Volume 146 — Wisconsin Reports

<p>Master and servant: Negligent operation of derrick: Injury to serv- ' ant: Statutory duty of master: Viee-principal: Assumption of risk: Qtiestions for jury: Proximate cause: Special verdict: Construction: Consistency: Evidence: Changes made after accident.</p> <p>1. In an action by a servant for injuries sustained in jumping from a building to escape being struck by a falling derrick, tbe first question and its answer in the special verdict were: “Was the face derrick which was being used and operated at the time the plaintiff was injured not so constructed and operated as to give proper protection to the life and limb of the plaintiff, because of its being on wheels and not so fastened as to prevent its moving on its wheels and tipping over? A. Yes.” Held, that in submitting such question the court evidently endeavored to follow the statute — sec. 1636 — 81, Stats. (Supp. 1906: Laws of 1901, ch. 257, sec. 1), — and that the answer was a finding that the derrick was not properly placed and operated, because of being on wheels, etc.</p> <p>2. If there was any vagueness or ambiguity in such question, its meaning was made plain by the charge, which directed the jury to answer “Yes” if they found the derrick was not properly placed and operated by reason of the facts recited therein.</p> <p>S. Such question was not objectionable as covering more than one controverted issue, since the word “constructed,” as used therein, manifestly refers to the placing of the derrick, not to its physical construction.</p> <p>4. The answer to such first question is not inconsistent with a finding, by answer to the fifth question, that the derrick was constructed, (clearly referring to its physical construction) in the way such derricks are usually constructed for work of the kind then being done, by persons of ordinary care and experience in like business; and both are consistent with a further finding, by answer to the sixth question, that such derrick was not placed and operated in the manner usually employed, under like circumstances, by persons of ordinary care and experience in like business.</p> <p>5. Whether or not, under said sec. 1636 — 81, the defendant was charged with a greater duty than the exercise of ordinary care, need not be decided in this case, since a want of ordinary care was found by the answer to the sixth question.</p> <p>6. The duty of the master under said statute, as to the appliances therein mentioned, is not delegable, but whoever performs it is a vice-principal for whose default he is liable.</p> <p>7. Upon the evidence in this case it cannot be said as matter of law that plaintiff was charged with knowledge of the danger arising from the fact that the derrick in use was on wheels and not so blocked or otherwise fastened as to prevent it from moving from its position while being operated.</p> <p>.8. A finding that the defects mentioned in the first question were a proximate cause of plaintiff’s injury is not inconsistent with a finding that a want of ordinary care in fastening the timber which was being lifted into place when the derrick tipped over was also a proximate cause of the injury, as the slipping of the rope on the timber would not have caused the injury had the derrick not tipped over.</p> <p>■9. Evidence that after plaintiff’s injury a change was made, so that instead of standing close to the derrick the men operating the cranks in doing the hoisting occupied a position some sixty feet away, was admissible, not for the purpose of showing negligence on the part of the defendant, but to show that it was practicable to so place the men that they would be out of danger.</p>

H. Reid, Circuit Judge. This is a mechanic’s lien action brought by materialmen to enforce liens upon the defendants’ concrete dam in the Wisconsin river, for materials consisting of lumber, timber,, and hardware sold by them to one Painter, the principal contractor, and which the plaintiffs claim were furnished for, in,, and about the- erection and construction of the dam within the meaning of the mechanic’s lien statute. The facts were not substantially in dispute.

A. Fowler, Circuit Judge. The complaint sets forth two causes of action. The first' cause of action is brought to recover for work and labor performed and materials furnished in the construction of a-foundation, wall, walks, floor, and steps at defendant’s farm Plaintiff alleges that by reason of such work done and ma terials furnished the defendant became indebted to him in the sum of $204.40; that of this amount $174.50 has been paid, leaving a balance due of $29.90.

Fowler, Circuit Judge. This is an appeal by tbe purchaser of real estate at a foreclosure sale from an order confirming' tbe sheriffs report of sale upon condition only that tbe defendants do not within twenty days either (1) pay tbe purchaser the amount of his bid, viz. $2,200, with legal interest from the day of sale, or (2) failing such redemption, furnish a sufficient bond that in case there be a resale and the premises do not sell for $2,200 above all expenses the…

Eowlee, Circuit Judge. This is an appeal from a judgment quashing an alternative writ of mandarrms. The appellants are resident freeholders of the town of Otsego, Columbia county, and the respondents are the supervisors of said town. In 1909 the then supervisors of the town laid out a ditch therein and assessed benefits against the lands of appellants, and other lands, resulting from the construction thereof.

E. EichteR, Judge. This is an action to quiet title to about forty acres of land. 'Tbe complaint alleges tbat Justine Schmidt, formerly Justine Rosenthal, the mother of the plaintiff, had an interest in the real estate involved in this action, derived under the will of her former husband, Carl Frederick Rosenthal.

Eowleb, Circuit Judge. This action was brought by the plaintiff through his guardian ad litem to recover for personal injuries. At the time •of the injury plaintiff was about twenty years of age, but at the time of the trial had arrived at majority and the action was continued by him personally.

Ray Stevens, Judge. On May 28, 1898, the J. L. Gabes Land Company was the owner of 120 acres of land situated in Eau Claire county,. which land was wild and unoccupied and remained so until June 1, 1904. On May 31, 1901, Eau Claire county issued a tax deed to Lelon A. Doolittle on said land, which, deed was based on tax-sale certificates from the year 1898, issued because of the nonpayment of the taxes on said land.

Action upon promissory notes signed on the face thereof by •one William Putnam, not a party to the action, and on the back thereof by the. defendants. Plaintiff claims defendants signed as makers. They claim they signed as indorsers only, and as such were released by failure to give notice of nonpayment. The trial court found they were makers of the notes and entered judgment against them for $6,840 and costs, from which they appealed.

<p>Appeal from a judgment of the circuit court for Eau Claire county: James O’Eeill, Circuit Judge.</p>

This is an action to recover the sum of $40 for an upper plate of artificial teetb and a partial lower plate wbieb the plaintiff alleges were made for the defendant at her special instance and request, for her own and separate use and benefit, and which were reasonably worth the sum demanded. One of the defenses alleged is that the defendant is a married woman living with her husband and that she has no separate estate.

Pabisii, Circnit Judge. This action was brought to cancel a deed from plaintiff to -defendant Boyer for fraud and want of consideration, also to cancel a deed from defendant Boyer to defendant Alice M. Richards on the ground that said Alice M. Richards had notice of the fraud and equities existing between the plaintiff and Boyer.

<p> Debtor and creditor: Title to land: Intent to defraud: Findings: Evidence. </p> <p>In an action wherein it was sought to subject to execution certain land as the property of the judgment debtor, although the title was in the name of his children, a finding of the trial court that the children purchased the land with their own funds and for their own benefit, paying full consideration therefor, and did not take the title for the beneficial use of their father, is held to be sustained by the evidence.</p>

‘Appeal from a judgment of the circuit court for Walworth county: E. B. BeldeN, Circuit Judge. On September 13, 1901, tbe plaintiff leased to the defendant his farm of 324 acres in the town of Whitewater, Wisconsin, for two years from the first day of March nest, upon the following conditions: “Each to furnish one half of all stock and poultry kept on said farm, except horses, second party to furnish his own horses necessary for doing the work on the farm.

<p> Landlord and tenant: Unlawful detainer: Ejectment. </p> <p>An action for unlawful detainer cannot be maintained against one who went into possession of a dwelling house under an oral agreement with the owner that he might retain possession, without payment of rent, during the life of the owner in consideration of services and support, and who is not in default. If such oral agreement is void, ejectment, not unlawful detainer, is the proper remedy, because the conventional relation of landlord and tenant does not exist.</p>

B. BelbeN, Circuit Judge. Action to recover on contract for medical service and supplies. Complaint in the usual form. Answer putting in issue the recoverable value of the services, pleading payment, and counterclaiming for damages for improper performance of the contract of employment. The evidence established plaintiff’s claim, principal and interest, at $54.85.

<p>Appeal from a judgment of tibe circuit court for Ozaukee county: Mabtih L. Luece, Circuit Judge.</p> <p>This is an appeal from a judgment of nonsuit in' an action for personal injuries caused by negligence. The facts are brief and undisputed. The plaintiff, a boy between nine and ten years old, and the defendant, a boy ten years and nine months old, attendecH¿he~same public school in the city of Port Washington, and were friends. At recess on the 25th of March, 1909, both plaintiff and defendant were playing in the school yard, the plaintiff playing marbles with two other boys, and the defendant playing tag with some older boys. Just as plaintiff was kneeling down preparing to shoot, the defendant came running around the school house, being 'chased by another boy, and accidentally.ran or bumped into the plaintiff, knocking him over, and by some mischance so injuring the plaintiff’s right eye, either by putting his finger in it or forcing the eye against some object, that the sight was completely destroyed. There is no claim of malice or intentional wrong. The appellant’s claim is that there was. sufficient evidence to entitle the jury to find the defendant guilty of actionable negligence.</p>

