Volume 145 — Wisconsin Reports

W. BueNell, Circuit Judge. Action to recover damages for alleged wrongful discharge from employment under a written contract entered into February 6, 1904, whereby it was agreed that plaintiff should render services to the defendant from March 1, 1904, to March 1, 1909, as salesman of its beer and beer products and as collector of its accounts and demands arising from sales of beer and beer products, and at times not so occupied it should be his duty in a general way to…

W. BukNell, Circuit Judge. The defendant is a corporation incorporated under the laws of the state of Ohio and manufactures boilers, steam engines, and agricultural implements. The plaintiff was the local agent of the defendant at Fond du Lac, Wisconsin. The plaintiff as agent of the defendant had negotiations with one Fredericks for furnishing Fredericks with an outfit of machines furnished by the defendant.

<p>Appeal from an order of the circuit court for Winnebago county: Geo. W. BueNell, Circuit Judge.</p> <p>This is an appeal from an order enjoining the sale of the property described in the complaint on the ground that it was the homestead of the defendant Erastus Wilber Saxton. The property belonged to Catherine Saxton, mother of Erastus Wilber Saxton, and in the year 1905 she deeded it to her son Erastus Wilber Saxton, but reserved “the use and occupancy during her natural life.” At the time this action was commenced said Erastus was occupying said property as his homestead with the consent and approval of his mother, which said property does not exceed in value $5,000 and does not exceed in extent more than a quarter of an acre, and is located within the corporate limits of the city of Appleton, Wisconsin. Judgment was obtained against the defendants and an execution issued, and the proceeding resulting in the in-junctional order made grew out of the claim of defendant Erastus Wilber Saxton.</p>

<p> Constitutional lg,w: Remedies: Condition of judgment: Injunction:Carriers: Fixing rates: Interurban railways: Use of streets:Power of city: Contract as to rates: Subsequent changes: Legislative -power to alter franchises: Railroad commission: Statutes-construed: Power of courts. </p> <p>1. Where alter trial on the merits a circuit court decides that a plaintiff is entitled to a permánent injunction as prayed, it is-error to make the granting of such relief conditional upon the-filing of an undertaking that if on appeal judgment. shall be-awarded to defendant plaintiff will pay such damages as defendant shall have sustained hy reason of the injunction. Such a requirement violates sec. 9, art. I, Const.</p> <p>8. Until the state sees fit to interpose, a carrier may ordinarily exercise a free hand in fixing rates, subject to the qualification-that such rates must not be unreasonably high nor unjustly discriminatory, and may enter into a binding contract on the subject with the municipality from which it receives a franchise.</p> <p>3. Under sec. 1863, Stats. (Supp. 1906: Laws of 1901, ch. 425), a city-may, if it sees fit, refuse to grant to an interurban railway company the right to run its cars over' the city streets. Having-, such power, it may, on granting the right, exact any conditions it sees fit, provided they are not unlawful in themselves, such as-, an agreement that the rate of fare to a neighboring city shall not exceed a certain sum.</p> <p>4. Sec. 1862, Stats. (1898), and sec. 1863, Stats. (Supp. 1906: Laws. of 1901, ch. 425), are not analogous to sec. 1778, Stats. (1898)^ under which it has been held that, since telephone and telegraph companies not only receive their franchises directly from the-state but are expressly authorized by the state to use the public streets and highways, the authority of local municipalities is. restricted to legitimate police regulation.</p> <p>5. Where, in the exercise of a power specifically conferred upon it,. a city passes an ordinance granting to a street or interurban railway company a franchise, and fixing rates, it acts as the agent of the state, and when, by acceptance, the ordinance becomes a contract the public is concluded by it during its life, and its obligations cannot be impaired by subsequent legislation unless it be held that such ordinance is a part of the charter of the company and subject to amendment or repeal under sec. 1, art. XI, Const.</p> <p>6. Statutes granting to cities the right to make long-time contracts binding on the public and fixing rates to be charged by public-service corporations are not looked upon with favor and will be strictly construed.</p> <p>7. Where no specific authority had been conferred” upon a city to make such a contract, the contract will remain valid between the parties until the state sees fit to exercise its paramount power to fix the rates, and no longer.</p> <p>8. The governmental power of the state to fix rates was not surrendered by the enactment of sec. 1862, Stats. (1898), or sec. 1863, Stats. (Supp. 1906: Laws of 1901, ch. 425).</p> <p>9. The right conferred on a railway corporation to use the public streets, under either of said sections, becomes one of the corporate franchises of the corporation, the city acting as the delegated agent of the state in granting it; and, this being so, sec. 1, art. XI, Const., would seem to empower the legislature to modify the conditions on which such franchise was given, as well as to repeal or amend the franchise itself.</p> <p>10. Ch. 362, Laws of 1905, which is applicable to interurban railways and provides among other things that all charges made by any carrier coming under its provisions “shall be reasonable and just, and every unjust and unreasonable charge ... is prohibited and declared to be unlawful,” did not of its own force work any change in existing rates, and hence did not supersede an ordinance contract by which an interurban railway company was given the right to-use the public streets of a city upon condition that a certain rate be charged; though under said statute such rate might be superseded by a determination by the railroad commission.</p> <p>11. A rate which is unreasonably low can be corrected in such a case as well as one which is unreasonably high; but until affirmative action is taken by the railroad commission the courts cannot relieve a carrier from an improvident contract.</p>

<p>Aepeal from a judgment of the circuit court for Sheboy-gan county: Michael Kikwah, Circuit Judge.</p> <p>This is an action to dissolve a partnership and for an account of the partnership business. The alleged partnership business was a small rural telephone business, amounting to about fifty miles of line in several adjoining townships of Fond du Lac, Washington, and Sheboygan counties. The defendant by answer denied the existence of any partnership and claimed to be the sole owner of the telephone system in question and that the same was wrongfully seized and taken possession of by the plaintiff. The action was commenced in March, 1905, and upon motion the plaintiff in May following was appointed receiver of the business, with directions to continue the business until the further order of the court. After-wards the action was referred to Francis Williams, Esq., as referee, to hear, try, and determine. The referee took the testimony and in March, 1907, made his report, in which he found as matters of fact (1) that the parties formed a partnership November 2, 1902, for the purpose of conducting a telephone business over the lines in question, agreeing to share profits and losses equally; (2) that such partnership acquired the lines in question and operated the same down to the time of the commencement of the action; (3) that the parties had many disagreements as to the management of the business and that it was impossible for them to longer carry on business together; (4) that plaintiff was appointed receiver of the business and still operated the same; (5) that plaintiff had paid into the business for the purpose of carrying it on sums aggregating $696.78 and drawn out sums aggregating $766.81, leaving him indebted to the business at the time of his appointment as receiver in the sum of $70.03; (6) that defendant put no money into the business, but drew out amounts aggregating $309.96, in which sum he was indebted to the partnership. As conclusion of law the referee found that judgment of dissolution should be rendered and that the property and business should be sold and the proceeds divided equally after adding to the proceeds of the sale the amounts found due the firm from each partner.</p> <p>Upon motion the report and findings of the referee were confirmed by the court, with a modification or amendment providing that plaintiff should have judgment against defendant for his costs and disbursements and that the same should be a charge on defendant’s portion of the assets. An interlocutory judgment was rendered April 10, 1908, adjudging the parties to be owners as partners of the telephone lines in question with the appurtenances and all permits and privileges connected therewith; that such partnership be dissolved; and that the receiver convert the property into cash, pay all partnership' debts, and make report of the balance in his hands. The receiver made sale of the partnership property and business and made his report to the court showing his total receipts from operation of the business and sale of the property to be $4,903..23 and his disbursements to be as follows:</p> <p>Incidental expenses. $503 35</p> <p>Expenses for labor, care, etc. 419 89</p> <p>Expense for operating. 467 00</p> <p>Expense for teams and horses. 147 51</p> <p>Counsel fees subject to approval by court. 119 88</p> <p>Personal compensation and charges subject to approval by the court. 911 25</p> <p>$2,568 88</p> <p>Upon motion to approve the receiver’s report defendant’s counsel raised no question of fact, but objected to the items of compensation to the receiver and counsel fees. The report was approved with two amendments, one adding $40 to the counsel fees and the other inserting a credit of $314.50 paid by the receiver on a note of the firm after the filing of his account, and judgment entered dividing the net assets, after payment of the receiver’s charges and expenses, equally between the parties, and allowing plaintiff to retain out of the defendant’s share his taxed costs and disbursements. From this judgment the defendant appeals.</p>

<p>Appeal from a judgment of the circuit court for Manito-woc county: Mioiiael KjewaN, Circuit Judge.</p> <p>Action in equity for cancellation of a certificate for ten shares of stock in the Herald-Press Publishing Company, held by defendant, and issuance of a certificate for three and one-third of such shares to plaintiff.</p> <p>The facts claimed by plaintiff and put in issue by.defendant were these: In 1899 the Herald-Press Publishing Company was formed by plaintiff and one Brandt, owners of a printing business, and defendant, owner of a rival business, for the purpose of combining the two enterprises. Precedent to such combination it was agreed that a corporation should be formed, the two newspaper properties be conveyed thereto as an equivalent for the capital stock of twenty shares, the same, as between the parties, to be one third owned by each person, but for political reasons defendant Kress to hold in his name ten shares, three and one-third shares thereof, however, to be treated as held in trust for plaintiff and Brandt and to be transferred to them if they at any time should deem that necessary for protection of their interests. The scheme was consummated by organization of the corporation, transfer of the two properties thereto, and issuance of the twenty shares of stock, one half to defendant and one quarter to each of the other persons. Kress, as evidence of his obligation in respect to the three and one-third shares, gave plaintiff and Brandt a paper to the effect that in case of his selling or transferring the ten shares held by him he would account to them for three and one-third shares thereof. Subsequently plaintiff acquired Brandt’s interest in the corporation. Thereafter he and Kress for some five years conducted the business as owners with the understanding that plaintiff’s interest was two thirds and defendant’s one third. Then difficulties arose, followed by defendant repudiating plaintiff’s claim of ownership of more than a half interest in the corporation. In that situation Kress, asserted authority, as president, to wholly control the corporate affairs and took steps for the election of directors so as to exclude plaintiff from any participation in the management thereof. Thereupon this action was brought, in part to determine the title to the three and one-third shares.</p> <p>Defendant answered, among other things, that he became and was at the time of the commencement of the action absolute owner of the ten shares of stock issued to him, and pleaded that, subsequent to such commencement, he settled his differences with plaintiff by transferring to him such shares.</p> <p>At the outset the corporation was made a defendant. Thereafter, an arrangement having been made whereby Kress transferred all stock held by him to plaintiff, the action against the corporation was dismissed.</p> <p>There was evidence tending to prove all the allegations of the complaint and that the transfer of ten shares made to plaintiff after the action was commenced, was without prejudice to its continuance for the purpose of establishing the rights of the parties as regards the disputed three and one-third shares.</p> <p>The court took an advisory verdict. The jury found all disputed questions as to ownership of the three and one-third shares in favor of the plaintiff. The court filed findings approving those made by the jury and, further, that after the commencement of the action defendant transferred the ten shares held by him to plaintiff, not in settlement of the litigation, but without prejudice to continuance thereof for the purpose of establishing the rights of the parties as to the three and one-third shares, plaintiff paying a specified consideration. upon tbe basis of defendant’s actual ownership being of six and two-thirds shares and agreeing to pay a stipulated sum in addition in case of its being determined in the action pending, or any other action, that defendant was the owner of the three and one-third shares as he claimed. The court further found, on this, in favor of plaintiff. Judgment was ordered and rendered accordingly.</p>

<p> Sheriffs: Loss of attached property: Failure to regain possession: Negligence: Liability: Burden of proof: Removal of property to another state. </p> <p>1. A sheriff who has property in his custody, pursuant to a levy thereon, is liable for its loss whenever caused by his failure to exercise reasonable care and diligence to preserve such custody or, in case of a loss of possession through any cause, to repossess himself thereof as provided by subd. 3, sec. 2749, Stats. (1898).</p> <p>2. Whenever a sheriff sets up a justification for the release or loss of property taken on attachment, the burden is on him of showing that he has been relieved from the obligation of having the property forthcoming to answer the judgment.</p> <p>3. Consent of plaintiff’s attorney that the sheriff need not employ a custodian to take charge of a steamboat which he has attached, while lying at a wharf in the harbor, does not relieve him from the duty to do everything that reasonable care and diligence demand to repossess himself of the boat after it has cleared and passed out of his possession to other parts.</p> <p>4. A sheriff who, after learning of the disappearance of a steamboat which he had attached, made no effort to ascertain its whereabouts or to recover it, although promptly notified by plaintiff’s attorney that he would be held responsible for any judgment that might be recovered in the action, was guilty of negligence in that regard for which he and his bondsmen were answerable; and the fact that such steamboat cleared for a port in another state would not relieve them.</p> <p>5. A sheriff has a special interest in property attached by him, which authorizes him to retake it or recover it in legal proceedings, even in a foreign jurisdiction, for the purpose of satisfying the demand of the attaching creditor.</p>

