory negligence of the plaintiff and his violation of the defendant’s rules and regulations.</p> <p>At the close of the testimony the_/Court, on defendant’s motion, directed a verdict for the defendant, and judgment was entered upon the verdict so directed. This is an appeal from-the judgment.</p>

<p> •Judgment: Opening default: Statutes construed: Power of court: Limitation of time: Defendant not personally served: Discretion: Showing necessary: Appeal. </p> <p>1. Under sec. 2832, Stats. (1898), any defendant, wlietlier lie was personally served or not, may invoke the discretion of the court or judge to relieve him from a judgment at any time within one year after he has received notice thereof, without regard to the time when the judgment was rendered.</p> <p>2. Under sec. 2833, Stats. (1898), a defendant belonging to the particular class therein mentioned may, upon proper showing, demand such relief as a right, within one year after notice of the judgment and within three years after its rendition.</p> <p>•3. Gray v. Gates, 37 Wis. 614, so far as it conflicts with the construction here given to secs. 2832, 2833, Stats. (1898), or with Pier v. Millerd, 63 Wis. 33, is overruled.</p> <p>4. A party applying under sec. 2832, Stats. (1898), for relief against a judgment must show mistake, inadvertence, surprise, or excusable neglect. Mere lack of notice, together with a showing of a meritorious defense, is not sufficient.</p> <p>5. Where, by reason of the want of a proper showing, it would have been an abuse of discretion to open a judgment under sec. 2832, Stats. (1898), the party applying for such relief was not prejudiced by an order denying his motion, and such order will be affirmed, although not made in the exercise of discretion but upon the ground that the court had no power to grant the application.</p>

<p> Negligence: Unsafe premises: Injury to invitee: Master and servant: Injury to third person: Accident: Appeal: Estoppel to allege error. </p> <p>1. Premises cannot he said to have been unsafe as to a person thereon by invitation, so as to render the owner liable on that ground for an injury to such invitee, if no injury could have befallen the latter merely from the condition of the premises or the ordinary conduct of the business thereon, without the intervention of some responsible negligent human agency.</p> <p>X For injuries to a third person caused by pieces of a broken glass bottle thrown by a servant as a result of an accidental explosion, the master is not liable. [Whether the master would be liable if the explosion was not ah accident, but an ordinary and usual occurrence which in the exercise of ordinary care he should have anticipated and guarded against, not determined.]</p> <p>3. Plaintiff cannot complain of the admission of incompetent evidence offered by himself, which showed the nonliability of the defendant, although had such evidence been excluded the other evidence might have established his case.</p>

J. TueNBR, Circuit Judge. Action for personal injuries resulting to the plaintiff by being thrown from a wagon upon an alleged defective highway in the defendant city Maxell 21, 1905. Tlie action was tried before a jury and a special verdict rendered finding: (1) The highway was not reasonably safe for public travel for persons with teams, exercising ordinary care.

J. TubNeb, Circuit Judge. Action to foreclose a subcontractor’s lien under cb. 143 (secs. 3314 — 3347»), Stats. (1898). With the proprietor-(Wiesenthal) and the principal contractor (Potter), Smdth-Blodgett Gompcmy, a corporation, was made a defendant upon the ground of its claiming a like lien.- The complaint was in the usual form. The defendant lien claimant answered setting up its demand and praying for appropriate relief.

of tbe circuit court for Winnebago county; Geo. W. BubNell, Circuit Judge. Plaintiff’s decedent, a fireman, was on a work engine of the defendant September 10, 1906, with the engineer and a passenger. Tbe engine and tender were detached from the work train. The work crew and conductor were on the tender. The engineer proceeded to back up westward from Weyau-wega to Waupaca.

W. Bubnell, Circuit Judge. On May 31, 1899, Julia M. Bean executed a power of attorney to Herbert L. Sweet, the essential parts of which are as follows: “Eor me and in my name, place and stead, to take the general control and management of my affairs, business and property; to buy, sell, pledge, mortgage, execute and enter into bonds, contracts, conveyances and incumbrances in behalf of the same, and in general to do and perform all other acts and things which he may…

<p>Appeal from a judgment of the circuit court for Winnebago county: Geo. W. Bubhell, Circuit Judge.</p> <p>This action was brought to recover on a check given by defendant to plaintiff as the purchase price of a horse. The defense was breach of warranty. The answer admitted the giving of the check and nonpayment thereof and denied that there was anything due on the check, and further answered that plaintiff warranted the horse to be sound and free from disease and that defendant relied 'upon such warranty and representation, and that the purchase of the horse upon the warranty and representations was the only consideration for the check, and further alleges breach of the warranty, and sets up a counterclaim for the recovery of expenses incurred in endeavoring to cure the horse.</p> <p>The jury returned the following verdict:</p> <p>“(1) Did the plaintiff say to the defendant, before the purchase of the horse, that the horse was all right and sound? A. Yes.</p> <p>“(2) Did. the plaintiff say to Henry before the purchase, in the presence and hearing of the defendant, that he would guarantee that the horse was all right ? A. No.</p> <p>“(3) If you answer either the first or second question 'Yes/ then did the defendant in making such purchase rely upon such representation? A. No.</p> <p>“(4) Was the horse diseased at the time the defendant purchased her? A. Yes.</p> <p>“(5) If you answer the last question ‘Yes,’ then was such disease the cause of the death of the horse? A. Yes.</p> <p>“(6) What .were the reasonable expenses for the medical treatment of said horse incurred by the' defendant? Answered by the court (by consent). $15.”</p> <p>The defendant moved that the answer to the third question be changed from “No” to “Yes,” also for judgment on the verdict and for a new trial, which motions were denied and due exceptions taken. The plaintiff moved for judgment on the verdict, which was granted for the sum of $140 damages and interest. The defendant moved that the judgment so entered be corrected'by deducting therefrom the sum of $15 damages, money expended in endeavoring to cure the horse, which motion was denied and due exception taken. Judgment was entered for $140, interest, and costs, amounting in all to the sum of $221.68, from which judgment this appeal was taken-.</p>

