Volume 143 — Wisconsin Reports

<p> Platting lands: Public squares: Dedication: Interest left in dedicator: Curative statute: Trusts: Diversion or misuser of property: Who may maintain action: Taxpayers’ action: Pleading. </p> <p>1. A plat duly acknowledged and recorded under the act of the territory of Michigan of April 12, 1827, conveys the fee in trust of a public square designated on such plat, and leaves no present interest in the dedicator or in his heirs or grantees in such land.</p> <p>2. A statutory dedication by such platting has the legal effect of a conveyance in fee in trust for the public.</p> <p>3. A defective statutory dedication, if accepted by the public, is good as a common-law dedication.</p> <p>4. A common-law dedication of land for public uses conveys an easement in the public sufficient for such purposes, but leaves the fee in the dedicator.</p> <p>5. Under sec. 2263, R. S. 1878, a statutory dedication which conformed to the statute or which, failing so to conform in minor particulars, was corrected by a curative statute (ch. 348, Laws of 1883), passed the fee in trust for the public to the town, city, or village and left no present interest in the dedicator or his heirs in case of a public square.</p> <p>6. It is the settled law of this state that in the case of a road or street, whether acquired by condemnation, by conveyance, by common-law dedication, or by statutory dedication, the city, town, or village takes only an easement for highway purposes, while the fee is held by the abutting owners. This brings all roads and streets within an uniform rule and has become a rule of property; but this rule will not be extended to public squares which have become such by statutory dedication.</p> <p>7. Public squares created by statutory dedication under sec. 2263, Stats. (1898), and accepted by the public belong to the city in fee in trust for the public, and the dedicator or his heirs have no present interest in the land. Milwaukee v. M. & B. B. Go. 7 Wis. 85, so far as it holds to the contrary, overruled.</p> <p>8. Where the plaintiffs have no interest differing from that of any other member of the public in preventing misuser of such public square, they cannot maintain an action in their own right as heirs of the dedicator.</p> <p>9. The misuser or diversion of trust property does n®t operate to forfeit the title of the trustee, in the absence of any such express condition in the conveyance to the trustee.</p> <p>10. The remedy in such case is a suit in equity by the proper party plaintiff to restrain the unlawful diversion or the misuser of the trust property. Public trusts like those created by the statutes referred to must be enforced in the same manner and by the same persons as are entitled to enforce charitable trusts.</p> <p>11. One who has no interest differing from that of any other member of the public in preventing the misuser of such trust property cannot maintain a suit in his own right for the purpose of preventing misuser.</p> <p>12. Where a complaint contains no averment that the action is brought in behalf of the plaintiffs and others similarly situated with respect to the subject matter of the action, and fails to show that the right sought to be vindicated is a public right to which the whole body of the taxpayers only are entitled, but on the other hand sets forth the ownership of the land in question and its platting by the ancestor of the plaintiffs, traces the title from such ancestor, and then avers the diversion or misuser of the trust property apparently as a private wrong to plaintiffs, the action will not be sustained as a class action or an action in behalf of the public, the beneficiaries under the trust mentioned.</p>

Eeeor to review judgments of the circuit court for Dane county: E. Ray Stevens, Circuit Judge. The defendants were, in separate actions, convicted in the municipal court of Dane county of violating ch. 557, Laws of 1907. Upon appeal to the circuit court for Dane county each of the defendants waived a jury and entered into a stipulation with the state whereby the two actions were to be tried together and the testimony taken was to be regarded as the testimony in each case.

Williams, Circuit Judge. This action was brought by the plaintiffs as owners of the real estate described in the complaint against the defendant city of Milwaukee, William H. Graebner, city treasurer, and James O’Donnell, the contractor who performed the work, •asking that the special assessments complained of he declared illegal, null, and void, and the special assessment certificates issued thereunder declared null and void and set aside, and for general relief.

<p>Appeal from a judgment of the circuit court for Milwaukee county: Obeeit T. Williams, Circuit Judge.</p> <p>Action to recover compensation for false imprisonment and malicious prosecution.</p> <p>Eor the first cause of action it was alleged that defendant, a corporation, falsely and maliciously claiming that plaintiff was guilty of having committed the crime of larceny of its goods, to wit: three barrels of meat and leaf lard of the value of $55.26, caused him, without legal proceedings, to he restrained of his liberty for the period of one hour and then to be delivered to the public authorities and to he restrained of his liberty in the police station at Milwaukee for the period of two hours.</p> <p>Eor a second cause of action it was alleged that defendant, maliciously and without probable cause, in due form of law, caused plaintiff to be arrested and prosecuted for the crime of larceny of its goods, as stated in the first cause of action; that he was found guilty as charged; that upon a review of the conviction on writ of error it was held that the facts established in the action did not constitute a criminal offense and the conviction was, therefore, reversed and cause remanded for a new trial; and that, subsequently, such proceedings were, duly had in the trial court that the cause was again heard, resulting in its being decided that the facts claimed to exist, of which proof was made and considered, did not show plaintiff to be guilty of any criminal offense and he was, therefore, upon motion discharged.</p> <p>Damages were claimed to have been sustained by plaintiff to the extent of $50,350.</p> <p>Defendant, for an answer to the first cause of action, admitted that, at the time and place alleged, plaintiff was restrained of his liberty on a charge of larceny, and was, while so restrained, placed in custody of the chief of police of the city of Milwaukee and that he, subsequently, obtained his release on bail; and put in issue allegations as to aggravated character of the restraint.</p> <p>Defendant, for an answer to the second cause of action, admitted (1) its alleged corporate character; (2) thé claim that plaintiff, previous to his detention, was a retail meat dealer in the city of Milwaukee and accustomed to purchase stock of defendant; (3) that one Layer, at the time of such detention, was in its employ; (4) that plaintiff was prosecuted for larceny and convicted; that the conviction was reversed and on a retrial he was discharged, as alleged, but denied that the prosecution was maliciously commenced or carried on, or that the same was without probable cause, or, in any event, that he was damaged as claimed.</p> <p>The evidence tended to prove, or was to this effect: On and prior to October 14, 1905, one Moody was defendant’s secretary, one Booth its general manager, and said Layer manager of its wholesale department with one White as an assistant, and that one Dolan was one of its employees up to a few days before such date. Prior to the particular date a suspicious shortage was discovered iu Layer’s department. Circumstances came to his knowledge arousing suspicion that plaintiff, in his dealings with defendant, by the aid of dishonest employees, was the cause of the difficulty. Layer was informed by Dolan and another employee that plaintiff had endeavored to conspire with them to defraud defendant. The general manager’s son informed Layer of having overheard a conversation between plaintiff and Dolan in regard to stealing meat from defendant. The conversation was, by consent of the secretary, brought about by Dolan in the hearing of Booth for the purpose of discovering whether the suspicions as to plaintiff were correct, and if so, to lay a plan whereby he might take meat, intending to steal the same, and under such circumstances as to be detected in the act. The younger Booth’s presence within hearing was unknown to the accused. The conversation confirmed the existing suspicion. Thereafter Layer consulted with one of the city detectives and later it was arranged with Dolan to trap the plaintiff into stealing meat, if he were disposed to do so. Dolan ceased to be an employee of defendant some two weeks prior thereto. He was indebted to plaintiff, who requested him to pay the indebtedness by aiding plaintiff to get meat from defendant without either party paying therefor. The two agreed that Dolan should cause four barrels of meat to be placed on a loading platform in the morning in the customary place for customers to receive goods. Layer and Booth, unknown to plaintiff, were behind Dolan in the scheme. Plaintiff, by connivance of the three, was deceived into the belief that Dolan was still at work for the defendant. Dolan promised to be at the platform the next morning and by connivance with Booth and Layer kept his promise and was, apparently, on duty as an employee. The four barrels of meat were placed on the platform convenient for plaintiff to consummate the scheme arranged between him' and Dolan and the latter was at his post as agreed with Booth and Layer. In dne time plaintiff arrived with a conveyance to enable him to remove the meat. He loaded three barrels into his wagon, one of defendant’s employees assisting, and drove off. The nniversal custom in defendant’s business, which was well known to plaintiff, was for customers to visit the office, ..give orders and receive tickets for the meat desired before its being placed on the platform, the ticket to be thereafter turned in showing delivery. The manner in which the meat was taken in this instance was entirely out of the ordinary. Layer had a man on the watch when plaintiff took the meat, who followed him and induced him to return to the office. 'There he was met by a detective whom Layer had procured to be present. The detective, without warrant, as desired by Layer, took plaintiff in charge and the two rode to the police station. Layer, without delay, visited the district attorney’s office and related to him the story of why plaintiff had been suspected of swindling defendant, and of the plan laid for detecting him and the result. Particularly, he informed such attorney that before laying the plan a city detective was consulted, and further informed the attorney of the details of such plan and how it worked out, and was advised that the facts rendered plaintiff guilty of the crime of larceny. Thereupon, under the district attorney’s advice, Layer went to a designated assistant’s office and, as directed, ■swore out the warrant for the arrest. Thereafter he acted ■only as a witness when called upon.</p> <p>On the trial of the criminal charge the facts, as stated, were brought out. Plaintiff testified in his own behalf that he had no purpose to steal the meat but ordered it through Dolan, whom he supposed to be an employee of defendant. Dolan was not called to testify in the criminal prosecution though through no fault of defendant. The result was that plaintiff was found guilty upon the theory that his story that he purchased, or supposed he purchased, the meat of defendant through its sales agent Dolan, was false. The conviction was, in dne course, reversed upon the ground that placing of the meat on the loading platform for the purpose of having plaintiff take it if criminally disposed, and the presence and apparent consent of defendant’s employees to the-taking, rendered the transaction barren of the element of' trespass essential to larceny. Upon the second trial, which occurred on the same testimony as before, following the decision of this court, the action was dismissed. Plaintiff' told the same story on the trial of this case as in the criminal case. He claimed, as before, that he bought the meat through Dolan, whom he supposed was defendant’s agent; that when he drove to- the platform for the meat Dolan was there ostensibly as an employee in authority; that he asked an employee, Klotz, which was his meat, and, upon the four barrels being accordingly pointed out, he took three of them,, telling such employee, who was the loading boss, to send up the other barrel with the bill. Klotz testified somewhat differently than plaintiff. He testified that plaintiff asked him, at first, if the four barrels were his and later claimed them, and thereupon he, Klotz, loaded, or helped plaintiff to load, three of them on his wagon, and that thereupon the latter gave directions and drove off, as he testified, and that thereafter the witness placed plaintiff’s name on the fourth barrel.</p> <p>The claim was made on the criminal trial, as on the trial in this case, based on substantially the same evidence in the-last instance as in the first, that the shortage in defendant’s-sales department was attributable to defendant’s employees, and that such employees, in order to cover their own dishonest conduct, laid and executed a plan to induce plaintiff to take the meat from its loading platform, believing that he was rightfully doing so as purchaser of the goods, yet under-such circumstance's as to indicate a criminal purpose. The court, in the first trial, found the issue of fact in that and all other respects against the accused. No one of such findings bas been, in reality, disturbed. As before indicated, tbe conviction was reversed upon tbe theory that tbe findings of fact were warranted by tbe evidence, but that such facts did not constitute tbe crime of larceny.</p> <p>In addition to tbe proofs received as before indicated, there was evidence on tbe subject of damages. Tbe court submitted tbe cause to tbe jury resulting in a finding in favor of plaintiff, as follows: (1) Plaintiff did not co-operate with defendant’s agents to obtain tbe meat without paying therefor. (2) Defendant did not, through its agent, cause tbe arrest of plaintiff honestly believing be bad stolen tbe meat-(3) Defendant did not, by its agent, act in good faith and without malice in causing him to be restrained of bis liberty and taken to the police station. (4) Plaintiff was damaged by tbe false arrest and imprisonment to the extent of $5,500, and in case be is entitled to recover should also have $675 as punitory damages. (5) Defendant did not, before tbe complaint was sworn to, by its agent, fully and fairly state to tbe district attorney all tbe material facts of which be bad knowledge or information bearing on tbe supposed larceny. (6) Defendant did not, by its agent, believe tbe statements made to tbe district attorney to be true. (7) Defendant did not, by its agent, in instituting tbe prosecution, act in good faith. (8) Defendant did not, by its agent, when tbe prosecution was commenced, have probable cause to believe the plaintiff was guilty as charged. (9) In instituting tbe prosecution, defendant acted maliciously. (10) If the plaintiff recovers on tbe cause of action for malicious prosecution be should have $8,000 as compensatory damages and $825 as punitory damages.</p> <p>Tbe court required plaintiff, as a condition of a motion for a new trial being denied, to consent to take $1,000 as compensatory damages for tbe false imprisonment. Tbe condition was complied with and thereupon, on motion, judgment was rendered in plaintiff’s favor for $10,500 damages and $116.44 costs, exceptions being saved to raise the questions -discussed in the opinion.</p>

<p> Courts: Holding county, court in another county: Judges disqualified, by interest: Consent: Void orders: Collateral attack: Appeal: Matters considered: Judgment in another case: Possession of land: Notice of rights: Mortgages. </p> <p>1. Proceedings in the county cqurt of one county, conducted entirely in another county, are invalid.</p> <p>2. Orders made in violation of sec. 2579, Stats. (1898) — providing' that a judge of a court of record who is interested in an action or proceeding shall not hajve power to hear and determine the same or to make any order therein, except with the consent of' the parties, — are absolutely void and hence subject to collateral attack.</p> <p>3. As to the interests of minor parties in such a case there could' be no consent tos the making of an order by a disgualified judge..</p> <p>4. A judgment declaring void certain proceedings could not be considered on an appeal from an earlier judgment rendered in an earlier action in which, though the same proceedings were involved, their invalidity did not appear.</p> <p>5. Actual possession of land by one claiming under a land contract is notice of his rights to one obtaining a conveyance from the heirs of the vendor in such contract, and to one taking a mortgage executed jointly by such grantee of the heirs and by a holder of tax deeds of the land; and the mortgage is subject to. those rightSi</p>

A consolidated action against sis insurance companies for the appraised amount of partial loss by fire.