<p>Appeal from a judgment of the circuit court for Manito-woc county: MiOhael Kiuwan, Circuit Judge.</p> <p>This action was brought by plaintiff as executrix to recover for personal injuries sustained by her late husband which resulted in his death. The principal issues involved on the trial were whether defendant furnished a reasonably safe working place, assumption of risk, contributory negligence, and amount of damages. The defendant objected to any evidence under the complaint, which objection was overruled. Motions were made by defendant for nonsuit and directed verdict, which were denied. The jury returned the following verdict:</p> <p>“(1) Was the death of plaintiff’s testator, John Schmidt, deceased, caused by his being pressed on June 11, 1908, between the west wall of the coal bin or shed and the post to the west thereof described in the complaint, when that wall moved or gave way to some extent, while he, as an employee of said defendant company, was doing the work which he was directed by the foreman to do? A. Yes.</p> <p>“(2) At the time when said testator was injured, was the west wall of said shed or bin so weak and insufficient, for the purpose of holding the coal then stored therein, as to make file place in which plaintiff’s testator was at work when he was injured not reasonably safe for performing there the work he was then doing? A. Yes.</p> <p>“(3) If you answer the second question 'Yes,’ answer this: Before said testator was injured, did the proper representative of defendant know that said place in which plaintiff’s testator was at work when he was injured was not reasonably safe for the performance there of the work which he was then doing? A. Yes.</p> <p>“(4) If you answer the second question ‘Yes’ and the third question ‘No,’ answer this: Would the exercise of ordinary care by defendant’s said representative have made him aware of the fact, before said testator was injured and in time to have prevented the injury, that said place specified in the third question was not reasonably safe for the performance there of the aforesaid work ? A. Yes.</p> <p>“(5) If you answer the second question ‘Yes,’ and if you also answer ‘Yes’ to either the third or fourth question, answer this: Was the testator’s injury the natural and probable consequence of the defendant’s negligence in not having provided a reasonably safe place for the testator in which to do the aforesaid work? A. Yes.</p> <p>“(6) If you answer the fifth question ‘Yes,’ answer this: In the exercise of ordinary care, should defendant’s said representative, as a man of ordinary intelligence and in the light of the attendant circumstances, reasonably have foreseen before said testator was injured, and in time to have prevented the injury, that the existing condition of the west wall of said shed or bin would be likely to cause personal injury to any of defendant’s employees while engaged in doing the work which said testator was doing at the time of his injury ? A. Yes.</p> <p>“(7) If you answer the second question ‘Yes,’ answer this: Before he was injured, did said testator know that the place specified in the third question was not reasonably safe for the performance there of the aforesaid work? A. No.</p> <p>“(8) If you answer the seventh question ‘No,’ answer this: Would the exercise of ordinary care by said testator have made him aware of the fact, before he was injured and in time to have prevented the injury, that said place specified in the third question was not reasonably safe for the performance there of the aforesaid work ? A. No.</p> <p>“(8£) Before his injury and while he was standing on the ladder, was said testator advised by Bred Erase to get off from the ladder because the west wall of the coal shed or bin was cracking ? A. No.</p> <p>“(8§) If you answer ‘Yes’ to the question last above, answer this: In reply to the advice given by Ered Krase did the said testator say: ‘It won’t comp so soon ?’ A. No.</p> <p>“(9) Did any want of ordinary care on the part of said testator contribute to cause his injury? A. No.</p> <p>“(10) What sum will reasonably compensate the estate of said testator for the pain and suffering which he experienced from his aforesaid injuries before his death, and for the expense of medical aid and attendance in the treatment of those injuries? A. $1,025.</p> <p>“(11) What sum will fairly and justly compensate Mary Schmidt, the widow of said testator,' for the pecuniary injury resulting to her from his death ? A. $2,000.”</p> <p>The usual motions were made by defendant after verdict and denied, and judgment rendered in favor of the plaintiff, from which this appeal was taken.</p>

<p> Mining leases: Construction: Conditions: Breach: Forfeiture: Dispute as to lands covered,: Judgment: Effect. </p> <p>1. Mining leases form a distinct class of instruments, creating special and peculiar legal relations and legal rights.</p> <p>2. Where a mining lease, granted in consideration of the rents, covenants, and conditions therein agreed to he paid, kept, and performed by the .lessee, fixes no time for its expiration and no day for the payment of rents and contains no express provisions for forfeiture, but requires the lessee to prospect the leased lands, to work, develop, and operate any mine or mines' discovered thereon, and to pay as rent one tenth part of the value of all ores and minerals discovered and mined, the covenant to prospect the land will he held to be a condition, upon breach of which the lessor may declare the lease at an end and enter upon and repossess himself of the land.</p> <p>3. Such covenant and condition requires diligent and fairly continuous prospecting and search for a mine, so that the landowner-will receive something for his land.</p> <p>4. Where the lessee under such a lease, without having discovered a mine, discontinued prospecting operations on September 1,. 1907, and had carried on no further work thereon up to November 13, 1908, this was a sufficient breach of the condition to authorize the lessor to terminate the lease by notice and entry.</p> <p>5. Such delay and suspension -of operations was for an unreasonable-time; and it is not sufficient excuse therefor that the lessee was; without means to carry on the prospecting work.</p> <p>6. After forfeiture for breach of condition is complete, the lessor may, without waiving such forfeiture or breach, offer to allow the lessee to retain part of the leased premises on condition that he will acquiesce in the forfeiture as to the remainder.</p> <p>7. Where, in an attempt to settle a controversy with respect to title between a tenant in possession and a lessor, a new lease is executed, and such new lease covers only part of the lands in controversy, and the parties cannot agree as to what was intended to be covered thereby, but both stand upon their rights at law, without seeking reformation, and both claim rights under the new. lease as to the lands actually covered thereby, the lands not covered by the new lease must stand upon the former title, lease, or license, which will not be deemed to have been displaced by the execution of such new lease as to any tract not included therein.</p>

In 1885 he mortgaged said premises to one J. W. Ly-brand. In 1891 he died leaving a widow and several heirs. All of the heirs united in a deed of the premises to Jesse Young, who executed a new mortgage to Lybrand for $650, being the balance due on the old mortgage together with some advances made to pay off some of the heirs. Jesse Young in turn deeded the south half of the southeast quarter to Jacob and Albert Young, subject to the mortgage.

<p> 'Void conditional sale: Rights of assignee for benefit of creditors: Bankruptcy: State statutes: Federal courts. </p> <p>1. Where a contract of conditional sale of goods by which the vendor retains title is void under sec. 2317, Stats. (1898), as to the creditors of the vendee, it is void as to his assignee for the benefit of creditors under sec. 1693c, Stats. (Supp. 1906: Laws of 1901, ch. 207), and such assignee is entitled to possession of the property as against the vendor.</p> <p>2. Although the federal rule, when unaffected by statute, is that a trustee in bankruptcy takes only the title and rights of the bankrupt, yet where by state law a transfer or incumbrance is void as to the creditors the trustee succeeds to the rights of any creditor qualified to avoid such transfer, or incumbrance, the federal courts being controlled in such cases by the state statute and the interpretation given it by the highest court of the state, unless affected by the peculiar provisions of the bankruptcy act itself.</p>

<p> Sale: Warranty: Breach: Evidence. </p> <p>Where an automatic grain scale was sold under a guaranty that it would weigh accurately within one eighth of one per cent., evidence of numerous tests showing discrepancies averaging slightly greater than said percentage, hut so uniform as to indicate lack of adjustment rather than inaccuracy, is held, especially in view of the conditions surrounding the tests, not to show a failure to fulfil the contract requirement.</p>

<p> Municipal corporations: Implied powers: Tillages: Employment of private detectives. </p> <p>1. Municipal corporations may exercise only such powers as are clearly embraced within the legislative grant or those derived therefrom by necessary implication.</p> <p>2. Under sec. 893, Stats. (1898), granting to the village board power to establish ordinances “for the government and good order of the village, the suppression of vice and immorality, the prevention of crime,” etc., and “to appoint policemen, night watchmen and superintendent of police, and to prescribe their duties,” there is no implied authority, unless under special and extraordinary circumstances, to employ private detectives to investigate and report upon violations of law in the village.</p>

<p> Bills and notes: Limitation of actions: Partial payment: Evidence: Sufficiency: Inferences: Circumstantial evidence. </p> <p>1. A finding by the jury to tbe effect that a certain payment made upon a promissory note within six years prior to the action was made in part by each of the defendants, is held to be sustained by the evidence.</p> <p>2. A jury may draw legitimate inferences from the facts established.</p> <p>3. A material fact in a civil or criminal case may be established by circumstantial evidence, when the circumstances are such as to lead fairly and reasonably to the conclusion sought to be established.</p>

<p> Criminal law: Food: “Furnishing” oleomargarine for butter: Intent? Ignorance of fact. </p> <p>1. One who, for the purpose of delivering or selling to othgrs, selects- and collects together articles of food, with opportunity for examination, and thereafter delivers them to guests and patrons, "furnishes” an article so delivered, within the meaning of sec. 4607d, Stats. (1898), although throughout the transaction he acts only as the agent of the owner of the food.</p> <p>2. So held as to a waiter in charge of a railway lunch counter, who-delivered to a patron oleomargarine which had been supplied. by the railway company for such counter upon the waiter’s requisition for butter.</p> <p>3. Where a statute prohibits wilful, intentional, or malicious doing of an act, or where a particular intent is a necessary constituent of a common-law offense, such intent is an essential of guilt; but where a statute commands that an act he done or omitted, which in the absence of the statute might be done or omitted without culpability, ignorance of the fact or state of things contemplated by the statute will not excuse its violation.</p> <p>[4. Whether, under such a statute, one could be convicted who had no opportunity to avoid the forbidden act, not determined.]</p>

<p> Criminal law: Preliminary examination: Insufficiency of evidence: Objection, how taken: Appeal and error: Instructions to jury: Verdict, when upheld </p> <p>1. Under sec. 4654, Stats. (1898), providing that no failure or omission of preliminary examination shall invalidate any information unless defendant shall take advantage thereof by plea in abatement, the objection that the evidence before the examining magistrate was insufficient to warrant a finding of probable cause to believe defendant guilty can be taken at the trial only by a plea in abatement.</p> <p>2. Incompleteness of the charge of the trial court in a criminal case is not ground for reversal, where no instructions were asked by defendant.</p> <p>3. Where there is credible evidence to support the verdict of guilty and the trial court has refused to set it aside, this court will not disturb it.</p>

<p> Estoppel: Married women: Dower: Acquiescence in void divorce and remarriage of husband: Innocent purchasers. </p> <p>1. In this state the doctrine of equitable estoppel applies as well to-married women as to other persons.</p> <p>2. One who culpably stands by and allows another to contract on the faith and understanding of a fact which he can contradict, cannot afterwards dispute the fact in an action against the person whom he has thus assisted in deceiving.</p> <p>3. During many years, and until her husband’s death, a wife allowed to go unchallenged his claim that he had procured a divorce, and in silence permitted him to hold out as his lawful wife another woman, whom he had publicly married. She knew that the alleged divorce, if any existed in fact, was invalid, and knew or had good reason to believe that he was engaged in large business transactions and dealing daily with people who in good faith accepted his second marriage as valid; and knew also that it was necessary for the wife to sign conveyances of the husband’s real estate, and that such conveyances were probably being signed by the reputed wife and being accepted by the grantees. Held, that by such conduct she was estopped, as against the innocent purchasers from the husband, from claiming any dower in lands conveyed by him in his lifetime.</p> <p>4. Where both husband and wife are residents of this state, any decree of divorce by a court of another state can have no validity.</p> <p>6. As between two equally innocent parties, equity demands that that one shall suffer whose conduct has placed it in the power of a wrongdoer to deceive the other.</p>

Fowler, Circuit Judge. This is an action to foreclose a real-estate mortgage given by Samuel Swartz to secure certain promissory notes. The mortgage on its face attempts to convey a fee of the real estate described. 'Samuel Swartz had an estate in these premises under the will of his father, Peter Swartz. The character of this estate is an issue in this action. Samuel Swartz, died intestate, and the action is brought against his widow and his two children as his heirs at law.

<p> Real-estate brolcers: Middlemen: Commissions from both 'parties. </p> <p>A broker wbo undertakes merely to procure a purchaser for land at a price fixed by tbe seller is in reality only a middleman and is entitled to tbe agreed commission for sucb service even though, by an agreement unknown to tbe seller, be is also to receive a commission from tbe purchaser. Siebecker, X, dissents.</p>

<p>Appeal from a judgment of tbe circuit court for Milwaukee county: J. C. Ludwig, Circuit Judge.</p> <p>Tbis is an action for divorce. Tbe complaint charges tbe defendant witb cruel and inhuman treatment of tbe plaintiff, and alleges coarseness and vulgarity on tbe part of tbe defendant, that she associates witb low characters and attends questionable places, but does not charge actual adultery. The answer is a general denial, witb countercharges of tbe same general character against tbe plaintiff. At tbe close of tbe testimony tbe court said:</p> <p>“Tbe first principle governing tbe law of equity cases, and particularly divorce cases, is tbis, that tbe party seeking relief must come into court witb clean bands. Tbis is not such a case. Further comment by tbe court is not necessary. Tbe divorce is denied.”</p> <p>Tbe court found that tbe parties were husband- and wife; tbe age of tbe respective parties; tbe fact that they bad resided within tbe state for more than one year before tbe action was begun, and that no issue resulted from tbe marriage. Tbe court further found that tbe plaintiff “has not shown himself entitled to a divorce and has not come into equity witb clean bands, and tbe complaint is therefore dismissed.” Erom tbe judgment entered upon tbe findings tbe plaintiff appeals, and assigns substantially two grounds of error: (1) Tbe judgment should be reversed because tbe court failed to make specific findings of fact. (2) If tbe plaintiff was guilty of misconduct bis lapses bad been condoned by tbe defendant.</p>