<p>Appeal from a judgment of the circuit court for Calumet county: G-eo. W. Burnell, Circuit Judge.</p> <p>The appeal is from a judgment adjudging the plaintiff was entitled to a mechanic’s lien on defendant’s premises, foreclosing the lien and ordering sale of said premises to pay this lien, for $122.60 damages, and $94.38 costs.</p> <p>The cause was submitted for the appellant on the briefs of J ames Kinuan, and for the respondent on that of J. E. Mc-Mullen.</p> <p>Among references cited upon the part of the appellant were the following: Manitowoc S. B. Works v. Manitowoc G. Go. 120 Wis. 1, 97 N. W. 515; Widman v. Gay, 104 Wis. 277, 80 N. W. 450 ; Fuller-Warren Go. v. SJnw-ts, 95 Wis. 606, 70 N. W. 683; Williams v. Thrall, 101 Wis. 337, 76 N. W. 599; Manning v. School Dist. 124 Wis. 84, 102 N. W. 356; Houla-hanv. Ciarle, 110 Wis. 43, 85 N. W. 676; Manthey v. Stoclc, 133 Wis. 107, 113 N. W. 443; Froelich v. Christie, 115 Wis. 549, 92 N. W. 241; Charley v. Polthoff, 118 Wis. 258, 95 N. W. 124; Phoenix Mfg. Co. v. McCormick II. M. Oo. Ill Wis. 510, 81 27. W. 458; Keefe v. Furlong, 96 Wis. 219, 70 27. W. 1110; Weeks v. Robert A. Johnson Go■. 116 Wis. 105, 92 3SF. W. 794; American F. & F. Go. v. Board, of Ed. 131 Wis. 220, 110 ET. W. 408; J. H. Bilkman L. Co. v. Hunholz, 132 Wis. 610, 112 ET. W. 1081.</p> <p>Among other references upon, the part of the respondent were the following: Gooper v. Gleghorn, 50 Wis. 113, 6 ET. W. 491; Gunderson v. Swarthoui, 104 Wis. 186, 80 ET. W. 465; Bañnger v. Evenson, 127 Wis. 36, 106 ET. W. 801; E. M. Fish Go. v. Yoimg, 127 Wis. 149, 106 ET. W. 795; Rinzel v. Siumpf, 116 Wis. 287, 93 ET. W. 36; Ashland L., S. & G. Co. v. Shores, 105 Wis. 122, 81 ET. W. 136; Zipp Mfg. Go. v. Pastorino, 120 Wis. 176, 97 ET.-W. 904; Van Trott v. Wiese, 36 Wis. 439; Fñend Bros. G. Go. v. Hulberí, 98 Wis.' 183, 73 ET. W. 784; Palmer v. Banfield, 86 Wis. 441, 56 27. W. 1090; Kingman & Go. v. Watson, 97 Wis. 596, 73 27. W. 438; Fox v. Wilkinson, 133 Wis>. 337, 113 ET. -.W. 669; Rohrer v. Lochery, 136 Wis. 532, 117 ET. W. 1060.</p>

<p> Divorce: Judgment:Division of property: Remarriage of parties: Second action: Agreement in ■aid of divorce: Satisfaction of prior judgment. </p> <p>1. A judgment in a divorce action awarding a certain sum as and for “permanent alimony and division of property” must be construed as mailing a final division of tbe property, not open to. change after the term at which it was rendered.</p> <p>2. Such a judgment becomes the separate property of the wife and is not affected by remarriage of the parties to each other.</p> <p>3. A stipulation between the parties to a divorce action, reciting their agreement to separate and providing that' the wife should prosecute the action and should accept a certain sum as alimony and should not demand any further sum, was void as being an agreement in aid of divorce.</p> <p>4. Payment of the sum mentioned in accordance with such void stipulation did not operate to satisfy the judgment in a prior divorce action between the same parties, in which the wife was. awarded a certain sum as a final division of property. Mabsiiall, X, dissents.</p>

<p>Appeal from a judgment of the circuit court for Iowa county: G-eoRge Clementsoh, Circuit Judge.</p> <p>The claim of the plaintiff was that on the 25th day of June, 1907, Stephen Quinn was injured by actionable negligence of the defendant. He commenced an action to recover compensation therefor. Pending the action, he died by reason of his injuries, leaving no lineal descendants-or ancestors, hut leaving two sisters. The action was revived in favor of his personal representative and a supplemental complaint served con-taming the old canse of action and a second supposed cause for recoverable damages for the benefit of the sisters.</p> <p>Subsequent to the injury and prior to the death, by ch. 164, laws of 1907, it was provided that in case of the decease of a person from the wrongful act of another in such circumstances that if death had not ensued the injured person might have maintained an action to recover damages in respect thereto, the wrongdoer should be liable to an action for damages, notwithstanding the death, in favor of surviving brothers and sisters, in case of there being any and there being no husband or widow or lineal descendant or ancestor to claim damages. Prior to such law collateral relations had no such right of action. The defendant demurred to the new cause of action for insufficiency, and the demurrer was sustained.</p>