<p>'Appeal from orders of the circuit court for Kenosha county:,E. B. Belden, Circuit Judge.</p> <p>This is an action to set aside certain special assessments, for street improvements and to restrain their enforcement and collection, and for the surrender and cancellation of the paving bonds issued pursuant to an assessment of benefits.</p> <p>The curbing, paving, and improvement of Crate street in the city of Kenosha, was begun and completed in 19 07. The improvement was ordered by the common council upon the petition of the owners of more than one half of the frontage of the lots upon the„portion which it proposed to improve. The appellant is the owner of about twenty lots on this portion of the street and was one of the petitioners. The contract was awarded to the defendant J dim O. J ones and was completed under the supervision of a city inspector. The common council Rad determined the amount of benefits on account of the improvement to be paid by the real estate and had served notice of the proposed bond issue fox the amounts charged against the real estate. The work was accepted by the city and paving bonds were issued to the contractor for the unpaid assessments. The plaintiff had given notice protesting against the assessment and bond issue and refused to pay the special assessments against his lots for this improvement, and they were returned to the county treasurer as delinquent taxes. Prior to the delinquent tax sale day, set for May 16, 1909, the plaintiff instituted this action and obtained a preliminary in junctional order enjoining the county treasurer from selling the plaintiff’s property for the delinquent taxes based upon the special assessment for this improvement.</p> <p>The complaint alleges that the work was not done in accordance with the contract and specifies the main particulars in which the work is defective, stating that no sand was placed either at the bottom or back of the curbing, as provided by the contract; that the curbing was improperly set, did not stay in place, that the line of it was rough and uneven and did not hold the pavement properly in place; and that the crushed stone and sand foundation for the brick pavement was greatly deficient in quantity and was not of eight inches of crushed stone and one inch of sand, the amounts provided by the contract. It is also alleged that the price for the work done was excessive. The plaintiff alleges his willingness to pay his just share of the reasonable value of the work actually done, in case of a reassessment, or to pay the assessments against his lots when the work is completed according to the contract. The plaintiff also' complains because no opportunity was given him to do the work himself pursuant to the terms of the city charter.</p> <p>The court sustained demurrers to the complaint and to the •amended complaint. The county of Kenosha and the county "treasurer did not answer. The demurrers to the second .amended complaint were sustained on the ground that the facts alleged showed that the plaintiff was estopped from invoking the equitable relief prayed for because he had acquiesced in the doing of the work by the city and on the ground that the statute of limitation had r-un against the enforcement •of a cause of action of the nature relied on by the plaintiff under the facts stipulated into the complaint. The court also ordered that the preliminary injunction restraining the sale of the lots for delinquent taxes should be set aside and dissolved.</p> <p>After the decision of the court sustaining the demurrers the defendant city moved that the action be dismissed because the action was not begun within the time limited by sec. 925 — 197, Stats. (1898). It was orally stipulated in open court by the counsel for the respective parties that the complaint should be deemed amended so as to allege that the action was not commenced until more than seventeen months after the expiration of thirty days from the date of the notice prescribed by sec. 925 — 191, Stats. (1898). This stipulation was reaffirmed in this court upon the argument and is to be treated as a part of the record. The court found that the action was not commenced within the period limited by sec. 925 — 197, and ordered the complaint dismissed. This is an appeal from the orders sustaining the demurrers and dismissing the complaint.</p>

<p>Appeal from a judgment of the circuit court for Kenosha county: E. B. Belden, Circuit Judge.</p> <p>This action was brought by plaintiff, an infant, through his guardian ad litem> to recover damages for personal injuries received while crossing the railway tracks of the defendant upon Broad street in the city of Kenosha. The issues raised by the pleadings were (1) whether defendant was negligent in operating its train over the highway crossing in question, and (2) whether plaintiff was guilty of contributory negligence amounting to more than a slight want of ordinary care. Defendant’s motion for directed verdict at the close of the evidence was denied. The jury returned the. following verdict:</p> <p>“(1) Was the plaintiff injured by being struck by defendant’s freight train at the time and place in question? A. (by the court). Yes.</p> <p>“(2) At -what rate of speed was the defendant’s freight train moving as it approached and passed over the Broad street crossing at the time plaintiff was struck? A. Thirty miles per hour.</p> <p>“(3) In approaching the Broad street crossing, at the time in question, was the freight train moving at an excessive rate of speed ? A. Tes.</p> <p>“(4) In approaching the Broad street crossing, at the time in. question, was the freight engine whistle sounded in time to give warning to travelers approaching and intending to cross at said crossing? A. No.</p> <p>“(5) If you answer the fourth question 'No,’ then, under the circumstances proven and in the exercise of ordinary care with reference to travelers, ought the freight engine whistle to have been sounded in approaching the Broad street crossing ? A. Yes.</p> <p>“(6) In approaching the Broad street crossing, at the time in question, was the freight engine bell rung continuously within twenty rods of and until said crossing was reached by the freight train in question ? A. No.</p> <p>“(7) Was there a failure to exercise ordinary care by the-defendant company in the manner in which it managed and conducted the freight train, respecting its speed or warning of its approach, as it approached and passed over the Broad street crossing, at the time in question? A. Yes.</p> <p>“(8) If you answer the seventh question 'Yes,’ then was such failure to exercise ordinary care the proximate cause of the injuries complained of by plaintiff ? A. Yes.</p> <p>“(9) Did any want of ordinary care on the part of the plaintiff proximately contribute to produce the injuries complained of? A. Yes.</p> <p>"(10) If you answer the ninth question 'Yes,’ then was the plaintiff guilty of more than a slight want of ordinary care which proximately contributed to produce the injuries complained of? A. No.</p> <p>“(11) At what sum do you assess plaintiff’s damages? A. $6,000.”</p> <p>Motions by defendant for judgment notwithstanding the verdict, to change answers of the jury to special questions in the verdict, and for judgment upon the verdict as modified were denied, and judgment rendered for plaintiff upon the verdict, from which this appeal was taken.</p>

<p>Appeal from a judgment of the circuit court for Kenosha, county: E. B. Beudem-, Circuit Judge.</p> <p>The plaintiff, while driving an automobile over a public highway in the nighttime in the defendant town, was injured as a result of the machine dropping off an embankment and overturning, and this action is brought to recover damages therefor. The complaint alleges that at the point of the accident there was a turnpike in the road about one hundred to> two hundred feet in length, three and one-half feet high, and' nine and one-half feet wide, the sides of which were very steep; that there was an accumulation of vegetation and weeds along the side of the road and about level therewith which was covered with dust and which deceived the plaintiff as to the width of the road; that at this point plaintiff met a horse and buggy, and, while attempting to pass, the automobile dropped off the side and down the embankment. The-answer generally denied the allegations of the complaint and charged the plaintiff with contributory negligence. The case was submitted to the jury on a special verdict, which is as follows:</p> <p>“(1) Was the highway at the time and place in question in a reasonably safe condition for public travel ? A. No.</p> <p>“(2) If you answer the first question 'No,’ then was such unsafe condition of the highway the proximate cause of plaintiff’s injuries ? A. Yes.</p> <p>“(3) Did any want of ordinary care on the part of the plaintiff proximately contribute to produce the injury ? A. No.</p> <p>“(4) At what sum do you assess plaintiff’s damages?' A. $1,500.”</p> <p>The court changed the answer to the third question from '“Ea” to “Yes,” and rendered judgment on the amended verdict in favor of the defendant, from which judgment plaintiff appeals.</p>

<p> Bastardy: Prosecution by private attorney: Statute construed. </p> <p>A bastardy proceeding under our statutes, being designed primarily for the benefit of the mother and being essentially civil in the remedy sought and the liability enforced, may be prosecuted by private counsel. Sec. 1533m., Stats. (Laws of 1907, ch. 648), making it the duty of the district attorney to appear and prosecute, does not by implication exclude private attorneys from prosecuting.</p>

<p> Perjury: Questions for jury: Instructions. </p> <p>Upon the evidence given in a trial for perjury it is held that the trial court rightly charged the jury that the alleged false testimony in question was untrue.</p>

<p> Courts: Jurisdiction: Superior court of Douglas county. </p> <p>The superior court oí Douglas county, created by eh. 33, .Laws of 1893, and given powers and jurisdiction practically co-extensive with those of the circuit courts, except that the amount in controversy in civil actions and proceedings must not exceed five million dollars, is to be regarded as a court of general jurisdiction in the legal sense, and its judgment is evidence that it had jurisdiction of the cause in which such judgment was rendered, even if the record fails to show that the amount in controversy was within the limit above stated. State ex rel. Child v. Smith, 19 Wis. 531, distinguished.</p>

<p> Foreign corporations: Correspondence schools: Contracts: Right to do business in this state: Interstate commerce. </p> <p>Teaching by the correspondence method, whe.re the teacher resides in one state and the student in another, constitutes interstate commerce, and hence cannot he affected by the provisions of sec. 17705, Stats. (1898). International T. Co. v. Peterson, 183 Wis. 302, reversed.</p>

On June 6, 1907, the plaintiff, a Minnesota corporation, and the defendant entered into a written contract at Ashland,, Wisconsin, wherein it was agreed that the former should tow a certain quantity of saw logs belonging to the latter from the-mouth of Bad river, ' Ashland county, Wisconsin, to the Thompson mill at Washburn, Bayfield county, Wisconsin, at the price of thirty cents per thousand feet, log measure.

<p>Appeal from a judgment of tbe circuit court for Marquette county: E. C. Higkbee, Judge.-</p>

<p>Appeal from a judgment of the municipal court of Ke-nosha county: Clieeoed RaNdall, Judge.</p> <p>They cited Putnam v. Broadivay •& 8. A. B. Co. 55 N. Y. 108, 115, 116, 118; Thompson v. Manhattan B. Co. 75 Hun, 548, 27 N. Y. Supp. 608; Mullan v. Wis. Cent. B. Co. 46 Minn. 474, 49 N. W. 249; Sira v. Wabash B. Co. 115 Mo. 127, 37 Am. St. Rep. 386, 391; Galveston, E. ■& 8. A. B. Co. v. Long, 13 Tex. Civ. App. 664, 36 S. W. 485; Widener v. Philadelphia B. T. Co. 224 Pa. St. 171, 73 Atl. 209; III. Gent. B. Co. v. Gunterman, 135 Ky. 438, 122 S. W. 514.</p>

TaeeaNt, Circuit Judge. In May, 1900, James D. Wade of Duluth, Minnesota, informed James L. Gates of Milwaukee', Wisconsin, that he wanted a large body óf cut-over lands. Mr. Gates told him that he had a large lot of such lands in Price county, Wisconsin, over 100,000 acres, and that if Wade would take the whole lot he would sell them to him at $1.25 per acre.