<p>Appeal from an order of tbe circuit court for Milwaukee ■county: OrreN T. WilliaMS, Circuit Judge.</p> <p>Action for personal injuries. Plaintiff was twenty-four years old and a carpenter by trade, of foreign birtb, baying been in tbis country but three and one-balf years, could not ■speak English, and was unfamiliar with machinery. Defendant was the owner of a factory wherein were operated •certain machines in connection with his business of manufacturing sash, doors, cabinets, and window frames. Plaintiff was employed by the defendant on the 10th day of May, 1907, and did various work about the factory. About a month after he was employed, at the direction of defendant plaintiff was set to work at what is called a “dowel machine,” ■designed and operated for the purpose of trimming the edges ■or ends off of dowels or small pieces of wood, and had worked -at it about three hours two or three days before the accident. The machine consisted of a piece of shafting of iron or steel, resting on a wooden framework about four feet above the floor. At one end of the shaft was a round opening a little less than one-half inch in diameter, extending into the shaft to a depth of two inches from the end. The diameter of the hole increased slightly with its depth; that is, the diameter was larger at the inner end of the hole than at its opening at the end of the shaft. There were four slits in the end of the shaft about one-sixteenth of an inch wide, extending in as far as the hole, thus dividing it into four equal prongs. These prongs had a graduated thread on the outside 'for about an inch and one-half from the end, on which there was a nut to be used in making the opening larger or smaller by turning the nut with a wrench, the opposite end of the shaft being set in the framework.. The diameter, of the shaft or chuck increased slightly from the end, so that, as the nut was screwed on, the inside opening would be diminished and the prongs would firmly engage the shank of the tool inserted. The diameter of the dowel pointer decreased slightly from the end, and, therefore, when fully inserted its whole shank would closely fit the opening. Then when the nut was-screwed on tight, the opening at the end of the chuck would be smaller than the inner end of the shank of the dowel pointer, and it could not come out as long as the nut was on. The power was conveyed to the shaft by a belt running from another shaft near the floor, where there was a live and dead pulley and a belt shifter. The shaft revolved at a speed of about 2,000 revolutions per minute, which speed could not be checked or reduced except by entirely cutting off the-power. In the opening in the end of this shaft were inserted different tools, according to the kind of work to be done, which were fastened by screwing the nut toward the framework, and the tool, while so held, would of course revolve with the same rapidity as the shaft.</p> <p>Plaintiff’s work and duty required him to press pieces of wood against the revolving tool in the shaft. On the day he was injured plaintiff was engaged in operating the above described machine, and, while the shafting was revolving, the dowel pointer inserted therein in some manner got loose and' flew therefrom, struck plaintiff, and permanently destroyed' the. sight of his left eye.</p> <p>At the close of the evidence defendant moved the court to direct a verdict in his favor, which motion was granted. Thereupon plaintiff moved for a new trial, and the court made an order vacating and setting aside its former order-directing a verdict in favor of defendant, and granted plaintiff’s motion for a new trial, from which order defendant appealed.</p>

<p>'Appeals from orders of tbe circuit court for Milwaukee county: W. J. TubNeb, Circuit Judge.</p> <p>Tbe amended complaint alleges that at all tbe times hereinafter mentioned tbe defendant City of Milwaukee was and is a municipal corporation of tbe state of Wisconsin, situated in tbe County of Milwaukee; tbat tbe defendant County of Milwaukee at all times hereinafter mentioned was and is one of tbe county municipal subdivisions of tbe state;</p> <p>“Tbat heretofore, to wit, at various times on and between tbe first day of January, 1859, and tbe first day of January, 1909, tbe said defendants have received as tbe clear proceeds of fines imposed and collected within tbe said County of Milwaudcee, for violations of tbe penal laws of said state, the sum of two hundred and twenty thousand seven hundred and thirty-two and forty-eight one-hundredths dollars ($220,132.48) to tbe use of the plaintiff, which said sum of money said defendants were legally bound and promised to pay to tbe plaintiff without demand, according to tbe provisions of tbe constitution and statutes of said state, but which said sum of money tbe said defendants unlawfully detain.”</p> <p>Then follow tbe amounts alleged to have been paid to and received by defendants yearly from 1859 to 1909, aggregating $220,132.48. Plaintiff alleges tbat said sums of money are now due and have not been paid, nor any part thereof, and demands judgment for said sum of $220,732.48 witb interest, together with costs and .disbursements of this action.</p> <p>The defendant City of Milwaukee answered .setting up several defenses, and among others the statutes of limitation as follows:</p> <p>“And for a further defense this defendant alleges that even though the plaintiff might have had a cause of action against the defendant as contained in said complaint, the plaintiff is barred from the prosecution of such action so far as the same is affected by section 4229, Wisconsin Statutes 1898, as amended by chapter 1 of the Laws of Wisconsin for 1905, pursuant to which such action must be commenced within ten years after the cause of action therefor has accrued, and that plaintiff did not commence said action until March 13, 1909.”</p> <p>The defendant Gounty of Milwaukee answered, also setting up the statutes of limitation as a separate defense as follows:</p> <p>“And for further defense said defendant County of Milwaukee alleges that if said plaintiff ever had a cause of action against said defendant Gounty of Milwaukee as stated in said complaint, said plaintiff is barred from the prosecution thereof so far as the same relates to any fines or penalties collected or paid more than ten years prior to the service of the summons and complaint herein upon the defendant, as provided by section 4229 of the Wisconsin Statutes of 1898, as amended by chapter 1 of the Laws of Wisconsin for 1905.”</p> <p>The plaintiff demurred separately to the defenses of the statutes of limitation set up by the defendants Gounty of Milr wauleee and Gity of Milwaukee for want of facts sufficient to constitute a defense, and upon the hearing of the demurrer of plaintiff to part of the answer of the defendant Gounty of Milwaukee said defendant demurred to the complaint for the following reasons: (1) that said complaint does not state facts sufficient to constitute a cause of action against said defendant County of Milwaukee; (2) that said plaintiff has not capacity to sue; and (3) that this court has no jurisdietion of the action. The court below overruled the demurrer of the defendant Oounty of Milwaukee to the complaint and sustained the' demurrer of plaintiff to that part of the answers of the defendants Oounty of ■ Milwa/ulcee and Oity of Milwaukee setting up the statutes of limitation. Both defendants appealed.</p>

<p> Constitutional law: Bight of trial by jury: Taxing jurors' fees as costs against accused: Writ of prohibition, when lies. </p> <p>1. Ch. 218, Laws of 1899, — creating the district court of Milwaukee county with limited criminal jurisdiction, and providing that the accused therein may demand a jury of not more than twelve nor less than six men; that the clerk shall proceed to draw in the presence of the jury commissioners (unless their presence is waived) from the box containing the names of persons furnished by said commissioners to serve as petit jurors in the municipal court, twice the number of jurors demanded by the accused; that from the list so prepared the parties shall alternately strike out so many names as shall leave the number demanded; that either party may challenge any juror for cause; and that deficiencies caused by challenges or otherwise shall be supplied by talesmen, — accords to the accused the privilege of a trial by a lawful jury and does not deny to him any constitutional right in respect thereto.</p> <p>2. The fact that said act provides that the fees of jurors shall be taxed as costs in the action, and in case of conviction taxed against the accused, does not invalidate it, the subject of costs and the items thereof being largely a matter of legislative discretion.</p> <p>3. Even if a defendant accused of criminal libel is entitled to a preliminary examination before be can lawfully be tried (a point not decided), error of tbe court in refusing sucb preliminary examination cannot be considered upon a motion for a writ of prohibition. That writ cannot be used to perform tbe ordinary functions of an appeal or writ of error.</p>

<p> Sales: Fraud: Opinions as to value: Conspiracy: Damages: Remoteness. </p> <p>1. Mere expressions of opinion as to tile value of property offered for sale, even though the estimate he substantially greater than the real value, will not of themselves alone amount to a fraud upon the buyer; but the law requires good faith and that no artifice or trick be resorted to by the seller to throw the buyer off his guard or prevent inquiry.</p> <p>2. Although, by a fraudulent conspiracy between the defendants, vendors of a livery stock and business, and plaintiff’s partner in the purchase of the same, plaintiff was led to believe that such partner was paying the same price as himself for a half interest therein, when in fact he was paying $1,500 less, plaintiff could not for that reason recover as damages the amount of his loss on a resale of the property, on the claim that if he had known the facts he would not have made the purchase or embarked in the business, such damages not being proximately caused by the act of concealment complained of.</p> <p>3. But, plaintiff having given his own note to his partner for $750 under the belief that such partner had contributed $1,500 more than himself toward the purchase, which belief was induced by false representations and the use of a dummy check, he was entitled to be indemnified to that amount for the fraud practiced upon Mm.</p> <p>4. Although plaintiff, after giving the vendors an opportunity to repurchase the property, sold out at a loss to Ms partner, releasing the latter from liability for the fraud and receiving indemnity against his note to the partner, which had been lost, yet, if in making such sale he was obliged, in the exercise of reasonable diligence, to pay a substantial sum to secure his release from said note, he is entitled to recover that sum from the defendants.</p>

<p>Appeal from a judgment of tbe circuit court for La Crosse county: GeoR.ge Grimm, Judge.</p> <p>Action to recover on a promissory note.</p> <p>Complaint in tbe usual form, plaintiff suing as personal .representative of tbe deceased payee.</p> <p>Tbe note was made December 31, 1882, for $250, payable with, interest at tbe rate of six per cent, per annum in one year after date. Tbe payee resided when tbe note was given .and thereafter till bis decease in tbe state of Wisconsin. During aE tbat time and till tbe action was commenced, as alleged, defendants resided on tbe Pacific coast. They ■omitted to pay any part of principal of tbe note or interest tbereon. Plaintiff asked for judgment for sucb principal and interest, amounting to $639.</p> <p>Defendants pleaded payment, and, further, tbat more than six years elapsed before tbe commencement of tbe action .after appointment of plaintiff as personal representative of tbe deceased; and tbat about three years after sucb appointment she, by resignation, ceased to be sucb representative, and by reason of sucb facts she ceased to have legal capacity to prosecute any action upon tbe note.</p> <p>Tbe making and delivery of tbe note was admitted. These facts were established: Plaintiff bad legal capacity to sue as' she did. Tbe note came duly to her possession in her capacity as personal representative of tbe payee and as part of tbe assets of bis estate. Tbe debt became due more than twenty years.before tbe action was commenced and more than eight years before tbe bolder thereof died. It was not inventoried as part of bis estate and no demand for payment was made till tbe action was commenced, during all of which time ■defendants were financially able to pay. Tbe payee bad possession of tbe paper from tbe time it was made till be died, and soon thereafter it came into tbe possession of plaintiff. She found it among tbe valuable papers left by deceased. He was a resident of Wisconsin during all tbe time till be •died and likewise was plaintiff till suit was commenced. During all sucb time defendants resided on tbe Pacific coast. Defendant Lillie Sanborn is tbe daughter of tbe deceased by bis first wife and her codefendant is her husband. Plaintiff is tbe widow of deceased. She was duly appointed with another as a personal representative of deceased pursuant to bis will. The co-executor resigned in 1896. Defendants visited this state, at least once, after maturity of the note during the lifetime of the payee and several times thereafter. There was evidence tending to show that plaintiff made efforts to collect the note soon after it came to her possession; that she employed attorneys therefor who made efforts to obtain service of a summons on defendants in an action to enforce payment and finally succeeded.</p> <p>The court submitted to the jury the issue of payment, instructing them that from the stale nature of the note there was a presumption of fact of payment thereof. The finding was in favor of plaintiff and judgment was entered accordingly.</p>

H. Reid, Judge. Tbis is an action to recover damages for personal injuries suffered by tbe plaintiff, Henry Marquardt, through an explosion of a mixture of gas and air in tbe purifying bouse of the defendant’s gas plant. It is claimed that the explosion was caused by the negligence of the defendant. The defendant made its gas from coal. The gas is extracted from the coal by applying heat to the retort in which the coal is placed.

<p> Common law: Changes: Animals: Liability of owner for trespasses: Runaway on street: Negligence. </p> <p>1. Viewed objectively and at large as a system of principles deducing from litigated instances just, reasonable, and consistent rules of decision suitable to tbe genius of tbe people and to tbeir political, social, and economic conditions, tbe common law never changes; but tbe rules so deduced are subject to change in detail to conform with progress and change in such conditions.</p> <p>2. Tbe common-law absolute liability of tbe owner for trespasses of cattle escaping from bis field is in force in this state, modified by statute.</p> <p>3. This absolute liability for trespass of such animals does not exist where, being lawfully driven along tbe highway, they escape from tbe custody of tbe owner. In such a case tbe owner is liable only if negligent.</p>

<p> Negligence: Personal injuries: Telephone toire hanging across highway: Evidence: Instructions to jury. </p> <p>1. In an action for injuries to a traveler on a highway, caused by a telephone wire hanging loosely across the highway within a few feet of the ground, a finding by the jury that such position of the wire was due to negligence on the part of defendant is held to be sustained by the evidence.</p> <p>2. Trial courts are not required to adopt any particular phrasing of a rule of law given to the jury, and the mere refusal to give a requested instruction which correctly states the law is not error if it is in fact embodied in substance in the general charge.</p>

0. Higbee, Circuit Judge. Mandamus action to compel defendants to levy a tax. The petition, alternative writ, return, and evidence raised the •question of whether under sec. 1319, Stats.

the circuit court for Wood county: Chas. M. Webb, Circuit Judge. This is an action on a contract of guaranty signed by the defendant. By its provisions the defendant guaranteed the payment of the indebtedness of J. N. Sanford to the bank to an amount not exceeding $1,000. The principal questions were whether the guaranty was delivered absolutely, or conditionally upon its being also signed by Chris.