<p>Appeal from a judgment of the circuit court for Richland county: Geoegb Clemee'tsoxt, Circuit Judge.</p> <p>Action to redeem from a mortgage the south half of the southeast quarter of section 21, township 10, range 1 west, in Richland county, Wisconsin. It appeared that in 1895, 160 acres of land, including the above description, had by several heirs been transferred to one-of them, namely, Jesse Young, under a family arrangement. He, on December 26, 1895, executed a mortgage thereon to J. W. Lybrand for $650, and immediately deeded the south half of the southeast quarter of the section to the plaintiffs, his brothers, subject to said mortgage and upon their agreement to support their mother, who-died in 1897. It is claimed that there was a verbal understanding that $300 of the mortgage should be assumed by the plaintiffs and the rest should be taken care of by Jesse, A few partial payments of interest were made from time to time until February 25, 1899. Jesse Young and the plaintiffs had made an additional mortgage to one Hallin for $94.47 which on February 9, 1898, had been transferred to J. W. Ly-brand, and Jesse Young had transferred the north half of the 160 acres to a brother-in-law, Jasper Haller.</p> <p>On February $5, 1899, Jasper Haller and the plaintiff's executed and delivered deed to J. W. Lybrand of all the premises, which the plaintiffs claim was not effectual to extinguish the equity of redemption, and the defendants claim was so effectual, and that it was based upon the discharge of the $650, the payment of the John Hallin mortgage, with interest, and the payment of a small judgment against the Youngs, all amounting to about $9.00 at date of said deed. . Much evidence was offered as to this transaction and as to the subsequent conduct of the parties. Confessedly the plaintiffs remained in possession until some time in 1905, when they were evicted by some irregular process; also that they made some payments of what the plaintiffs call interest and the defendants now call rent At the time of the deed to Lybrand there was an agreement entered into that the grantors might retain possession for the balance'of-the year 1899 upon payment of interest and taxes for that year, and a lease was made to Haller of the entire premises commencing January 1, 1900, in which the rent confessedly was the computed amount of the interest on $913, to wit., $64. J. W. Lybrand died soon after, and an undivided half of this property was conveyed by his son, R. C. Lybrand, to the former’s daughter, Nellie Miner, by warranty deed, on July 8, 1901. The deed is not in evidence and there is no proof as to the consideration. Nellie Miner conveyed the south half of the southeast quarter to James Shannon by warranty deed on October 2, 1907.</p> <p>After completion of plaintiffs’ evidence, and one witness had been sworn and testified on behalf of the defendants to the circumstances attending the making of the deed in 1899, the court announced himself satisfied, stopped the taking of further evidence, made so-called findings merely to the effect that the deed to Lybrand was executed and that at the time of the commencement of this action the plaintiffs had no right, title, or interest in the premises, upon which judgment dismissing the complaint was entered, from which the plaintiffs appeal.</p>

Wood 'County: Ohas. M. Webb, Circuit Judge. This is an action to collect the commission of the plaintiffs ■as real-estate brokers for negotiating and consummating the sale of a certain parcel of real estate which belonged to the defendant. The complaint alleges that on October 1, 1906, the plaintiffs had the premises listed with them by the defendant, the agreement being that the plaintiffs were to have whatever they might procure for the land in excess of $8,400.

<p> Municipal corporations: Condemnation of land for street: Confirmation of assessment: Right to appeal: Reduction of award: Acceptance: Waiver. </p> <p>1. By confirming, pursuant to sec. 925 — 166, Stats. (1898), an assessment of damages by reason of the condemnation of land for a street, a city waives the objection that the award is excessive, and is therefore not a “party aggrieved” by such assessment, within the meaning of sec. 925 — 177, and cannot appeal therefrom.</p> <p>2. Upon appeal by the landowner from such an assessment the award cannot be reduced, and acceptance, pending the appeal, of the amount awarded is not a waiver of the right to prosecute the appeal.</p>