<p>Appeal from a judgment of the circuit court for Manito-woc county: Michael KiewaN, Circuit Judge.</p> <p>On August 3, 1901, tbe supervisors of tbe town of Center-ville, Manitowoc county, made an order dividing school district No. 1 of that town and creating a new district. At tbe same time they made an order directing the clerk of district No. 1 to collect $192.35 in taxes and to pay this, together with $180.40 of tbe tax levied at the preceding annual school meeting, to the new district. Sec. 497, Stats. (1898), makes provision for appeals to the state superintendent from decisions of school district meetings or town boards which affect school districts, and such appeals “shall be taken and heard in the manner prescribed by him.” The state superintendent has formulated “Eules Eespecting Appeals” under the provisions of this section. The portions of these rules material to the instant case are as follows:</p> <p>“1. An appeal must be in writing, addressed to the state superintendent, and signed by the appellant, but no particular form of statement is necessary.</p> <p>“2. The appeal should be as brief as is consistent with a complete statement of the case. It should set forth the action or proceedings appealed from, and the reasons why such action should be set aside. ... If the appeal relates to the formation or alteration of a district, a map or plat of the district or districts affected by the order from which the appeal is taken, showing the boundaries, location of the schoolhouses, and the situation of the marshes, rivers, and bridges of the territory in question, should be presented with and made a part of the appeal. A statement showing the assessed valuation of the district or districts, or of the several parts of a district divided, and the number of children over four and under twenty years of age residing in each, should accompany the map, and form a part of tbe papers in the case. When the papers are completed they should be fastened together, numbered or lettered for reference, and an affidavit attached setting forth that the statements therein made are true, and that the map, list of children, and valuation of property are correct. . . .</p> <p>“4. An appeal should be taken within thirty days from the performance of the act appealed from, or within thirty days after the action complained of has come to the knowledge of the appellant.</p> <p> "The Answer. </p> <p>“1." The appellee has fifteen days in which to prepare his answer, and all the directions above given in reference to the preparation and service of a copy of the appeal papers should be complied with in preparing and serving the answer upon the appellant, before it is forwarded to the state superintendent. . . .</p> <p> “Replication or Rejoinder. </p> <p>“A replication or rejoinder will be allowed, upon proof ■that new facts have come to the knowledge of the party wishing the rejoinder since the appeal or answer was submitted to the state superintendent, or that there are material errors in the statement of the other party.</p> <p> "General Remarks. </p> <p>“If the appeal is not taken or the answer or rejoinder made within the prescribed time, the reasons for the delay must be given.”</p> <p>On August 22, 1901, Adolph Grotegut and other residents •of school district No. 1, town of Centerville, Manitowoc •county, appealed to the state superintendent from the orders •of the town board of August 3,1907, making a division of the existing school district and assessing the interest of the new •district in the property of the old district. The appeal petition set forth the making of the orders, presented a map of the territory affected, described it, gave the facts as to the assessed value of the old and the new districts, the number •of children of school age in the districts, the location of the old school as regards accessibility by the children, the probable attendance at each of the schools in the new districts,, and the facts that the old school grounds, although lying in the new district, are assigned to the old district, and that the school grounds for the new district are located only a quarter of a mile from the old school grounds. They asked that the orders of the town board be reversed and annulled. On August 30, 1907, an answer to the petition was filed with the state superintendent. Additional facts are set forth in it, and the signers pray for confirmation of the orders of the town board. No other papers were filed with the state superintendent, no other hearing was had, and no order was-, made by him or further steps taken until July 2, 1908, when-he made a decision on the appeal, wherein he adverted to the-fact that it did not appear that the orders of the town board were properly served, but upon review of the facts before him he reversed the orders of the town board on the merits of the petition. On August 1, 1908, a writ of certiorari, from the circuit court for Manitowoc county for a review of the decision of the state superintendent was served upon him. The petition for the writ alleges that the decision of the superintendent is void: (1) Because he did not prescribe the manner in which such appeal should be taken and heard; (2) because no hearing relative to the merits of the appeal was had by or before the superintendent; (3) because the-decision was not made and filed within “thirty days after the hearing of such appeal was closed, as required by sec. 497,. Stats. (1898).” In his return to the writ the superintendent certifies that the appeal petition, the answer, and his decisions are all the papers which he had had before him as superintendent in relation to the appeal and his decision thereon, that no evidence was taken before him, and that he made his-decision solely on the appeal petition and answer. The circuit court reversed the decision of the superintendent on the ground that the hearing before the superintendent had closed within a reasonable time after the filing of the answer to the appeal petition, which was more than thirty days before the date of the superintendent’s decision, and that the superintendent’s decision was not made within thirty days after the hearing on the appeal was closed. This is an appeal from the judgment of the circuit court.</p>

<p> Wills: Superstitious uses: Masses: Public charities: Trusts: Certainty: Naming trustee: Equitable conversion: Perpetuities. </p> <p>1. The doctrine of superstitious uses under the statute of X Edw. VI., c. 14, according to which devises for masses were held void, has never obtained in the United States, where there is absolute religious equality.</p> <p>2. A gift to be applied, consistently with existing laws, for the benefit of an indefinite number of persons by bringing their hearts, under the influence of education or religion, is a “charity.”</p> <p>3. Masses, as celebrated by the Roman Catholic church, being shown to be public services, not alone for the repose of the souls of deceased persons specifically named, but for the benefit of all mankind, are within the religious or pious uses which are upheld as public charities.</p> <p>4. A bequest for masses is therefore a “charitable bequest,” and valid as such, even though the masses be designated as for the repose of the souls of specified persons.</p> <p>6.See. 2081, Stats. (1898), relating to trusts, does not apply to a charitable bequest, and the question whether such a bequest is sufficiently definite and certain must be determined, not with reference to what is required in regard to private trusts, but with reference to the liberal rules for judicial construction applicable to charitable trusts.</p> <p>6. A charitable trust 'is not rendered invalid by indefiniteness as to-beneficiaries, if the scheme of charity be sufficiently indicated or a method provided by which it may be ascertained and its objects made sufficiently certain to enable a court to enforce execution of the trust according to the scheme.</p> <p>7. In charitable bequests no trustee need be named, as a charity will not be allowed to fail for want of a trustee. The person named in the will to execute the charity will be held to be the trustee and, if necessary that he hold the title for the purpose of carrying out the provisions of the will, he will by implication hold such title.</p> <p>8. A testamentary gift for masses for the repose of the souls of certain persons including the testator, such masses to be “said according to the directions of” two persons named, who are appointed “to direct where and when to say said masses,” is sufficiently definite and certain.</p> <p>9. The fact that property given by will for a public charity consists wholly of real estate, and that no person is named as devisee thereof, does not invalidate the gift, sec. 2075, Stats. (1898), not being controlling in cases of public trusts, where indefiniteness is of the essence of the charity.</p> <p>10. Where in such a case the terms of the will cannot be carried out without converting the real estate into personalty, equitable conversion results and the estate of the testator is to be treated as personalty.</p> <p>11. Where, under the doctrine of equitable conversion, the property given by a will for a charity is to be treated as personalty, the statute of perpetuities need not he considered, even if applicable to charitable bequests.</p> <p>12. McHugh v. McOole, 97 Wis. 166, so far as it conflicts with the decision in this case, overruled.</p> <p>Timlin, J., dissenting, is of the opinion (1) that, under sec. IS, art. X, Const., the state cannot, through its courts or legislature, compel, direct, or regulate the celebration of masses, and that where incapacity exists to enforce a charitable trust it is void; and (2) that if in this case there is no equitable conversion of the testator’s estate, but the land is to be held in trust indefinitely and the rents and profits devoted to paying for masses, there would result a holding of the use of the land upon a tenure long ago obsolete, as well as forbidden by our state constitution, namely, the tenure of frankalmoign or divine service.</p> <p>Mabshall, J., concurring, is of the opinion (1) that in view of the full reintrenchment in our jurisprudence of the common-law doctrine of charities, begun in Dodge v. Williams, 46 Wis. 70, and completed by the enactment of ch. 511, Laws of 1905, resort to the doctrine of equitable conversion to sustain a devise for charity is no longer necessary; (2) that acceptance of a trust for masses is in the nature of a public contract, to the enforcement of which by the courts, through the attorney general, there can be no constitutional objection based on the right of immunity from interference in religious matters; (3) that secs. 2072, 2073, Stats. (1898), have nothing to do with charitable trusts, where the legal title is always in the trustees and the equitable interest in the beneficiaries; and (4) that the constitutional provision declaring all titles allodial and prohibiting feudal tenures, instead of suggesting incapacity to convey land to charitable uses, rather suggests absolute freedom in that regard.</p>

<p>Appeal from a judgment of the circuit court for Manito-woc county: Michael KiRwaw, Circuit Judge.</p> <p>The plaintiff Ida, Siemers is the mother of Fred and Edward F. Siemers, her coplaintiffs. F. A. Siemers, the husband and father, died intestate on March 29, 1896, leaving ■six children and the widow living. The estate was administered in the county court, and in 1900 the lands and personal property were assigned to the six children subject to the homestead and dower rights of the widow. The farm and personal property were 'occupied and used by the widow until December 1, 1903, when she leased the farm to her two sons who are her coplaintiffs herein. On December 11, 1903, the widow, by bill of sale, sold the farm machinery, grain, hay, ■and live stock to her two sons’Fred and Edward F. Siemers. On July 28, 1903, said widow applied to the defendant company for a policy of insurance for a term of five years in the ■sum of $6,000 covering farm buildings, hay, grain, farm implements, live stock, and household goods, which policy was thereafter issued to the plaintiff Ida Siemers. The defendant is a town mutual insurance company. On January 18, 1904, the widow assigned her rights in the insurance policy to her sons Fred and Edward F., except in so far as it covered buildings, household goods, wearing apparel, provisions, and musical instruments, which assignment was approved by the defendant. All of the buildings insured were located on the homestead forty.</p> <p>On September 27, 1907, the plaintiffs Fred and Edward F. Siemers were cutting ensilage, tie power used to drive tie feed cutter being a steam engine ordinarily used for tie purpose of running a tiresling machine. ' Tie smokestack of tie engine where it was set in place was twenty feet distant from the nearest corner of an adjacent building. The engine was a wood burner. The fire occurred shortly after the workmen went into the house to dinner. Some minutes before quitting at noon, the plaintiff Fdward F. Siemers took the spark arrester out of the smokestack of the engine and operated the same without the use of the screen or spark ar-rester, and left the engine with the spark arrester removed when he and the others went in to dinner. Very shortly after the parties went to dinner the fire was discovered in a bam about sixty feet distant from the smokestack of the engine. All of the farm buildings were destroyed and most of the personal property. On the trial there was no controversy as to the amount of the loss.</p> <p>The defendant, after receiving notice of the loss, proceeded to investigate the same, all nine of its directors being present on the 27th day of September, 1907, when such investigation was being carried on. Some testimony was taken, and it was unanimously decided by the directors that the company was not liable for the loss because no watchman had been employed and because the spark catcher was removed from the engine while the same was in operation. On October 2, 1907, two of the plaintiffs were notified of such conclusion, the grounds stated in the letter of notification-being that plaintiffs did not “comply with our by-laws, section 21, as to a watchman, and by removing the spark catcher while the engine was in operation.”</p> <p>The plaintiff Ida Siemers brought an action to recover the sum of $4,100 because of loss on the items of property insured in her name, consisting of the various buildings and household furniture, wearing apparel, and musical instruments. The plaintiffs Fred Siemers and Edward F. Sie-mers commenced another action against the defendant to recover the sum of .$1,900 because of the loss of certain personal property consisting of hay, grain, farming utensils, and live stock. The actions were consolidated. On the part of the defendant it was contended on the trial that it was not liable because (1) the property was not insured in the name of the owner as required by the terms of the policy; (2) because the risk was increased by placing and operating an engine at the time, in the manner, and for the purpose for which it was operated, in violation of the terms of the policy; (3) because the insured violated the clause in the policy requiring the insured to use their best endeavors for saving and preserving the property; (4) because the insured failed to keep a watchman around the engine as required by the terms of the policy.</p> <p>The jury found (1) that at the time the policy in suit was issued William Eenn, the secretary of the company, who issued the policy, knew that the children of the plaintiff Ida Siemers were the owners of the lands on which the insured buildings stood, subject to her dower and homestead rights in said lands as widow; (2) that the removal of the spark arrester from the smokestack on the day of the fire, and the subsequent operation of the engine for a period of five or sis minutes without the arrester, under the existing circumstances, did not materially increase the risk; (3) that the removal of such spark arrester and the subsequent operation of the engine while it was removed did not constitute failure on the part of the insured to exercise ordinary care; (4) that one Louis Yoss acted for plaintiffs in the capacity of watchman in attendance to watch the engine during all the time it was in operation on the forenoon of the day on which the fire occurred.</p> <p>On the verdict so returned, judgment was rendered in favor of the plaintiff Ida Siemers for $3,441.90 damages, with interest and costs, and in favor of the plaintiffs Fred and Edward F. Siemers for $1,406, together with interest and costs. From the judgment so entered this appeal is. taken.</p> <p>Upon the question of waiver they contended that the knowledge of the title possessed by the secretary, having been derived in previous transactions wherein he was not acting for the company, and in which it was not concerned, was not binding on the company, citing TJrdted Nat. Bank v. German Ins. Co. Il Fed. 47.3; Shaffer v. Milwaukee M. Ins. Co. 17 Ind. App. 204, 46 N. E. 557; St. Paul F. & M. Ins. Go. v. Parsons, 47 Minn. 352, 50 N. W. 240; Trentor v. Pothen, 46 Minn. 298, 49 N. W. 129; Ordway v. Chase, 57 N. J. Eq. 478, 42 Atl. 149; Phoenix Ins. Go. v. Flemming, 65 Ark. 54, 67 Am. St. Rep. 900, 906; Conn. F. Ins. Go. v. Smith, 10 Colo. App. 121, 51 Pac. 170; Keith v. Boyal Ins. Go. 117 Wis. 531; Woodard v. Germam-Am. Ins. Go. 128 Wis. 1.</p> <p>For the respondents there was a brief by Nash & Nash, and oral argument by A. L. Nash.</p>

<p>Appeal from a judgment of the circuit court for Sheboy-gan county: Michael KibwaN, Circuit Judge.</p>

court for Grant county: Geoege OlemehtsoN, Circuit Judge. This is an appeal from a judgment of the circuit court for Grant county reversing a judgment of the county court of Grant county allowing the final report and account of Samuel Arthur, administrator of tbe estate of Jobn Arthur, deceased.

The will bears a full attestation clause certifying, inter alia, tbe signing by Christian Hawkinson. His name as subscribed to the will is interrupted by a cross and the words “his mark.” There is no bill of exceptions, and the court made certain findings of fact which in the main are mere recitation of the evidence.