M. Webb, Circuit Judge. The plaintiff, a resident of Ohio, brought this action in the circuit court for Portage county upon the following judgment: “Pleas before the court of common pleas within and for the First subdivision of the Third judicial district of the state of Ohio, at a court begun and held at the courthouse in Lima, Allen county, Ohio, on the 24th day of September, 1906. Maggie Malicie Halfhill, Plaintiff, No. 12889 vs. [• Cognovit. “John P. Malicie, Defendant.

<p>Appeal from a judgment of .the circuit court for Wau-shara county: Chas. M. Webb, Circuit Judge.</p>

M. Webb, Circuit Judge. Tbe plaintiff was the owner of sixty acres of land which was segregated from the remainder of his farm and was not accessible from any highway. By deed of conveyance he secured a right to travel over a space of one rod on the east side of the northwest quarter of the southwest quarter of section 25, township 23 north, of range 13 east. Through such alley plaintiff was enabled to reach the sixty-acre tract referred to.

<p>Appeal from a judgment of tlie circuit court for Waupaca county: Chas. M. Webb, Circuit Judge.</p> <p>Action for malicious prosecution of the plaintiff by the defendant on the criminal charge of embezzlement. The trial resulted in a verdict for the plaintiff, and from judgment thereon defendant appealed.</p>

<p>Appeal from a judgment of the circuit court for Bayfield county: John X. Paeish, Circuit Judge.</p> <p>The action is replevin for a stock of miscellaneous goods. The plaintiffs claim as mortgagees, the defendant as owner. Some facts were undisputed upon the trial. Among these were the following: The plaintiffs are two Minnesota merchandising corporations doing business at Duluth, Minnesota, neither of ■which had filed in. the office of the secretary of state the certificate and verified statement required by see. 1170bj Stats. (1898), at the time of the transactions involved in this action. Prior to July 21, 1908, the defendant, who conducts a general store at Iron River, Bayfield .county, Wisconsin, had purchased large bills of goods from each of the plaintiff corporations, and was indebted to them in the aggregate to an amount considerably exceeding $3,000. On the day named she executed a demand note to each of them for $1,500, to apply on her indebtedness for goods purchased, and a chattel mortgage on her stock of goods for $3,000 to secure both notes. Plaintiffs claim that Mrs. Deschamp consented that they take immediate possession. She denies this. But in any event the fact is undisputed that they took immediate possession and placed a man in charge and sold goods from the stock to the gross amount of about $2,100 at private sale day by day until October 7th, when some difficulty took place between Mrs. Deschamp and the man in charge and the store was closed for a few days, and the plaintiffs were about to proceed to close out the stock at public sale. At this time Mrs. Deschamp went to Duluth and saw the plaintiffs and desired that the store be reopened and private sales continued, and it is claimed by the plaintiffs that she then agreed that if they would do this the sums already realized on sales of goods should be applied on the open accounts not covered by the notes and mortgage until the open accounts were paid and then applied on the notes. This agreement is denied by the defendant. She delivered some other collat-erals to the plaintiffs, reopened the store, and again commenced to sell goods. Sales continued until some time in May, 1909, when plaintiffs again closed the store preparatory to a public sale, claiming that about $1,200 was still due them. At about this time the defendant obtained possession of the store and goods without plaintiffs’ consent and refused to deliver it up to the plaintiffs again, and this replevin action was then brought. The trial court directed a verdict for the defendant, leaving only the question of the value of the property to the jury, and the plaintiffs appeal.</p>

[Appear from a judgment of tlie circuit court for Sauk county: Chester A. EowleR, Judge. Action to recover damages for creating and maintaining a nuisance to plaintiff’s damage.

<p> Judgment: Opening default: Discretion: Chattel mortgages: Sale: Failure to file affidavit: Extinguishment of debt. </p> <p>It was not an abuse of discretion to vacate a judgment on cognovit upon notes secured by chattel mortgage and permit the defendant to interpose a defense to the effect that the debt bad been extinguished by voluntary acts of plaintiffs in failing to comply with sec. 2316c, Stats. (Laws of 1903, ch. 122), especially where defendant was merely a surety. Permission to interpose that defense should not be refused in such a case on the ground that the rights conferred by the statute operate inequitably.</p>

<p> Intoxicating liquors: Licenses: Saloons near schools. </p> <p>1. A “school,” within the meaning of subd. 5, sec. 1548, Stats. (Supp. 1906: Laws of 1905, ch. 385), is not measured by the walls of a building. ' One school may occupy two or more buildings, or two or more schools may occupy one building.</p> <p>2. "Where two school buildings were located on the same grounds and in one of them, a high school building, there were high school pupils and grade school pupils and in the other there were grade school pupils, the high school building and the pupils enrolled therein did not constitute a “school” within the meaning of said statute.</p> <p>[3. Whether in such case there was more than one school upon the grounds, not determined.]</p>

<p> Railroads: Ejection of trespasser from, train: Excessive force: Liability: Authority of baggageman: Scope of employment: Questions for jury. </p> <p>1. From the fact that a servant is intrusted with the charge of a vehicle for certain purposes a jury may infer that he is authorized to exclude therefrom trespassers or persons endeavoring unlawfully to use the vehicle for other purposes.</p> <p>2. Although the authority to eject trespassers from a train he vested in the conductor, yet if hy the rules the baggageman has charge of the baggage in a car and it is his duty to report to the conductor the presence of trespassers on said car and, when requested hy the conductor, to aid in ejecting them, such baggage-man may he found hy the jury to have been acting within the scope of his employment in endeavoring to eject a trespasser from the baggage car without calling upon the conductor.</p> <p>3. If in such case the baggageman use unnecessary or excessive force his employer is liable.</p> <p>4. Authority given to a conductor to eject from his train any passenger who refuses to produce a proper ticket or pass or to pay fare includes authority to eject a trespasser who makes a like refusal.</p> <p>5. One who attempts to ride on a train without ticket, pass, or payment is ordinarily a trespasser.</p>

<p>Appeal from a judgment of tbe circuit court for Sbawamr county: John Goodland, Circuit Judge.</p> <p>In February, 1902, plaintiff commenced an action of re-plevin against tbe defendant to recover a cow. During tbe pendency of tbe action tbe parties stipulated tbat tbe defendant might retain possession of tbe animal until tbe justice rendered bis decision in tbe action. Tbe justice found in favor of tbe plaintiff and entered an order in bis docket requiring tbe defendant to deliver tbe possession of tbe cow to tbe plaintiff and also assessed plaintiff’s damages for the-wrongful detention of tbe animal at $25, for wbicb sum judgment was entered witb costs. Tbe defendant never complied with the order, and the judgment for damages and costs has not been paid. An execution was issued on the judgment on November 6, 1905, and the officer returned that he was unable to find any property out of which the same might he satisfied. Such execution did not correctly state the amount of the judgment on which it was issued. On November 7th a garnishee summons based on the execution was served on the agent of the Menominee River Sugar Qom'pam/', a foreign corporation. That company first answered admitting liability as garnishee, hut later filed an amended answer-setting forth in detail the transaction between it and the defendant, the substance of which was as follows: On March 22, 1905, the defendant and the garnishee entered into a contract whereby the defendant agreed to plant one acre of land to sugar beets, the seed to be furnished by the garnishee. The contract provided that all beets raised thereunder should he delivered to the garnishee as requested after October 1st and that they should be delivered to the company on board cars on Siding No. 170, and there weighed and tared under the direction of the company’s representative. The company agreed to pay the freight on the beets. When the grower loaded beets at a point where there were no wagon scales the beets should be weighed and tared at the company’s factory at Menominee, Michigan. The price agreed upon was $4.60 per ton. The contract also provided that “the company will not accept beets grown from seed not furnished by them, nor will they receive or pay for rotten beets nor beets testing under ten per cent, of sugar.” The defendant produced a, carload of beets under this contract and loaded the same into a car on November 4, 1905, at the siding specified. The beets arrived at Menominee, Michigan, on November 12, 1905. How they were routed or where they were when the garnishee summons was served does not appear. Judgment was rendered in the action dismissing the garnishee proceedings.</p>

<p> Alimony: Discretion: Reduction of amount: Appeal: Review. </p> <p>1. Tile decision of the trial court in the allowance of alimony will not he disturbed on appeal unless manifestly unjust.</p> <p>2. Reduction of alimony in this case from the original allowance of $23 per month to $18 per month is held, upon the proof, not an abuse of discretion or manifestly unjust.</p>

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

J. Vinje, Circuit Judge. Action to recover damages caused by unlawful flooding of plaintiff’s lands. Plaintiff, in form, stated several canses of action relating to as many alleged unlawful dams. One claim is an exact type of all. It may be thus briefly stated: The defendant Musser-Saunt'ry Land, Logging • Judgment was demanded for the several claims, an abatement of the alleged nuisances, and a temporary restraining order.

J. Vinje, Circuit Judge. This action was brought to recover for timber cut on land in Minnesota and for treble damages under the Minnesota statute. The court sustained an objection to any evidence under the complaint, and denied a motion to amend the complaint hy increasing the ad damnum clause and pleading the common law of Minnesota as to measure of damages in actions for conversion and to withdraw allegations as to treble damages.

J. Viitje, Circuit Judge. The plaintiff was the owner of several parcels of land in Polk county on the 8th day of April, 1908, which lands were incumbered by a mortgage on which there was due the sum of $3,100. Prior to said date the plaintiff and the defendant Johnson entered into a verbal agreement by which plaintiff agreed to convey by warranty deed to said Johnson, subject to said mortgage, the lands referred to.

<p>Appeal from a judgment of tbe circuit court for Polk •county: A. J. Vihje, Circuit Judge.</p>

<p> Replevin: Logs and timber: Consent to cutting: Estoppel. </p> <p>In an action of replevin for timber, the holding of the trial court is sustained, to the effect that there was no evidence of consent by defendant to the cutting of timber from its land or of facts which would estop defendant from claiming that no consent was given.</p>

<p> Municipal corporations: Street improvements: Special assessments: Land “abutting or adjacent:” When appeal is exclusive remedy. </p> <p>1. A law for charging, to some extent,-the cost of improving that part of the roadway of a street directly in front of parcels of land abutting thereon, lying between the curb line and the center of such roadway, has reference only to the expense incurred within such boundaries.</p> <p>2. A law authorizing improvement of a street at the expense in. whole or in part of parcels of land abutting thereon or adjacent thereto, includes only parcels fronting on that part of the street improved or which adjoin such parcels and are adjacent to the street.</p> <p>3. In such a law, nothing appearing clearly to the contrary, “abutting” and “adjacent” are not used synonymously. The former contemplates the street boundary toward the lot as identical with the boundary of the latter toward the former, while the idea of the latter is, a parcel near by the street but separated therefrom by an intervening abutting strip or parcel.</p> <p>4. A law providing that, in case of the owner of a parcel of land affected by a street improvement being aggrieved in any way by reason of any determination of the administrative body as to-burdening such parcel on account of such improvement, his sole remedy shall be by appeal to the circuit court, is mandatory and exclusive, precluding jurisdiction being exercised in any other way in law or in equity as to any real estate within the calls of the statute.</p> <p>5. In the foregoing the words “affected by the improvement” limit the remedy to such parcels of real estate as the administrative board dealing with the matter would have jurisdiction under any circumstances to affect thereby.</p> <p>[Syllabus by Marshall, J.]</p>

This is an application for mandamos requiring tbe board of state canvassers to reconvene, determine and certify that Qustav Kustermann, petitioner, was elected as representative in Congress from tbe Ninth Congressional district of Wisconsin, and requiring tbe secretary of state to issue and transmit certificates of such election.