<p>Appeal from an order of the circuit court for Wood county: Chas.' M. Webb, Circuit Judge.</p> <p>This action arose out of a written contract, by the terms of which the plaintiff granted to the defendant the right to act as special agent for the sale of its patterns. By the contract plaintiff agreed to sell and deliver, f. o. b. New York or Chicago, patterns at fifty per cent, of retail prices, and agreed to allow the defendant to return twice during the year, at nine tenths of the price paid for them, in exchange for new patterns to be thereafter shipped, the patterns purchased under-the contract. The plaintiff further agreed to permit the sum. of $150, part of the purchase price of the patterns, to stand unpaid on its books as a standing credit, to bear interest at three per cent, per annum, and to become due and payable at the termination of the agreement. In consideration thereof the defendant agreed to purchase from the plaintiff, and keep on hand for sale during the life of the contract, except for certain excepted months, patterns to the amount of $200 at fifty per cent, of retail prices, and to allow the plaintiff to examine and take an account of the pattern stock at any time it might desire. The defendant also agreed to purchase a certain amount of advertising matter and to pay the plaintiff for patterns to be furnished it as original stock the sum of $50 in a specified manner, and to pay for other goods purchased from the plaintiff on or before the 15th day of each month succeeding the month of the purchase. The defendant agreed to keep his patterns on the ground floor and to have a lady attendant take charge of them, and further agreed not to sell or permit to be sold on his premises, during the term of the contract, any other make of patterns, and not to sell Butterick patterns except at label prices, and also agreed not to remove the pattern stock from its original location, nor assign it or the agency without the written consent of the plaintiff. It was further agreed that the contract should remain in force for three years from March 1, 1909, and from year to year thereafter, unless terminated in the manner specified.</p> <p>The complaint set out the contract in full; the fact that the defendant was running a large department store at Marsh-field, Wisconsin; the further fact,that, pursuant to the contract, the plaintiff shipped a certain consignment of patterns to the defendant, amounting to $75.42 at fifty per cent, of the retail price, which patterns defendant refused to accept or pay for; that the defendant offered for sale another and a different stock of patterns, made by another company which was in active competition with the plaintiff; that defendant paid no attention to the sale of Butterick patterns nor to advertising the same, but on the contrary did advertise the patterns of the competing company; that before the commencement of the action the plaintiff demanded of the defendant that he withdraw from sale all patterns not manufactured by the plaintiff, which demand the defendant refused to comply with; that the defendant further asserted that he would not desist from selling patterns other than those made by the plaintiff. Plaintiff further alleges that it will suffer irreparable loss and injury if defendant is permitted to break his contract with plaintiff, and that plaintiff will be damaged in its business if defendant sells the patterns of its competitors, and that, by reason of the breaches of the contract already committed, by the defendant, plaintiff has been damaged in a large sum of money, the greater portion of the amount of such damages not being capable of ascertainment. It is further alleged that the defendant threatens to^ intends to, and will, unless restrained by order of the court during the continuance of this action, continue to sell other makes of patterns in violation of his contract with the plaintiff, which acts if done will produce injury to the plaintiff.</p> <p>As relief, plaintiff demanded judgment enjoining the defendant, until after the expiration of the contract, from advertising, selling, or distributing patterns, fashion sheets, catalogs, or other literature or printed matter of any pattern manufacturer other than the plaintiff, and also enjoining him from using his store, business, agents, or clerks to further or advance the interests of any pattern manufacturer other than the plaintiff, and that plaintiff recover judgment against the defendant for all damages already suffered that are ascertainable, and for such other relief as might be equitable.</p> <p>The defendant demurred to the complaint on the ground that it did not state a cause of action. From an order overruling such demurrer this appeal is taken.</p>

<p>Real-estate brokers: Commissions: When purchaser is “pecuniarily able” to buy: Obtaining money by contemporaneous mortgage.</p> <p>1. To entitle a real-estate broker to recover Ms commission on a sale which, his principal refused to carry out he need show only that he procured a purchaser who was ready, willing, and pe-cuniarily able, within the time fixed, to take and pay for the property.</p> <p>2. “Pecuniarily able” in such connection means merely able to command the necessary money to close the deal on reasonable notice or within the time limited by the vendor.</p> <p>S. A proposed purchaser is pecuniarily able to complete the purchase if he has so arranged that the money will be forthcoming at the moment the deed is passed to him, although a part of such money is to come from one who at the same moment receives a mortgage from such purchaser. McGune v. Badger, 126 Wis. 186, distinguished.</p>

II. Reid, Judge. Action to foreclose a chattel mortgage. The issues raised by the pleadings are fairly shown by the-following summary of the decision of the case as to facts: October 8, 1902, defendants, who were then husband and wife, gave plaintiff, — an elderly lady and mother of defendant Willard E. Carpenter and two daughters, Willard being the youngest child and some thirty-seven years of age, — a mortgage on a newspaper plants purporting to secure payment of Willard’s…

Croix county: E. W. Helms, Circuit Judge. This is an action to set aside the election held in the city of New Richmond on the first Tuesday of April, 1909, on the question whether or not any person should be licensed to deal or traffic in any spirituous, malt, or intoxicating liquors or drinks as a beverage.

<p>Appeal from a judgment of the circuit court for Pierce county: E. W. Helms, Circuit Judge.</p>

Rap SteveNS, Circuit Judge. This action was brought to recover a penalty. Prior to December 31, 1907, the defendant had been licensed to transact and did transact a general life insurance business in the state of Wisconsin, and on the last-named date had 283 policies of insurance outstanding and in force in the state. The ■defendant on that date surrendered its license and withdrew, or attempted to withdraw, from the state of Wisconsin and cease doing business therein.

<p>(1-4) Banks and, banking: Regulation: Requiring banks to be incorporated: Constitutional law: Deprivation of property: Due process of law. (5) Statutes: Enactment: Alteration before approval.</p> <p>' 1. Banking is a common-law right pertaining equally to every member of the community, and cannot be prohibited under a constitution like that of Wisconsin, which recognizes the right and authorizes the legislature to regulate and supervise it.</p> <p>2. Under the constitution of Wisconsin banking may be regulated so far as may be reasonably necessary to secure the public welfare and safety, but it must be true regulation, not prohibition under ' " ' the guise of regulation.</p> <p>3. Sec. 2024 — -78m, Stats. (Laws of 1909, ch. 285), making it -unlawful' for any person, copartnership, association, or corporation to da a banking business without being incorporated as a bank, — it being possible for three adult residents of the state so to incorporate at any time, — is not a prohibition, but is a valid regulation, of banking.</p> <p>4. Ch. 285, Laws of 1909, giving to existing private banks but three months after its publication to become corporate banks, is not shown, with respect to the plaintiffs in this case, to necessitate any sacrifice or loss of property such as might render the act void under constitutional guaranties.</p> <p>5. Where, as it passed the legislature, an act contained a proviso in one part of a section, but before approving it the governor-changed the position of such proviso, not in any way altering its effect, such change, even if unauthorized, did not invalidate-the statute.</p>