<p>Appeals from a judgment of the circuit court for Iowa county: G-eoege Olementsoh', Circuit Judge.</p> <p>Plaintiffs bring this action alleging that defendants,, through misrepresentation and undue influence, fraudulently .obtained an exchange of projierties on September 12, 1905,. and praying for cancellation of their deed of transfer of their-farm to the defendants, for a reconveyance thereof to them by the defendants, and for damages in the sum of $1,000.</p> <p>The plaintiffs are farmers who were born and raised on the farm of 193 acres which they acquired from their father at Ms death, and to which they added 168 acres. -They were unmarried, and as partners, nnder the name of Griffiths Bros., farmed these 361 acres of land. Eor a period of years they raised blooded stock and ran a thresher, a sawmill, and a shredder. The principal business transactions of the firm were carried on by William T. Griffiths, the elder of the brothers. John at times attended to some of the smaller business dealings of the firm. In 1900 their property was worth about $30,000, consisting of the farm, worth $27,000, $14,600 in the bank, their stock, and personal property. They were then in debt in about the sum of $12,000. The defendants Cretney and Collins are partners and are in business as dealers and brokers in real estate. The defendant Jones is a farmer and dealer in real estate.</p> <p>In 1895 or 1896 William T. Griffiths had an attack of nervous prostration. Morphine was administered to him to relieve him from pain, and he became addicted to its use. In 1905 he was accustomed to take five or six grains of it three times a day. After such nervous attack he was weak and infirm of body and unable to do hard work. There was evidence of the effect of morphine upon him and that he was of much less mental power than he was before his illness; that he had at times wandered from home unconscious of where he was going, unmindful of what was occurring about him; that at times he was in a dreamy state of mind; that he did not remember having paid accouUts, and at one time attempted to pay an account twice. The court, who observed him at the trial and on the witness stand, at the close of the testimony, speaking of his condition, stated:</p> <p>“The effect of the morphine habit upon him is manifest from observing him. The twitching of his hands, the twitching of his face, his constant motion, the closing of his eyes, hag been continuously apparent while he has been in court. A casual observer would assume that he was incapable of doing anything that required intellectual effort. But upon the witness stand he has seemed quite bright, and much of his talk has been connected, and his memory in reference to many transactions has been good. On the whole, however, his testimony has not been satisfactory, in this: he has not been able to give a lucid account of any particular transaction from beginning to end. His own testimony shows, and I do not doubt it, that when he is not under the influence of morphine he is listless and incapable of effort, and under the influence of morphine he feels much better and when interested in a subject seems bright — is bright and talks intelligently. The testimony in this case convinces me, coupled with the observation of the man, that in this business transaction now under consideration he did not have a clear comprehension of the situation.”</p> <p>John Griffiths, the other plaintiff, as above stated, had but little to do with the management of the large and important business of the firm. The evidence shows that he cared for the stock, attended to the running of the thresher, and performed manual labor connected with their business. In 1898 he lost an arm in a shredder, and on this account was thereafter less active as a worker. It is clear from the evidence that their business was managed by his brother. The court concluded as to him thus:</p> <p>“I am satisfied from the testimony in this case and from my observation of the parties that John GhñffUhs is a man of hardly ordinary business intelligence — a man, who has done very little of the business of the Griffiths Bros.”</p> <p>The plaintiff William T. Griffiths testified that he became intimate in a business way with the defendant Gollins in 1903. At that time they went together to Bruce, Wisconsin, and together purchased some property. This property was afterwards sold by Collins, and most of the proceeds belonging to the plaintiffs were paid by Collins on their indebtedness. This plaintiff also testified that the plaintiffs had been partners with the defendant Collins in the several purchases of property and that they had not as yet received any of the profits from the sale of these properties. One transaction in land in the northern part of the state had netted $200 in commission which was still wholly retained by Gollins. Plaintiffs obtained a land contract on some lands in Canada as partners with Gollins on the latter’s recommendation, and he ■obtained commissions which he retains. This witness also testified that they had purchased a farm of about 200 acres in Rusk county because Gollins recommended and advised him to do so. The defendant Gollins denies that there ever was a partnership between him and the plaintiffs except as to the property at Bruce, Wisconsin. At the time of the exchanges of properties in question plaintiff’s farm was listed with Gollins and Cretney for sale.</p> <p>The evidence tends to show that after 1900 the business operations of the plaintiffs were not successful, and that at the time the transactions took place between them and the defendants they had become financially embarrassed. In September, 1905, the incumbrance upon their farm had become $15,500; their money in the bank had been spent and they were in debt for some machinery; a creditor had obtained judgment for some $700 for feed furnished to them and had seized upon execution and taken from their farm blooded stock worth $3,000 or $4,000. William T. Griffiths had tried to borrow money to meet their obligations, but had been unsuccessful. The condition of the plaintiffs was known to the defendants.</p> <p>On the morning of September 12, 1905, the plaintiff William T. Griffiths had gone to see the creditor who had taken some of their stock on execution to satisfy his judgment against the plaintiffs. Meanwhile the defendants had been talking with the plaintiff John Griffiths regarding this exchange of properties and arranged with him to meet with the plaintiff William T. Griffiths after dinner, at a bank in the city of Dodgeville. They so met, and late in the afternoon an agreement was reached for a transfer of properties. Plaintiffs transferred by deed their farm at the agreed price of $27,000 and were to receive an equivalent for the value of their equity therein above the $15,500 incumbrance, in property and cash. In exchange they were to receive a farm in Rusk county of an agreed value of $11,000, upon which there would be an incumbrance of $5,500; 160 acres of wild land in Barron county at $20 per acre; 120 acres of wild land in Rusk county at $20 per acre; the payment of $1,000 on the plaintiffs’ contract for Canadian lands; $360 in cash; and a loan of money in settlement of the judgment for $700.</p> <p>The plaintiffs testified that the defendants represented to them that the wild lands in Rusk and Barron counties had been acquired by them at the price of $20 per acre, and that the lands were of that value, and unless they accepted the wild lands at this price all negotiations would have to be dismissed and abandoned. Plaintiffs also testified that it was understood that the defendant Collins was to go with the plaintiffs to inspect these wild lands before March 1, 1906, in order to verify his representations respecting their nature and value, and that he has failed and refused to do so. Defendants now insist that the exchange of properties was effected and fully executed and the deeds and transfers were delivered in September, 1905, but claim that each of the parties was to pay the interest on the incumbrances on the lands transferred by them up to March 1, 1906.</p> <p>The deed to the defendants was placed on record the next day. The deed to the plaintiffs of the improved farm was sent to Rusk county to be recorded. The judgment against the plaintiffs was satisfied. The plaintiffs received $360 in cash, and a deed to the wild land in Rusk county was executed by the defendants Cretney and Collins in favor of the plaintiffs. The title to the improved farm in Rusk county was owned by the defendant Jones. The title to the wild lands in Rusk county was owned by the other defendants, and they also had a land contract upon the lands in Barron county. No transfer to the plaintiffs of the lands in Barron county was executed until after March 1, 1906., Jones had given full consideration to the. plaintiffs for the one-half interest in tbeir farm, and tbe proof shows that be subsequently bad paid full consideration wben be secured tbe interests of tbe other defendants in tbe plaintiffs’ old farm. He has thus transferred property to tbe plaintiffs or to the other defendants, or has paid money to secure this farm, amounting to about $27,000. It appears that the defendant Jones is very deaf, probably did not bear what was said at tbe bank regarding tbe value of tbe wild lands, and that be has transferred part of tbe farm obtained from tbe Griffiths. He testified that be bad no knowledge of tbe value of wild lands; that be beard such lands were to be taken in tbe exchange at $20 per acre; that be bad been up in Rusk county with W. T. Griffiths; and that such lands were selling at $20 per acre. Tbe evidence introduced by the plaintiffs as to tbe value of tbe wild lands was in effect that they were worth nothing for tillage purposes, but that they bad a pasturage value in connection with farm lands. Witnesses were called in plaintiffs’ behalf who gave opinion evidence that tbe lands in Rusk county were worth at a maximum $8 per acre, and that tbe lands in Barron county were worth $6 per acre. On behalf of the defendants the opinion evidence was that tbe wild lands were worth $20 per acre.</p> <p>Tbe trial of tbe case was bad at tbe March, 1907, term of tbe circuit court. At tbe conclusion of tbe evidence tbe •court announced as bis conclusion from tbe facts and tbe evidence adduced that it was 'a question whether rescission could be awarded. He therefore, at tbe September term of tbe court, made an order appointing a referee to take proof as to tbe rents and profits. On December 24, 1907, tbe ■court denied a motion that tbe scope of tbe inquiry before tbe referee should be broadened and that defendants should be ■allowed to take proof of tbe value of tbe wild lands. During tbe month of January, 1908, tbe referee took evidence, including evidence offered by tbe defendants as to tbe value of tbe wild lands.</p> <p>At tbe June, 1908, term of tbe court tbe final decision was announced, the court stating that the referee had improperly included in his report opinion evidence upon the value of the wild lands, but that he had read and considered it. This evidence was that these lands were worth from $12.50 to $25 per acre. The court held that rescission could not be awarded, and allowed the plaintiffs $3,660 as damages, holding that the amounts agreed upon as the value of the wild land were excessive, that the Barron county land was worth $6 per acre and the Rusk county land $8 per acre; that the plaintiffs were incompetent to transact the business and did not fully comprehend it; and that they had been induced to> make the exchange of land because of the wilful misrepresentations by defendants as to the value of the wild lands. These are appeals from the judgment.</p>

<p> Trespass: Gutting of timber: Aiding and abetting: Vendor and purchaser: Disputed boundary: Judgment: Gonclusiveness: Title' to land: Dismissal of action: Oosts: Appeal: Printed case. </p> <p>1. One who sells and conveys the timber on his own land is not liable for a trespass upon adjoining land committed by the-purchaser while removing such timber, unless he aided and abetted the commission of such trespass.</p> <p>2. Where the vendor of timber on certain land told the purchaser that a fence had been built on what he supposed was the west, boundary but that the purchaser should have the line surveyed and satisfy himself, and the purchaser afterwards employed a surveyor who found that the fence was substantially on the-true line, the fact that the vendor was present when the survey was made and, with others, shared the expense thereof because he wished to know where the line was, would not, if he acted in good faith, render him liable for a trespass by the purchaser in cutting to the line of the fence, which was not the true line.</p> <p>3. Nor could such vendor be deemed to have aided and abetted such trespass merely because, when sued therefor, he denied in his-answer that any trespass had been committed, and upon the-trial sought to show that the line surveyed was correct.</p> <p>4. While a final judgment is conclusive as to issues arising on the-pleadings which were or might have been litigated, it does not, in itself, necessarily determine what was litigated or how each-particular question was decided; and the facts in that regard may be shown by the findings, by the verdict, by the bill of exceptions, or by extrinsic evidence.</p> <p>5. Thus, in an action for trespass to land, where defendant denied plaintiff’s ownership and the jury found that plaintiff owned the land but that defendant did not trespass thereon, a judgment dismissing the complaint would not have the effect to deprive the plaintiff of his land, but on the contrary would be conclusive as to his ownership; and such judgment in the case-would be proper.</p> <p>6. Costs for a printed case violating Supreme Court Rule 6 are disallowed under Rule 44.</p> <p>Kerwin, Siebecker, and Timlin, JJ., dissenting, are of the opinion that the evidence shows that the vendor of the timber-aided and abetted tlie commission of the trespass in cutting to the line of the fence mentioned; and that, even if that were not so, upon the pleadings and the finding of title to the disputed strip in plaintiff the latter was entitled to judgment for nominal damages and costs.</p>

<p>Appeal from a judgment of tbe circuit court for La Crosse county: J. J. Eeuit, Circuit Judge.</p>

<p>Appeal from an order of the circuit court for La Crosse ■county: E. C. Higbee, Circuit Judge.</p> <p>Tbe appeal is from an order overruling a demurrer to tbe complaint. Tbe complaint set forth that J. N. Cummings died on September 12, 1909; that tbe plaintiff was duly appointed and qualified as administratrix of bis estate; that decedent, at tbe time of receiving tbe injuries wbicb produced bis death, was in tbe employ of tbe defendant railway company as a switchman in its yards at tbe e'ity of La Crosse; that the defendant tbe C. W. Noble Company was constructing a sewer alongside of and near to one of tbe railway tracks of tbe defendant railway company in said city; that said C. W. Noble Company did carelessly and negligently pile and place large quantities of timbers and planks close to said railway track, tbe same being placed so closely thereto that they would strike tbe said railway company’s employees while engaged in tbe performance of their work in passing by the same upon the cars and engines of the railway company; that such timbers and planks were negligently so piled and placed on September 4, 1909, and tbe defendant railway company did carelessly and negligently permit and allow said timbers and planks to be so placed and to so remain on said day; that tbe same were piled on tbe right of way of tbe said railway company; that on said 4th day of September tbe decedent, who was in tbe employ of said railway company, while in the performance of bis duties, riding upon an engine by or at tbe place where said timbers and planks bad been carelessly and negligently placed by said C. W. Noble Company, and bad been by said railway company carelessly and negligently allowed to remain, was thrown from said engine by said timbers and planks, and suffered injuries in consequence of wbicb be died on tbe 12th day of September, 1909. Tbe railway company interposed an answer to the complaint. Tbe C. W. Noble Conv-pcmy interposed a general demurrer thereto on tbe ground that it did not state facts sufficient to constitute a cause of action, wbicb demurrer was overruled by tbe trial court.</p>

<p> Master and servant: Railroads: Who are servants: Injury to person worlcing on car in service of another: Volunteers: Negligence: Contributory negligence: Evidence: Instructions to jury: Appeal: Harmless errors. </p> <p>1. Where a person, who was assisting the conductor of a railway train to repair a brake on a car, but who had not been employed by the conductor under any express authority or because of any sudden emergency necessitating his employment, was injured by negligence of the engineer, the railway company cannot be held liable on the theory that the injured person was its servant.</p> <p>2. A foreman employed by a granite company at its quarry, whose duty included attending to the reception and placing on a spur track of the cars which were to be loaded at the quarry, and who, while performing such duty in connection with a switching crew of the railway company, undertook with the conductor’s consent to assist in repairing the brake on one of the cars which they were attempting to put in place, was not a trespasser, intermeddler, or mere volunteer with respect to such work of repair, but was engaged in forwarding the interest and business of his employer in that part of the business in. which such employer and the railway company had a common interest; and for an injury sustained by him while so engaged, caused by negligence of the servants of the railway company,, the latter is liable.</p> <p>3. Findings by the jury in such case to the effect that the servants of the railway company were negligent in backing the engine-without signal or warning against the empty cars, on one of which the plaintiff was helping to repair the brake, and that plaintiff was not guilty of contributory negligence, are held to-be sustained by the evidence.</p> <p>4. It being undisputed that the engine struck the cars, that the-conductor had given no signal for its backing, and that he did not expect it to do so while he and plaintiff were attempting to repair the brake, no prejudice resulted to defendant from the admission of testimony that the conductor stated, after the-accident, that “he did not think himself that the engine was going to hit the car,” even though such statement was not properly admissible as part of the res gestm.</p> <p>6. A refusal to give a correct requested instruction, as to a question in the special verdict, that unless the jury were satisfied from a preponderance of the evidence that it should be answered “Yes” they should answer it “No,” was not prejudicial-error, where the jury were instructed that their answers to all the questions should be in accordance with what they believed' to be the fair weight of the whole evidence, and, as to the particular question, that if they so affirmatively believed from the-whole evidence they should answer the question accordingly, and if they were not so satisfied they should give the opposite-answer.</p>

<p> Municipal corporations: Special assessments for paving: Limitation-of amount: Classification of pavements: Constitutional law: Due process of law: Statutes: Construction: Repeal. </p> <p>1. Sec. 959 — 35, Stats. (1898), as amended by cb. 329, Laws of 1909, limiting tbe amount to be assessed against tbe abutting property owner for tbe cost of street paving constructed on a concrete foundation, is not unconstitutional as an attempted unlawful delegation to cities of tbe power to exempt property from taxation. Tbe classification of permanent pavements on a concrete foundation is a valid classification, and tbe class may properly be made tbe subject of special and peculiar legislation, notwithstanding tbat in some isolated and infrequent cases inequality may result.</p> <p>2. Tbe provision of tbe statute requiring tbat a lotowner wbo exercises tbe option to bave tbe assessment against bis property, spread over a term of years must agree tbat be will make no objection to any want of power or irregularity in tbe making of tbe assessment, and making tbe bonds issued in pursuance-of tlie option conclusive evidence of the validity of the proceedings, is not open to any constitutional objection as being unreasonable and in effect a taking of property without due process of law. The option is a privilege which the legislature could extend or not as it chose, and which, if extended, could be made subject to such conditions as legislative discretion approved.</p> <p>3. The operation of said sec. 959 — 35 is not confined to those cities which have special provisions in their charters exempting property which has once been assessed for construction of a pavement, from any subsequent assessments, but is general in its character and extends to all cities to which the act as a whole applies.</p> <p>4. Ch. 539, Laws of 1909, passed eight days after the act amending said see. 959 — 35 (ch. 329, Laws of 1909), though containing some general expressions which, in the absence of other statutes in pari materia, would indicate an intent that assessments for paving might be made to any amount against adjoining property, must, in view of the closeness in point of time of the two enactments, and the provision of sec. 2 of said ch. 539 that it should not be construed as repealing any provisions of the statutes, be construed as subject to the limitation of said sec. 959 — 35 as amended.</p>

<p> Criminal law: Competency of witnesses: Children: Discretion: Rape: Sufficiency of evidence: Unsworn testimony: 'Waiver of objection: Mental capacity: Opinions of nonexperts: Time of offense: Instructions to jury: Evidence as to character: Refutartion: Proof of other immoral acts: Rebuttal. </p> <p>1. Unless it appears to have been an abuse of discretion, tbe ruling-of tbe trial court that a child of limited mentality and intelligence was competent to testify will not be held error.</p> <p>2. A conviction of rape is held to be sustained by tbe direct and. positive testimony of tbe prosecutrix, a child between thirteen and fourteen years old of limited intelligence, together with some corroboration, tbe question of her credibility being one-for tbe jury.</p> <p>3. Where a defendant expressly consents, even under pressure from tbe court, to tbe admission of unsworn testimony of young children, be waives any right to complain thereof.</p> <p>4. A nonexpert witness cannot give a general opinion as to the-mental capacity of a person, but may testify as to specific interviews and the impression left upon bis mind as to tbe person’s mental peculiarities exhibited in such interviews.</p> <p>5. Where, on a trial for rape, tbe prosecutrix testified to only one-offense and tbe testimony of tbe accused evinced no uncertainty as to the occasion referred to, so that the jury in finding him guilty must have agreed upon the commission of one specific offense, there was no error in an instruction permitting conviction for an offense committed at any time within the period of limitation prior to the time charged in the information.</p> <p>-6. The privilege of general vilification of a witness by proof of disreputable conduct not connected with the facts on trial should be allowed only in the exercise of judicial discretion, and then only to affect the credibility of the witness, and not to be considered upon the question 0f guilt or innocence if the witness is also the accused person on trial.</p> <p>7. Refutation of evidence of the general good character of an accused must be by proof of general reputation or character and not of specific acts.</p> <p>■8. Where, on a trial for rape, the accused himself testified and also offered other evidence to show the innocent and meritorious character of his relations and usual acts with girls other than the prosecutrix who frequented his place of business, it was' permissible for the state to show that the conditions which he sought to prove as suggestive of his innocence did not exist, and to show that the presence of such girls on his premises, invited by him, was often immoral and libidinous instead of uniformly innocent and conventional as he had sought to prove.</p>

EkRob to review a judgment of the circuit court for Sha-wano county: JoiiN Goodlawd, Circuit Judge. The plaintiff in error, hereinafter called the defendant, was convicted of having forged a deed of premises owned by Pauline Janueska, who is the complaining witness. He was sentenced to imprisonment for four years.