<p>Appeal from a judgment of the circuit court for Ashland county: John K. Paeish, Circuit Judge.</p> <p>Action to recover for personal injury.</p> <p>The injury occurred while plaintiff was on duty in defencL-ant’s railroad yard at Hurley, Wisconsin. He was an experienced railroad man about twenty-three years of age, but not familiar with the particular railroad yard, though it was arranged .as yards customarily were on defendant’s and other railroads. On the morning of the injury, plaintiff was acting as a fireman on an engine running on slow time as an extra. The start was made at Ashland with Bessemer as the destination. The journey was made slowly because of the engine working badly, it being difficult to keep up steam, though not on account of any defect in the appliance. That difficulty made it necessary for plaintiff to perform more labor than ordinarily. Upon arriving at Hurley it was found that there was a freight train ahead which was liable to delay the journey unless the engine in question was run in from the west on the station passing track, down such track by such train, and out on the main track to the east. Such train was standing about in front of the depot. The necessity of passing it in order to proceed without delay was discovered after proceeding by the westerly end of the passing track and down near the rear of the train. While the engine and such train were so circumstanced the engineer of the former went forward to consult with the conductor of the latter and arrange for passing. During the absence plaintiff was left in charge of the engine. The switch of the passing track was about sixty feet east of the westerly end of the yard. At such, end there was located the customary cattle-guard, constructed in the customary way, the right-of-way fences being connected therewith on either side in the usual way by conspicuous wing fences. There was a highway and sidewalks which crossed the right of way some sixty feet east of the switch stand. In order for the engine to go in on the passing track it was necessary to back up by the switch stand into the vicinity of the cattle-guard. The crew were required to do the switching. The length of the engine was such that in order to back it up so as to clear the switch the cab would be near the cattle-guard and liable to be at that point, without attention being used to avoid it. The engine was backed toward the cattle-guard at the rate of about eight or ten miles per hour. Upon nearing the switch it was slowed down and allowed to run under its momentum. On the way back plaintiff busied himself, somewhat, by firing and then by looking out at one of the side windows of the cab. He did not look in the direction the engine was moving. In the meantime he was handed the switch key and told to alight and throw the switch and to be expeditious about it. As the engine was about to pass the switch the engineer applied the air brake, intending to bring the engine to a stand at a con-vénient distance east of the entrance upon the passing track. The plaintiff, as he claims, took a proper location for alighting from the cab on the side toward the switch stand. He stood in such location facing the front of the cab, grasping with the left hand the hand-rail on the engine, his feet being about twenty inches above the ground. It was a bright day. A glance in the direction the engine was moving at any time for several hundred feet before reaching the switch would have disclosed the location of the cattle-guard with reference thereto. Plaintiff faced the other way. He did not look in the direction he was going at all. ■ After passing the switch stand and while the engine was still backing at a speed of about five miles per bour and plaintiff facing in tbe opposite direction, with bis standing place about twenty inches above tbe ends of tbe ties, be, without paying any heed to where be would land, let go tbe handhold and slipped or jumped backward. According to bis testimony be became conscious of being near tbe cattle-guard just as be released bis bold on tbe engine and admonished tbe engineer to set tbe emergency brake. He struck on tbe wing fence at tbe cattle-guard, then rolled down, throwing one leg over tbe rail so that tbe engine wheels passed over and severed it. Tbe engineer, at tbe instant plaintiff alighted, was attentive to bis duties in respect to placing bis engine in proper position to start in on tbe passing track upon tbe switch being turned. He beard a crash as plaintiff alighted on tbe wing fence, which caused him to look instantly in that direction and observe plaintiff’s peril. He brought bis engine to a stand as soon as possible. It was properly equipped and tbe engineer properly bandied it, bringing it to a stop in tbe course of about eighteen feet after plaintiff was observed to be in peril. In tbe meantime tbe injury took place. Tbe crew knew it was necessary for tbe engine to be moved in on tbe passing track without much delay in order to clear tbe way for a train soon expected from tbe west. There was no occasion, however, for special burry because there was, as yet, no warning of proximity of such train. Tbe customary way, and tbe one supposed to be required in tbe exercise of ordinary care, to alight from a moving engine, is to face and jump in tbe direction of tbe motion and to look before doing so. Plaintiff was aware of that. Tbe engine was not moving at a dangerous rate of speed, as regards an experienced railroad man in tbe course of bis work jumping from it in a proper manner and under proper conditions. Plaintiff knew tbe necessity for side fences at tbe ends of railroad yards and be knew of tbe general features of railroad switches^ of which the one in question was a type.</p> <p>The cause was submitted to the jury on the evidence, resulting in the following verdict:</p> <p>“(1) Was defendant, or any officer, agent, servant or employee, other than plaintiff, guilty of negligence directly contributing to plaintiff’s injury as alleged? A. Yes.</p> <p>“(2) Was defendant guilty of negligence directly contributing to plaintiff’s injury by negligently locating its said switch too near the said cattle-guard, as alleged ? A. Yes.</p> <p>“(3) Was defendant guilty of negligence directly contributing to plaintiff’s injury by suffering its said engine to get into and remain in a defective condition and by using the same in said defective condition, as alleged? A. No.</p> <p>“(4) Was defendant guilty of negligence directly contributing to plaintiff’s injury by its said engineer, Janes, while in charge of said engine, commanding plaintiff to jump off said engine while the same was in motion, as alleged? A'. No.</p> <p>“(5) Was defendant guilty of negligence directly contributing to plaintiff’s injury by its said engineer, Janes, failing to set the emergency brake as soon as he could have reasonably done so, at the time of said accident, as alleged? A. No.</p> <p>“(6) If you answer the above questions by ‘Yes,’ or any of them by ‘Yes,’ was plaintiff guilty of any negligence which directly contributed to his said injury? A. Yes.</p> <p>“(7) If you answer the last question by ‘Yes,’ was said negligence of said plaintiff slighter or greater as a contributing cause to his said injury than that of defendant company’s negligence or any of its officers, agents, servants or employees other than plaintiff? A. Slighter.</p> <p>“(8) If you answer questions 1 to 5, inclusive, by ‘Yes,’ or any of them by ‘Yes,’ then was said negligent acts of defendant the proximate cause of plaintiff’s injury? A. Yes.</p> <p>“(9) If you do not find that all of said alleged acts of negligence were the proximate cause of plaintiff’s injury, you will write in the number of such questions only, as you find were the proximate cause of the plaintiff’s injury ? A. Questions number 1 and 2 only.</p> <p>“(10) If, from your answers to the foregoing questions, the court is of the opinion that the plaintiff should recover, at what sum do you assess plaintiff’s damages ? A. Eive thousand ($5 000) dollars.”</p> <p>Judgment was rendered on tbe verdict in plaintiff’s favor. Various motions, .objections, and requests were made in plaintiff’s behalf and rulings made thereon and exceptions taken thereto, which will be mentioned in detail in the opinion so far as necessary to the final result of the appeal.</p>

<p>Appeal: Matters considered: Quo warranto: Municipal corporations: Franchises: Electric current: Use of streets: Repeal of statutes: Public utilities: Railroad commission: Gertiflcate of necessity: Constitutional law: Legislative power: Delegation.</p> <p>1. On an appeal only matters to some degree involved in the issues closed by the determination appealed from will be considered.</p> <p>2. In a quo warranto action to test the claim of right to exercise a pretended franchise, the sole question triable is whether the defendant possess the right in fact referable to the grant.</p> <p>3. A municipal ordinance empowering a corporation “to lay down in the ground, put on poles and otherwise attach wires or other suitable conductors for the transmission of electricity, upon, ovér, through, under and in the streets, lanes, alleys and public grounds” of the city, includes power to transmit electric current, using the public way as indicated, for all lawful purposes.</p> <p>4. Ch. 499, Laws of 1907, as amended by ch. 180, Laws of 1909, so far as in conflict with sec. 17805, Stats. (1898), supersedes the same.</p> <p>6. Where an indeterminate permit has been acquired under the law of 1907 referred to, as amended, within the scope thereof the municipality is under disability to grant any conflicting franchise privilege, except in case of public necessity and convenience, the fact in that regard to be found as matter of fact and certified by the railroad rate commission prior to making such conflicting grant.</p> <p>6. While the legislature cannot empower the railroad rate commission to exercise legislative power, it may clothe it with authority to administer a law requiring, as an incident to the administrative duty, the ascertainment of facts such as is required in passing upon an application for a certificate of convenience and necessity under the public utility law.</p> <p>[Syllabus by Marshall, J.]</p> <p>Barnes, J., Winslow, G. J., and Siebeckee, J., dissent.</p>

<p>Appeal from a judgment of the circuit court for Kenosha county: E. B. BeldeN, Circuit Judge.</p> <p>The facts so far as they are essential are stated in the opinion.</p>

<p> Criminal law and, practice: Jurors: Competency: Challenge: Review of decision: Instructions to jury: Undisputed facts: Bailment: Larceny by bailee: Misconduct of jury: Reading newspapers: Witnesses: Competency: Insane persons. </p> <p>1. A juror In a criminal case is not necessarily incompetent merely because be has an impression or opinion as to the merits of the case, formed from reading newspaper accounts and from other hearsay information.</p> <p>2. On a challenge in such case the question of competency is one of fact to he determined by the trial court in view of all the evidence and the mental characteristics of the juror appearing from his examination.</p> <p>3. A decision of the trial court holding such a juror competent will not be held erroneous unless clearly shown to be wrong or an abuse of discretion; but, generally speaking, the practice is to be commended which excuses the juror in such a case.</p> <p>4. A court may in a criminal case, as in any other, instruct the jury respecting facts established by the evidence beyond any room for reasonable controversy, and when such evidentiary facts exist establishing beyond any room for reasonable controversy , an essential of any ultimate conclusion sought, it is not a harmful error, if error at all, to treat such essential as having been proven.</p> <p>5. The possession of a bailee and his duty to account for the property need not be based upon a contract inter partes, but may result from the operation of law.</p> <p>d, A constable who, upon taking an insane man in charge after a pursuit, received from one of the pursuers a roll of money which had been thrown away by the man in his flight, became thereby a bailee of such money; and where such facts were undisputed upon the trial of the constable for larceny of the money under see. 4415, Stats. (1898), the court properly instructed the jury that if the accused converted any of such money to his own use he did so as bailee.</p> <p>7. Sec. 4415, Stats. (1898), abolishes the distinction between conversion by a bailee of an entire thing and the unlawful breaking of a package and conversion of part or all of the contents, each of such acts differing from ordinary larcenies by the absence of the element of trespass in gaining original possession; so that where the evidence shows the breaking of a package of money and the extracting therefrom of a part of the contents, acquittal of the accused under a count charging larceny of the money is not inconsistent with his conviction, under another count, of the statutory offense of larceny by a bailee.</p> <p>8. Misconduct of the jury, after the panel had retired, in getting possession of a newspaper and reading therein an account of their deliberations, and misconduct of the officer in charge in permitting the jury to get possession of such paper, do not call for a reversal of the judgment unless it appears to this court that, had the improper conduct not occurred, the result might, within reasonable probabilities, have been different.</p> <p>9. Such misconduct, as well as the misconduct of the newspapers in publishing the secrets of the jury room, are highly reprehensible and should be rebuked or punished by trial courts.</p> <p>10.A person is not necessarily incompetent to testify because of impaired mental condition at the time of the occurrences in question. Whether he is so mentally infirm as not to be entitled to testify at all” is a question for the trial court, and its decision in favor of receiving the testimony for what it is worth cannot be disturbed unless manifestly wrong, as where the infirmity is total or such as to render the person wholly unconscious of the obligations of an oath.</p>

<p> Master and servant: Warning of danger: Negligence: Contributory negligence: Special verdict: Omissions: Waiver: Presumptions. </p> <p>1. Where in a factory a temporary and not very obvious change is made whereby a poisonous liquid flows from a hose in place of water, a reasonably explicit notice of the change should be given to employees who have been accustomed to drink the water from such hose.</p> <p>2. The ordinary warning or instruction which it is the duty of a master to give to his employee concerning latent dangers in the work is not sufficient in such case.</p> <p>3. In an action for death of an employee caused by drinking the poisonous liquid, where the negligence charged against the employer was failure to give notice of the change, the question whether the decedent was negligent in failing to investigate before drinking was sufficiently covered in the special verdict by • a question relating to contributory negligence, and no separate question concerning assumption of risk was necessary.</p> <p>4. Where there is a controversy as to whether or not the act or omission charged as negligence of the defendant did in fact occur, the jury should be required, if a special verdict is taken, to determine separately whether such act or omission occurred, and, if it did, whether it occurred in consequence of a lack of ordinary care on the part of defendant.</p> <p>5. But defendant cannot, in suck a case, complain that the only question submitted was whether in such act or omission he was guilty of a want of ordinary care, where he did not request the submission of any other or broader question covering the issue omitted, but in fact proposed a still narrower finding.</p> <p>6. All controverted matters of fact not covered by the special verdict and not brought to the attention of the trial court by the party against whom the judgment goes, are presumed to have been determined by the court in conformity with the judgment.</p>

<p>Appeal from a judgment of tbe circuit court for La Crosse county: E. C. Hig-bbe, Circuit Judge.</p> <p>Action to recover damages for tbe death of plaintiff’s intestate. Tbe deceased while employed by defendant as a blaster was killed, and, as alleged, under tbe following circumstances :</p> <p>Tbe intestate and others under a foreman were put to work for defendant in its stone quarry. There was a shelf of rock some ten feet wide, fifty to seventy feet long, and about fifty feet above the surface below, composed of rock. Erom the back side of the shelf a bank of rock and earth rose upwards, at a sharp angle backward, fifteen to twenty feet to the top of a hill or bluff. Plaintiff on the day in question, by direction of the foreman, was at work on the shelf drilling blast holes. Other employees had partially loosened portions of rock and earth from the -edge of the bank above. A large mass at the edge had been loosened so as only to be retained from rolling down by the frozen condition and roots. While the situation was such that the partly loosened mass was liable to fall at any time, that was not apparent to a person on the shelf below. The rule of the quarry was that the foreman should, personally, see that no chunks of earth or rock were allowed to be so circumstanced as to be liable to unexpectedly roll down and injure employees, and to see that no such dangers existed before putting employees at work, as in the case in question, and, further, to have due warning given to employees within the zone of danger before allowing chunks of earth and rock to be loosened and rolled down the side of the bluff. The situation in the particular case should have been known to the foreman before sending deceased to work on the shelf. The latter was entirely ignorant of such situation and was not guilty of any want of ordinary care in respect thereto. As directed he commenced operations on the shelf in the forenoon of December 31, 1909. He was not warned of the danger as before indicated. He was assured that the place was safe and relied thereon. While engaged in his work a large chunk of earth and rock suddenly became detached from the side of the bluff above and rolled down upon and killed him.</p> <p>■ There were other allegations requisite to make out a cause of action if defendant was actionably negligent in respect to the cause of the death aforesaid.</p> <p>Defendant answered putting in issue all allegations making out a breach of duty on its part and pleaded contributory negligence.</p> <p>The evidence showed, or tended to show, this: The physical conditions were as alleged in the complaint. In the progress of the work, from time to time, it was necessary to uncover rock further back on the bluff than the shelf where deceased was directed to work and above that point. The work of uncovering at the particular time of year, because of the earth being frozen, required employees to go to the proper place at the crest of the bluff above the shelf, and by the use of wedges, crack off the frozen earth by strips and allow the same to roll down. In the forenoon of the day in question the foreman directed one of the crew to do work of that sort and marked off tbe particular strip of earth to be thrown down. Dy noon such strip had been sufficiently loosened to open up a seam back of it about six inches wide on the surface, and about ten feet long. The employee was then directed to help deceased on the shelf which was in the pathway of the partly loosened strip. The two commenced work on the shelf about 2 o’clock in the afternoon. They worked together a short time before noon. The foreman did not make any effort to discover the condition of things above the shelf. It was not observable to one circumstanced as the deceased was on the shelf and he did not know of it. While he was busily engaged and the foreman and one or two others were near by the strip of frozen earth came wholly loose, rolled down, and swept him from the shelf, causing him to fall on the rocks below with fatal effect. The - foreman was under instructions to guard employees against such dangers. It was the custom for the foreman of a quarry to see that overhanging earth or rock was not left so as to be liable to roll down where employees were required to work and endanger their personal safety. The foreman in this case could have seen by casual observation before he sent the men to work in the afternoon that the strip of earth he had directed to be loosened had not been thrown down. Defendant relied upon such dangers as the one in question being prevented by the foresight of its foreman. He had full charge of the workmen and working conditions in the quarry. He directed operations as was necessary and himself took a hand in doing the work, sometimes at one place and sometimes at another.</p> <p>The jury found thus: The working place where deceased was stationed was not reasonably safe. The frozen strip of earth was loosened by directions of the foreman. He directed deceased to work where he was located when swept from the cliff. The foreman did not know of the conditions respecting the strip of earth which had been partly loosened prior to the accident. In the exercise of ordinary care he ought to have known thereof. He did not warn deceased of the danger. The latter did not know of the strip of earth having been loosened. He was not guilty of any want of ordinary care in that regard. He did not have facilities equal to the foreman for knowing of the danger. Such danger was the proximate cause of the disaster complained of. The direction given to the deceased to work where he did, under the circumstances, was a proximate cause of his death. The failure of the foreman to warn deceased of the danger was a proximate cause of his death. The deceased was not guilty •of contributory negligence. If on the facts plaintiff is entitled to recover the measure thereof should be $7,900.</p> <p>Judgment was rendered notwithstanding the verdict in favor of the defendant.</p>