<p>Error to review a judgment of the municipal court of Milwaukee county: A. 0. Brazee, Judge.</p> <p>Gimbel Brothers, a foreign corporation, is engaged in the business of running a large general store, commonly called a department store, in the city of Milwaukee, and the plaintiff in error is the general manager of its business at that place. The corporation maintains what is termed a “deposit purchase department” Persons desiring to deposit money with the corporation may do so to the amount of $500. Interest at the rate of four per cent, per annum is allowed on all- deposits left three months, and interest is credited on balances on January 1st, May 1st, and September 1st in each year. The depositor may purchase goods at the store against the amount of his deposit, or he may withdraw the same at any time in cash without notice. The corporation failed to comply with the provisions of secs. 2024 — 78?, 2024 — 78m, and 2024— 78Stats. (Laws of 1909, ch. 285), and the plaintiff in error, as its manager, was arrested and convicted for violating the statutes in question: From a judgment of conviction he prosecutes a writ of error in this court.</p>

EeRob to review a judgment of the circuit court for Clark county: James O’ETeill, Circuit Judge. Plaintiff in error was examined in due form before a circuit court commissioner on a charge of having violated sec. 1564, Stats. (1898), prohibiting any tavern keeper or other persons from selling, giving away, or bartering any intoxicating liquors on the first day of the week, and also of having violated sec. 4595, Stats.

<p> Criminal law: Appeal and error: 'Verdict, when conclusive: Jury: Misconduct: Harmless impropriety. </p> <p>1. A verdict reasonably supported by credible evidence and approved by the trial judge will not be disturbed on writ of error merely because there is much in the evidence to discredit it.</p> <p>2. A remark by the clerk of the court, -to one or more of the jurors. as they passed through the court room in charge of an officer after having been out all night, that their beds were all made up for the night, and the reply of one of them that he thought they would be out before night, constituted merely a harmless impropriety.</p>

<p> Constitutional lau>: Validity of statutes: Practical construction: Division of governmental powers: Appointment to office: Judicial powers: Appointing revisor of statutes: Fixing salaries: Holding of other offices by judges: Trustees of state library. </p> <p>1. An act of the legislature is to be sustained if possible by any reasonable construction of the constitution or of the act itself; and all mere doubts as to i,ts validity are to be solved in favor of the act.</p> <p>2. When the meaning of a constitutional provision is doubtful, long-continued practical construction thereof by the branches of government affected by it is strongly persuasive and often controlling.</p> <p>3. Each of the three governmental departments, legislative, executive, and judicial, has exclusive functions which no other department can perform; but there are many governmental operations and duties which do not pertain exclusively to any one department and may be performed by inferior officers or agents in aid of the functions of either.</p> <p>4. Appointment to office is not exclusively an executive function; and when in the execution of their proper duties it becomes necessary or proper for either the legislative or judicial department to have administrative acts performed by assistants, such assistants may properly be selected by the legislature or judiciary, as the case may he, provided the constitution does not otherwise direct.</p> <p>5. A court or judge may legally he authorized to appoint an officer, even though he be a state officer, where he is to- act in an administrative way as an aid, even though indirectly, to the court in the performance of its judicial functions.</p> <p>6: The duties of the revisor of the statutes under ch. 546, Laws of 1909 (secs. 116, 117, Stats.), are administrative duties in aid of the execution of the purely judicial functions of the supreme court so that the selection of such revisor and his assistants may properly he committed to the judges.</p> <p>7. The principle that the courts are only to determine what the law has been and is, and not what it is to he in the future, controls a court in the performance of its strictly judicial duties as a decider of controversies, hut is not applicable to administrative acts or functions which it is necessary for the court to perform through agents or employees in aid of its purely judicial duties.</p> <p>8. The fixing of salaries, even in advance, is not exclusively a legislative power, but may be delegated to a bourt as to officers or agents whom the court is legally authorized to appoint.</p> <p>9. To constitute an office, as distinguished from a mere employment, the duties must, in general, .be shown to be continuous and permanent, not merely transient, occasional, or incidental.</p> <p>10. The duties imposed upon the justices of the supreme court by ch. 23, Stats. (1898), — which makes them (with the attorney general) ex officio trustees of the state law library, and gives such trustees power to appoint a librarian, make rules, purchase hooks, etc., — are ministerial or administrative duties which may properly be imposed upon the judiciary, because they are either helpful or necessary in the performance of the purely judicial functions of the court. In performing such duties the justices do not hold a nonjudicial office in violation of sec. 10, art. VII, Const.</p> <p>11. So, also, as to the duties imposed by ch. 54S, Laws of 1909 (secs. 116, 117, Stats.); and the justices are not attempting to hold another office when, acting as such trustees under that statute, they .appoint a revisor of the statutes, fix his salary, approve his selection of assistants, etc.</p> <p>[12. As to the validity of ch. 547, Laws of 1909 (authorizing the trustees of the state library to purchase certain copyrights and rights to annotations to the statutes), no opinion is intimated by the court.]</p> <p>Siebeckee and Kebwin, JJ., dissent as to the validity of ch. 546, Laws of 1909, but accept the opinion of the majority as authoritative for the present purpose and act with other members of the court in executing the provisions of the statute.</p> <p>Timlin, J., dissenting, declines to act under the law.</p>

ITalsey, Circuit Judge. Action to recover indebtedness to plaintiff of defendant N. Schneider, on account of material furnished the latter by the former in executing a contract made by… Held: as matter of law, that Schneider was not an assignee of the construction company nor a contractor with the city in any sense; that he had no right to look to any one for his pay except the construction company and, therefore, that plaintiff’s claim was not within the law of 1882.