<p>Appeal from au order of tbe circuit court for Milwaukee-county: J. O. Lúdwig-, Circuit Judge.</p>

0. Eschweilep, Circuit Judge. The complaint alleges that on November 12, 1901, the plaintiff, then a minor, was employed by defendant doing, general work about its factory and machine shop as directed by the foreman in charge; that in the performance of his duties he was required to draw oil from certain barrels located near a pipe-cutting machine which consisted of a stand, wheels, shafting, and belt shifter or lever, and saws, which saws were made to revolve with great…

<p> Qivil court of Milwaukee county: Jurisdiction: Amount involved: Forcible entry and detainer: Appeal to circuit court. </p> <p>1. In sec. 6, ch. 549, Laws of 1909, giving to the civil court of Milwaukee county jurisdiction of the actions and proceedings enumerated in see. 3572, Stats. (1898), when the amount claimed or involved does not exceed $1,000, such limitation as to amount is not applicable to actions for forcible entry and detainer mentioned in subd. 9, sec. 3572, since in such actions no definite amount is involved or. can be claimed.</p> <p>2. Upon an appeal to the circuit court from a judgment of the civil court of Milwaukee county in an action for forcible entry and detainer, the procedure is governed by sec. 28, ch. 549, Laws of 1909, and not by sec. 3370, Stats. (1898), relating to appeals from justices’ courts; and hence a trial de novo is not required.</p>

<p>Appeal from a judgment of tire circuit court for Milwaukee county: W. J. TubbeR, Circuit Judg'e.</p> <p>The defendant operates a street railway system in Milwaukee, and this action is brought by the plaintiff for personal injuries resulting, as is alleged, from an assault and improjrer ejection from one of the defendant’s cars by the conductor on the evening of January 10, 1908. The plaintiff, a boy fifteen years and four months of age, had been skating with several boy companions on the evening in question at a park in the western part of the city some distance from his home, and returned homeward, reaching the corner of Clybourn and Thirty-fifth streets at about 9:30 o’clock. The Clybourn street line of the defendant’s railway ends here, and a car had just arrived at the terminus and was standing on. the north track, preparing to start eastward, as the "boys arrived at the corner. -The plaintiff and' one of his companions, named Gúy Raymond, fourteen years of age, started for the car as it was standing still, intending to get a free ride if possible. The conductor had just opened the vestibule doors on the south side and swung the trolley around and at this time was just about starting the car eastward. At this point the accounts of the transaction differ as to what followed. The plaintiff testifies that Guy asked for a free ride to Twenty-seventh street just before they got on the car; that the conductor said nothing in reply to the question, and they got on the rear platform and repeated their request when the conductor was near the stove in the middle of the car, and that he turned and ran towards them with his hands up above his head, and said, “Get off or I will kick you off;” that they immediately started and jumped off, and as they were doing so the conductor, who was then on the back platform, kicked at them; that he and Guy both jumped, facing eastward, each having hold of one of the brass handholds, and ran along two or three steps with the car; that by that time the car had passed over the switch from the north to the south track and was about at the crossing of Thirty-fourth street; that Guy ran off to the south and he (plaintiff) thought perhaps the conductor was coming off the car, and he ran around the rear of the car to the north, and as he was passing the rear trolley window the conductor reached out of the window and grabbed at him, and he gave a jump to the north and jumped right into a west-bound car just passing on the; north track and was knocked down and run over, and received injuries necessitating the amputation of one foot and seriously impairing the other. He further testified that when the conductor rushed at them and raised his foot it frightened him and he didn’t know what he was doing, and when the conductor grabbed at him from the trolley window it frightened him still more; that he had a nickel and two car tickets in his pockets at the time and was ready to pay Ms fare if he could not get a free ride. Guy Raymond corroborated the plaintiff’s version of the transaction, while two other boys of the party, Ivo Tanning and Lewis Stearns, who stood on the sidewalk and watched to see whether Harry and Ben would get a ride, also gave testimony substantially corroborating plaintiff’s story, so far as they were able to see the transaction. The conductor testifies that when the boys asked if they could have a ride he said yes, if they had any money, and they said they didn’t, and he said they couldn’t ride free, and told them to get off the car, and they got off, but came back on the step ; that this was before the car started, and he told them to get off again because he was going to start the car, and that they got off and he started the car; that the two boys had hold of the handholds and ran along with the car until the car got across the switch; that he told them to let go and then they ran away, one going south to the sidewalk and the other north around the back end of the car, and he thought perhaps the boy was hanging on to the car on the north side, so he leaned out of the rear trolley window, but didn’t see the boy, and then the west-bound car came along and the accident happened, and he at once stopped his car. The conductor absolutely denied rushing at the boys or kicking at them or grabbing at the plaintiff, and denied that he threatened to kick them off.</p> <p>The jury returned the following special verdict:</p> <p>“(1) Was Harry Lugner, the plaintiff, injured by coming in contact with and being knocked down and ran over by a west-bound car of the defendant at or near the west crossing of Thirty-fourth and Olybourn streets, in the city of Milwaukee, on January 10, 1908? A. (by the court). Wes.’</p> <p>“(2) Did the plaintiff, Harry Lugner, board the defendant’s east-bound car No. 342 at Thirty-fifth street on which Arthur Miller was conductor ? A. (by the court, with consent of counsel). Yes.</p> <p>“(3) Was the relation of passenger and carrier existing between the plaintiff and the defendant at the time plaintiff was on defendant’s east-bound car, just before he was injured? A. Yes.</p> <p>“(4) Did tli© conductor, Arthur E. Miller, assault said plaintiff while upon or leaving the said car? A. Yes.</p> <p>“(5) If you answer question No. 4 Tes,’ was the conductor at the time of such assault acting within the scope of his employment? A. No.</p> <p>“(6) If you answer question No. 4 ‘Yes,’ were the injuries of the plaintiff proximately caused by such assault? A. Yes.</p> <p>“(7) Did the conductor wilfully strike at the plaintiff from the rear window of the car with- the intention of doing bodily injury to the plaintiff by violence? A. No.</p> <p>“(8) If you answer the seventh question ‘Yes,’ then answer this question: Was the plaintiff within striking distance at the time the conductor made a motion towards him through the rear ear window, if you find such motion was made? A. No.</p> <p>“(9) If yon answer the seventh question ‘Yes,’ then was the conductor acting within the scope of his employment in making a motion at the plaintiff through the rear car window ? A. No.</p> <p>“(10) Did the defendant’s conductor eject the plaintiff from the ear No. 342 in an improper manner? A. Yes.</p> <p>“(11) If you answer question No. 10 ‘Yes,’ were the plaintiff’s injuries proximately caused by such improper ejection from the ear? A. Yes.</p> <p>“(12) What sum will compensate the plaintiff for the injuries he sustained? A. 5,000 dollars.”</p> <p>Motions by the defendant to change the answers to questions 3, 4, 6, 10, and 11 of the verdict from “Yes” to “No,” and for judgment on the verdict as so amended, and for judgment notwithstanding the verdict, were successively overruled, and the court changed the answer to the fifth question from “No” to “Yes,” and entered judgment for the plaintiff upon the verdict as so amended. Erom this judgment the defendant appeals.</p> <p>On the question of proximate cause they cited 1 Sutherland, Damages (3d ed.) § 34; Gleneshy v. Kimr •berly ■& O. Go. 140 Wis. 52; Hasbrouck v. Armour & Go. 139 Wis. 351. As to the railway company’s liability for the act of the conductor: Bergman v. Hendrickson, 106 Wis. 434; ilaehl v. Wabash B. Co. 119 Mo. 32§ ; Mogh v. Chicago City B. Co. 80 Ill. App. 411; Bowell v. Boston & M. B. Co. 68 N. H. 358; Farley v. C., H. é D. B. Co. 108 Fed. 14; Fim ley v. Hudson E. B. Co. 64 Hun, 373; Kiernan v. New Jersey Ice Co-. 74 N. I. Law, 175; Hoar v. Maine Cent. B. Co. 70 Ále. 65; Keating v. Mich. Cent. B. Co. 97 Mich. 154; Smith v. L., E. & St. L. B. Co. 124 Ind. 394; Indianapolis St. B. Co. v. Ilocheti, 161 Ind. 196.</p> <p>To the point that the defendant was liable for all the natural and proximate consequences of the assault, they cited Vosburg v. Putney, 80 Wis. 523; Brown v. C., M. ■& St. P. B. Co. 54 Wis. 342; Kline v. Cent. Pac. B. Co. 39 Cal. 587; McCann v. Sixth Ave. B. Co. 117 N. T. 505; Ansteth v. Buffalo B. Co. 9 Mise. 419, 30 N. Y. Supp. 197. The conductor was acting within the scope of his employment: Fide v. C. & N. W. B. Co. 68 Wis. 469; Daley v. C. & N. W. B. Co. 145 Wis. 249.</p>

<p>Appeal from a judgment of the circuit court for Milwaukee county: Lawbence W. Halsey, Circuit Judge.</p> <p>Action to recover for a personal injury.</p> <p>The plaintiff claimed this: He went into tk-e timber country in Iron county, Wisconsin, to serve defendant on a deer-hunting expedition, his duty being to locate defendant and son in convenient places to shoot deer which he might start from surrounding territory and cause to approach near thereto. He so located them and went some distance therefrom, passing through a nearby swamp in an effort to discover deer. Hot observing evidence of any he returned, traveling on an old logging road. When he arrived in sight of defendant, was within easy range of the latter’s gun and about to call to Rim, the latter, without exercising ordinary care, taking plaintiff for a deer, shot, the bullet striking and severely ■wounding him in the leg. The facts of such occurrence were appropriately stated in the complaint with a prayer for judgment.</p> <p>The defendant answered, admitting all allegations in the complaint except those in respect to- shooting without ordinary care, alleging exercise of such care; that plaintiff was guilty of contributory negligence, and denying the claimed amount of damage.</p> <p>Eor the special plea of contributory negligence, defendant alleged this: Defendant was accompanied by his son. By direction they took their places a. considerable distance apart upon the side of a hill where they were surrounded by timber and thick underbrush and were to remain watching for deer while plaintiff went out and made efforts to drive in any which might be in the vicinity. The understanding was that plaintiff should go in a particular general .direction about a mile and return, taking about one hour’s time. He had a bell and whistle with which, as he approached on the return, he was to signal in order to guard against danger of being mistaken for a deer as he passed along through the brush. Plaintiff appeared in the vicinity of defendant and his son in a very short time after they took their assigned places. Under the arrangement when he started out, he was not expected back for considerable time. He not only returned much earlier than defendant had reasonable ground to expect, but without observing the agreement as to signaling. The result was that ■defendant suddenly saw some animated thing in the brush within efficient range of his gun.- The object, when first observed, was nearly stationary, then started rapidly forward, noiselessly, so far as defendant was concerned. Under the circumstances, from appearances to him, looking through the brush, the object was a deer and he accordingly shot, striking plaintiff as claimed. The latter knew it was very dangerous to move toward defendant’s location without giving any signal of bis approach, and nevertheless omitted to use any precaution in that regard.</p> <p>The evidence was to this effect: Plaintiff served defendant on hunting expeditions before the one in question. Both were' well acquainted with the dangers of their occupation. Plaintiff wore gray trousers,- — quite of the color of a deer, — a red sweater and cap, so as to render his person distinguishable to-one observing him traveling through the brush from that of a deer. The two started from their camp about 9 o’clock in the morning, accompanied by defendant’s son. Plaintiff was fur-' nished with a bell and whistle with which to signal defendant. At the best for the latter, plaintiff was to go out on the drive and when he started to come in fire a shot, or if he got on a trail of a deer two shots, and, in any event, ring his bell and use the whistle right along. Plaintiff testified that he was only to signal with his bell and whistle when he was on a deer trail, — driving one as he thought. When the party arrived near a swamp they separated, defendant and his son going to a location on a hill side, rising from the edge of the swamp, while plaintiff struck off through the swamp to make the drive. Defendant and his son posted themselves as directed some 300 feet apart. There was an old logging road through the swamp so located that a person traveling thereon would pass near where defendant was posted: Between the latter’s location and the road there was brush, so, in looking* from such location toward the road, the line of sight was through the obstructions. Soon after they reached the location, but before the time expected, plaintiff approached, traveling on the logging road. He had not given any signal of any kind. Looking toward the road, defendant suddenly observed, through the brush, an object which he thought might be a deer. He immediately drew a line on it with his gun preparatory to shooting. He hesitated an instant, uncertain whether the object was a deer or a human being or some other animated object. It remained stationary for an instant, then started forward, quickly. Defendant could see only what to-him appeared to be the forepart of a deer from the shoulders down. Without waiting to get a further view he pulled his gun, striking the object which proved to be plaintiff. The shot took effect in about the middle of the left thigh, fracturing-the bone seriously. Plaintiff was about 300 feet from defendant, when shot.</p> <p>According to defendant’s evidence and the state of the ease at the best for him, plaintiff, contrary to the agreement as to-signals, approached where he was shot, not only without giving signals, but some time before he could have arrived had he taken the course suggested when the two parted, — one to-take his place on the side of the hill and the other to make-the drive. Plaintiff testified that he was directed not to approach the location of defendant’s son without making a noise,, because the latter was not experienced and might not use proper care before shooting, but was told by defendant that there was no danger of a person being shot by him for he was-used to deer hunting; that following such admonishment he made no noise, as, when he came out, he was not where the-boy could see him; that he felt safe from danger of being shot by defendant; that it was not a proper way to hunt deer to go-through the woods making loud noises and there was no understanding that such a course should be pursued; that he was not to ring the bell unless he was on a deer track.</p> <p>The case was submitted to the jury, resulting in the following findings: Defendant did not exercise ordinary care and' caution to distinguish what was the object shot at. Such-failure was the proximate cause of plaintiff’s injury. There-was no want of ordinary care on his part contributing proximately to the injury. It will take $5,000 to compensate him for such injury.</p> <p>In due course judgment was rendered in plaintiff’s favor on such verdict.</p>