<p> Public utilities: Municipal corporations: Granting franchises: Terms and conditions: Excise tax: Public utility law: Surrender of old franchises: Indeterminate permits: Uniformity: "What contracts and conditions abrogated. </p> <p>1. A public franchise, burdened with a public revenue feature, is not grantable by a state agency in tbe absence of express or unmistakable legislative authority to impose such a burden.</p> <p>.2. Mere authority to a municipality, as in sec. 17805, Stats. (1898), for the holder of a state franchise to exercise it within the corporate limits of a city by consent of and in tbe manner agreed upon therewith., does not include power to such city to exact, as a condition of such exercise, payment of an excise tax in addition to all other taxes.</p> <p>3. See. 17805 expresses no more than that the municipality may impose reasonable burdens.</p> <p>•4. Municipalities do not possess power to license occupations and exact compensation for the purpose of obtaining public revenue, in the absence of unmistakable granted authority to that effect.</p> <p>5. The mere power to exclude a corporation from exercising a franchise in a municipality, does not include power to allow such exercise on condition of submitting to a special taxation bur-ilen.</p> <p>•8. Laws should be strictly construed to avoid reading therefrom a special tax burden feature.</p> <p>'7. A law authorizing a municipality to grant to a corporation the privilege to exercise its public utility franchise therein “upon such terms and subject to such rules and regulations and the payment of such license fees as the common council may prescribe” authorizes such use to be conditioned upon prescribed rates for service.</p> <p>S. Such feature as that mentioned engrafted upon a corporate railway franchise by the state, or an authorized state agency, inheres therein and is subject to the reserved power to alter or amend.</p> <p>9.Power to a municipal or guasi-public corporation to make contracts affecting public interests, acting in the mere business capacity to deal with proprietary matters, is not to be inferred by doubtful construction.</p> <p>10. The condition of a corporate public utility franchise which inheres in the privilege as distinguished from mere contracts which the corporation may make, is subject to the provisions of the public utility law that all charges shall be just and reasonable.</p> <p>11. A corporate franchise is one thing, a mere privilege not corporate, which may be granted without condition and become mere property — be sold and pass from one to another as other property may — is a far different thing.</p> <p>12. The purpose of the public utility law of 1907 (Laws of 1907, eh. 499), was to ultimately secure uniformity in public utility franchises, — past as well as future grants, — to the end that patrons might obtain service on a plane of equality and at the lowest price practicable — producers and consumers being compelled to deal justly with, each other and both deal, justly with the public as a whole.</p> <p>13. The indeterminate permit of the public utility law, is a public privilege emanating direct from the state to own, operate, manage, or control any plant or equipment, or any part of a plant or equipment within the state for the production, transmission, delivery, or furnishing of heat, light, water, power, either directly or indirectly to or for the public, and is perpetual and exclusive, subject to the conditions of the public utility law. State ex rel. Kenosha (?. & E. Oo. v. Kenosha E. R. Oo., ante, p. 337.</p> <p>14. The scope of the privilege which springs into existence by operation of law by surrender of a franchise under the act of 1907 is the same as that of the one surrendered, divorced, however, from all the 'old conditions, and conditioned, only, upon the provisions of such act.</p> <p>15. The idea of the act of 1907 was that old franchises, with their peculiar burdens, should be treated as entireties, and that the surrender, in form, of the principal thing should operate as an extinguishment of all incidents inhering therein, and that the thing taken back should be an exact equivalent as to the privilege feature but as to incidents and duration should be referable to the public utility law.</p> <p>16. The surrender of a public utility franchise operates as a waiver by the corporation of all executory features of existing contracts regarding service charges regulated by the public utility law.</p> <p>17. The feature of the public utility law rendering nonenforceable ■■ existing contracts relating to any charge or service regulated thereby, in case of conversion of an old into a new franchise by a surrender of the former, by necessary implication, renders nonenforceable obligations of the corporation incurred as a condition of the old franchise and substitutes therefor the obligations and conditions of such law.</p> <p>18. The foregoing covers such special conditions of an old franchise as that of payment to the municipality of compensation as a consideration for the privilege, but not mere business contracts between the corporation and individuals as in case of Superior v. Douglas Co. Tel. Oo. 141 Wis. 363.</p> <p>19. To carry out the legislative idea of our system securing justice between municipalities, public utility corporations, and their patrons, future original franchises were treated in' one group, franchises given for old grants in another, — the new creations in either case to he indeterminate permits with uniform characteristics, — with municipal power to deal with the owner in any case or with the owner of an old franchise, referable solely to the public utility law.</p> <p>[Syllabus by Marshall, J.]</p> <p>Barnes, J., dissents.</p>

<p> Trial: Direction of verdict: Review on appeal: Master and servant: Dangerous machinery: Duty to guard: Injury to servant: Contributory negligence: Questions for jury: Incredible testimony. </p> <p>1. Upon a motion to direct a verdict the trial court must determine as a question of fact whether the evidence in any reasonable view would warrant any other conclusion, and if satisfied that it would not should direct the verdict.</p> <p>2. In directing a verdict under such circumstances there is no invasion of the province of the jury.</p> <p>3. The trial court’s decision of the question of fact arising upon a motion to direct a verdict should not he disturbed on appeal unless clearly wrong.</p> <p>4. A difference of opinion among the justices of the appellate court upon the question of fact involved does not preclude a holding that the trial court was right in directing a verdict.</p> <p>5. The duty to fence or guard dangerous machinery does not extend to parts thereof so located that in order to reach the region of danger a person must depart from any way which he could reasonably be expected to take.</p> <p>6. In an action for personal injury to a servant, his positive testimony that he did not know there was danger in the place in which he put his hand does not necessarily make the question of his contributory negligence one for the jury, where the circumstances so clearly overcome such testimony as to render it not in reason believable.</p> <p>7. Upon evidence showing, among other things, that plaintiff was a man fifty j'ears old and in full possession of his faculties, of ordinary intelligence, and with some experience in operating dangerous machinery containing revolving cylinders, though none with respect to'a planing machine; that without instruction as to the operation of the machine he was put to work in defendant’s factory, feeding hoards into a small planer having a single revolving cylinder armed with knives, protected in front and over the top hut open at the hack to permit the escape of shavings; that after working about five hours with full opportunity to observe, from the operation of the pulleys and belts connected with the machine, the noise and vibration resulting from its operation, and the stream of shavings thrown therefrom, as well as its effect on the boards, that a powerful cutting mechanism was revolving within a very narrow zone, although the knives were invisible when running at full speed, he attempted, unnecessarily, to brush away with his hand the shavings that accumulated on a metal bar just back of the cylinder, and was injured by the knives, — it is held that there was no error in directing ra verdict for defendant either on the ground that no actionable negligence was shown or on the ground that plaintiff was conclusively shown to have been guilty of contributory negligence, although he testified that he did not know that knives were revolving in the region where he placed his hand.</p>

<p> Accident insurance: False statement by applicant: Evidence: Change of occupation: Injury in prohibited occupation: Liability: Notice of prohibition: Amount of recovery. </p> <p>•1. Fraud must be proven -with some degree of certainty and cannot be inferred or presumed from ambiguous evidence.</p> <p>2. No false representation by an applicant for accident insurance in stating that be was by occupation a miller is shown by evidence that be was at tbe time operating a flour mill and that at or about or after that time be got a sawmill attachment and personally operated it.</p> <p>3. Where an accident policy recognizes the right of the assured to change his occupation and liability of the insurer to compensate him in some amount for injury sustained in a more hazardous occupation, the assured may recover for injury sustained in an entirely prohibited occupation, where he had no notice, actual or constructive, of such prohibition; and the amount recoverable is that stipulated in the policy, if no agreement or stipulation for a less sum is shown.</p> <p>4. A manual of instructions gotten up for the guidance of the agents of an unincorporated insurer, but not brought to the attention of the assured, is not competent evidence as against the assured to change the construction which his written policy would otherwise bear.</p>

<p>Appeal from a judgment of tlie county court of Jefferson county: Ci-iaeles B. Rog-ebs, Judge.</p>

<p> Municipal corporations: Contracts for sewers: Assignment: Who may maintain action: Authority of officers: Flans and specifications: What bidders may rely upon: Computation of amount of worlc: Right to extra compensation. </p> <p>1. Where, with the consent of the city, contracts for the construction of sewers were sublet and the subcontractors fully performed the work thereunder, an assignment of the contracts by the original contractor to the subcontractors was valid and entitled the assignees to maintain an action for extra work done under the contracts, even though the city did not know of or consent to such assignment.</p> <p>2. In dealing with a public corporation a contractor is bound to know the extent of the authority of its officers as well as of the corporation itself.</p> <p>3. In bidding upon sewer work in a city governed by the general charter law, contractors are to be guided by the plans and specifications prepared and filed pursuant to see. 925 — 214, Stats. (1898), and have no right to rely upon a “bidding sheet” containing computations of the amount of excavation and other work to be done, though prepared and furnished to them by the city engineer; and where such plans and specifications are correct, and especially where the contract in terms provides that the work shall be done in accordance therewith, the contractor cannot recover extra compensation for work required thereby, even though it is in excess of the amount shown by such bidding sheet.</p> <p>4. The statute has placed the burden of computing the amount of work in such a case upon the bidders and not upon the city; and the courts are not bound to accept as true the testimony of witnesses to the effect that bidders could not compute the amount of excavation from plans which included profiles carefully drawn to scale, showing the existing surface of the street and the bottom line of the sewer.</p>

Lueck, Circuit Judge. This is an action in equity to wind up a partnership, and from an order overruling a general demurrer to the complaint the defendant appeals.

Luece, Circuit Judge. Plaintiffs allege that in the fall of 1906 they entered into ■an agreement with the defendant whereby the defendant •agreed to pay to the plaintiffs the sum of $500 commission in the event of their securing a purchaser at a stated price for defendant’s hotel property in the city of Elkhom.

Ruege, Circuit Judge. This action was brought against Q. M. Kuenzie, appellant, and Louis N. Meyer and Xavier Maier, defendants, upon a promissory note for $300 made and executed by the defendant Louis N. Meyer on the 30th day of December, 1900, payable one year after date with six per cent, interest.

<p>Appeal from a judgment of the circuit court for Wauke-sha county: MabtiN L. Luece, Circuit Judge.</p>

Lueoic, Circuit Judge. . On August 2, 1892, the defendant Qeorge A. Cairncross executed and delivered his promissory note to Samuel E. Dale, whereby he agreed to pay said Dale $2,500 with interest at six per cent, three years after date. To secure the payment of this note said Ceorge A. Cairncross and Jean B. Cairncross, his wife, executed a mortgage on certain real estate, part of which constituted the homestead of said defendants.

ApplicatioN to tbis court for a writ of mandamus against the Honorable William: J. Tuenee, judge presiding in the circuit court for Racine county in the absence of Honorable E. B. Beldbn, to compel Judge TueNee to vacate certain orders denying motions of the relator for a writ of ne exeat against Elmer W. Hart and commanding him to issue said writ.

D. Hastings, Circuit Judge. Action to recover purchase price of goods paid for but not delivered. On May 15, 1901, plaintiff bought of the defendants goods described in the contract of purchase as follows: One (1) bottom lathe. One (1) rotary matcher. The remains of pail lathe, which consists of stands and spindles.

D. Hastings, Circuit Judge. This is an action in equity to remove alleged clouds upon the plaintiff’s title to land, and from judgment in plaintiff’s favor the defendants Rollman and Johnson appeal. The plaintiff is the owner of lot 4 in section 12, town 29 north, of range 17 east, in Oconto- county, Wisconsin. This lot is the fractional southeast quarter of the southwest quarter •of the section.

D. HasxiNgs, Circuit Judge. This action was brought to remove a cloud from the title to plaintiff’s land created by the assessment and levy of certain taxes upon its real estate in the year 1909 to pay for the construction of sewers proposed to be laid by the defendant city, on the ground that the proceedings of the common council and its officers in the assessment and levy of such taxes were illegal and void and the taxes based thereon consequently illegal and void.