<p>Appeal from a judgment o-f tbe circuit court for Milwaukee county: J. C. Ludwig, Circuit Judge.</p> <p>This action arose out of tbe following contract, in which-tbe plaintiff is tbe party of tbe second part and tbe defendants, are parties of tbe first part:</p> <p>“This agreement, made and entered into this seventeenth day of August, A. D. 1905, by and between Abraham Weil and Hairy Pflaum, copartners, doing business under the firm name of Weil, Pflaum & Company, parties of tbe first part, and Albert B. Liebermcun, party of the second part, witness-•eth:</p> <p>“(1) The parties of the first part hereby agree to employ the party of the second part as a traveling salesman from the first day.of October, A. D. 1905, to the thirteenth day of September, A. D. 1907, and agree to pay to said party of the second part seven and one-half (7¿) per cent, commission on •cash collected on the sales made by party of the second part for and on behalf of the parties of the first part, it being the intention hereby to pay to the party of the second part a commission of seven and one-half (7-J) per cent, on the net sales made by said party, the parties of the first part to deduct from all sales made by the party of the second part, before paying him any commissions, amounts lost by failures, cancellations, or returns of merchandise on all orders secured by the party of the second part.</p> <p>“(2) Said parties of the first part further agree to advance to the party of the second part all necessary traveling expenses, not exceeding $650 for the spring trip and $850 for the fall trip.</p> <p>“(3) Said parties of the first part further agree to allow said party of the second part to have a salary account of twenty-seven ($2,700) hundred dollars per annum, payable in monthly instalments of two hundred and twenty-five ($225) dollars each, such sums of money so advanced on account of said salary account'and all moneys advanced by the parties of the first part to the party of the second part on account of necessary traveling expenses to be deducted from any commission that might be due from the parties of the first part to the party of the second part, under the terms and conditions of this agreement.</p> <p>“(4) In consideration of the foregoing the party of the second part hereby accepts said employment and agrees to devote his entire time and attention and give his best efforts and services to the parties of the first part during the continuance of this agreement, and agrees to perform his services to the satisfaction of the parties of the first part, and further agrees not to enter into any other employment during the term of this agreement, or to devote any of his time and attention to any other business or to represent any other firm or corporation, either upon salary or commission, during the term of this-agreement.</p> <p>“(5) It is further stipulated and agreed by and between the parties hereto that there will be an accounting one year after the commencement of the employment of the party of the second part under the terms of this agreement, and that at such accounting all moneys drawn by the party of the second part on account of his monthly advance account and on account of all necessary traveling expenses shall be deducted from any commissions which the party of the second part may have earned under the terms of this agreement, and the surplus, if any, shall then become due and payable to the party of the second part.”</p> <p>The plaintiff was discharged August 7, 1906. Thereafter he sought and procured other employment, and brings this action to recover the difference between the amount actually earned by him between August 1, 1906, and September 30, 1907, and the amount which he would have received from the defendants on the basis of a salary of $2,700 per year had his contract remained in force.</p> <p>The court submitted the following question to the jury for answer: “Was the plaintiff discharged by the defendants because plaintiff’s services were unsatisfactory to defendants in good faith?” The jury answered this question in the negative, and judgment was rendered on such verdict in favor of plaintiff for $1,200 damages, together with interest and costs, aggregating in all $1,442.03. Erom such judgment defendants appeal.</p>

<p>.Life insurance: Dividend certificate: Uncertainty: Liability of com- • pany for interest, etc.: Transfer of chose in action by husband to loifc: Pleading statute of limitations.</p> <p>1. A dividend certificate, issued by a mutual life insurance company to the beneficiary named in a policy, stating that she is entitled to $12 “in the accumulations” of the. company, "subject to the rights of the company under its charter, and redeemable at the discretion of the board of trustees,” lacks certainty. It would seem from its language that the interest of the beneficiary was intended to be an undivided interest in the accumulation fund in the ratio which $12 bore to the interest of the other policyholders in such fund; hut upon the evidence in this action (brought upon such certificate many years after its issuance) it cannot he determined whether the company was chargeable,, as trustee or otherwise, with interest or profits or, if so, the-amount thereof.</p> <p>2. The word “accumulations” in such certificate implies a rolling' up, or the adding- of interest or income to the principal, indicating that the certificate is not a mere scrip dividend, to he rebated on premium when called for and not to draw interest.</p> <p>3. The issuance of a dividend certificate to a wife in 1867, by an insurance company in which the husband had insured his life for her benefit, did not transfer to her the title to the money represented by such certificate, since at that time a married woman could not acquire title to a chose in action from her husband by transfer from him.</p> <p>4. The defense of the statute of limitations falls when the proper-statute is not pleaded.</p>