Rowlee, Circuit Judge. Plaintiff brought an action for divorce from the defendant, alleging cruel and inhuman treatment toward her; nonsupport, although the defendant was amply able to support her and their minor children; defendant's uncontrollable temper, which made it dangerous for her to live with him; and that she had faithfully discharged her duties as wife and had observed her marriage vows during the whole of their married life.

<p>Appeal from a judgment of tbe circuit court for Milwaukee county: LawbeNce W. Halsey, Circuit Judge.</p> <p>Oil May 13, 1907, plaintiff’s decedent, then twenty years of age, bad been employed for a month as lineman’s helper by the defendant, his work consisting in the handling of apparatus and materials to facilitate the lineman; deceased working on the ground and the lineman both on the ground and on the poles. Deceased had never handled live wires. On that date decedent’s lineman and some other employees' went to .West Allis to readjust the wires and change brackets in a certain region. The wires included a “feed wire” ordinarily carrying electricity to the dangerous extent of 2,300-volts. Deceased and his lineman went to a substation where was an operator who controlled the switchboard connecting- and disconnecting wires. They found there the assistant superintendent of the lighting department and requested that the feed wire might be killed during their operations; that is, disconnected from the current. They were informed that it was already dead, and in their presence the assistant superin - tendent directed the operator of the switchboard, Waldmann,. not to turn electric current into that feed wire until he received direct word from the decedent’s lineman. It appeared' that a certain other employee, Dietz, having certain repairs- or -adjustments to make in the substation, had previously, the same day, requested Waldmann to disconnect this feed wire that Dietz finished his job at about half-past 1 of the same day and notified Waldmann of that fact, remarking, “You can call up Commerce street, and tell him to put the current on the line again.” Waldmann did so and switched into connection said feed wire, momentarily forgetting the instruction to keep the wire dead for the protection of the line crew of which deceased was one. Deceased- at that moment, two or three blocks away, had hold of the-wire with his bare hands and was instantly killed. At the close of the plaintiff’s evidence a judgment of nonsuit was entered, from which the plaintiff appeals.</p>

B. BelbeN, Judge. An instrument purporting to be the last will and testament of Henry O. Parks, deceased, was, in due form, admitted to probate in the county court of Milwaukee county.

Halsey, Circuit Judge. Tbe action is to recover for tbe use and occupation of a building in tbe city of Milwaukee from June 1, 1906, until February 1, 1907. Tbe facts are not in dispute. Tbe city owned tbe building and tbe lot on wbicb it stood prior to May 24, 1906, and used it for tbe accommodation of tbe meter department of tbe city waterworks system.

Eowlek, Judge. On April 28, 1890, Allan P. Battis and tbe respondent were married. On December, 13, 1902, Allan P. Battis, tbe testator, made bis will. Thereby be gave to a cousin all bis interest in bis boiler-sbop business, tbe buildings in which it was conducted, and tbe lots upon which tbe buildings stood. Pie gave to Helen Wiesenberg, a stranger, certain bank stock and money or real-estate mortgages sufficient to make tbe sum of $8,000.

<p> Municipal corporations: Annexation of territory; Failure to comply with statute: Pleading: Remedy: Injunction: Limitation of actions: Oral demurrer: Appeal: Harmless errors. </p> <p>1. An averment in a complaint that an ordinance of annexation “was not published in accordance with law” states a legal conclusion.</p> <p>2. An averment that in making such annexation the city authorities acted upon a petition which was not signed by a majority of the electors and the owners of one third of the taxable property in the district sought to be annexed according to the last tax roll including that district, sufficiently asserts that the annexation was unauthorized.</p> <p>3. The proper remedy in such case is a class action in equity by the property holders and taxpayers in the territory sought to be annexed.</p> <p>4. No rule of law or equity forbids the court to entertain a suit to enjoin the acts of public officers injurious to the plaintiffs, aP tempted to be done under an invalid ordinance or statute.</p> <p>5. An oral demurrer to a complaint does not raise the objection that the cause of action is barred by limitation.</p> <p>6. Where it appears on the face of the complaint that the cause of action is so barred, and the statute of limitation is pleaded in the answer, the appellant is not prejudiced by the ruling sustaining an oral demurrer and dismissing the complaint. In such case the judgment will be affirmed, with leave to the plaintiff to apply to the ¡court below to amend his complaint and plead other facts, if any exist, in avoidance of the bar of the statute.</p>

<p>Ebboe to review a judgment of the circuit court for Winnebago county: Guo. W. Buenell, Circuit Judge.</p> <p>The plaintiff in error was informed against as having, on the 19th day of May, 1908, at the town of Amberg in Mari-nette county, Wisconsin, feloniously and with premeditated ■design, killed one Louis Tobaltz. Such proceedings were ■duly had that he was placed on trial on a plea of not guilty and a special plea of insanity. A verdict was duly rendered ■on the special issue in favor of the state. Before there was opportunity to proceed with the trial on the general issue, the circuit judge was constrained to believe it was necessary for him to suspend the trial and discharge the -jury because of the serious illness of his wife at the family home in Oshkosh, Winnebago county. Counsel on both sides recognizing that such emergency existed, entered into a stipulation, as follows:</p> <p>“It is hereby expressly stipulated that the jury now impaneled which has tried the issue of insanity and now is in the custody of the officer shall be discharged from further consideration of the case, that the place of trial and venue of the action be changed from Marinette county to Winnebago county, Wisconsin, the defendant expressly requesting such change and 'waiving any irregularity in not proceeding with the issue of -not guilty at this time and place, reserving however the right to move the court to set aside the verdict and grant a new trial upon the insanity issue heretofore tried in this county and at this term, that the argument on said matter be taken up before the Hon. Geo. W. Bueuell, the presiding" judge, at such time and place as he may direct. Further stipulated that the state may have the privilege of introducing-the testimony of such witnesses as given upon the trial of the insanity plea as they may see fit, subject to the objections-entered and the objections as to its competency, relevancy, and materiality, that the cause may be placed on the calendar of the present September term'of the circuit court of Winnebago county and brought to trial at such term on the 14th day of December, 1908, at 2 p. m. That a jury be summoned upon a special venire for the trial of said cause. And the court to fix a time for hearing the argument on the motion to set aside the verdict rendered on the insanity plea and granting a new trial, which motion is to be heard before the-Hon. Geo. W. Burns ell, the presiding judge at this trial at. Oshkosh, Winnebago county, Wisconsin, upon notice by the court to both parties, which motion is to be passed upon and argued before the 14th day of December, 1908.”</p> <p>Accordingly the jury were discharged, an order changing the place of trial was entered, and, in due course, the cause was brought on to be heard in Winnebago county. Whereupon counsel for the accused moved the court for an order setting aside the verdict on the special issue and for a new trial thereof, assigning various reasons, all of which related to-error claimed to have been committed on the former trial. Ho point was made, at first, to the effect thát the discharge of' the jury in Marinette county opened.up the special issue for a retrial. All grounds for the motion were upon the theory that the verdict was to be treated the same as if the whole case had been tried in Marinette county and a motion made therefor an order vacating, the result and granting a new trial because of errors committed on the trial of the special issue. The motion was denied. Thereupon the accused, by his attorney, consented to further submit to the jurisdiction of the ■court only upon condition of the whole case being regarded as ■open for trial the same as if nothing had occurred in Mari-nette county regarding the special issue. The court adhered to the opinion that the trial in Marinette county was conclusive as to the special issue, leaving only the general issue of not guilty to be tried on the change of venue, the same as if the trial of such issue had been proceeded with in Marinette •county after the verdict on the special issue. Thereafter a plea of former jeopardy was interposed, the claim being that the jeopardy created by the proceedings in Marinette county had not been conclusively waived or superseded; that the ■consent to discharge the first jury was upon the theory that the one to be impaneled in Winnebago county would take the ■case where the first jury did, not where it left off; that such was the effect of the written agreement; and that, by the court refusing to so administer it, defendant was entitled to efficiently claim his constitutional right of immunity from being again placed on trial.</p> <p>The plea of former jeopardy was overruled. Under protest by the accused, that further proceedings were erroneous and illegal because of a former jeopardy, as claimed in the ■plea, he was, in due form, placed on trial upon the plea of not guilty.</p> <p>The evidence was to this effect: Prior to the date of the ■alleged homicide, the accused with his child and a woman purporting to be his wife, resided in the village of Amberg, Mari-nette county, Wisconsin. He did not live happily with the woman. He was quite jealous of her because, among other things, of her supposed improper relations with Louis Tobaltz. On the evening before the homicide he locked the door of his house against her so she could not gain entrance thereto upon ■her return after an absence of some less than an hour. The next morning she entered the house through a door left un.locked by a boarder upon Ms leaving for bis day’s duties. A short time thereafter, the accused, taking his rifle and revolver, coerced her to precede him to the working place of Tobaltz. Such place being closed the journey was continued to the place where Tobaltz resided. She then, at the defendant’s command, rapped at the door. Thereupon Tobaltz appeared, but upon observing the accused with gun in hand he •attempted to retreat into the house, and close the door before him and the accused. At that instant the accused pointed .and discharged his rifle in the direction of Tobaltz, whose position was such that the shot passed through the door and struck the latter, severing the main artery of one arm, from the effect of which he died in a short time. As the fatal wound was inflicted, the door swung inward and Tobaltz staggered backward, exclaiming, “I am shot,” the accused exclaiming in reply, “Yes, come out here and I will shoot you again.” Immediately, or soon, thereafter, he used harsh language toward the woman and Expressions indicating that he was in a frame of mind to shoot her. Later he claimed his conduct was caused by improper relations between her and Tobaltz, confessed by her to him on the morning after her aforesaid absence from the house, and preceding his starting out to meet Tobaltz.</p> <p>On the insanity issue there was much evidence tending to .show that the accused was afflicted with epilepsy, the claim being that it, and other derangements, had affected his mind so as to render him irresponsible for the homicide.</p> <p>The court on the main issue, among other things, informed •the jury of the result of the trial of the special issue and that ■such result settled the question of whether the accused was insane at the time of the shooting, against him, but that evidence of impairment of his mind, not ..amounting to legal insanity, was to be considered on the question of whether, if the accused was guilty of having committed a criminal homicide, it was characterized by the element of premeditated design to effect, the death of Tobaltz, essential to the full offense-charged ; that of murder in the first deg'ree.</p> <p>The trial resulted in a verdict of murder in the second degree and judgment was duly pronounced.</p> <p>The points saved for consideration on review by this court and so presented as to require consideration, so far as they seem to have sufficient warrant to require special discussion and decision, will be treated in their order.</p>

'ApplioatioNS for writs of prohibition to restrain tbe further prosecution of an action in tbe circuit court for Milwaukee county, on tbe ground that tbe summons bad not been properly served on petitioners. Tbe facts of tbe case and tbe allegations of tbe petitions are fully set forth in tbe opinion of tbe court and tbe dissenting •opinion.

<p> Guardians: Death of insane ward: Settlement of accounts: Title to-per sonalty. </p> <p>After tlie death of an insane ward an administrator of his estate must lie appointed before the accounts of the guardian can be* adjusted by the county court or the heirs of the ward can acquire title to his personalty.</p>

<p>Appeal from an order of the circuit court for St. Croix county: E. W. Helms, Circuit Judge.</p> <p>Equitable action for relief on facts set forth in the complaint, in addition to necessary allegations as to corporate existence of defendants, to the following effect: July 22, 1908, •defendant trust company bad in its possession $4,501 of plaintiff’s money for the purpose of loaning the same in his behalf on gilt-edged, first-lien, real-estate securities, the loans to be on full title of record to the realty, and, before made, to be passed upon and approved by him. On the 1st day of ■October, 1904, the defendant Blue Grass Land Company agreed to sell to C. H., A. IT., and E. O. Kimball certain land, specifying the same, situated in the state of Minnesota, giving them a land contract and taking a purchase-money note executed by them for $3,150. The land company had •only an equitable interest in the land under an unrecorded land contract upon which a large part of the purchase money was yet to be paid. The land was not of sufficient value to •adequately secure the amount due to said land company’s vendor.</p> <p>The Northern Blue Grass Land Company contracted to sell certain lands (specifying the same) in Vilas county, Wisconsin, to one Kauzi, taking with the contract his notes for $1,280, dated August 9, 1907. The Merrill Lumber Company owned the land subject to its outstanding agreement to sell the same to the defendant land company. January 15, 1908, the Northern Blue Grass Land Company assigned the Kauzi contract and notes to defendant land company. Neither of such land companies ever had any but an equitable interest in said land under the Merrill Lumber Company contract upon which a large amount of -purchase money was unpaid, leaving the Kauzi contract and notes of little value as security for a loan. The stockholders and officers of said land companies and the defendant trust company were largely identical. July 22, 1908, said trust company, for purposes of its own, and in breach of its agreement with plaintiff, purchased the Kimball and Kauzi contracts and the accompanying notes, converting bis money to its own use and using tbe same therefor. It caused such securities to be assigned and delivered to him, representing, at the same time, that it was. the owner of a first-class $5,000 note secured by a first mort~. gage on a Wisconsin farm, the papers being on deposit with the state treasurer, but would shortly be returned and then be substituted for said contracts and notes. Plaintiff took such contracts and notes only to hold temporarily, relying on the aforesaid representations and agreement. Said note and mortgage were, in due time, returned to said trust company, but, in breach of said agreement with plaintiff, it transferred them to other parties. He has made due demand therefor,, but said trust company, in breach of its agreement, has refused and still refuses to comply therewith. Upon plaintiff discovering the facts, he notified the trust company that he would not accept such land-contract securities for his money and was ready to redeliver the same upon receiving said money. He is still ready to do so or to abide by the court’s-order in the premises. Said trust company, to wind up its affairs, has turned over its assets to the defendant Wisconsin Mortgage Loan & Investment Company, which was organized therefor by proprietors of the trust company, and has, in consideration of the premises, assumed and agreed to pay the liabilities of the old company, giving a bond to the state treasurer in the sum of $50,000 to that end. There is due on the Kimball notes $2,250 with interest from July 1, 1909, and on the Rauzi notes $1,152 with interest from August 9, 1908. The notes are of little value.</p> <p>On such facts plaintiff prayed substantially as follows: 1st, for a rescission of the transactions between himself and the parties defendant; 2d, that they be required to pay to him his $4,501; 3d, that he be permitted to hold the securities until such payment and then turn the same over as the court may direct; 4th, that he be awarded such other relief as may appear equitable; and 5th, recover his costs and disbursements. Tbe Wisconsin Savings Loan & Trust Company and tbe Wisconsin Mortgage Loan & Investment Company severally demurred to tbe complaint, 1st, for insufficiency ;. 2d, to tbe jurisdiction of tbe court; 3d, for misjoinder of causes of action. Both demurrers were sustained and plaintiff appealed from tbe orders.</p>