J. TueNee, Circuit Judge. At 9 :25 a. m. on June 7,1909, the plaintiff delivered to the defendant at its branch office in the Plankinton Hotel, Milwaukee, the following telegram: “Henry Bros. & Co., “71 Broadway, New York. “Buy one hundred Com Products at market, also one hundred Car & Foundry if it drops to fifty six. “M. B. Si-iebeerd.” Plaintiff paid sixty-seven cents as the fee for the transmission of the message.

Williams, Circuit Judge. Prior to August 22, 1902, Josephine Triba was tbe owner-in fee of certain property in tbe city of Milwaukee, consisting-of a lot with two bouses tbereon. On tbe above date sbe died, leaving a will duly executed, wbicb was afterwards admitted' to probate, wherein sbe devised to tbe plaintiff, her son, a life-estate in tbe premises referred to.

TabbaNt, Circuit Judge. Suit in equity. On tbe lltb of April, 1909, tbe plaintiff and defendant entered into a contract for an indefinite period whereby tbe defendant for a consideration therein named agreed to drive a laundry wagon for tbe plaintiff on a specified route in tbe city of Milwaukee.

<p>Appeal from a judgment of tbe circuit court for Milwaukee county: J. C. Ludwig, Circuit Judge.</p> <p>Action for personal injuries. Tbe plaintiff, a laundress by occupation, sixty-five years of age, fell down an open stairway in tbe back part of tbe defendant’s coffee, tea, and food store in tbe city of Milwaukee, and suffered serious injuries. She claimed negligence in leaving the stairway open and unguarded and in failing to warn her of its existence. The jury returned the following special verdict:</p> <p>“(1) Was the plaintiff injured by falling into an open stairway in defendant’s store, on October 8th, 1908 ? A. (by court). Yes.</p> <p>“(2) Did the plaintiff go to the southeastern portion of defendant’s store, where the open stairway was situated, at the invitation of Miss Lena Orth, either express or implied? A. (by court). Yes.</p> <p>“(3) Ought the clerk, Lena Orth, in the exercise of ordinary care, to have reasonably apprehended that the open stairway was likely to become dangerous to the plaintiff when exercising ordinary care, in that part of the store, under the circumstances existing at the time of the accident? A. Yes.</p> <p>“(4) If you answer the third question ‘Yes,’ ought the clerk, Lena Orth, in the exercise of ordinary care, to have warned the plaintiff of the open stairway, under the circumstances existing at the time of the injury? A. Yes. .</p> <p>“(5) If you answer the fourth question ‘Yes,’ was the failure of Miss Lena Orth to warn the plaintiff of the stairway opening the proximate cause of the injury? A. Yes.</p> <p>“(6) Ought the plaintiff, in the exercise of ordinary care, to have seen the stairway opening before the accident, in time to have avoided the injury? A. No.</p> <p>“(7) Was the plaintiff guilty of a want of ordinary care which proximately contributed to the injury ? A. No.</p> <p>“(8) At what sum do you assess plaintiff’s damages? A. $1,750.”</p> <p>Motions by the defendant to change the answers to the sixth and seventh questions, for judgment upon the verdict as so changed, and to set aside the verdict and grant a new trial, were successively overruled, and judgment rendered for the plaintiff, from which the defendant appeals.</p> <p>They cited, among other authorities, 29 Cyc. 462; Wilkinson v. Fairrie, 9 Tur. N. s. 280; Schmidt v. Bauer, 80 Cal. 565,, 5 L. R. A. 580; Trask v. Sholwell, 41 Minn. 66, 42 N. W. 699 ; Glaser v. Rothschild, 106 Mo. App. 418, 80 S. W. 332; Pierce v. Whitcomb, 48 Yt. 127; Peake v. Buell, 90 Wis. 508, 514, 63 N. W. 1053; Goeltz v. Ash-land, 75 Wis. 642, 645, 44 N. W. 770; Gaffney v. Brown, 150 Mass. 479, 23 N. E. 233; Goiuen v. Kirby, 180 Mass. 504, 62 N. E. 968; Ryerson v. Bathgate, 67 N. J. Law, 337, 51 Atl. 708; Johnson v. Romberg, 49 Minn. 341, 51 N. W. 1043; Ilarl v. Grennell, 122 N. Y. 371, 25 N. E. 354; Massey v. Seller, 45 Oreg. 267, 77 Pac. 397; Piper v. N. Y. C. '& PL. R. R. Go. 156 N. Y. 224; Clark v. Fehlhaber, 106 Ya. 803, 56 S. E. 817; Muench v. Heinemann, 119 Wis. 441, 446, 96 N. W. 800; B'ierbach v. Goodyear R. Go. 54 Wis. 208, 11 N. W. 514.</p>

<p> Municipal corporations: Streets: Change of grade: Assessment of damages: Milwaukee city charter. </p> <p>Under tlie Milwaukee city charter the established grade of a street cannot legally be changed, as to the owner of any lot affected who does not petition for the change, without proceedings for-determining damages and benefits; and in case of a change being otherwise made the city is liable in an action for tort. Secs. 1210d and 1210e, Stats. (Supp. 1906), do not abolish said condition precedent to a lawful change of grade.</p>

TaeRANt, Circuit Judge. This action was brought in equity. The plaintiff was a foreign corporation engaged in the business of buying and selling teas, coffees, baking powders, extracts, spices, and other like merchandise, with its principal place of business in Chicago, and conducted branch stores elsewhere.

<p> Judgment: Vacation: Power of court: Stipulation induced Toy fraud: Divorce: Division of property. </p> <p>1. After the term at which it was rendered a judgment cannot he vacated for fraud or upon other than jurisdictional grounds, except as provided in sec. 2832, Stats. (1898), within one year after notice thereof.</p> <p>2. Where the defendant husband in a divorce action fraudulently induced the wife to stipulate to accept a certain sum in a final division of the husband’s estate, and the judgment awarded a final division in accordance with such stipulation, the rendition of the judgment will be deemed to have been induced by the actual state of facts then before the court, not by the husband’s fraud. Decher v. TMedt, 133 Wis. 148, followed.</p>

<p>Appeal from a judgment of tbe circuit court for Milwaukee county: F. C. Esohweileb, Circuit Judge.</p> <p>The judgment appealed from reversed an order of the county court confirming the sale of real estate by an administrator under license from the latter court. Agnes Streiff, wife of one of the heirs at law of the intestate, and the Clark Realty Company, the purchaser at the sale, appealed from the order of confirmation made by the county court and are respondents in this court. This heir at law with his said wife occupied the premises in question, or part thereof, claiming a homestead right therein. And this heir at law is alleged to be mentally incompetent. The land in question is lot 10 in block 35 in Walker’s Point Addition to the Eighth ward of the city of Milwaukee, 50 by 150 feet, and has two dwelling houses thereon, and was owned by the intestate, Martha Streiff, who occupied the same as a homestead and who died January 7, 1904, and left surviving her one son and three children of a deceased daughter, none of whom were infants. At the time of her death the land was incumbered by mortgage on which there was due $600, and according to the appraisal made before sale the property was worth $7,500. The affairs of this family were before this court in In re Streiff, 119 Wis. 566, 97 N. W. 189.</p> <p>It appears that on October 25, :1907, the Milwaukee Trust Company, which was then administrator of the estate of Martha Streiff, petitioned the county court for authority to sell or incumber the real estate of the deceased, or so much thereof as might be necessary to pay the proper debts of said deceased and the charges of administration of said estate. The facts averred in support of this application were that the deceased left no property, personal or real, except the above described lot, which was mortgaged as stated, and the mortgage was past due. The name of the mortgagee is given. It is then averred that claims against said estate have been duly filed aggregating $27,445.50. One Charles Dielman was appointed special administrator of the estate and continued as such until December 6, 1906, when he was succeeded by John Save-land, another special administrator. Dielman’s account as special administrator was allowed by tbe county court at $1,869.24. Saveland’s account was allowed by tbe court at $600.06. Tbe petitioning administrator, who apparently succeeded these two special administrators, promises that there will be other and additional expenses and administration charges. Saveland was authorized by the county court to borrow upon, the credit of said estate $118 to pay taxes on the estate, and Saveland as special administrator was indebted in the sum of $118 and interest for that money. The taxes for the year 1905 remained unpaid, and the premises were sold by the county treasurer and by the city treasurer of Milwaukee in the spring of 1906 for these taxes, amounting to $92.32. The appraisal of the property in the inventory of the administrator is $8,500. Both houses are badly out of repair and going to decay and depreciating in value. The homestead of the deceased at the time of her death was part only of said lot. The estate of the deceased will be insufficient without said homestead to pay the expenses of administering said estate, and insufficient to pay the debts of the deceased for which claims have been filed. Part of the lot not included in the homestead cannot be sold separately from the homestead without material injury to the interests of said estate and to the parties interested therein, which require that the entire lot or tract of land should be sold in one piece. Deceased left surviving her at the time of her death no minor children or child.</p> <p>Upon this application there was an order to show cause returnable on the first Tuesday in December, 1907, why license should not be granted for the sale of this real estate. There was no hearing on this petition and order in December, 1907, or at any time thereafter until September 23, 1908, and no notice was given or order of continuance made.- On September 23, 1908, an order of sale was made by the county court which contained certain findings substantially as set forth in the application, except that it is found more specifically that the dwelling house on the front of said lot and the front portion of said lot constitute tbe homestead of deceased, and that the estate of said deceased will be .insufficient without the homestead to pay the debts of the deceased for which claims have been filed or to pay the expenses of administering the estate. There is a general finding' that the administrator has fully complied with the provisions of ch. 167, Stats., and then, '“It is ordered that the said Milwaulcee Trust Company be and it hereby is licensed and authorized to sell said lands and premises, viz.: lot number ten (10) in block number thirty-five (35),” etc. There was nothing in the order directing that the entire estate or interest, including the interest of the mortgagee, be so sold. The mortgagee had no notice of these proceedings except such as might be inferred from publication of an order of hearing. After notice of this sale and on April 16, 1909, the real estate was sold. On June 8, 1909, the county court made an order purporting to correct the record nunc pro tunc by inserting in the order of sale the words, “To sell the entire estate and interest in said premises, including the interest of the mortgagee.” On July 9, 1909, the purchaser at the sale, the Claris Realty Company, respondent here, refused to carry out its purchase and demanded a return •of its deposit on the ground that the proceedings were irregular and invalid. On November 9, 1909, the county court made an order confirming the sale, which order was reversed by the circuit court, from which judgment this appeal was taken.</p>