Appeals from a judgment of tbe circuit court for Brown county: WabbeN D. TabbaNT, Judge. Tbe plaintiff and defendant were married in November, 1899. In October, 1909, tbe plaintiff commenced an action for divorce on tbe ground of cruel and inhuman treatment. Tbe defendant counterclaimed, alleging cruel and inhuman treatment and asking for a separate maintenance.

<p> New trial: Discretion: Presumption: Appeal from order: Dismissal. </p> <p>1. A new trial granted without specifying any reason therefor, but upon condition of the payment of the costs of trial, will be presumed to have been granted in the discretion of the court because it was dissatisfied with the verdict.</p> <p>2. An appeal from a discretionary order will be dismissed if there was no abuse of discretion.</p>

<p> Municipal corporations: Firemen’s pension fund: Statute construed. </p> <p>1. Under sec. 959 — 46w, Stats. (Laws of 1907, ch. 214), — providing that any member of a fire department of a city of the second, third, or fourth class “having served twenty-two years or more in such department” shall, upon retirement or discharge, have a monthly pension “equal to one half of the monthly compensation allowed such member as salary at the date of his retirement” or discharge, — one who served during a part of the twenty-two years as a volunteer, not devoting his whole time to the service, is entitled to the pension if there is a monthly compensation incident to his service at the time of its termination.</p> <p>2. It seems that the “monthly compensation allowed ... as salary,” by which the pension is to be measured, need not he in the form of a stated amount per month, but may be a specified sum per year, payable annually, quarterly, monthly, or otherwise.</p>

<p> Interest: Account stated: Waiver of agreement. </p> <p>Plaintiffs’ oral agreement that if defendant would continue to buy goods of them no interest would be charged on his account was waived by defendant’s subsequent conduct during four years in receiving and acquiescing in statements of account in which interest was charged, and in making payments on account without protest after knowledge that his remittances were being credited on the amount of principal and interest and the balance carried forward as an item into the nest statement.</p>

<p> Trespass upon land: Who may sue: Constructive possession follows title: Wrongful cutting of timber: Single cause of action: Homestead entry: When title is acquired: Settlement for trespass with U. S.: Patent: Doctrine of relation. </p> <p>1. Where the plaintiff in an action for trespass upon land was not in actual possession but relies on constructive possession, he must establish such possession by showing that he had good title.</p> <p>2. A trespasser on unoccupied land can be made to respond in damages but once, and then to the owner.</p> <p>3. Sec. 4269, Stats. (1898), does not give more than one right of action for a single injury to the freehold.</p> <p>4. An entryman under the homestead law acquires no title to the' land until he has complied with the law and has earned his. patent.</p> <p>5. If, before the homesteader has taken possession and while his' right to the land is still inchoate, a trespass is committed thereon, the sole right of action is in the United States as owner.</p> <p>6. Such right of action is extinguished by a settlement made by the-trespasser with the United States, and is not revived by subsequent issuance of the patent to the homesteader.</p> <p>7. The equitable doctrine of relation cannot be applied to such a case-for the purpose of compelling the trespasser to pay twice for the same wrong. If it has any application, it operates merely to charge the government as trustee of the patentee for the. amount collected for the trespass.</p>

H. Reid, Circuit Judge. Action to recover damages for a personal injury. Tbe following is a summary of tbe claimed facts upon wbicb tbe relief was demanded: Plaintiff for some time before be was injured, as hereafter alleged, was employed by defendant as oiler.' One machine be attended was a large electrically operated pump. There were two horizontal shafts in an iron frame resting on an iron base, tbe top of wbicb base was about eight inches from tbe floor.

<p>Appeal from a judgment of tbe circuit court for Lincoln county: A. H. Held, Circuit Judge.</p> <p>Tbis action was brought to recover tbe purchase price of shoes sold and delivered to defendant. Tbe defense is breach of warranty as to quality and rescission of tbe contract of sale ■on discovery of defects. Tbe jury returned tbe following verdict:</p> <p>“(1) Did tbe plaintiff in making tbe agreement for sale of tbe shoes bere in question to tbe defendant in October, 1901, agree that tbe shoes then agreed to be sold should be made of solid leather? A. Yes.</p> <p>“(2) Did tbe plaintiff in October, 19 07, as a part of tbe agreement with tbe defendant for tbe sale of tbe shoes bere in question, warrant that tbe shoes which would be delivered pursuant to said agreement would be of as good quality as any of like pattern then being sold to tbe retail shoe dealers in tbe market at tbe same prices ? A. Yes.</p> <p>“(3) If you answer question number 2 ‘Yes,’ then did tbe shoes delivered to tbe defendant pursuant to said agreement •conform to said warranty? A. No.</p> <p>“(4) If you answer question number 3 ‘No,’ then were tbe particulars in which said shoes did not comply with said warranty observable to an experienced shoe dealer of ordinary intelligence, using ordinary care and attention to bis business ? A. No.</p> <p>“(5) Was tbe fact that tbe shoes delivered to tbe defendant in March, 1908, were not of solid leather observable to an experienced shoe dealer of ordinary intelligence exercising ordinary care and attention to bis business? A. No.</p> <p>“(6) Did tbe defendant ship back tbe shoes in question and notify tbe vendor that they were not in accordance with tbe agreement of purchase, within a reasonable time after having received tbe shoes ? A. Yes.”</p> <p>Plaintiff moved for directed verdict and to change tbe answers to questions in tbe special verdict, which motions were denied and judgment rendered for defendant on tbe verdict, from which this appeal was taken.</p>

<p> Master and servant: Injury to minor servant: Knowledge of danger: Warning: Duty of master: Yice-principal: negligence: Contributory negligence: Questions for jury: Special verdict: Instructions to jury: Burden of proof: “Accident:” Damages. </p> <p>1. Plaintiff, a young man seventeen years of age, inexperienced in logging, whose incapacity as a teamster had been called to the attention of the defendant’s foreman, was injured while walking, by order of the foreman and without warning of the danger, beside the pole team and driving the middle one of three teams attached to a loaded log sled, which was being pulled down a rather steep descent in a narrow roadway between banks of snow, by reason of one runner of the sled coming in contact with an obstacle, thereby causing the tongue to swing violently to one side and throw the near pole horse against him, felling him to the ground, where the sled- ran over him. Held, upon the evidence, that the danger was not so obvious nor plaintiff’s experience so sufficient as to warrant the court in saying as matter of law that he should have known such danger or that warning was unnecessary; and that the questions of negligence and contributory negligence were therefore for the jury.</p> <p>2. In such case the fact of plaintiff’s knowledge or lack of knowledge of the danger, and the fact whether he ought to have known of the same, were relevant as bearing both upon the question of defendant’s negligence in failing to give warning and upon plaintiff’s assumption of the risk and contributory negligence; and so far as they went to establish the former the burden of proof was on the plaintiff, but so far as they constituted essentials of the defenses named the burden was on the defendant.</p> <p>8. The trial court having submitted these elements in an appropriate question, not directly or specifically, but as items of fact going to prove or disprove want of ordinary care on the part of defendant’s foreman in failing to warn the plaintiff, — incorporating them into the question by the charge to the jury and instructing that the burden of proving such want of ordinary care was on the plaintiff, — it was not error to refuse to submit the specific question, whether a person of plaintiff’s age and. experience ought to have known that the tongue was liable to swing with enough force to throw the horse or neck-yoke against him.</p> <p>4. Nor was it error in such case to submit separately the question of contributory negligence by the questions, “Did plaintiff know that in going down the hill the near pole horse was liable to be thrown to the side by the swinging of the tongue of the sleigh?” and “Ought the plaintiff, in the exercise of ordinary care, to have comprehended the danger of being thrown down by reason of the pole horse being thrown to the side by the swing of the tongue of the sleigh?” and to charge that, upon the issue so submitted separately from the question of defendant’s negligence, the burden of proof, was upon the defendant.</p> <p>5. Under the facts as stated the duty, if any, to give warning was a duty of the master, which he must exercise himself or through a vice-principal, — in this case the foreman, — and if plaintiff’s injury resulted proximately from neglect of this duty, concurring negligence of the foreman as a fellow-servant in some other 1 duty would not change the result.</p> <p>6. Where in answer to proper questions the jury found negligence of defendant and that it was the proximate cause of plaintiff’s injuries, refusal to submit the question whether such injuries were the result of “mere accident” was not error, though in some cases such a question would be proper.</p> <p>7. For an injury resulting in loss of an arm and in great pain and >. suffering, an'award of $6,975, approved by the trial judge, is held not so excessive that it should be set aside by this court.</p>

<p>. Appeal from a judgment of the circuit court for Lincoln county: A. HJ Eeid, Circuit Judge.</p> <p>This is an action for malpractice brought against the defendant, who is a physician and surgeon. On Eebruary 11, 1904, the plaintiff suffered injuries to his hands and right wrist. He applied to the defendant for medical and surgical treatment, which resulted in the amputation of his right hand at the wrist joint. Several bones in his left hand were broken and this injury was also treated by the defendant. Plaintiff brings this action for malpractice to recover damages in the sum of $20,000, setting up two causes of action in his complaint, (1) alleging negligent and unskilful treatment which resulted in the unnecessary amputation of his right hand, and (2) alleging that by reason of the negligent and unskilful manner in which the defendant examined and administered to plaintiffs injuries the bones which were broken in his left hand were not set in place until eight days after the injury, as a result of which the fingers of said hand have become stiffened and the usefulness of the hand impaired, and that plaintiff has suffered great physical pain. The answer of the defendant is a general denial, and as a second defense to each of the two causes of action defendant alleges that he began his treatment of the plaintiff’s injuries ■on the 11th of Eebruary, 1904, and that plaintiff left his ■care and treatment on Eebruary 25, 1904, and after that date received no further medical or surgical attention from him; that this action was commenced on Eebruary 4, 1910, and that no notice in writing as required by subd. 5, sec. 4222, Stats. (1898), has ever been served on said defendant. Plaintiff demurred to the second defense set out in defendant’s answer, which demurrer was overruled. This .appeal is taken from the order overruling plaintiff’s demurrer.</p>

<p>Appeal from a judgment of tbe circuit court for Columbia county: Chbsteb, A. Eowlee, Circuit Judge.</p> <p>Action brought to recover the sum of $75 which defendant received from plaintiffs as an advance payment upon the purchase price of his 1906 crop of tobacco, which was never delivered. The defendant interposed a counterclaim alleging that, although the tobacco conformed to the requirement of the contract of purchase, it was rejected by plaintiffs, to his damage in the sum of $187.65, for which sum, less the $75 paid him, he demanded judgment. Upon the verdict of the jury the court awarded judgment in favor of defendant upon his counterclaim in the sum-of $184.95 and dismissed plaintiffs’ complaint. The plaintiffs appealed.</p>

<p>EbbOR to review a judgment of tbe municipal court for tbe eastern district of Waubesba county: C. E. Armih, Judge.</p>

<p> Schools: Free high school districts: Dissolution: Statute construed. </p> <p>Sec. 490a, Stats. (Laws of 1907, ch. 588), relating to dissolution of free high school districts, applies to high school districts formed under sec. 490 (Laws of 1909, ch. 217), hut not to joint free high school districts formed under sec. 491 (Supp. 1906).</p>

<p> Criminal law: Appeal and error: Review: Verdict: Exceptions: Repositions on behalf of accused: Use by state: Waiver of constitutional rights: Nonprejudicial errors: Evidence: Relevancy. </p> <p>1. The rule that the finding of a jury must be regarded as a verity on appeal if in any reasonable view of the evidence such a conclusion could have been arrived at, applies to verdicts in criminal cases.</p> <p>2. Where objection to use by the state of a deposition taken on behalf of the accused was not insisted upon at the trial, and no exception was taken to the ruling permitting such use, the objection is not available on writ of error.</p> <p>3. A deposition taken on 'behalf of accused and placed and left on file, whether offered by him or not, may be used against him— he having to that extent waived his right to meet the witness face to face.</p> <p>4. The defendant in a criminal action may waive any right except his right to a trial by twelve jurors.</p> <p>5. Under sec. 2829, Stats. (1898), no judicial determination, whether in a civil or criminal case, will be disturbed on purely technical grounds, or on any grounds not substantially and unjustly affecting the party complaining, unless the written law so provides.</p> <p>6. The question whether evidence offered to show guilty intent could reasonably be considered as tending to prove such intent is largely a matter of judgment, and a ruling of the trial court thereon will not be disturbed except for manifest error.</p>

<p> Trusts: Construction of agreement with creditors: Implied direction as to surplus: Evidence: Parol proof of extrinsic facts. </p> <p>1. Where a trust agreement providing for a conveyance of property for the payment of debts of the grantors, but containing no express provision for the return to them of any surplus, left it doubtful what the intent of the grantors was in that regard, it was proper to receive and consider extrinsic evidence as to the facts and circumstances surrounding the parties at the time of its execution in order to arrive at its proper construction.</p> <p>2. Where such agreement on the one hand recited that the grantors had “ample property” to pay their debts if it were not sacrificed, mentioned the “services of the trustees” as part of the consideration of the transfer, directed that the trustees continue the business until a certain date “unless the debts be sooner paid,” provided for an annuity to be paid one of the grantors during the closing of the estate, and in the certificate of acknowledgment referred to the trustees as “trustees for the said parties and their creditors;” but on the other hand called said trustees in the body of the agreement “trustees for the creditors,” absolutely discharged the personal liability of the debtors in consideration of the transfer, provided for calling a meeting of creditors to “realize and divide the estate,” and required that the books and accounts of the trustees should be at all times open to creditors, not mentioning the debtors, it is held, upon extrinsic proof showing that no surplus was anticipated by at least one of the debtors at the time of making the agreement, and that both had considered the subject of providing in the agreement for the disposal of any surplus but omitted it from the final draft, that the trial court properly found the conveyance to be absolute for the benefit of the creditors alone, and that there was no trust for the grantors.</p> <p>3. In such case .the trustees having, for lack of purchasers, conveyed the residuum of the property to a corporation organized by the creditors for the purpose of taking title thereto, neither the trustees nor such corporation was under obligation to account to the debtors in respect to the property so conveyed, although by the return of better times and the general improvement of business it increased largely in value.</p>