<p>’Appeal from an order of tbe circuit court for St. Croix county: E. W. Helms, Circuit Judge.</p> <p>Action for equitable relief. Tbe complaint, aside from stating tbe corporate existence of tbe defendants, contains tbe following, in substance: October 1, 1904, defendant Wisconsin Blue Grass Land Company, having only an equitable interest under contracts from tbe owners, subject to large amounts of back taxes, unpaid purchase money, and prior mortgages, to certain lands in Wisconsin and Minnesota, agreed, in writing, to sell certain thereof (specifying land in Pine county, Minnesota) to David, Leonard, and Homer King, taking their notes therefor for upwards of $2,300 with tbe land contract, tbe latter being so executed as not to be recordable. Tbe stockholders and officers of the land company and of the defendant bank were and are, in the main, the same persons. Said bank, through, its officers, for the purpose of obtaining plaintiffs money, falsely and fraudulently represented to him that said indebtedness from the Kings was a first lien on the lands described in their said contract and was secured by said contract in first-class shape, and, further, that the Kings'were men of great wealth, were of undoubted capability to pay said indebtedness, had entered upon the contract land and -improved the same at large expense, and that if plaintiff would remit to the bank the amount of money represented by the notes it would cause the contract securing the same to be duly assigned and delivered to him. The bank then held said notes and contract to secure payment of indebtedness to it of said land company. The land was in fact of little value and was not adequate security for payment of said notes; the Kings had not entered upon the land nor improved the same, or paid anything upon the contract, neither were they men of financial responsibility, all of which facts were well known to the officers of said bank when they represented to the contrary as aforesaid. Relying on the representations so made, and not otherwise, plaintiff parted with money to said bank according to its proposition and took therefrom said notes and contract. As soon as he discovered the truth of the matter he notified the bank that he would not accept said securities for his money, demanded a rescission of the transaction whereby he parted therewith, offered to retransfer the securities turned out to him upon refund being made, and still offers to do so. Said notes and contract are of small value. Said land company has paid on the King notes $680, and there is still due $1,700. Said banking corporation had the usual powers of such corporations under the laws of this state. Its charter has expired. It is insolvent and engaged in liquidating its affairs. The defendant investment company, with knowledge of the facts as to the insolvency aforesaid, took over the bank assets, agreeing to pay specified debts and liabilities, not including 'the liability to plaintiff, and is now realizing on such assets. Unless a receiver shall be appointed for said bank in the interests of all its creditors, and the said investment company restrained from using the bank assets, the whole thereof will be appropriated, excluding the plaintiff from any interest therein.</p> <p>July 1, 1905, said land company agreed, in writing, to sell other' of its aforesaid contract lands, specifying the same, to Blanche Kimball, taking her note for $1,312 for unpaid purchase money. Said bank, by its officers, with knowledge of the truth, for the purpose, through deception, of obtaining plaintiff’s money for the said note and contract, represented to him that said contract and note were a first lien on the land and that the security for payment of the note was first class, whereas the land company had not title of record, or at all, except a contract interest with a large amount of the purchase money unpaid. Said land was of little value and the note and contract offered to plaintiff was not good security for the indebtedness represented thereby. The bank was the equitable owner of said securities. Relying upon the said false representations, plaintiff was induced to and did part with $1,312 for said contract and note and the same were, in due form, caused by said bank to be assigned to Mm. There is unpaid on said note $820 with, intei’est thereon from July 1, 1909. Said land company has deeded away its interest in said land and disabled itself from carrying out its said contract. Plaintiff has demanded payment of the sum due him upon the facts stated and payment has been refused.</p> <p>Plaintiff prayed that the transaction between him and the bank be rescinded; that the latter be adjudged to pay the money advanced by the former for the securities; that he be allowed to retain them as security.and return them as the court may direct upon the judgment being complied with; that the bank and its officers be restrained from exercising corporate rights, and that the officers of both corporations be restrained from doing anything with the bank assets pending the action; that a receiver be appointed to take over, preserve, and administer such assets, and plaintiff have such other relief as the court may deem just, together with the costs and disbursements of the action.</p> <p>The defendant bank demurred to each cause of action, 1st, for insufficiency; 2d, for want of jurisdiction of the court of the subject matter; 3d, for misjoinder of causes of action. The demurrer was sustained upon the first ground and plaintiff appealed.</p>

<p> Equity: Specific performance: Oral agreement to convey land: Possession by vendee not essential: Fraud: Inadequate remedy at law. </p> <p>1. As a general rule equity will not enforce specific performance of an oral agreement to convey land, although, there has been part performance by the purchaser, unless he has taken possession of the land; but, even where possession has not been taken, if the vendor’s refusal to convey will work a fraud upon the purchaser and the latter has no adequate remedy at law, specific performance may be enforced.</p> <p>2. Where land is owned by several persons in undivided interests, some of such owners being incompetent, and plaintiff, one of the owners but not in possession, has made valuable and permanent improvements upon the land pursuant to an oral agreement with defendant, also an owner, that in consideration of the making of such improvements defendant would convey his interest ,to plaintiff, but defendant refuses to convey, equity may compel a conveyance, since defendant’s refusal operates as a fraud upon plaintiff and the remedy at law is inadequate.</p> <p>3. The remedy at law is inadequate in such a case because the oral agreement, being void under the statute of frauds, cannot serve as a basis for the recovery of damages, and because the implied obligation of defendant to return what he has received under the oral agreement does not go beyond reimbursement of plaintiff to the extent that he benefited the defendant’s undivided interest, while as to the other owners there is no basis for a recovery at law.</p>

<p> 'Witts: Construction after decree assigning property: Application by infant to sett lands: County and circuit courts: Jurisdiction: Cguity: Action to remove cloud on title. </p> <p>1. A decree of a county court assigning the estate of the testator pursuant to the will does not transfer title or in any way alter the disposition of the property made hy the will.</p> <p>2. Upon application of an infant for sale of her land the county court is authorized to construe a will so far as it is necessary to determine whether and to what extent the infant is the owner of the land sought to he sold for her benefit.</p> <p>3. In case the application for sale is made after administration closed and after4he estate has been assigned, the county court is not authorized to bring in adversary parties claiming title under the will, but may require as a preliminary that an action for construction of the will against such adversary parties be brought in the circuit court.</p> <p>4. A court of equity will not entertain a suit for construction of a will where there is no trust, equitable incident, or other independent ground of equity jurisdiction.</p> <p>■5. Where an infant claims to own real estate in remainder and a . life tenant is in possession and other persons make an adverse claim to this remainder or some interest therein, if the infant desires to have the land sold for her support, she may maintain a suit against such claimants to remove a cloud on her title, and in this suit may have a construction of the will where the claim of such adverse parties rests upon their construction of such will.</p>

<p>Appeal from a judgment of tbe circuit court for Dane county: E. Kay Stevens, Circuit Judge.</p> <p>Plaintiff brings this action to recover tbe purchase price of a carload of wagon bottoms shipped by it to defendant without any order from defendant requesting it so to do. The bottoms so shipped were used by defendant. Prior to the making of the shipment the defendant had entered into an executory contract with the Ellisville Lumber Company to furnish it a number of wagon bottoms. A jury was waived, and the trial court found that the car in question was shipped in part execution of the contract between the Ellis-ville Lumber Company and the defendant; that it was shipped by the plaintiff for and upon the credit of the Ellis-ville Lumber Company; and that the Ellisville Lumber Company and not the plaintiff was the real party in interest. On the findings so made judgment was entered dismissing the complaint.</p>

<p> Corporations: Fraud of promoters: Equity: Action by stockholders: Pleading: Joinder of causes of action: Parties. </p> <p>1. A complaint in equity by stockholders in a corporation, which, alleges in apt terms that defendants, the promoters and officers of the corporation, collusively and fraudulently, without giving any equivalent therefor, conspired to and did deplete the treasury of the corporation of large sums of money, by procuring options on mining properties in their own names and selling the same to the corporation at a large profit, taking so-called commissions upon sales of its stock, and issuing orders upon the treasury in their own favor, for which there was no consideration; and which seeks to recover back for the benefit of the corporation the sums so paid out and to cancel the orders still outstanding, states a cause of action.</p> <p>2. Where such complaint states wrongs against the corporation only and relief on its behalf only is prayed, there is but one primary right sought to he enforced and hut a single cause of action-stated, although a number of wrongful acts hy which the fraudulent scheme was consummated are set out and different forms of relief are asked.</p> <p>3. Where in such a case it is evident from the allegations of the-complaint, showing that the defendants are the directors and control the corporation, that the action would hot he brought or prosecuted in good faith hy the corporation, it is properly brought hy stockholders and the corporation is a proper party-defendant.</p>

<p>Appeal from a judgment of tbe circuit court for- Saule county: E. Rat SteveNS, Circuit Judge.</p> <p>This is an action for conversion of twelve bundles of'greem bides in December, 1908. At tbe time of tbe alleged conversion tbe plaintiffs were partners dealing in bides and' skins at "Whitehall, Wisconsin, and the defendants were respectively tbe sheriff and deputy sheriff of" Sauk county; Tbe evidence showed that on November 16, 1908, tbe plaintiffs, through tbe plaintiff Terry, purchased tbe bides in question of one George Kurth, who was then a butcher in business at Spring Green, Wisconsin, and paid cash for them, Kurth agreeing to ship them to Whitehall the next day. At the same time Terry advanced to Kurth $100 for hides to be shipped in the future. Kurth did not ship the hides purchased, but allowed them to remain in the scale room attached to his butcher shop, with tags on bearing the names of plaintiffs. About the middle of December, 1908, Kurth absconded, and on December 21st seven of his creditors commenced attachment suits, and the defendant Bauer, as deputy sheriff, seized Kurth’s property in the attachment actions, but did not find the twelve bundles of hides involved in this action. All the attachment suits were brought by Thomas W. King as attorney, and among them was an action by the plaintiffs to recover the $100 advanced. About December 24th Bauer found the hides involved in this action in the scale room and asked the attorney, King, what he should do. King told him to attach them and he did, removing them to the butcher shop with the other property. The butcher shop was owned by one Eronk, who was also one of the attaching creditors. About the middle of January, 1909, George Kurth’s father •came to Spring Green, claiming to have authority from his son to adjust his son’s financial affairs. He entered into negotiations with King to settle up all of the attachment claims and finally arranged to settle them all for forty cents on the dollar. ITe had previously arranged to turn the property over to Eronk. Mr. Kurth, Sr., paid King the money in settlement of all the claims, and King (Deputy. Sheriff Bauer being absent from town) turned all the attached property, including the hides in suit, over to Eronk, who afterwards sold it. The plaintiffs received the $40 from King in full settlement of the attachment suit, but the precise date of the receipt is not in evidence. The payment was made, however, sometime before the commencement of present action, and soon after it was made the plaintiffs knew that Kurth had never delivered the bides which Terry bought November 16th. 'The plaintiffs have never repudiated settlement or offered to return the money received.</p> <p>In response to two questions the jury found (1) that the ■defendant Bauer took the identical hides purchased by the plaintiffs on November 16, 1908; (2) that the value of such hides on November 23d was $75.16. Judgment being ren•dered for the plaintiffs on this verdict, the defendant appeals.</p>

<p> Contracts: Construction: Ambiguity: Parol or extrinsic evidence affecting writing. </p> <p>1. Oral testimony is not admissible to contradict or vary a written contract, hut, nevertheless, is admissible to apply the contract to the subject with which it deals and to show facts and circumstances characterizing its making, where — by reason of ambiguity either in the language or the writing itself, or therein when applied to the subject with which it deals — that is reasonably required to enable the court to read the writing in the light of such characterization and thus discover what the parties intended to express therein.</p> <p>2. A written contract is to be held to mean what the parties thereto intended it should, if such meaning can be found, by aid of rules for construction, within the reasonable scope of its language.</p> <p>3. The language of a written contract is not open to construction unless its meaning is ambiguous, and then, by the aid of such rules, it must speak for itself, the' words, however, not being extended beyond their reasonable scope, in the light of the characterizing circumstances, in order to effect an intention not. fairly expressed therein.</p> <p>4. When the language of a written contract is plain it is not open to construction, but though plain, viewed exclusively, if not plain, when applied, by the aid of oral evidence or otherwise to the subject with which it deals, extrinsic evidence showing the circumstances characterizing the making of the contract, is permissible for the purpose of clearing up the obscurity.</p> <p>5. The rule as to construction of contracts that “where the meaning is plain and leads to no absurd consequences there can be no reason for refusing to admit the meaning which the words naturally present,” suggests the propriety of extrinsic evidence to apply the contract to the subject with which it deals, and if manifest unreasonableness thus appears, the propriety of evidence of the circumstances characterizing the making of the writing to aid in clearing up the obscurity.</p> <p>6. Extrinsic evidence is not admissible for the direct purpose of creating ambiguity in the language of a written contract which is plain, viewed exclusively, but that does not militate against the rule that extrinsic evidence is proper to apply a contract, plain in its literal sense, to the subject with which it deals, and, if the effect is to disclose ambiguity, like evidence to show the circumstances characterizing the making of the contract.</p> <p>7. From the foregoing the rule results that ambiguity in a written contract calling for construction may arise as well from words plain in themselves but uncertain when applied to the subject matter of the contract, as from words which are uncertain in their literal sense.</p> <p>8. The rule that contracts which are plain are not open to construction, and the one that evidence of conversations between parties respecting the contract prior to and inclusive of the making thereof, are not admissible to explain it, and the one that extrinsic evidence is not proper to vary or contradict a written contract, all harmonize with the rule that — where a contract, though plain in its literal sense, is uncertain, when applied by oral evidence or otherwise to the subject with which it deals — • such evidence is proper to show the circumstances characterizing the making of the contract in aid of its construction, which latter rule is a logical deduction from 'the basic one that “where a contract is plain and leads to no absurd consequences it must speak for itself,” and otherwise it may speak in the light of the circumstances under which it was made.</p> <p>9. Where a conversation, had at the time of making a written contract, relates to some condition with reference to which it was made, and such conversation is referred to in the writing, without specifying such condition, so as to make it a part of the contract, then evidence of such conversation to the extent of showing such condition, is within the rule that extrinsic evidence characterizing the making of a contract is admissible in aid of construing it, in harmony with the rule that evidence of mere conversations between parties in making a written contract, inclusive of the final closing of it, is not admissible to explain it.</p> <p>10.The rule that — when a contract is ambiguous, viewed in the light of the subject matter with which it deals, though plain in its literal sense, it may, by aid of extrinsic evidence showing the circumstances characterizing its making, be read very different from its literal sense, so long as the reasonable scope of its words be not exceeded, if necessary to give effect to the purpose expressed and intended — does not involve any modification of the contract but “has relation to the application of the language used to the subject within the contemplation of the parties as represented by the situation then existing and the surrounding circumstances, which it may be assumed they then had in view.”</p> <p>[Syllabus by Maeshall, J.]</p> <p>Per Babnes, J., dissenting:</p> <p>1. The written contract in this case, so far as it directed the shipment of ice from M. to certain points “via Ill. Cent. R. R.,” which railroad extended from -M. to those points, was not ambiguous, although said -railroad did not reach the loading place of the ice in M. and although other shipments were directed to-be “via” other railroads which did not reach M. at all.</p> <p>2. The fact that the contract stated that the orders for shipment of the ice were sent “as per” a former conversation, did not render parol evidence admissible to show a prior agreement for shipment in some other way. than that definitely and unambiguously stated in the writing.</p> <p>3. Conversations leading up to the making of a written contract are-admissible to explain an ambiguity in the writing, but cannot be shown to import ambiguity into an otherwise unambiguous contract.</p> <p>4. The mere fact that a contract may appear unreasonable to this court in view of events which have transpired since it was made,, or even in view of the situation of the parties when it was made, is not a sufficient reason for holding the contract to be ambiguous.</p> <p>5. Where a contract does not express the true agreement of the parties, its reformation should be by appropriate action in equity, not by importing ambiguity into the contract and then interpreting it to mean something different from what its words, plainly imply.</p>

<p>Appeal from a judgment of tbe circuit court for Sauk county: E. 0. ITigbee, Judge.</p>