<p>•Judgment: Res judicata: Mandate construed: Conveyance of land by trustee: Incumbrances: Wrongful possession of land: Liability for taxes paid by owner.</p> <p>1. Disallowance by tbe county court of a claim against an estate for breach of tbe covenant against incumbrances in a warranty deed from tbe decedent to tbe claimant, on tbe ground that tbe deed was a purely voluntary conveyance, involved only tbe question of the legal liability of tbe estate on such covenant, and is not a bar to a subsequent action by tbe grantee to compel tbe executor and trustee of the decedent to remove tbe in-cumbrance in question pursuant to tbe terms of bis trust.</p> <p>2. In an action of interpleader brought by tbe executor and trustee-of a decedent to determine tbe validity and effect of a warranty deed given by tbe decedent in her lifetime and tbe duty of tbe • trustee, in whom tbe legal title was vested, as to transferring such title to tbe grantee named in said warranty deed free of incumbrances, a judgment sustaining tbe validity of tbe warranty deed as an effective exercise of tbe power of appointment reserved to tbe grantor in her prior conveyance to tbe trustee,, and directing tbe trustee to “deed tbe property in dispute” to-tbe grantee in said warranty deed, is decisive of a subsequent action between tbe same parties in which said grantee seeks to-compel tbe executor and trustee to cancel and discharge a mortgage which was specifically in question in tbe former action.</p> <p>3. When a person bolding; tbe legal title to land and also a mortgage thereon is commanded by a judgment to “deed” tbe land to a. party who has by bis pleading asserted bis right to a deed clear of incumbrances, such judgment should be construed as requiring an effective deed conveying tbe premises free from tbe lien of such mortgage.</p> <p>4. A wrongdoer who excludes tbe owner from tbe possession of land and deprives him of tbe rents and profits may be liable for such rents and profits but cannot be compelled to reimburse the-owner for taxes paid during such wrongful occupancy.</p>

<p>Appeal from a judgment of the circuit court for Wausbara county: Chas. M. Webb, Circuit Judge.</p> <p>Action to foreclose a certain mortgage on the south one-half •of the southwest quarter of section 21 in town 20 north, of range 8 east, in the county of Waushara, Wisconsin, dated ■October 1, 1904, for $3,000, executed by the defendants William Eaehor and Flossie Eaehor to defendant M. Plank and by him assigned on November 15, 1904, to the plaintiff to secure his promissory note of $1,500 dated October 15, 1904, upon which there was due the principal and interest from April 3, 1908. The plaintiff also prayed a cancellation of a discharge of that mortgage, which had been made by !M. Plank and recorded on or about September 3, 1901, after its assignment but before the record thereof, which was June 29, 1908. It appeared and was found by the court that one E. D. Plank, the father of both II. Plank and Edward 8. Plank, had, prior to all these transactions, made a will, by which, after certain legacies, he devised and bequeathed to the appellant, Edward 8. Plank, all of a considerable residue of his estate, charged with the care and support of the mother, including therein specifically a certain 200-acre farm belonging to' E. D. Plank. On January 23, 1905, be sold that farm to M. Plank and received as consideration therefor a certain $3,000' mortgage executed by the same defendants, the Eachors, to M. Plank on certain 120 acres of land contiguous to the eighty acres included in plaintiff’s mortgage, the whole being used together as a farm. The father, E. D. Plank, died, and his will was admitted to probate in September, 1906, and Edward 8. Plank was appointed executor. Early in 1907, the Eachors having failed to pay anything on their two mortgages, and having abandoned their farm of 200 acres, Edward 8. Plank, who was a farmer and had sold his own farm, conceived the idea of purchasing the Eachor farm, a part of it in substitution for the $3,000 mortgage held by the estate and which belonged to him either as executor or residuary legatee charged with the support of the mother. He and M. Plank conferred about the matter and consulted counsel, and the plan was conceived of having that portion of the farm which was taken in consideration of the estate’s mortgage conveyed directly into the same title as the mortgage had been held, to the end that it might stand specifically charged ydth the mother’s rights. Accordingly E. 8. Plank negotiated with Eachor for a conveyance of the entire 200 acres in consideration of the cancellation of the $3,000 mortgage which had been assigned to E. D. Plank and was part of his estate, and $1,800 in money which M. Plank agreed with Eachor to accept in satisfaction of the other mortgage to M. Plank, being that assigned to the bank and here sued on; but, the assignment being unrecorded, that fact was wholly unknown to either Edkaard 8. Plank or to Eachor. An abstract was obtained ..and submitted to the attorney of Edward 8. Plank, accompanied by a certificate of the register that no assignment of the mortgage sued on appeared of record. Conveyance or releases were obtained from ■ certain other parties extinguishing rights in the land, and in -May, 1907, two full warranty deeds were executed by Eachor and bis wife and deposited witb M. Plank, one running to E. D. Plank, bis beirs and assigns, o-f tbe eighty now in question and one of tbe other forties, tbe other to Edward 8. Plank of tbe remaining eighty acres, and at about tbe same time, and before tbe delivery of tbe deeds to E. S. Plank, M. Plañí?; executed a complete discharge of tbe mortgage to him, which bad been assigned to tbe plaintiff. Thereupon tbe deeds were delivered to Edward 8. Plank, who delivered bis discharge of tbe estate mortgage and paid tbe $1,800 in addition, and thereafter entered into possession of tbe entire 200-acre farm. Tbe deeds and releases were recorded September 3, 1907. Final order in tbe E. D. Plank estate, dated January 27, 1908, assigned the residue, including this land by specific description, to appellant subject to charge for bis mothePs support.</p> <p>None of tbe defendants other than Edward 8. Plank made any appearance or interposed any defense. Tbe court held that deed, running to a person already dead, was absolutely void and of no effect, and left the title in Eachor, and accordingly entered judgment for tbe full sum of tbe Eachor mortgage in favor of tbe bank and for sale of tbe mortgaged premises and payment of tbe full proceeds to tbe extent of such $3,000 and interest to tbe bank. From such judgment tbe defendant Edward 8. Plank appeals.</p>