<p>Appeal from a judgment of the circuit court for Price county: James Wickham, Judge.</p> <p>This action was brought by plaintiff, a minor, to recover damages for personal injuries. The complaint alleges that plaintiff was a minor and inexperienced, and that a sprocket wheel and chain where he was working were unguarded, contrary to law and the duty of the defendant, and that plaintiff was not warned concerning the dangers incident to his work and did not know of them.</p> <p>The answer puts in issue the allegations of the complaint and alleges that plaintiff was injured while engaged voluntarily in work outside of his employment and contrary to orders ; also alleges contributory negligence and assumption of risk. The jury returned the following verdict:</p> <p>“(1) Was the sprocket wheel on which plaintiff was injured so located as to be dangerous to employees in the discharge of their duties ? A. Yes.</p> <p>“(2) Was it practicable, in the efficient operation of the resaw, to securely guard such sprocket wheel ? A. Yes.</p> <p>“(3) Would such a guard have lessened the danger, if any, to the plaintiff in feeding the resaw ? A. Yes.</p> <p>“(4) Did the defendant fail to exercise ordinary care in failing to securely guard said sprocket wheel? A. Yes.</p> <p>“(5) Was the failure of the defendant to securely guard said sprocket wheel the proximate cause of plaintiff’s injury ? A. Yes.</p> <p>“(6) Did the defendant’s foreman, Oscar Rasmussen, before the time when plaintiff was injured, direct the plaintiff to feed the resaw whenever he should he requested to do so by the person who usually fed that machine ? A. Yes.</p> <p>“(7) Was the plaintiff, at and prior to the time of his injury, inexperienced and ignorant of the dangers incident to the work of feeding the resaw ? A. Yes.</p> <p>“(8) If you answer question number 6 ‘Yes’ and also answer question number 7 ‘Yes,’ then did Oscar Rasmussen, at the time of giving such instructions, know that plaintiff was inexperienced and ignorant of such dangers? A. Yes.</p> <p>■ “(9) If you answer question number 8 ‘Yes,’ then did</p> <p>Oscar Rasmussen fail to exercise ordinary care in failing to warn plaintiff of such dangers? A. Yes.</p> <p>“(10) If you answer question number 9 ‘Yes,’ then was such failure to warn plaintiff of such dangers the proximate cause of plaintiff’s injury? A. Yes.</p> <p>“(11) Was the plaintiff, prior to the time of his injury, chargeable with notice that on account of his inexperience he might probably be injured in attempting to feed the resaw ? A. No.</p> <p>“(12) Did any want of ordinary care on the part of plaintiff contribute to produce his injury? A. Ho.</p> <p>“(13) If the court should determine that the plaintiff is entitled to judgment on this verdict, at what sum do you assess the plaintiff’s damages ? A. $2,800.”</p> <p>Motions were made by defendant for nonsuit, directed verdict, for judgment notwithstanding the verdict, to change the answers of the jury in the special verdict and for judgment in its favor on the modified verdict, and for a new trial. These motions were respectively denied and judgment ordered for plaintiff on the verdict, which was entered, from which this appeal was taken.</p>

<p>Appeals from a judgment of the circuit court for Winnebago county: Geo. W. Buenell, Circuit Judge.</p> <p>The defendant Crandon State Bank appealed from the whole of the judgment of foreclosure. The defendant Keith appealed from that portion of the judgment which gave plaintiff, Shaw, a priority over him, and also that portion which required him to deposit the notes therein mentioned as a condition of receiving any part of the proceeds of the foreclosure sale.</p>

<p> Mortgages: Homestead: Reformation. </p> <p>The description in. a mortgage cannot he corrected, in an action to reform the instrument, so as to include the homestead of the mortgagors, who were husband and wife at the time of its execution. Sec. 2257, Stats. (1898), does not relate to an action for reformation, and the amendment of sec. 2203 by ch. 45, Laws of 1905, did not alter the rule.</p>

<p>Appeal from a judgment of the circuit court for Monroe' county: Cuestes A. Fowlee, Judge.</p> <p>Action for a mandatory injunction. The findings of fact indicate the issues presented for determination. The substance thereof is as follows: In 1895, Eugene Sullivan owned and possessed lots 7, 8, 9, and 10 of block 3 of the village of Norwalh. Plaintiff acquired title thereto sometime before commencement of this action and ever since has continued to be the owner thereof. While Sullivan owned the lots the village board caused a building to be constructed for municipal purposes in the street in front thereof. Plaintiff was then a member of the board and participated in the proceedings in respect to the matter and consented thereto. Before constructing the building the board obtained from Sullivan a writing, duly witnessed and executed under seal, but not expressing any consideration, releasing,' on behalf of himself and all persons who might claim under himj all demands, actions, or causes of action which might result from constructing the building as proposed. The paper was executed to afford the village authority, as regards the land owned by Sullivan, to obstruct the street by placing the building thereon. About eleven years after the building was constructed the village board passed a resolution to remove it from the street. ’Two days thereafter it rescinded the resolution. Some time ’thereafter plaintiff constructed a building on his land. .Plaintiff demanded removal of the building from the street ¡and it was refused. Thereafter this action was commenced. Plaintiff bas been damaged to the extent of $2 per month from the 1st day of January, 1907, or a total of $72, by reason of defendant’s conduct.</p> <p>Upon such facts the court decided that the instrument given by plaintiff’s predecessor in title was void and no defense to the action; that plaintiff was not estopped by the acts ■of such predecessor, nor by his own participation in locating the building in the street, from equitably and rightfully demanding removal of the same; and that he was entitled to judgment requiring such removal and for $72 damages besides taxable costs. Judgment was entered accordingly in such form as the court directed.-</p> <p>contended, inter alia, that a municipality has no right to the use of streets for the erection of municipal buildings. 27 Am. & Eng. Ency. of Law (2d ed.)'151; First Nat. Barde v. Tyson, 133 Ala. 459, 91 Am. St. Rep. 46; State v. Mobile, 5 Porter, 279, 30 Am. Dec. 564; Lutterloh v. Cedar Keys, 15 Ela. 306; State ex rel. St. Louis U. S. Go. v. Murphy, 134 Mo. 548, 56 Am. St. Rep. 515; Savannah v. Wilson, 49 Ga. 476; Pettit v. Grand Junction, 119 Iowa, 352, 93 N. W. 381; Cooper v. Alden, Harr. (Mich.) 72; Ait’y Gen. ex rel. Holtz v. Heishon, 18 N. J. Eq. 410; Harrisburg^s Appeal (Pa.) 10 Atl. 787; O’Neal v. Sherman, 77 Tex. 182, 19 Am. St. Rep. 743, 746; Barrotes v. Sycamore, 150 Ill. 588, 41 Am. St. Rep. 400. The street having been platted and dedicated to the nse of •public travel, the village of Norwallc had no power to devote it to a different public use. Fort Wayne v. L. S. ■& M. S. R. Oo. 132 Ind. 558, 32 Am. St. Rep. 277, 283; 20 Am. & Eng. Ency. of Law (2d ed.) 1188; Kimball v. Kenosha, 4 Wis. 321, 330; Hibbard, S., B. <& Go. v. Chicago, 173 .Ill. 91, 40 L. R. A. 621, 622. The municipality cannot authorize the construction of a building within the limits of the highway which in any manner interferes with the access or beneficial enjoyment of the abutting lotowner. Elliott, Roads & Streets (2d ed.) § 653; 27 Am. & Eng. Ency. of Law (2d ed.) 149, 150. A street cannot be vacated or abandoned by a proceeding of this character. 27 Am. & Eng. Ency. of Law (2d ed.) 117; Denver v. Girard, 21 Colo. 447. The so-called release is nothing more than a release of damages accruing to the grantor, and could only bind the party executing the same. To give it any other effect would be to say that an abutting owner could legalize the maintenance of a nuisance in the highway. Tilly v. Mitchell & L. Go. 121 Wis. 1, 6; Donohoo v. Murray, 62 Wis. 100, 103; McFa/rland v. Lindelcugel, 107 Wis. 474, 477, 478; Grand Rapids &■ I. R. Go. v. Heisel, 47 Mich. 393; Kimball v. Kenosha, 4 Wis. 321, 330. The agreement permitting the municipality to maintain a public nuisance is in violation of statute and is void as against public policy. Secs. 904, 1326, Stats. (1898); Jaones v. Dar-lington, 71 Wis. 173; Ashland v. C. ■& N. W. R. Go. 105 Wis. 398, 404; Johnston v. Lonstorf, 128 Wis. 17. The doctrine of estoppel cannot be invoked to sustain an unlawful act. Kingman v. Graham, 51 Wis. 232; Neubauer v. Gabriel, 86 Wis. 200; Priewe v. Wis. S. L. •& I. Go. 103 Wis. 537. The doctrine of estoppel is not applicable when public rights are concerned. Elliott, Elements of Mun. Corp. § 102; Webb v. Demopolis, 95 Ala. 116, 21 L. R. A. 62, 63, 71. No'estop-pel can arise from an act of a municipal corporation or its officers in violation of or without authority of law, or even ultra vires acts. Hibbard, 8., B. & Go. v. Chicago, 173 Ill. 91, 40 L. R. A. 621; Stevens v. 8t. Mary’s T. School, 144 Ill. 336, 18 L. R. A. 832, 838; Kichenlaub v. St. Joseph, 113 Mo. 395, 18 L. R. A. 590, 593; Baldwin v. Shill, 3 Ind. App. 291, 29 N. E. 619; Snyder v. Mt. Pulaski, 176 Ill. 397, 44 L. R. A. 407, 409; 16 Oye. 781; Webb v. Demopolis, 95 Ala. 116, 21 L. R. A. 62.</p>

<p>Appeal from a judgment of the circuit court for Columbia -county: Chestee A. Eowlee, Circuit Judge.</p> <p>The appeal is from a judgment refusing to admit to probate a will of Patrick Powers, deceased, alleged to have been lost. The trial court found as facts:</p> <p>“1. That Patrick Powers, a resident of the town of Elba, IDodge county, Wisconsin, died at said town on January 24, 1908, owning estate to be administered therein; that be was-a bachelor, about seventy-five years of age, and had long resided in said town; that he left surviving his next of kin and' heirs at law three brothers and two sisters, viz.: Michael,. Thomas, and James Powers and Mary Hollihan and Anastasia Eooney, and the children of three deceased brothers,, viz.: William N., Christopher C., and Margaret Ann Powers,, children of Nicholas Powers, deceased, who was a brother of' said Patrick Powers; and Esther Cotter, Margaret, Winni-fred, William, Thomas, John, James, Stephen and Nicholas. Powers, children of Morris Powers, deceased, who was a brother of said Patrick Powers; and Margaret and Nellie' Powers, children of William Powers, deceased, who was a-, brother of said Patrick Powers.</p> <p>“2. That said Sarah C. Powers, widow of said Nicholas-Powers, deceased, and the mother of his said children, in April, 1908, presented her petition to the county court of' Dodge county, wherein she prayed the court to take proof of the execution and validity of a will of the decedent alleged to' be lost or destroyed, by accident or design, and for the admission of said will to probate as the last will and testament' of Patrick Powers, deceased; that the contestants herein appeared in opposition thereto; that at the conclusion of the trial of said issues, said court found adversely to the petitioner and entered judgment denying her petition.</p> <p>“3. That the said Sarah 0. Powers appealed from said decision and judgment to the circuit court of said county on the-ground that she is the executrix named in said lost will and was aggrieved by said judgment; that thereafter said Sarah G. Powers filed an affidavit of prejudice on the part of the-presiding judge of the circuit court for Dodge county, and thereupon, and by order of said court, the place of trial of' this action was duly changed to the circuit court in and for Columbia county.</p> <p>“4. That said Patrick Powers, deceased, did on or about the 18th day of December, 1888, make, execute and publish his will; that he was then ill at the home of Sarah G. Powers,. but was competent to make a will.</p> <p>“5. That Henry A. Hills, a farmer and next-door neighbor,, acted as scrivener in the making of said will,- and it was witnessed by him and by James Powers, a brother of the decedent.</p> <p>“6. That said will contained a legacy to tbe testator’s brother, James Powers, but that the amount and terms of said legacy are uncertain. There was a bequest made to the church of Elba, or to some priest, it does not appear to which, but the amount of said legacy is wholly unproved; that the children of said Sarah 0. Powers were made residuary legatees and devisees with some provision, which is wholly undisclosed, regarding the time when they should take; that the contents of said will are not proved or established with sufficient certainty to enable the court to determine what its terms and conditions actually were; that it caupot be determined with reasonable certainty if any one was named as executrix in the will.</p> <p>“7. That, at the time of its execution, said will was not left in the custody of said Mr. Hills, nor was it ever thereafter in his custody; that the decedent, Patrick Powers, kept the will in his own possession at the time of its execution, and that it was never thereafter in the possession of any other person.</p> <p>“8. That the testator, the said Patrick Powers, destroyed said will with intention to revoke the same.”</p> <p>Erom a judgment affirming that of the county court of Dodge county, the proponent, Sarah 0. Powers, appealed.</p>