<p>'Appeals from an order of the circuit court for Sauk county: E. Ray Stevens, Circuit Judge.</p> <p>Cross-appeals from an order sustaining a demurrer for insufficiency to the first and second causes of action and overruling a like demurrer to the third and fourth causes of action contained in a complaint for libel.</p> <p>Among other references upon the part of the plaintiff were the following: Scofield v. Milwaulcee F. P. Go. 126 ,Wis. 81, 105 ET. W. 227; P'fister v. Sentinel Co. 108 Wis. 572, 84 EL W. 887 5 Moley v. Barager, 77 Wis. 43, 45 ET. W. 1082; Muetze v. Tuteur, 77 Wis. 236, 46 ET. W. 123; Monson v. Lathrop, 96 Wis. 386, 71 ET. W. 596; Buckstaff v. Viall, 84 Wis. 129, 54 ET. W. Ill; Hamlin v. Pantl, 118 Wis. 594, 95 ET. W. 955; Ddbold v. Chronicle P. Co. 107 Wis. 357, 83 2L W. 639; Robertson v. Edelstein, 104 Wis. 440, 80 EL W. 724; Elmergreen v. Horn, 115 Wis. 385, 91 ET. W. 973; Benedix v. German Ins. Co. 78 Wis. 77, 47 ET. W. 176; Werner v. Ascher, 86 Wis. 349, 56 ET. W. 869.</p> <p>Among otter references cited upon the part of defendant were the following: Smith v. TJtley, 92 Wis. 133, 65 ET. W. 744; Filber v. Dautermann, 28 Wis. 134; Egan v. Semrad, 113 Wis. 84, 88 ET. W. 906; Kraus v. Sentinel Co. 60 Wis. 425, 19 ET. W. 384; Cramer v. Noonan, 4 Wis. 231; Platto v. Geilfuss, 47 Wis. 491, 2 ET. W. 1135; GUlan v. State Journal P. Co. 96 Wis. 460, 71 ET. W. 892; Solverson v. Peterson, 64 Wis. 198, 25 ET. W. 14; Massuere v. Dickens, 70 Wis. 83, 35 ET. W. 349; Docter v. Riedel, 96 Wis. 158, 71 ET. W. 119; Birdsall v. Birdsall, 52 Wis. 208, 8. ET. W. 822; Benz v. Wiedenhoeft, 83 Wis. 397, 53 ET. W..686; Pandow v. Eich-sted, 90 Wis. 298, 63-EL W. 284; Cluie v. Clute, 101 Wis. 137, 76 ET. W. 1114.</p>

<p> <Guaranty: Acceptance: Construction: Limited or continuing? Pleading: Notice of default: Giving credit after default: Discharge of guarantor. </p> <p>1. In an action upon a contract of guaranty a complaint alleging that the plaintiff did “notify the defendant that the said plaintiff accepted the said guarantee and relied thereon,” sufficiently alleges acceptance of and reliance on the guaranty.</p> <p>2. A contract between a newspaper publishing company and an agent provided that it should continue for at least six months and that the agent should promptly pay every month for the papers sent him. By a contract of guaranty executed the same day, defendant agreed “to become responsible for the prompt payment of all bills for such papers to the amount of $500.” Held, that the guaranty was not limited to payment for the first $500 worth of papers delivered, but was a continuing guaranty, binding defendant to pay for such papers as might be delivered during the life of the contract, not exceeding the sum named.</p> <p>3. In an action upon such guaranty the complaint need not allege that notices of the various defaults of such agent were given to defendant from time to time as they occurred. If notice was required, failure' to giige it was defensive matter to be set up in the answer.</p> <p>4. The mere fact that the creditor continued to ship papers to the agent, notwithstanding he was in default in his payments after the first month, did not evince either had fa'ith or reckless conduct on the part of the creditor such as would bar a recovery against the guarantor.</p>

<p> Bankruptcy: Exemptions: Life insurance policy payable to wife:' Right to change beneficiary: Dividends. </p> <p>1. A policy of insurance upon the life of- the husband, from which the investment feature has been eliminated by the payment of the surplus to the insured at the end of the tontine period, and which remains strictly a paid-up policy of life insurance payable-to the wife, is exempt from the claims of the creditors of the-husband and does not pass to his trustee in bankruptcy; nor does the right or power to change the beneficiary, reserved by the terms of the policy to the insured, pass to such trustee.</p> <p>[2. Whether the wife, as beneficiary in such a policy, has the sole, absolute, and indefeasible title thereto, under sec. 2347, Stats. (1898), notwithstanding the reservation in the policy of the-right of the insured to change the beneficiary, is not determined.]</p> <p>3. Assuming that in such a case the insured husband has the right. to change the beneficiary, his exercise of that right after he has been adjudged a bankrupt would not convert the policy into-property which would then pass to the trustee, it having been exempt at the time of such adjudication.</p> <p>4. The fact that such a paid-up policy shares in annual dividends, the amount of which is likely to vary from year to year, does, not destroy its essential character as a purely life insurance contract, the dividend being a mere incident of the policy, the right to receive which is in the beneficiary.</p>

<p> Sates: Acceptance by vendor of rescission: Acts of ownership. </p> <p>Acts of the vendor, after a machine had been returned to his possession hy the vendee, in taking it to his own premises for the purpose of caring for it, or in offering a part of it in evidence to show that it was not defective, cannot be considered as acts of ownership which would amount to an acceptance of a rescission of the sale.</p>

Action to recover balance due on a commission agreement for selling land. Plaintiff complained that be was employed by defendant to-find a purchaser, satisfactory to tbe latter, for certain real -estate be possessed, tbe compensation for bis services to be-$150; that plaintiff fully performed such agreement, and that there was due and unpaid on account thereof $75.

EyaN,- Judge. .This is an action for divorce. The parties were married in 1815. For more than twenty years prior to the commencement of the action the wife and children resided upon a ten-acre tract of land a few miles from the city of Appleton. With the assistance of the children the wife cultivated this, tract, raised fruits, berries, and vegetables and disposed of them. Except for short periods during the winters the husband worked in the city as a laborer.

Tbis action was brought to recover damages for malicious-prosecution. Tbe complaint charges the making of a criminal complaint and malicious prosecution of the action, trial,, and termination of it favorably to respondent before the commencement of the present action.

<p>>(1) Appeal: Questions of fact. (2, 3) Divorce: Alimony: Antenuptial contracts.</p> <p>1. Decisions of trial courts on issues of fact will not he disturbed on appeal unless the record shows to a reasonable certainty that they are prejudicially wrong.</p> <p>2. In view of an antenuptial contract between the parties in this case by which the wife released all claims upon the husband’s property except that she was to receive $500 if she survived him, and regarding such contract as unaffected by a judgment of divorce, it was error to provide in such judgment for a division of the husband’s property or to award to the wife anything more than a reasonable allowance for alimony; and such allowance, under the circumstances of this case, should not exceed $1,000.</p> <p>>13. Whether in case of such an antenuptial contract the court can, in a judgment of divorce, without consent of the parties, make a division of property or award to the wife anything beyond alimony, strictly so called, is not determined.]</p>

<p>ERROR to review a judgment of the circuit court for Mari-nette county: S. D. Hastings, Circuit Judge.</p> <p>An indictment containing ten counts was returned by a grand jury impaneled in Marinette county, wherein it was. attempted to charge the defendant in error (hereinafter-called the defendant) with the commission of ten different offenses. The first count in the indictment was as follows:</p> <p>“Thomas ~W. Brown, being then and there the duly elected,, qualified, and acting sheriff of Marinette county, in the state of Wisconsin, contriving and intending, knowingly and designedly by false pretenses, to cheat and defraud the said county of Marinette of money belonging to the said county of Marinette, did on the said 13th day of November, 1905, in Marinette county, knowingly and designedly, falsely pretend to Marinette county that one Lizzie Plant had been incarcerated in the county jail for Marinette county from the 14th day of September, 1905, to and including the 31st day of' October, 1905, in accordance with a sentence passed upon the said Lizzie Plant by the police court of the city of Marinette-on the 14-th clay of August, 1905, and that there was justly due the said Thomas W. Brown the sum of eighteen dollars and eighty cents for hoarding the said Lizzie Plant as such prisoner while so incarcerated in said jail during said period of time, which said false and fraudulent representations were made by the said Thomas W. Brown presenting to the said Marinette county a sworn hill or statement alleging that said sum of eighteen dollars and eighty cents was then justly due and owing the said Thomas W. Brown from Marinette county for hoarding the said Lizzie Plant during said period of time, by which false pretenses the said Thomas W. Brown did then and there unlawfully and feloniously induce the said Mari-nette county to pay the said Thomas W. Brown the said sum of eighteen dollars and eighty cents of its money, good and lawful money of the United States, the said Marinette county then and there relying upon the said representations so made; whereas in truth and in fact the said Lizzie Plant was not incarcerated in said jail in Marinette county for said period of time nor any part thereof, and that there was nothing due the said Thomas W. Brown for hoarding the said Lizzie Plant as a prisoner in said county jail during said period of time; contrary to the law in such case made and provided and against the peace and dignity of the state of Wisconsin.”</p> <p>The remaining counts returned related to other separate and distinct alleged illegal and fraudulent claims presented by the defendant to Marinette county, the language used in charging the offense being similar to that employed in the first count. The defendant demurred to each of the counts in the indictment, on the ground that no offense known to the law was stated therein. To review an order sustaining such demurrer and a judgment discharging the defendant, the state prosecutes a writ of error to this court.</p>

<p> Intoxicating liquors: Sale on Sunday: Evidence: Questions for jury: Instructions: Sale by employee contrary to orders. </p> <p>1. Upon the conflicting evidence in this case as to whether the beverage sold by defendant on Sunday was beer or ginger ale, the question was one for the jury and their finding should not be-disturbed.</p> <p>2. Such question, in view of admitted facts, was the only question in issue, and the jury were properly so instructed.</p> <p>3. The proprietor of a saloon whose barkeeper sells liquor therein-on Sunday is guilty of a violation of sec. 1564, Stats. (1898), even though the sale was contrary to his positive instructions.</p>

<p> Uegligence: Same act cannot be both ordinary and gross negligence: Inconsistent verdict: Pleading: Joinder of causes of action: Trial. ' </p> <p>1. The same act cannot constitute both ordinary negligence and gross negligence, the two being separate and distinct legal wrongs, one involving inadvertence and the other involving at least a sufficient degree of intent to be inconsistent with inadvertence.</p> <p>2. A special verdict finding that defendant’s brakeman, in assisting plaintiff to ascend the steps of the car, did not exercise ordinary care, and also that in so doing he exerted “force upon plaintiff in a wilful and wanton manner, either intentionally or without any regard to whether she might or might not suffer personal injury through his acts,” is uncertain and indefinite, and judgment for plaintiff should not be awarded thereon. Timliu, J., is of the opinion that the findings are not inconsistent, and that the latter finding should in this case have been stricken out or-disregarded because not within the issues made by the pleadings.</p> <p>3. One who has suffered injury from actual misconduct of another-but does not know whether such misconduct constituted ordinary negligence or gross negligence, may set out the wrongful act in different counts alleging different causes of action, for the purpose of meeting the different and conflicting inferences-that may reasonably be drawn from the evidence adduced.</p> <p>4. If in such case the evidence or the reasonable inferences therefrom be so conflicting as to reauire that a jury determine which, of the alleged causes of action, if any, is sustained thereby, the trial court should inform them of their duty to determine this question and require them to find which cause of action, if any,, has been established.</p>

<p>Corporations: Compelling transfer of stock, on the books: Affidavits.</p> <p>1. In a proceeding under sec. 1752, Stats. (1898), to compel transfer of corporate stock the court may decide the matter upon the affidavits of the parties, or may receive 'evidence from either side.</p> <p>2. An order requiring the transfer to be made, based upon affidavits, will be sustained on appeal if there was any reasonable ground' for holding that appellant’s affidavit did not satisfactorily meet the case made by that of the respondent.</p> <p>3. An order requiring the transfer of stock is held proper in this case upon affidavits which justified the trial court in concluding-that the certificates had been duly assigned and delivered to a bona fide purchaser for value, and that the secretary’s refusal to make the transfer on the books was for the purpose of gaining time to commence an action against the assignor and therein to attach the stock, which he afterwards did.</p> <p>4. Ordinarily the transfer of stock on the books of a corporation. may be made by the secretary acting alone, even though it may be necessary for the Dresident to join in the issuance of a new certificate.</p>

<p> Fire insurance: Cancellation of policy: Mutual consent. </p> <p>1. One party to a policy of insurance can cancel it only by strictly complying -with its terms as to cancellation, unless such compliance is waived by the other party.</p> <p>2. Where by the terms of a fire policy the insurer could cancel it, without the consent of the insured, only as to risks subsequent to the expiration of ten days after notice of cancellation, no cancellation by mutual consent or otherwise than in accordance with the terms of the policy was shown by a letter from an agent stating that upon instruction from the insurer he had that day canceled the policy and credited the insured with the return premium, and a reply acknowledging receipt of the notice, asking if the policy could not be rewritten in one of the agent’s other companies, and asking for details of the policy.</p>

<p>Appeal from a judgment of tbe circuit court for Douglas •county: A. J. Vinje, Circuit Judge.</p> <p>cited, besides other cases, Goleman v. Hunt, 77 Wis. 263, 45 N. W. 1085 ; Lusted v. G. & N. W. R. Go. 71 Wis. 391, 36 N. W. 857; Sheanon v. Pacific Mui. L. Ins. Go. 83 Wis. 507, 53 N. W. 878; Albrecht v. M. & 8. R. Go. 94 Wis. 397, 69 N. W. 63; Jackowski v. III. S. Go. 103 Wis. 448, 79 N. W. 757; Ball v. McGeoch, 81 Wis. 160, 51 N. W. 443; Wickham v. South Shore L. Go. 89 Wis. 23, 61 N. W. 287; Gunther v. TJllrich, 82 Wis. 222, 52 N. W. 88; Klochinski v. Shores L. Go. 93 Wis. 417, 67 N. W. 934; Gehl v. Milwaukee P. Go. 116 Wis. 263, 93 N. W. 26; Allen v. Griffin, 69 Wis. 529, 35 N. W. 21; Bauer v. Richter, 103 Wis. 412, 79 N. W. 404.</p> <p>Among other authorities, they cited Schmitt v. N. P. B. Go. 120 Wis. 397, 98 N. W. 202; Brown Go. v. Van Straiten, 45 Wis. 675; Ooggswell v. Davis, 65 Wis. 191, 26 N. W. 557; Bush v. Maxwell, 79 Wis. 114, 48 N. W. 250; Lesley v. Anderson, 142 Wis. 668, 125 N. W. 433; Sieber v. Amunson, 78 Wis. 679, 47 N. W. 1126; Hughes v. G., St. P., M. é O. B. Go. 122 Wis. 258, 99 N. W. 897; Johnson v. St. Paul & W. G. Go. 126 Wis. 492, 105 N. W. 1048; Anderson v. Chicago B. Go. 127 Wis. 273, 106 N. W. 1077; J. H. Clark Go. v. Bice, 127 Wis. 451, 106 N. W. 231; Zoesch v. Flambeau P. Go. 134 Wis. 270, 114 N. W. 485.</p>

<p>Appeal from a judgment of tbe superior court of Douglas-county: 0'hab.les Smith, Judge.</p> <p>On tbe morning of January 5, 1909, a team of borses belonging to tbe plaintiff, and bitched to a sleigb, was being, driven northward along a public highway known as Detroit Pier in tbe city of Superior, which highway crosses a series of eleven tracks of the defendant railway company, such tracks running east and west. In approaching these tracks and before driving upon the same there is a grade on the street from south to north. The tracks are referred to in the testimony as numbers 1 to 11 inclusive, the one farthest south being-designated as track No. 1, the next No. 2, and so on to No. 11,. the one farthest north. It appears that' on track No. 9 and about fifty-two feet east of the crossing there was a string of cars extending east; on track No. 8 and eighty-eight feet east of the crossing there was a string of cars extending east; and on track No. 8 and twenty-two feet west of the crossing there-were also some cars extending west. After having passed over nine of the railway tracks and while in the act of crossing-track No. 10, a locomotive of the defendant company backing westward on track No. 10 collided with said horses and. sleigh. As a result of such collision one of the horses was. killed, the other injured, and the sleigh and harness damaged. This action is brought to recover damages sustained by reasoru of such collision, plaintiff alleging that the accident was due to the careless and negligent operation of said locomotive.</p> <p>By its answers to questions submitted on a special verdict: the jury found in favor of the plaintiff and fixed his damages at $420. Thereafter judgment was entered in favor of the plaintiff and against the defendant, from which judgment this appeal is taken.</p>

Action for personal injuries. Plaintiff’s foot was crushed while putting in place a long pile that had been raised in the leads of a pile-driver and was held suspended three or four feet from the ground by means of a rope, drum, ratchet wheel, ■and dog. Either the dog slipped out or else it was prematurely and inadvertently released by the engineer, and the pile fell.