<p> 'Corporations: Stoclc issued, for good will of business: Fraud: Findings: Evidence. </p> <p>A finding by the trial court that no false representations were made as to the value of the good will of a business, for which good will, upon incorporation of the business, certain shares of stock were issued, is held to be sustained by the evidence.</p>

<p>Appeal from a judgment of the circuit court for Milwaukee county: Wakeem- D. Taeeaitt, Circuit Judge.</p> <p>This is an action in equity to perpetually enjoin the city and its hoard of public works from tearing down one of plaintiff’s buildings. The city claims that the building encroaches upon the northeast side of Marshall street 46.84 feet, and the plaintiff denies the claim.</p> <p>This is another dispute arising out of the disputed location of lot and street lines in the so-called water lots marked upon the original plat of Hubbard and Pearson’s addition to Milwaukee, made and recorded in 1838. A substantially correct copy of the plat will be found printed in the report of the case of Pereles v. Gross, 126 Wis. 122, 105 N. W. 217, and referencajnay be made thereto. The question in dispute here is as to the location of the southwest boundary line of water lot 13, which is also the northeast boundary line of that part of Marshall street running from Water street to the Milwaukee river.</p> <p>There is very little dispute as to the facts. The plaintiff corporation has owned said lot since 1889, having purchased it from Valentine Blatz, who acquired title thereto from Henry Christian Helms in 1880. In 1814 an icehouse was built upon lot 13, and the southwest.wall thereof coincided with the northeast line of Marshall street as claimed by the plaintiff. This building was maintained by Valentine Blatz and by the plaintiff after their respective purchases, and was partly destroyed by fire in November, 1904, but repaired and rebuilt in January, 1905, upon the old foundation under a permit obtained from the city inspector of buildings, which distinctly authorized rebuilding upon the old foundations. This is the building which the city now desires to tear down as an encroachment. At some time early in the decade commencing in 1860 a mill was built upon lot 14, whose northeast wall coincided practically with the southwest line of Marshall street as claimed by the plaintiff, and this mill remained for many years, but the time of its removal or destruction does not appear. It was found by the court that prior to 1862 and up to about the year 1901 Marshall street has been continuously used for public travel as a public thoroughfare with the assent of the owners of lots 13 and 14, and during the entire time the strip so used was approximately ninety-six feet in width, and was bounded on the northeasterly and southwesterly side by buildings. Thus it appears that for forty-five years a strip of land of the full width indicated on the plat was used and occupied by the public as a street within the lines now claimed by the plaintiff. In May, 1876, the common council of the city ordered the city engineer to make a survey of water lot 46 in the Hubbard and Pearson plat. The city surveyor, finding that North Water street exceeded in length the distances marked on the plat, which made an evident irreconcilable error, made a new survey of the entire addition, and distributed the surplus upon a plan which he deemed most nearly in accord with the original map, and filed the map in the city engineer’s office, stating the facts in a communication to the common council. By this survey and map water lots 11, 12, and 14 were each given a frontage of 65.51 feet, and the southwest line of lot 13 (northeast line of Marshall street) coincided with the icehonse and with the line of the street as it was then used and had been used at least since 1862, and as it is now claimed by the plaintiff. Erom the making of this map until 1907 the city has recog: nized this survey and map as marking the true lines of Marshall street in all of its public improvements. A sewer was laid in the center of Marshall street as so used in 1876. Somewhat later catch-basins were constructed at the corners where the curb line of said street as so used intersected the curb lines of North Water street. In 1876 the city caused North Water street to be improved, and levied assessments for such improvements on lots 11,12, and 13 on the basis of a frontage of 65.52 feet for each lot, which assessments were paid. In 1891 it laid a sewer in said North Water street and levied assessments against said lots for the laying thereof, on the basis that each of said lots had a frontage of 63.5 feet, which assessments were paid. As before noted, the city building inspector in 1904 issued a building permit to the plaintiff authorizing the rebuilding of the plaintiff’s building upon the same foundations and upon the line which had been recognized by the city and fixed by use since early in the sixties, and on the basis of such permit the plaintiff actually rebuilt the building. No original stakes or monuments could be certainly located at any point along North Water street, although a decayed stake was found in 187 6 in the block southwest of Marshall street, which was thought to be possibly one of the original stakes and which corresponded with the location of Marshall street as used. The only very serious difficulty in fitting the plat to the ground arises in the lines of the water lots and streets on the northwest side of North Water street. The angle at the division line between lots 10 and 11 is practically agreed on, as well as the point A at the southeast corner of water lot 46, but the actual distance between these points exceeds by some forty-six feet the distances marked on the plat.</p> <p>The trial court considered that the case was practically settled in favor of the city hy the decision of this coiirt in the ease of Pereles v. Gross,' supra, and entered judgment for the defendants, from which judgment this appeal is taken.</p>

<p> Municipal corporations: Milwaukee charter: Street improvements: Change of grade: Special assessments: Appeal: Sufficiency of notice: Framing issues: Discretion: Liability for damages: Unauthorized, acts: Appeal: Reversal: "When new trial ordered. </p> <p>1. A notice of appeal under the Milwaukee city charter from an assessment of benefits and damages from the improvement of a street, if otherwise regular, is sufficient notwithstanding it refers to the sum awarded to appellant as “benefits” instead of damages, and charges generally that all the proceedings are void.</p> <p>2. Although upon such an appeal it promotes the orderly and • intelligent conduct of the proceédings in court to have formal issues framed before proceeding with the trial, yet the court has a wide discretion in respect to such matters, and its refusal to order issues to be framed will not work a reversal where all the evidence offered upon material questions was admitted.</p> <p>3. Under sec. 8, ch. VII, of the Milwaukee city charter, the city is liable in all cases for the damages caused to. abutting lotown-ers by the alteration of street grades, and not in those cases only where the city seeks to charge the lotowners with benefits.</p> <p>4. Upon an appeal from the assessment of benefits and damages, the inquiry is limited to the subjects on which the city authorities acted, that is, the benefits and damages incident to the making of the authorized improvement and alteration of the street grade, and recovery cannot be had thereon for damages caused by an unlawful raising of the street above the grade as fixed by such authorized alteration.</p> <p>5. Damages having been allowed in this case by the circuit court for the unlawful raising of the street, and the supreme court being unable to separate them from the damages caused by the authorized improvement, the judgment cannot be modified and affirmed, but the case must be remanded for a new trial.</p>

<p> ■Corporations: Transfers of stock: Restrictions, how far valid: Contracts: Compelling transfer on books: Supreme court: Opinions, how construed. </p> <p>1. Sec. 1751, Stats. (1898), providing that shares of corporate stock shall be deemed personal property, and providing how they may he transferred, does not prevent the shareholders and incorpo-rators from making any lawful contract among themselves or with the corporation, restricting in a degree, but not absolutely prohibiting, such transfers, or prevent the insertion of such a contract in the articles of organization; and such right by agreement to regulate and restrict transfers is recognized in secs. 1748 and 1772.</p> <p>2. A distinction must be observed between restrictions thus created by contract’and those attempted to be imposed by a by-law upon an unwilling minority or upon those who may assert that the by-law is beyond the charter power.</p> <p>3. Where the stock subscription, the articles of incorporation, and the stock certificates on their face contained provisions to the effect that shares were not transferable except in pursuance of a vote of two thirds of all outstanding shares; that such majority of shareholders might either consent to the transfer or themselves take up the shares sought to be transferred by paying for the same at par; and that if they did neither the holder might sell and transfer his shares as usual, — the court will not compel a transfer upon the company’s books of any shares which the holder attempts to assign in violation of such contract.</p> <p>4. General language in Edgerton T. M. Co. v. Croft, 69 Wis. 256, In re Klaus, 67 Wis. 401, and like cases,' restrained and modified.</p> <p>5. Language found in judicial opinions must be construed with reference to and be limited by the. subject under discussion.</p>

<p> Limitation of actions: Malpractice by surgeon: Estoppel: Waiver: Amendment of statute: Change in time limited: Effect. </p> <p>1. Service of tie notice required by subd. 5, sec. 4222, Stats. (1898), was a condition precedent to tbe maintenance of a tort action against a surgeon for malpractice resulting in injury to tbe person.</p> <p>2. After an action bas become barred by tbe statute of limitations, subsequent acts of tbe defendant do not constitute estoppel or a waiver of tbe right to insist upon sucb statute.</p> <p>3. Subd. 5, sec. 4222, Stats. (1898), requiring notice of an injury to tbe person to be served within one year, was amended by cb. 151, Laws of 1909, so as to make tbe time two years, “provided, that tbe provision herein requiring notice of two years shall not apply to any event causing damage which happened before tbe passage and publication of this act.” Held, that under sec. 4976, Stats. (1898), tbe former limitation was continued in force as to acts occurring before the law of 1909 went into effect.</p>