<p>Appeal from a judgment of tbe circuit court for Dane-county: E. Ray Stevens, Circuit Judge.</p> <p>Plaintiff, having obtained judgment in justice’s court for some $105 and costs against on© Editb Reynolds, issued execution thereon, and on the 18th day of November, 1908, made necessary affidavit and procured to be issued a garnishee-summons in aid of the execution against one A. C. Hoppmann,. returnable December 18th. Hoppmann, on the return day, delivered to the justice a note and mortgage for $400 upon certain °real estate, also two checks of $50 each, indorsed by said Hoppmann, with answer that he held them in trust for, and belonging to, said Edith Eeynolds pursuant to an agreement for settlement of her property rights in a divorce action, but they were claimed to be owned by virtue of a transfer from Edith Eeynolds by her mother, Barbara Arians. Both Edith and Barbara appeared upon the. order of the court inter-pleading the latter, and answered asserting the latter’s ownership of the note,'mortgage, and the checks. Hoppmann was dismissed. It appeared that the property had been placed in Hoppmann’s hands by mutual written agreement between Edith Eeynolds and her husband as a method of effecting distribution of his property and to secure an agreement that a divorce judgment should be entered, "giving her $100 and a mortgage substantially to the same effect for $400, and that in event of failure so to do this property should be turned over to her. The court found that the judgment of divorce had) been entered and that all the conditions and events existed to entitle Edith Eeynolds to these documents at the time of the service of the garnishee summons. Evidence was given of an attempted purchase of the property rights under the divorce judgment by Barbara Arians. In justice’s court this Was held valid and Mrs. Arians entitled to the property. Plaintiff appealed to the circuit court, where the matter was heard upon the same evidence, and the court found that the transfer was ineffective to convey to Mrs. Arians either the note and mortgage or the checks and that the attempted transfer was not made in good faith, but for the purpose of hindering, delaying, and defrauding the creditors of Edith Eeynolds, and! particularly the plaintiff, and accordingly rendered judgment that at the expiration of ten. days the clerk of the court pay to the plaintiff the $100 proceeds of the two checks, and that unless the defendant Eeynolds should pay the balance due on plaintiff’s judgment in the main action and the costs, the note and mortgage be sold by the sheriff as property is sold on execution, and after deducting tbe fees and expenses of sale tbe sheriff pay to tbe plaintiff tbe amount due on bis said judgment. Erom this judgment Barbara Arians appeals.</p>

Eat SteveNS, Circuit Judge. On August 2, 1893, Samuel T. Jones was admitted to membership in the defendant life insurance company and there was issued to him its endowment certificate and contract of insurance. The insured was forty-five years old, and the contract provided that he should pay $1.02 per month as the insurance assessment until he should be seventy years old, and that the company would pay to his widow upon his death an ■endowment benefit of $1,000.

<p>Appeal from a judgment of the circuit court for Sauk county: E. Ray Stevens, Circuit Judge.</p> <p>Ejectment to recover possession of an island in the Wisconsin river. The plaintiff claims title by virtue of his ownership of the north bank, to- wit, fractional lot 5, section 2,. township 8 north, range 6 east, which he holds by virtue of mesne conveyances from the original patentee, one Danforth,, whose patent was issued October 2, 1854. The defendant Bentley claims title by virtue of a patent from the United States issued June 29,1908, upon a survey of the island made pursuant to government order in 1905. The Wisconsin river at this point runs nearly due west with a slight deflection to-the south. The island at the time it was patented to the defendant Bentley and at the present time lies wholly to the-north of the middle of the river, measuring from bank to-bank. It is some eighteen' acres in extent, and the greater part of it lies directly opposite lot 5 aforesaid. The south-bank of the river opposite the island was surveyed in 1833- and 1834, and Moses M. Strong entered lots 1, 2, 3, and 4 in March, 1837, and received a patent therefor in 1841, which lots are opposite the island in controversy. The north bank was surveyed in 1842, and lot 5 was patented to one Dan-forth,, plaintiff’s remote grantor, in 1854. The island in question was never surveyed until 1905. No witness testified to the position of the island at the time of either of the government surveys of the banks, but an island appeared upon each plat. On the plat of the south bank, made in 1833 and 1834, an island was outlined opposite lots 1, 2, 3, and 4 aforesaid, and was represented as being all or nearly all in the south half of the river, measuring between the banks, while in the plat of the north bank made in Í842 an island was represented opposite lot 5 aforesaid, wholly in the north half of the river. One or two witnesses who knew the island and the river since about 1850 testified that in their judgment the islands so marked on the two plats represented the same island, namely, the island in dispute. No witness was sworn who had any personal knowledge of the' location of the island or the banks of the river prior to 1850, and the defendants’ own evidence showed that since 1850 the island had been mostly in the north half of the river. The testimony was undisputed that the navigable channel- of the river from 1850 to about 1870 was north of the island, but that since the last-named date it had been south of the island. There was considerable testimony showing that there had been a gradual change in the outlines of the island by gradual erosion and accretion, by reason of which it was- now further from the south shore than in 1850; but there was no- evidence of any change in the banks of the river since’ 1850-exceeding a few feet, and no evidence of any change at all prior to that date.</p> <p>By special verdict the jury found (1) that not all of the island was north of a line midway between the banks of the river in October,. 1854, but (2) that .all of the island is now north of such line. Judgment being rendered for the plaintiff on the verdict, the defendants appeal.</p>