Action to test tbe validity of a decision of tbe board of review of tbe city of Superior, Wisconsin. In 1907, tbe assessor of Superior assessed tbe Pittsburgh Goal Company on account of coal on its dock, denominated railway coal.

<p> Master and servant: Injury caused by negligence of fellow-servant. </p> <p>1. The question whether or not employees of a common master are fellow-servants does not depend upon the rank or grade of the negligent servant, hut upon the nature or character of the act in the performance of which the injury was incurred.</p> <p>2. A pile-driver crew and their foreman engaged in the common employment of taking down and removing a pile-driver were fellow-servants so that the employer'was not liable for an injury to one of the crew caused by the foreman’s negligence in preparing the pile-driver for removal by loosening certain fastenings in such a way that the pile-driver or a part of it was likely to fall, although the injured workman did not know of , the insufficiency of the fastenings and was assured by the foreman that there was no danger, — the details of the work being as. obvious to him as to the foreman. Holloway v. H. W. Johns-Manville Co. 135 Wis. 629, distinguished.</p>

<p> Master and servant: Injury to servant: Explosion of gas: negligence of master: Evidence: Sufficiency: Release: Competency to contract. </p> <p>1. In an action for personal injuries to an employee in defendant’s sugar factory, upon evidence tending to show that chemicals which had recently been used in cleaning the sugar evaporators would, when in contact with the iron of which such evaporators were largely made, genei’ate therein a dangerously explosive gas; that this fact was or should have been known to defendant; that it was customary after such chemical treatment to withdraw the gases from the evaporators by means of an air pump, but that this had not been done at the time in question; that while plaintiff was engaged in repairing one of the evaporators an explosion took place by which it was blown to pieces and plaintiff injured; and that there was no negligence on the part of plaintiff or of any fellow'-servant, — the jury were justified in finding that defendant was negligent in permitting, the explosive gas to be and remain in the evaporator.</p> <p>2. From the fact that an explosion took place under such circumstances the jury were authorized to infer that it was an explosion of gas and'that it was preceded by ignition or any of the ordinary causes of explosion.</p> <p>3. It was not essential to the liability of defendant that the cause of ignition should be shown so long as it appeared that it was not caused by any negligence of the plaintiff.</p> <p>■4. Evidence that the sum paid to plaintiff in consideration of a release of his claim was very small; that the settlement was improvident; that the release was signed ten days after plaintiff had received severe cranial injuries and while he was at the hospital without counsel; that he was incompetent to contract a few days prior to such signing and was also incompetent ten days thereafter and so continued for several weeks; and that he had lost all recollection of what took place at the hospital, — was sufficient to sustain a finding by the jury that at the time of signing the release plaintiff was incompetent to contract.</p>

<p>Appeal from a judgment of tbe circuit court for Jefferson county: George Gbimm:, Circuit Judge.</p> <p>Tbis is an action brought by tbe plaintiff, Floyd Rogers, an infant, by Ms guardian, to recover damages for injuries sustained by reason of tbe alleged negligence of tbe defendant in running and operating an automobile in tbe city of Eort Atkinson about tbe bour of 7:45 on tbe evening of June 27, 1909.</p> <p>By its answers to five questions submitted on a special verdict tbe jury found (1) that plaintiff was injured by coming in contact witb an automobile driven by tbe defendant at tbe above time and place; (2) that defendant was guilty of want of ordinary care in tbe driving and management of said automobile; (3) that such want of ordinary care on the part of tbe defendant was tbe proximate cause of tbe injury to plaintiff; (4) that plaintiff was not guilty of any want of ordinary care which contributed to produce tbe injury; and (5) that plaintiff was entitled to compensatory damages in tbe sum of $2,500.</p> <p>Thereafter, upon motion of the defendant, the court changed the answers to tbe second ancj fourth questions of tbe special verdict, struck out tbe answer to tbe third question, denied tbe motion of plaintiff for judgment upon tbe special verdict as rendered, and ordered that defendant have judgment upon such verdict as amended. From a judgment dismissing tbe action plaintiff appeals.</p>

<p>Appeal from a judgment of tbe circuit court for Rock county: Geobge Geimm:, Circuit Judge.</p> <p>Action to recover compensation for damages alleged to bave been caused to tbe surviving widow of plaintiff’s intestate by tbe wrongful conduct of defendant’s employees, causing bis death.</p> <p>Tbe complaint states a cause of action based on tbe theory “that ordinary negligence of defendant’s servants was tbe proximate cause of tbe death of plaintiff’s intestate, and a •second cause of action grounded on tbe theory that gross negligence of such servants was such cause, in that they, in utter ■disregard of the personal safety of such intestate and conscious of bis peril, caused a locomotive under their charge and •control to collide with him at a public crossing of defendant’s track, causing bis death.</p> <p>On motion in defendant’s behalf plaintiff was ordered to •elect between tbe two causes of action on which be would rely. Upon failure to comply therewith and on motion in defendant’s behalf, the action was dismissed and judgment rendered accordingly. Plaintiff appealed therefrom.</p>

<p> Estates of decedents: When administration may be granted: Jurisdiction of county court. </p> <p>1. Upon tile death oí an inhabitant or resident of this state a prima . facie showing, or even a bona fide claim, that he left an estate will support the granting of letters of administration by the proper county court; and the question of the validity of such claim should he left for future litigation in the proper forum and between the proper parties.</p> <p>2. The mere existence of assets, irrespective of amount or value, will support a grant of administration.</p>

<p>Appeal from a judgment of the circuit court for Rock county: Geoegke Gexmm, Circuit Judge.</p> <p>This is an action in equity brought by the county to perpetually enjoin the defendant, who is the register of deeds of said county, from making copies of the abstract books owned by the county and kept in the register’s office. In the year 1880 the county board of supervisors of Bode county, after considering for several months the question of installing a tract index in the register’s office, decided to have made and •placed in the register’s office a complete title abstract of thereat estate of the county, using Walton’s patented system, and in pursuance of this conclusion, on January 7, 1881, the county board authorized the county clerk to purchase the exclusive right and privilege to use Walton’s system-of title abstract to lands in Bode county and to make a contract with one Yalentine, who was then the register of deeds of the county, to make and complete said title abstract within two years from date, for which Yalentine was to be paid the sum of $3,200 on acceptance of the books. It appears that the formal written contract was executed March 17, 1881. ■ The abstract books were not completed until some time in the fall of 1885, and in November of that year they were accepted by the county, and in the following January the county board provided that the abstract books should be kept by the register of deeds and that he should charge the sum of twenty-five cents per entry for making abstracts therefrom; that he should keep the abstract books written up, and should receive for such labor and for making the abstracts one half of all the fees received for abstracts and pay over the other half every three months into the county treasury. The plan so adopted was carried out by successive registers of deeds until shortly before the commencement of this action. On January 9, 1897, the county board instructed the then register of deeds to allow no one to make abstracts for sale from tire county books.</p> <p>The defendant, Weiridc, became register of deeds in January, 1903, and has remained in office ever since, his salary being fixed at $2,000 per year during tbe first two years and at $1,800 per year during tbe subsequent time. Erom tbe time be went into office up to tlie 1st of January, 1910, tbe defendant bas regularly turned over one balf of tbe fees received by bim for making abstracts of tbe county, but be did not turn over tbe amount received during tbe first quarter of tbe year 1910. In November, 1909, tbe defendant purchased sixteen blank books belonging to tbe county through tbe purchasing committee of tbe county board, paying therefor $48, and immediately commenced copying tbe county abstract records into these books for tbe purpose of going into tbe abstract business at tbe end of bis term of office. . At tbe time of tbe commencement of this action be bad expended about $900 in such work. In March, 1910, tbe county board notified bim to “immediately cease copying tbe abstract books owned by Rock county and to remove from tbe office of tbe register of deeds for Rock county all persons under bis personal employ.” During tbe same month tbe county board caused demand to be made upon tbe defendant for tbe return' of tbe sixteen books, and at tbe same time tendered to the defendant tbe sum of $48 which be bad paid for them.</p> <p>Tbe relief demanded by tbe complaint is not only to perpetually enjoin tbe defendant from copying tbe books, but also to compel tbe surrender back to tbe county of tbe books with all tbe entries in them, and to compel the defendant to account for and pay over to tbe county its share of tbe fees received for abstracts which bas not already been accounted for. Tbe circuit court decided that tbe abstract books were public records and that tbe defendant was entitled to copy them, and entered judgment dismissing tbe complaint, from which tbe county appeals.</p> <p>As to common-law rights in respect to public records, they cited 1 Greenl. Ev. § 475; 34 Cyc. 592-594; 8 Current Law, 1698 — 1700; Hanson v. Eichstaedt, 69 Wis. 538. And to tlie point tliat tíre county abstract books were its literary property, they cited, among other authorities, Dart v. Woodhouse, 40 Mich. 399; Leon L. & A. Co. v. Equalization Board, 86 Iowa, 127, 53 N. W. 94, 17 L. R. A. 199; Booth & H. A. Co. v. Phelps, 8 Wash. 549, 36 Pac. 489, 23 L. R. A. 864.</p>

<p> Matute of frauds: Invalidity of contract not available to stranger. </p> <p>The invalidity of a contract under the statute of frauds is a personal defense and is not available to one who is a stranger to the contract.</p>

<p>Appeals from a judgment of the circuit court for Wauke-sha county: Mabtiw L. Lueoe, Circuit Judge.</p> <p>The circuit court for Waukesha county fixed an inheritance tax upon the estate of George Bullen, deceased, at $20,184.71. The Bullen heirs and the state appealed, which appeals were heard together. It appears from the established facts that George Bullen, a citizen of Wisconsin, died at his home near Oconomowoc September 10, 1908, aged sixty-two years. He left a widow and four sons, three of whom are minors. At the time of his death he had on deposit in checking accounts in Chicago banks $12,109.77, and was possessed of his home known as “Minnewoc” in Waukesha county, valued at $56,000, and the chattels appurtenant thereto, agreed to be worth $20,000. The remaining property in which Mr. Bul-len had any interest prior to his death consisted of certain stocks, bonds, notes, life insurance policies, etc., the title to which was vested in the Northern Trust Company, an Illinois corporation, as trustee, for the benefit of Mrs. Bullen and her four sons, who now appeal, and of Lucy E. Cleghorn, Annie Graham, Mary T. Harris, Victoria Bullen, and Helen Mary Harris, all nonresident aliens. They did not, nor did the Northern Trust Company, appear in either of the courts below or join in this appeal. No personal service was ever had on any of them. The Illinois property held by the Northern Trust Company, exclusive of the $25,000 insurance policy, was valued at $936,761.70. In 1892 Mr. Bullen, who formerly lived in Chicago, moved to Oconomowoc, but continued to transact some business in Chicago down to the ti-me of his death. In 1900 he began negotiations with the Northern Trust Company with a view of transferring his property to it under a trust agreement. Various drafts of the instrument were made and discussed by the parties down to December 11, 1902, when an agreement denominated “an assignment in trust” was entered into in Chicago, and the bonds, stocks, notes, insurance policies, and other securities therein mentioned were delivered to the trust company. The transfer of the securities was made on the date last mentioned by the delivery to the Northern Trust Company of the assignment in trust, together with the securities themselves. Such of the securities as did not pass by delivery were also assigned by independent instruments, such as the usual indorsement on a stock certificate and the usual form of assignment of insurance policy. The trust assignment was dated December 11, 1902, and the receipt of the Northern Trust Company appended to it bears the same date. A certificate of acknowledgment, however, was made afterwards on April 4, 1903. These securities had always been in a safety-deposit box in Chicago, and the legal title to them was held by the trustee at the time of Mr. Bullen’s death, and the securities themselves had never been within the state of Wisconsin.</p> <p>The assignment in trust provided for the investment and reinvestment of the trust estate, and directed the payment of $900 per annum to Lucy E. Cleghorn, a niece, and $900 per annum to Annie Graham, a sister, both of whom resided out of the United States at the time of Mr. Bullen’s death. It directed the trustee to pay the cost of maintenance of a house in London, Canada, during the lives of Mr. Bullen’s two sisters, Mary T. Harris and Victoria Bullen, and his niece Helen Mary Harris. It directed the trustee to hold his house and farm known as “Minnewoc” and the chattels appurtenant thereto, and to spend the necessary amount in maintaining them, for the benefit of Mrs. Bullen and the children. It gave to Mrs. Bullen for life one third of the remainder of the income from the trust estate, and directed that the other two thirds should be paid to Mr. Bullen during his lifetime and after his death should be set apart for bis four sons; and it directed the distribution of the principal to the sons, each to have one third of his share when he should reach the age of twenty-five years, and the other two thirds when he should reach the age of thirty years. It reserved the right to direct and control the distribution of the trust property and to re-volee and vacate the trust at any time during Mr. Bullen’s lifetime.</p> <p>Mr. Bullen, having technically repossessed himself of the securities for a brief period, executed a further assignment in trust, dated May 22, 1907, but the manual possession of the securities had remained at all times since 1902 with the Northern Trust Company, Mr. Bullen having repossessed himself of them merely by directing the trust company to-hold them for him as his agent instead of trustee. Prior to-the death of George Bullen the Northern Trust Company made returns to the tax assessors of Cook county, Illinois, of the value of the trust estate, and paid the taxes thereon levied on the valuation made by said assessors. The trust company also paid, after Mr. Bullen’s death, an inheritance tax on all of - said property in Illinois, including the bank deposits. When the assignment in trust was drawn Mr. Bullen was suffering from locomotor ataxia and was aware of the fact. Mrs. Bullen was also in ill health; and the fourteenth paragraph of tire trust agreement declares the intention of giving the trustee “full power and authority to manage the said trust estate for the benefit of the several beneficiaries thereof, particularly my said wife during her lifetime, in the event I should be unable, at any time prior to my death, to give my affairs such attention as they may demand, and at all events, after my death, in like manner as I myself might or could manage it, if living and in good health.” The sixteenth paragraph provides for the distribution of any trust estate not specifically disposed of, “among my heirs at law, as provided by the laws of Illinois with reference to intestate property, and the laws of said state shall govern in the interpretation of this instrument.” In addition to the personal property which passed under the assignment in trust there was certain real estate, one parcel of which, “Minnewoc,” Mr. Bullen’s residence, is located in Wisconsin. Mrs. Bullen declined to .sign tbe deeds of tbe real estate, refusing to relinquish her dower and other rights therein, unless Mr. Bullen should make some provision in the trust assignment for an income for her mother. Mrs. Bullen refused at first to assign the insurance policy for $25,000, and the policy, being payable to her, could not be transferred without her consent. She finally reached an agreement as to this policy with Mr. Bullen and executed the assignment of it. The deeds having never been signed, the deed of “Minnewoc” to the trustee did not pass the homestead rights. The Northern Trust Company, having no right to do business in Wisconsin, has confined itself to the trust estate delivered to it in Illinois, and has avoided coming within the jurisdiction of this court. The only interested parties over whose persons the court has jurisdiction are Mary Lenore Bullen and her four sons, the three minors appearing through Mr. Newbury, their guardian ad litem.</p> <p>They cited, among other cases, In re Joyslin’s Estate, 76 Yt. 88; State Tax on Foreign-held Bonds, 15 Wall. 300; Gibson v. Gonn. F. Ins. Go. 77 Fed. 561, 565; Metropolitan L. Ins. Go. v. New Orleans, 205 U. S. 395; People v. Griffith, 245 Ill. 532; In re Taxation of Masury’s Estate, 51 N. Y. Supp. 331, affirmed 159 N. Y. 532; Estate of Keeney, 194 N. Y. 281; In re Oummings’ Estate, 118 N. Y. Supp. •684; Neilson v. Bussell, 76 N. J. Law, 27, 69 Atl. 476.</p>

Lueck, Circuit Judge. The appeal is from an order overruling a general demurrer to each alleged cause of action in the complaint.