<p>Appeal from a judgment of tbe circuit court for Sheboy-gan county: Michael KiewaN, Circuit Judge.</p> <p>This is an action brought by the plaintiff to recover the amount paid for a gasoline traction engine purchased from tbe defendant under a written contract containing the following warranty :</p> <p>“It is warranted that it is well made and of good materials and workmanship.</p> <p>“That if properly operated it-will develop the nominal rated capacity of power continuously and easily.</p> <p>“That it will successfully operate a threshing outfit of a size and capacity usually operated successfully by an oi’di-nary steam traction engine, the actual brake horse power rating of which is the same.</p> <p>“That for road purposes it will as successfully draw the threshing outfit used with this engine as an ordinary steam traction engine of like actual brake horse power rating will handle its load.</p> <p>“That the oil-cooling device will keep the cylinders sufficiently cool for the successful operation of the engine under all conditions of weather.”</p> <p>The complaint alleged that said engine did not comply with the terms of the warranty, in that it failed to develop the necessary horse power to successfully operate plaintiff’s separator; that it was impossible to operate said engine so as to develop the nominal rated capacity of seventeen horse power; and that the oil-cooling device did not keep the engine sufficiently cool for . successful operation. The complaint further alleged that after due notice by the plaintiff of said defective condition of the engine and opportunity on the part of the defendant to correct the same, said defendant was unable to remedy such defects, and thereupon plaintiff tendered the engine to the defendant and demanded the return of the purchase price thereof. The answer put in issue all the material allegations of the complaint. The jury returned the following special verdict:</p> <p>“(1) When properly operated, was the gasoline engine which plaintiff bought of defendant capable of developing the nominal rated capacity of seventeen horse power, continuously and easily? A. No.</p> <p>“(2) "When properly operated, was said gasoline engine capable of successfully operating a threshing outfit of a size and capacity usually operated successfully by an ordinary steam traction engine of the same actual brake horse power rating? A. No. , -</p> <p>“(3) When properly operated, was the oil-cooling device on said gasoline engine capable of keeping the cylinders sufficiently cool for the successful operation of the engine under all conditions of weather? A. No.</p> <p>“(4) Within six days from the. day when plaintiff first used said gasoline engine, did he give notice to defendant by letter, stating as particularly as he was then able to state-wherein the engine failed to fill the warranty thereof? A. Yes.</p> <p>“(5) Did plaintiff give a reasonable time to defendant to send a competent person to remedy any defects, if such there were, in the engine? A. Yes.</p> <p>“(6) Did defendant’s agent, R..P. Howard, and its expert, Albert Mader, and its representative, O. H. Parr, all fail in their efforts to make the engine fulfil the terms of the written warranty thereof? A. As to Howard, we answer yes. As to Mader, we answer yes. As to Parr, we answer yes.</p> <p>“(1) Did plaintiff purchase the gasoline engine in reliance upon the truth of the 'written warranty thereof? A. Yes.”</p> <p>On such verdict judgment was entered in favor of the plaintiff, from which judgment defendant appeals.</p>

<p> Discretion: Motion overruled by operation of law: Betting aside verdict: Excusable neglect: Affidavit of merits: Verified answer:Judgment by default: Presumption of prejudice: Vacating: Terms. </p> <p>1. Where a motion addressed to the discretion of the circuit court is taken under advisement and no ruling made thereon during. the term, so that under sec. 2S78, Stats. (Supp. 1906: Laws of 1901, ch. 100), it is overruled by operation of law, such constructive denial will be treated on appeal as an exercise of discretion and not as a refusal to exercise it.</p> <p>2. Upon an application under sec. 2832, Stats. (1898), to set aside a verdict or judgment and for a new trial, the moving party is not required to show diligence, as where a continuance is sought, but it is enough to show excusable neglect.</p> <p>.3. Defendant’s attorney, finding that the trial of this case would not begin until the 12th of January, held himself in readiness to try a case in another county which all parties believed would be reached on the 10th and finished on the 11th. Such other case was not reached until the 11th and the trial lasted until the 17th. In the meantime application was made in this case for a continuance, first for a day, which was granted, and then from day to day, which was denied, and with neither defendant nor its attorney present the case proceeded to trial and a verdict for plaintiff. Held, that these facts showed excusable neglect and that'the trial court should, upon application, have set aside the verdict upon proper terms.</p> <p>-4. There being in such case an answer stating a good defense, duly verified on personal Knowledge, an affidavit of merits was not necessary.</p> <p>5. Where a duly verified answer upon personal knowledge has been interposed, denying the material allegations of the complaint, and a judgment is taken by default against the defendant, it will be presumed that he was prejudiced by such judgment.</p> <p>■6. Upon setting aside a judgment by default, the trial court may, in its discretion, allow in addition to all taxable costs a reasonable sum for attorneys’ services in taking the judgment, and also such other sum or sums of money as were reasonably and necessarily incurred in procuring it:</p>

Lueck, Circuit Judge. This is an agreed case submitted to the circuit court for Waukesha county under the provisions of sec. 2788, Stats. (1898). The material facts are that the city of Wa/ulcesha proceeded under sec. 175 of the general city charter law (sec. 925 — 175, Stats. 1898) to improve one of its streets called North street.

<p>Error to review a judgment of tbe circuit court for Bay-field county: JohN K. Parish, Circuit Judge.</p> <p>Plaintiff in error was, in due form, charged with having, at Bayfield county, Wisconsin, on the 2d day of December, 1909, with premeditated design to effect such end, committed the crime of murder in the first degree by taking the life of Louis Mitchell. He was tried on the issue of not guilty, resulting' in his being convicted of the full offense named, and was, accordingly, in due form, sentenced as required by law, questions discussed in the opinion being saved for review in this court.</p>

<p> Civil service law: Validity: Constitutional law: Bight to hold office: Legislative power: Delegation: Begulaiion of civil service: Authority of commission: Discretion of appointing officers: Arbitrary extension of exempt class: Declaring constitutional offices vacant: Partial invalidity of statute. </p> <p>1. The right to hold public office is not a natural right, but exists only by virtue of some law expressly or impliedly creating and conferring it; and no such right is guaranteed or conferred upon the citizen by the constitution.</p> <p>2. Where the constitution does not otherwise provide, the legislature has power to create public, offices and to prescribe the terms and conditions on which they may be held.</p> <p>3. Ch. 363, Laws of 1905, regulating “appointments to, and promotions in the civil service of this state . . . according to merit and fitness, to be ascertained as far as practicable by examinations,” and providing for appointment of a civil service commission and giving it authority for carrying into effect the provisions of tlie act, contains a proper general scheme and is an appropriate exercise of the legislative function to regulate-the civil service of the state.</p> <p>4. The authority conferred on such commission by the act is therein properly restricted to the exercise of the administrative functions of making reasonable rules and regulations and of exercising such other administrative powers as are appropriate,, under and pursuant to law, for carrying into effect the legal regulations of the civil service. .</p> <p>•5. The act is not invalid upon the ground that it infringes upon the right of appointing officers to exercise a reasonable discretion in the selection of persons for appointment.</p> <p>6. The commission being authorized to include in the exempt class of the classified service, in addition to the positions specifically named in the law, only those offices as to which they in fact find that competitive or noncompetitive examinations are impracticable on account of the temporary duration of the employment or ‘'for special reasons satisfactory to the commission,” the law is not invalid as granting arbitrary power to extend the exempt class.</p> <p>7. The legislature having no power to declare vacant the constitutional offices of secretary of state, state treasurer, and attorney general, those officers are not subject to the penalty prescribed in that part of sec. 30 which declares that any office held by any person convicted of violating the law shall thereby be rendered vacant.</p> <p>8. The general and dominant provisions of the act form a complete and proper system of regulation of the subject; and the invalidity of any of its minor provisions does not affect the constitutionality of the law in its general features.</p>

Appeals from judgments of the superior court of Douglas ■county: Chabxes Smith, Judge. In 1891 part of Hughitt avenue in the city of Superior was .graded and in the succeeding year was paved with cedar block pavement upon a plank foundation and otherwise improved. The expense of these improvements was assessed against and paid for by the abutting and adjacent property. In 1910 it was repaved with creosote blocks on a concrete foundation and otherwise improved.

<p>Appeal from an order of the circuit court for Ashland .county: JohN IL Pabisjet, Circuit vJudge.</p> <p>This is a suit in equity to compel the defendant to remove from pláintiffs’ premises a portion of its brick wall and to recover damages for such encroachment. Plaintiffs and defendant own adjoining lots facing the principal business street in the city of Ashland, defendant’s lot being east of plaintiffs’. On the lot of the defendant there is a brick building twenty-two feet high, extending backward from the street 137 feet, the westerly portion of which overlaps plaintiffs’ land for a distance of sixty-five feet from the rear end. The strip so occupied by defendant’s wall is six inches in width at the rear end, and grows gradually narrower as it extends toward the street, until it comes to a point sixty-five feet distant from the rear of the building, so that the strip in controversy is sixty-five feet in length ánd varies in width from zero to six inches. The foundation of this wall also extends into plaintiffs’ land.</p> <p>The complaint, after alleging that Jacob Beck died testate and that Margareiha Beak was appointed executrix of his will and is still acting as such, states that Margareiha Beck was given a life estate in the land in question, and the other plaintiffs, the children of Jacob Beck, the fee, subject to the life estate of their mother, and then alleges: “That by the said will all the right, title and interest in the said land, and the whole ownership of the same, and the right of possession of the same, passed to the plaintiffs above named in the interests and shares above set forth.” It further alleges: “That the whole of the above described wedge-shaped piece of land, which is a part of the land hereinabove described as now belonging to the plaintiffs above named, is covered, and during tie past ten years and more las been covered, and entirely witlleld from any sort of use by tie said Jacob Beck and tlese plaintiffs, by tie said wall of tie said building, and tley are, and during all tie time aforesaid lave been, thereby deprived of tie entire use of tie said wedge-slaped piece of land;” and tlat tie defendant “las claimed tie right to keep' and maintain, and does still keep and maintain, tie said wall upon tie premises of tlese plaintiffs, as above set forth, and las during all of said time aforesaid and now refuses to take down and remove tie same, or any part thereof therefrom.”</p> <p>Tie defendant interposed a general demurrer to tie complaint, and from an order overruling the same it appealed.</p>