<p> ■Sates: Warranty: Failure to give stipulated notice of dissatisfaction. </p> <p>A contract under which a corn shredder was sold, providing that if the purchaser was not satisfied with the machine after it had been put in order by an expert he must, in order to obtain the benefit of the warranties, notify the vendor within three days by registered mail that he was not satisfied and that he demanded a competitive trial, and providing also that all warranties except as to free repairs should be considered as fully satisfied unless the purchaser promptly gave such registered notice, and that no oral notice should be substituted therefor,— was plain and unambiguous, and when the purchaser failed to give such stipulated notice he became remediless as to the warranties.</p>

Luece, Circuit Judge. This is an action to recover certain sums wbicb tbe plaintiffs claim as assignees of one Coller. Tbe defendant by counterclaim seeks to offset against tbe plaintiffs’ claims certain demands wbicb be claims existed in bis favor against Coller at tbe time tbe assignment was made. Tbe action was tried by tbe court, trial by jury having been waived.

Lueoe, Circuit Judge. May 25, 1906, tbe defendant corporation duly commenced proceedings under cb; 87, Stats. (1898), to acquire title to real estate owned by plaintiff and others. Sucb occurrences duly took place thereafter that October 20, 1906, tbe report of the commissioners was filed, awarding plaintiff $1,300.

Luecic, Circuit Judge. Tbis is an action for damages for tbe utterance of words slanderous per se. , Tbe jury returned a special verdict finding tbat tbe words bad been spoken, and assessing tbe damages. During tbe course of tbe trial tbe guardian ad litem for tbe plaintiff testified tbat be bad arranged witb tbe plaintiff’s attorney -tbat, unless tbe case was won, bis ward should not be required to pay any costs.

<p> Sales: Acceptance in part: 'Notice: Recoupment. </p> <p>Upon receipt, at Waukesha in this state, of a carload of mixed iron, sent from Chicago upon a “rush order” and needed for immediate use in its foundry, the vendee, a steel structural company, wrote to the vendor stating that the ear was very unsatisfactory and that if they were not entirely out of material they would certainly return it. Two days later the vendee again wrote renewing the complaint and stating that the material sent was not as promised and that a liberal allowance should be made from the price. The ear in fact contained about forty per cent, of foreign material, while only about five per cent, was allowable under the contract. Selcl, that under the circumstances the use by the vendee of such part of the material as conformed to the contract did not constitute acceptance of the whole; that the letters mentioned constituted seasonable and sufficient notice that the shipment was not received as a compliance with the contract; and hence that in an action for the contract price the vendee was entitled to recoupment.</p>

<p> Taxation: Exemptions: Statute construed: School property: “Association:” Corporations: Ese of profits for educational purposes. </p> <p>1. Tiie term “association,” as used in subd. 3, sec. 1038, Stats. (1898), may include a corporation organized under cb. 86.</p> <p>2. Laws exempting property from taxation are to be construed strictly against tbe privilege claimed; but strict construction does not mean that the court will not endeavor first to ascertain the true meaning of the words used. It comes into play only when, after such test, there remains ambiguity in the statute.</p> <p>3. A school or academy is a scientific or literary association, within the purview of subd. 3, sec. 1038, Stats. (1898), and its property used for educational purposes is exempt from taxation.</p> <p>4. The fact that a school charges for tuition and hoard and derives a profit therefrom does not render the property liable to tax- : ation, when such profits are used in paying debts incurred for building and other school purposes.</p> <p>5. The mere fact that such profits of a school corporation were used in 1900 and 1901 to pay dividends to stockholders did not render its property taxable in 1906 or thereafter.</p> <p>[6. Whether the property was taxable for the years in which dividends were paid, or would become taxable should the profits again be used to pay dividends or to accumulate a surplus, not determined.]</p>

<p>Appeal from a judgment of tbe circuit court for Oconto county: S. D. Hastings, Circuit Judge.</p> <p>Action to recover damages for personal injuries sustained by reason of tbe insufficiency of a public highway in tbe defendant town. Tbe jury found (1) that there was an insufficiency or want of repair of tbe highway at the time and place'in question; (2) that such insufficiency or want of repair was a proximate cause of plaintiff’s injuries; (3) that the officers of the town knew of such insufficiency or want of repair a sufficient length of time before the injury to have enabled them by the exercise of ordinary care to have repaired it; (4) that no want of ordinary care on the part of the driver with whom plaintiff was riding contributed proximately to produce her injury; and (5) assessed her damages at $560. Erom a judgment in favor of plaintiff entered upon the special verdict the defendant appeals.</p>

<p>EeboR to review a judgment of tbe circuit court for Sheboygan county: Michael Kiewaf, Circuit Judge.</p>

<p>Appeal from an order of the circuit court for Douglas county: A. J. Viitje, Circuit Judge.</p>

<p>Judgment: Res judicata: Railroads: Condemnation of land: Wrongful occupancy: Damages: Foreign railroad companies: Statutes construed.</p> <p>1. A decision of the supreme court, in an action hy a landowner against two railroad companies, one the lessee of the other, to enjoin them from using his land for railroad purposes, to the effect that they are trespassers upon the land and that the circuit court erred in permitting them to occupy the same before acquiring a right thereto hy proper condemnation proceedings, is res judicata between the parties and binding upon such lessee even after it has acquired the title and franchises of its-lessor hy deed from the latter and has instituted new condemnation proceedings against the property in its own name.</p> <p>2. In such case neither company acquired any claim or color of title to the premises under the order of the circuit court, and subsequent steps taken hy the grantee to obtain a new certificate of convenience and necessity from the railroad commission and to condemn the land cannot, therefore, he treated as having been instituted to perfect a defective title, so as to entitle it to a stay of proceedings in the landowner’s action to enjoin the further use of the premises, and to an order permitting it to continue its occupancy pending the condemnation proceedings, under the provisions of sec. 1852, Stats. (1898).</p> <p>3. Where, after an action is begun by a landowner against a railroad company which has wrongfully taken possession of his land, to restrain the use of the land for railroad purposes and to recover damages for the trespass; the railroad company institutes condemnation proceedings against the land in question, the damages awarded such owner in the trespass action should not include those incident to any change in the premises caused by the grading of the roadbed or by other acts affecting the physical condition of the land, since such elements of damage must be taken into consideration in the condemnation proceedings.</p> <p>■4. The right of eminent domain cannot be exercised by foreign railroad companies unless expressly granted to them by law.</p> <p>■5. The omission from sec. 1845, R. S. 1878, of the words “formed under this act or organized under any law of this state,” contained in sec. 13, ch. 119, Laws of 1872, and the further omission of the provisions of sec. 55 of the same act, are significant as indicating that the revised law was intended to embrace all railroads and to be of general application, and it is accordingly held that the power of eminent domain is conferred on all railroad corporations doing business in this state regardless of whether they are domestic or foreign organizations.</p>

<p> Master and servant: Dangerous machinery: Negligence: Proximate cause: Contributory negligence: Questions for jury: Changing verdict. </p> <p>In an action by an employee in a paper mill whose hand was caught and crushed between two rolls, one of which he was cleaning by applying a cloth to it after he had started the machine for that purpose, it is held upon the evidence that neither the alleged negligence in failing to warn plaintiff that the speed of the rolls was for a few seconds gradually accelerated after the machine' started, nor any other negligence of defendant, had any causal relation to the injury, and also that plaintiff was guilty of contributory negligence in operating the machine as he did. A verdict for defendant should therefore have been directed, or the answers in a special verdict finding defendant negligent should have been changed by the court.</p>

D. Hastings, Circuit Judge. This is an action for damages resulting to the plaintiff’s land by fire alleged to have been negligently set by the defendant.

<p>Appeal from an order of tbe circuit court for Ashland ■county: JohN K. Parish, Circuit Judge.</p> <p>It appears from the complaint in this action that Walter ■Smith died intestate on April 21, 1909, and that on November 5, 1909, the plaintiff was duly appointed and qualified in the Ashland county court as administratrix of his estate. The complaint alleges that the defendants are domestic corporations conducting their businesses in the city of Ashland. Phe facts alleged charge the defendants with negligence and that such negligence proximately caused the decedent’s death. 'The complaint states:</p> <p>“11. That the said Walter Smith left surviving him his •father and mother, Carl Schmidt and Bertha Schmidt, who are nonresident aliens, and his sisters, Mrs. Minnie Brooks, and Ida Pries, the plaintiff herein.</p> <p>“12. That the said Ida Pries, sister of plaintiff’s intestate, in bis lifetime was dependent upon and largely supported by said Walter Smith, and in consequence of bis death aforesaid has suffered pecuniary injuries in the sum of ten thousand ($10,000) dollars.”</p> <p>The defendants separately demurred to the complaint on the ground that it did not state facts sufficient to constitute a •cause of action. The. specific objections to the complaint are that the liability created by sees. 4255 and 4256, Stats. ■(Laws.of 1907, ch. 581), and the right to the benefits thereof .Are not available to the plaintiff for the reasons:</p> <p>“1. That the complaint does not show any person in being •entitled to take, but does show that the persons in being who would be entitled to take are barred from taking because of ‘their being nonresident aliens.</p> <p>“2. Because the complaint does not negative the idea that :a widow or children survived Walter Smith.”</p> <p>The trial court overruled each of the separate demurrers. "This is an appeal by the power company from the order overruling its demurrer to the complaint.</p> <p>They cited Woodward v. G. & N. W. B. Go. 23 Wis. 400; Broivn v. O. & N. W. B. Go. 102 Wis. 137; Luessen v. Oshkosh E. L. & P. Go. 109 Wis. 94, 95; McMillan v. Spider Balee S. M. & L. Go. 115 Wis. 332, 335; Quinn v. G., M. & St. P. B. Go. 141 Wis. 497; Schmidt v. Menasha W. Co. 99 Wis. 300; Budiger v. •O., St. P., M. & O. B. Go. 94 Wis. 191; Ban v. O., M. & St. P; B. Go. 95 Wis. 69, 74.</p>

<p> Master and servant: Negligence: Unsafe place to worlc: Evidence: Special verdict: Instructions to jury. </p> <p>1. In an action for personal injuries caused by the bursting of a steam cylinder near which plaintiff was working, evidence which would justify the jury in finding that the cylinder burst because, by reason of having been twice rebored, the shell was too thin, rather than because of a latent defect therein caused by a sand bole, was sufficient to sustain findings that the employer was negligent and that such negligence was the proximate cause of the injury.</p> <p>2. Where a question submitted for special verdict asked whether defendant negligently failed to provide a safe working place by putting in a steam cylinder which was “old, weak, thin, and insufficient,” and the jury were instructed that if the bursting of the cylinder was caused by a sand hole they should answer such question in the negative, it was not error to refuse to submit specifically the questions whether the accident was caused' by sand holes, and whether defendant ought to have known of such defect.</p> <p>3. Where the verdict as submitted covers the issuable facts in the case, there is no prejudicial error in refusing to submit additional questions.</p> <p>4. A party cannot complain that other instructions ought to have been given, even if necessary, where he made no request therefor.</p> <p>5. The fact that portions of a charge to the jury (in this case as to the preponderance of evidence and as to damages for future suffering) were not as clear and concise as they might have been, is not ground for a reversal if they were not misleading.</p>

<p> Contracts: Construction: Attorneys at taw: Rebate of fees. </p> <p>A contract between an attorney and persons against whom he has claims for collection and in process of foreclosure, that he will procure for them a loan wherewith to pay the claims and will endeavor to obtain a reduction of the claims, does not carry with it a duty on the part of the attorney to rebate the attorney fees due him from the creditors.</p>

<p> Schools and school districts: Powers of board: Purchase of safe: Ratification: School orders: Stopping payment: Action. </p> <p>1. Neither sec. 435, Stats. (1898), providing that the school hoard shall have the care and keeping of the property of the school district, nor sec. 436, authorizing such hoard to purchase necessary books, blanks, and stationery, gives the hoard authority to purchase a safe.</p> <p>2. Having no authority to purchase a safe, a school hoard cannot by . ratification validate a void purchase thereof by individual members of the board.</p> <p>3. Where payment of a school order has been stopped by the board before action brought thereon, no action can afterwards be maintained on the order, the only remedy being for breach of the contract.</p>

Paeisi-i, Circuit Judge. This is an action in tort for deceit.

<p> ■Costs: Actions appealed from justices’ courts: Tender: Statutes construed,. </p> <p>1. Where, on appeal by defendant from a judgment against him in a justice’s court, an action is pending for trial de novo in the circuit court, a tender under sec. 4266, Stats. (1898), must include the $10 costs provided for in see. 2925.</p> <p>2. Sec. 2925, Stats. (1898), is to be construed liberally in favor of the right to recover costs. The words “where there is no new trial in the appellate court” are not limited in their application to cases which are not triable anew in that court.</p> <p>:3. The term “costs of suit incurred” in sec. 4266, Stats. (1898), is not limited to disbursements.</p>

<p> Negligence: Fires: Destruction of adjoining property: Evidence: Defective sparlc-arr ester: Questions for jury: Insufficient verdict. </p> <p>1. In an action for destruction of plaintiff’s property by fire originating on defendant’s premises, assuming that defendant’s refuse burner was equipped with reasonably safe appliances, it is doubted whether a finding by the jury that defendant was negligent in operating its sawmill and refuse burner at the time in question would be sustained by the evidence, which tended to show, among other things, that a high wind was blowing, that there, had been a long period of drought, that there was a large quantity of lumber and of inflammable refuse on defendant’s premises, separated however from the refuse burner by a clear space of two hundred feet, and that fires in the lumber yard were frequently started by sparks from the refuse burner.</p> <p>2. The question whether the spark-arrester on defendant’s refuse burner was defective should, upon the evidence, have been submitted 'to the jury.</p> <p>3. A question submitted to the jury as to whether defendant was negligent “in failing to provide suitable means and appliances to prevent and put out fires” is held broad enough in its terms to include the inquiry whether a proper spark-arrester had been provided, although, after the question had been answered in the negative, the trial court stated that it had not been understood as referring to the spark-arrester and that the undisputed evidence was that the spark-arrester was defective.</p> <p>4. Where it cannot be ascertained from the whole record what issues may have been considered by the jury in answering questions of a special verdict, such verdict is too uncertain, indefinite, and insufficient to sustain a judgment.</p>

Lueck, Judge. Action to recover the amount paid for certain stock in the Tunnel Hill Mining Company sold hy the defendant to-plaintiff and his assignors under an agreement hy the defendant to take back the stock and return the consideration paid for it if the purchaser at any time became dissatisfied therewith.

H. Eeii>, Circuit Judge. This is a taxpayer’s action in equity to perpetually enjoin the citj officers of the city of Wausau from diverting the city hall fund of the city to other, uses. A general demurrer to the complaint was sustained and a temporary injunctional order was denied, and the plaintiff appeals from both orders.

H. Reid, Circuit Judge. Action to recover on guaranty. The pleader stated facts appropriate to a good cause of action to recover on a contract of guaranty, if the following shows a good contract of that character: For the purpose of enabling the United States Washing Machine Company, a corporation doing business in this state, to obtain credit at plaintiff's bank, defendant with other stockholders of such corporation, September 30, 1903, in writing-expressing a…

order of the circuit court for‘Bayfield county: John K. Pabish, Circuit Judge.