<p>Appeal from a judgment of tbe circuit court for Milwaukee county: WabueN D. TaebaNt, Circuit Judge.</p> <p>Special proceedings to obtain judicial directions respecting-ownership and disposition of trust funds.</p> <p>The facts found by the trial court are undisputed. The following is a summary thereof so far as relates to Emma Soehnlein and her children:</p> <p>1. January 1, -1904, Frederick Pabst died, testate. He made a deed of gift at the time of executing his will and both took effect. By the deed a trust in $700,000, or thereabout,, par value of the capital stock of the Pabst Brewing Company,, was created for Emma Soehnlein. By the will he created a similar trust in one fifth of his estate.</p> <p>2. The following were beneficiaries under the will and deed: His widow Maria, who deceased October 3, 1906, Gus-tave G. and Frederick, Jr., sons, Maria Goodrich, a daughter, Emma, a daughter, wife of Frederick William Soehnlein, by whom she has living a daughter Edith, born October 13, 1903,. and a daughter Beatrice, bom January 12, 1906, and Emma Maria Pabst, born December 25, 1890, child of deceased’s-daughter, also deceased, Elsbeth von Ernst.</p> <p>3. In due course the Wisconsin Trust Company became sole trustee under both will and deed.</p> <p>4. Said Gustave G., Frederick, Jr., Maria Goodrich, Emma Soehnlein, Edith and Beatrice Soehnlein, and Emma Maria Pabst are the only persons interested under the trusts, created by both deed and will. -</p> <p>5. At the date of the instruments mentioned Pabst Brewing Company was a Wisconsin corporation with 10,000 share» of paid-up capital stock of $1,000 each. .The will provided that, in case of Emma Soehnlein surviving her mother and then having a child ten years old living, she should have one fifth of the estate, but in case of her not so surviving and having such issue the property should remain in trust, Emma receiving the income thereof until the event of her having a child ten years of age occurring and then the corpus be delivered to her, and in case of her decease, not having received the property but leaving a child or children, the income to go to them equally until one arrive at the age of ten years and the corpus to them likewise go. The trust deed created for Emma •a trust in one fourth of 2,84-0 shares of corporate stock upon ■like conditions.</p> <p>6. Pursuant to the deed, 710 shares of the stock were set aside for Emma and pursuant to the will, including a distribution hereafter referred to, 418 shares were so set aside.</p> <p>7. December 11, 1906, the company possessed 3,322 shares of its stock, part purchased before and part after the decease ■of Mr. Pabst, all at a cost of $4,495,629.89, which was somewhat less than the company’s surplus at such decease.</p> <p>8. On said December 11th said treasury stock was duly and equally distributed among the stockholders, making the total -of the trust shares to Emma 1,063 under the deed and 418 under the will.</p> <p>9. After the trusts all took effect and prior to May 10, 1910, the corporation accumulated a surplus from earnings of '$3,086,562.02.</p> <p>10. Such net earnings were available for distribution among the stockholders as a dividend in the discretion of the ■directors.</p> <p>11. $708,894.12 of such available funds was in the form of an investment of 736 shares of the common stock of the corporation.</p> <p>12. January 13, 1910, and soon thereafter, corporate proceedings were duly had changing the 10,000 shares of the corporate stock of $1,000 each into 100,000 shares of $100 each and increasing the capital stock on account of the aforesaid net earnings by 20,000 shares of seven per cent, preferred stock of $100 par value, each.</p> <p>13. At the time of such change it was contemplated by the stockholders that such preferred stock and $500,000, par value, of the common stock, out of that in the treasury, should be distributed as a dividend, the idea being to convert all into cash, affording tbe stockholders a cash dividend equivalent to the market value of such stock. To that end arrangements were made for the conversion as soon as the distribution of stock should be effected, so that the stockholders might, in effect, receive cash instead of stock, the purpose being payment of a cash dividend aggregating the net income available therefor earned subsequently to January 1, 1904, without reducing ■the cash resources of the corporation.</p> <p>14. January 13, 1910, due proceedings were had for payment of the dividend as contemplated.</p> <p>15. Such payment was subsequently effected, 3,196 shares ■of the preferred stock and 798+ shares of the common stock being awarded to the trustee under the Soehnlein trusts; the •same with the other dividend stock being converted into cash, making the proceeds of the Soehnlein dividend stock $212,546.51 on account of the trust created by deed and $83,578.97 on account of the trust created by will, or $296,125.48 in all.</p> <p>Erom such facts the court concluded as matter of law:</p> <p>First. The stock dividend was wholly based on net income of the corporate business, accumulated subsequently to the death of Mr. Pabst, said income being available for dividend payments without impairing the capital of the corporation or its surplus as the same existed on such date, and the dividend stock and proceeds thereof, in the way the matter was handled, incident to the Soehnlein trust stock, belonged to Emma Soehnlein, the beneficiary in prmenti of the income from such stock. ■</p> <p>Second. The trustee under the will and also under the deed creating the Soehnlein trusts, should pay the aforesaid aggregate sum with all interest accumulations up to the date of payment, to Emma Soehnlein.</p> <p>Judgment was rendered in accordance with the foregoing.</p> <p>The children of Emma Soehnlein, by their guardian ad litem, appealed, claiming that the dividend stock, and hence tbe proceeds thereof, belonged to them as owners of the corpus of the trust property.</p>

<p>Appeal from an order of the circuit court for Milwaukee ■county: LawR.ence W. Halsey, Circuit Judge.</p> <p>This is an action in the nature of qua warranto brought by six town chairmen of the county of Milwaukee against sixteen men who claim to constitute the county board of Milwaukee county and who were at the time this action was commenced ■exercising the functions of members of the county board of Milwaukee county. The defendants were elected pursuant to ch. 398 of the Laws of 1907 by assembly districts, this act prescribing a different representation in the county board in counties of 250,000 inhabitants or more. The contention on the part of the plaintiffs is that the act referred to violates ■sec. 23 of art. IV of the Wisconsin constitution by unnecessarily destroying the practicable uniformity of the system of county government in the state. The complaint sets forth in substance that the county of Milwaukee now is, apd at all the times herein mentioned has been, a duly organized county of the state of Wisconsin, containing more than 250,000 inhabitants ; that at all said times there was and now is contained in said county a. city of the first class, several cities of the fourth class, several villages, and seven duly organized towns, to wit, towns of Granville, Milwaukee, Wauwatosa, Greenfield, Lake, Eranklin, and Oak Creek; that on the first Tuesday of April,. 1910, the annual town meeting was dnly held in each of said towns and the plaintiffs were dnly elected chairmen of the respective towns, and after said election each chairman so-elected duly qualified as town chairman of his town respectively and entered upon the discharge of his duties, and each is ex officio and by virtue of the statutes of Wisconsin a lawful and qualified member of the county board of Milwaukee county; that each of said town chairmen is a citizen of the United States, a duly qualified elector, a resident, taxpayer,, and freeholder in the county of Milwaukee in said state; that during the session of the legislature of Wisconsin held in the year 1907 a bill was passed which became known as ch. 398 of the Laws of 1907, under which chapter one supervisor, as provided in said act, in each assembly district of Milwaukee-county was elected, and that said persons so elected under ch. 398 of the Laws of 1907 are the defendants herein; that none of the said assembly districts are co-extensive with any of the said towns, and they do not conform either in area or boundaries to the areas or boundaries of said towns; that each of said towns is but a small part of the assembly district in which it is located; that during all the times herein nien-tioned, including the time when said bill was pending, passed,, approved, and published, there were no facts or conditions existing in said county of Milwaukee differing from those existing in all other counties of the state of Wisconsin which then required or now requires a different representation in the county board of said county from that which is provided generally for all counties of the state; that there are not now, and since the pendency and passage of said act have not been, any facts or conditions in Milwaukee county which would render it impracticable to have a law fixing a substantially uniform method of representation in the county board applicable to every county in the state, including counties of at least 250,000 . 'inhabitants; that it was as practicable in Milwaukee county as in the other counties of said state to have the same method of representation in the county board as during many years last past has been and now is provided by law for all other counties -of said state; that during all said times, and now, any change in the manner of electing members of the county board that might be found desirable or needful in counties having at least 250,000 inhabitants, would be equally desirable or needful and equally practicable in all counties of the state; that .•at all said times it has been and is practicable to have the members of the county board in all counties of the state, in■cluding counties having at least 250,000 inhabitants, elected in the same manner from like or similar districts; that at all ■times herein mentioned it has been practicable in all counties to elect supervisors at large to be members of the county board in the respective counties of the state, the number to be determined substantially in proportion to the population of the respective counties; that at all times it was practicable to have ■other methods and means of representation in all county boards of this state, including counties of at least 250,000 inhabitants, which method and means could be made substantially and practically uniform through the ¡jfcate in all counties; that by reason of the enactment of said ch. 398, Laws of 1907, and at the time of the passage of said act and ever since, there has not been established by the legislature of Wisconsin ■a system of county government which is as nearly uniform as practicable; that said ch. 398, Laws of 1907, is unconstitutional and is null and void; that the defendants and each of them are not lawful members of the county hoard of Milwaukee county; that they have intruded into and unlawfully usurped the functions of supervisors of Milwaukee county and are unlawfully drawing the salaries provided in said ch. 398; that the plaintiffs are and each of them is a legal and lawful member of the county board of Milwaukee county and entitled to exercise the functions and enjoy the emoluments of members of said county board, but tbe defendants have excluded tbe plaintiffs and other lawful members of said county board from tbe exercise of said functions, and tbe plaintiffs are deprived of tbe emoluments provided by law for supervisors of said county.</p> <p>Tbe complaint further alleges that plaintiffs have demanded of tbe defendants that they forthwith desist and refrain from intruding into tbe offices of supervisors of Milwaukee county and from exercising tbe functions of members of tbe county board of Milwaukee county, and that they cease to ■exclude tbe plaintiffs therefrom, but tbe defendants continue to exercise said functions and to intrude into tbe offices of supervisors and members of the county board of Milwaukee county and to exclude said plaintiffs from exercising tbe duties and functions of members of said county board and from enjoying tbe rights, privileges, and emoluments to which they ■are respectively entitled.</p> <p>Tbe prayer is that tbe defendants be adjudged guilty of usurping, intruding into, and unlawfully exercising and bold-ing tbe offices and functions of lawful members of tbe county board of Milwaukee county, including tbe offices and functions which tbe plaintiffs are lawfully entitled to bold and exercise, and that tbe defendants be ousted and excluded from ■said offices and from exercising said functions; that tbe plaintiffs and each of them be adjudged entitled to bold said offices respectively as members of tbe county board and to exercise tbe functions thereof, and that tbe plaintiffs be awarded their costs and disbursements.</p> <p>The respondents demurred to the complaint, and from tbe ■order sustaining tbe demurrer this appeal was taken.</p> <p>cited State ex rel. Pecio v. Biordan, 24 Wis. 484; State ex rel. Busaclcer v. Groth, 132 Wis. 283; State ex rel. Keenan v. Milwaukee Go. 25 Wis. 339; State ex rel. Att’y Gen. v. Cunningham, 81 Wis. 440.</p>

<p>'Appeal from a judgment of tbe circuit court for Grant county: Geobge Clembntson, Circuit Judge.</p>

<p> Criminal conversation: Damages: Mitigation: Evidence: Cross-examination of husband: Attitude toward marriage: Reputation of wife for chastity: Remoteness: Unchaste acts: Inadequacy of damages: Prejudicial remarlos by court: Appeal. </p> <p>1. In an action for criminal conversation, where the answer admits defendant’s guilt, the evidence in mitigation of damages may properly take a wide range, and it is proper to show by the circumstances of their lives the moral attitude of both the plaintiff and his wife toward the marital relation, also whether or not their married life was a happy one.</p> <p>2. For this reason, and also because the plaintiff upon his direct examination had testified in a general way as to his life previous to his last marriage, it was not error to compel him upon cross-examination to testify concerning a former marriage, the length of time he lived with that wife, and the divorce obtained by her for desertion and non-support.</p> <p>3. The cross-examination of a party testifying in his own behalf can take a wide range before prejudicial error can be predicated thereon.</p> <p>4. In an action for criminal conversation the wife’s reputation for chastity before her marriage to plaintiff may he shown in mitigation of damages, provided such reputation is not too remote in point of time.</p> <p>5. The degree of remoteness of time and place concerning which evidence of reputation of the wife will be received, rests largely in the discretion of the trial court, and depends also in large measure upon the particular facts and circumstances of each case.</p> <p>6. Where, as in this case, the plaintiff and his Wife have led a roving life, and it is apparent that evidence recent in. time and proximate in place is not obtainable, evidence of a remote character may be admitted.</p> <p>7. Evidence of unchaste conduct of the wife, prior to the alleged intercourse with defendant, is also admissible on the question of damages.</p> <p>■8. A question to a witness calling for the reputation of plaintiff’s wife “for morality and virtue and chastity” was not misleading because of the use of the word “morality,” since the jury must have understood it to apply only to the qualities included in the other terms “chastity” and “virtue.”</p> <p>9.In such action, testimony of a witness as to statements made to her by plaintiff’s wife relative to a proposed clandestine meeting with defendant and her reasons therefor, though it would be hearsay as to the question of defendant’s guilt, was competent as disclosing the wife’s feelings toward her husband, the state of their married life, and the mental and moral make-up of the woman.</p> <p>10. A statement by the court, in the presence of the jury, referring to the plaintiff, that “a man who will marry a woman, live with her three weeks, and beget a child 'and go, is not so very different in my estimation from a man who had connection with the same woman .without marriage,” though unjustifiable, is field, in view of sec. 3072m, Stats. (Laws of 1909, ch. 192), and of the particular circumstances of the case, not to constitute prejudicial error.</p> <p>11. The amount of damages to be given in an action for criminal conversation is peculiarly a question 'for the jury, and its award, though it may seem quite small, will not be set aside unless it is clear that some error, passion, or prejudice has intervened, to which the inadequacy can reasonably be attributed. '</p>

<p>Mamdamus to J. O. Ludwig, Judge of the Circuit Court for Milwaukee county.</p>

Ejectment brought to recover possession of a strip of land one rod wide and twenty-eight rods long running across a ten-acre tract of land, and used by the plaintiff as a private road up to June 3, 1910, when a fence was built around the ten-acre tract by the defendant, and plaintiff claims that he was dispossessed.

0. Higbee, Circuit Judge. Action for partition of land, brought by the trustees of the-Norwegian Evangelical Lutheran Church of Utica against the trustees of the Norwegian Evangelical Lutheran Church of West Prairie, the trustees of the Norwegian Evangelical Lutheran Church of Northwest Prairie, and the trustees of the Norwegian Evangelical Lutheran Church of Bad Axe. The plaintiffs had judgment, and the defendants appeal.

'Appeal from an order of the circuit court for Trempealeau county: E. C. IIigbee, Circuit Judge. This is a proceeding to secure the drainage of some swamp and marsh lands in the vicinity of the junction of the Trem-pealeau river with the Mississippi.' The district which it is proposed to drain is known as the Trempealeau bottom and comprises about 7,084 acres. It is about six miles long and of varying width up to about three miles.

<p> .Pleading: Express or implied contract: Payment to corporation by note to individual: Amendment of pleading: Ambiguity, in writing: Parol evidence of custom. </p> <p>1. Where all the material facts are stated in the pleadings and are found by the court after waiver of a jury trial, it is immaterial, . upon appeal from a judgment against the defendant, whether his liability arose from breach of an express contract to pay the amount in question or from an implied duty to respond for that amount of money in his possession belonging to plaintiff.</p> <p>.2. A note given as an advance payment on a contract with a corporation, though made to an individual, who discounted it and retained the proceeds, was a payment to the corporation where the payee named owned all the stock of the corporation, had control and management of it, and acted for it in receiving and holding the money.</p> <p>3. Allowing the complaint to be amended, at the close of the evidence, to conform to the proofs was not error where all the evidence was admissible under the complaint without amendment and defendant could not have been misled.</p> <p>■4. Where a written contract for the sale of lumber provided that the purchaser should ship all of the lumber by a certain date “or pay for the same on estimate,” the clause quoted, if ambiguous, might be explained by parol evidence of a general custom or usage of the trade in contracts of that hind.</p>

<p>Appeal from a judgment of tbe circuit court for Wood county: Chas. M. Webb, Circuit Judge.</p> <p>This action was commenced to recoyer for personal injuries sustained by Charles Berg, who died pending the action, and upon his death it was continued by his administrator. The complaint charges that the deceased sustained damages by being unlawfully pushed off a passenger car of the defendant at Port Edwards, while a passenger thereon. The answer was a general denial. A general verdict of no cause of action was rendered in favor of the defendant, from which this appeal was tahen.</p>

<p>Appeal from a judgment of the circuit court for Wood county: Chas. M. Webb, Circuit Judge.</p> <p>Action to recover for personal injuries charged to have resulted from an uncovered or insufficiently protected gearing in defendant's sawmill at Hiles, Wisconsin. Plaintiff was about twenty-five years of age, a young man of ordinary intelligence, and on May 15, 1909, had been working in the defendant’s mill some five or six weeks, for the last three weeks of which time he had worked about the slasher slide and live-roller table, where his injury occurred on the last named date. The following description of the slide and table in question was stipulated to be correct by the parties upon the trial, and is here inserted for the sake of greater accuracy:</p> <p>“That the live-roller table ran east and west in defendant’s mill and that at the west end was the slab bumper, and on the north side of the live-roller table at the west end was the slasher slide, which was 24 feet and 9 inches long east and west and approximately 11 feet wide, in a slanting position, running up from the bottom of the northerly edge of the live-roller table to and beyond the slasher saws situated in the northern portion of the mill; that the live-roller table was approximately 60 or 70 feet long; that between the slab bumper and the lumber bumper was about from 24 to 30 feet; that in the live-roller table between the slab bumper and the lumber bumper were six live rollers operated as described in the pleadings 4 feet apart from center to center, said live rollers being-approximately 10 inches in diameter; that on the south end of each live roller and attached to the axis thereof was a bevel gearing about 8 inches in diameter, which meshed or engaged' with a similar gearing of the same size upon the shaft running east and west from the south end of the live roller; the power to turn the live rollers was transmitted to the shaft referred to by another shaft from below and turned the live rollers so,that the tops thereof moved toward the west. The top of the live-roller table was about 2 feet above the floor and about 2 feet wide. The shaft referred to was covered by two six-inch maple boards, making the top covering of the shafting a trifle over 12 inches wide; and on the south side under the south edge of the top boards was a drop board originally about 6 inches wide. These descriptions and 'measurements apply to the place of the accident and a considerable distance east and west. That commencing about south of the slab bumper and directly under the horizontal shaft and gearing in question is a hole in the floor about'6 inches wide and extending-cast under said drive shaft and gearing a distance of about 24 feet and beyond the gearing where the plaintiff was injured ; that said hole in the floor led to a conveyer underneath into which waste, sawdust, bark, and short piecesv of edgings were thrown, and that said hole was divided up by the joists-in the floor underneath, and that under the gearing in question where the injury occurred, the joists were about 6 inches apart. That the height of the top of the boards which covered the shafting and gearing above, from the floor, was 26J inches.”</p> <p>The evidence tended to show that plaintiff’s duty was to stand near the west end of the slasher slide on the liv-e-roller-casings with a pike pole and pull the slabs and edgings from the live rollers and straighten them on the slasher slide, so they would go into the slasher saws straight, and if the edgings got crossways on the other end of the slasher slide to step on to the board which covered the gearing and drive shaft and walk eastward and straighten them out, also to clean up-around the slasher when short pieces fell off and to clean up under the gearing. The evidence further tended to show that at the time of the accident he had been straightening edgings. at the west 'end of tbe slasher slide when a number of edgings got piled crossways eighteen or twenty feet east of him, and he walked east on the boards covering the gearing about that •distance and straightened the edgings out with his pole. "When he was facing northwest a slab coming from the east on the live rollers cornerwise hit his heel and he fell down into the alley just south of the line shaft and gearing, and as he fell he reached out his hand and grabbed and thrust it into one ■of the gears, taking off three fingers. There was evidence to the effect that a piece had been broken off from the lower portion of the drop board covering the gearing at this point for some time, leaving the gearing partly exposed, and it was claimed that on account of the absence of this piece'of the drop board it became possible for the plaintiff’s hand to be thrust into the teeth of the cogs as he grabbed at the boards in his fall. He testified that he was about to step down on to the floor and clean up around the hole in the floor as the slab struck him.</p> <p>The jury returned the following special verdict:</p> <p>“(1) Was plaintiff injured at the time and place alleged, and substantially by the means and in the manner testified to by him? A. Yes.</p> <p>“(2) Did the defendant at and prior to the time when plaintiff sustained his injury negligently fail to securely'guard or fence the gearing in which plaintiff was caught and injured ? A. Yes.</p> <p>“(3) If you answer the second question 'Yes,’ then answer this: Was such negligence the proximate cause of plaintiff’s injury? A. Yes.</p> <p>“(4) Did any want of ordinary care on the part of the plaintiff proximately contribute to produce his injuries? A. No.</p> <p>“(5) What sum of money would fairly compensate plaintiff for the damages sustained by reason of his injuries? A. $3,200.”</p> <p>Motions by defendant to change the answers to the second, third, and fourth questions, and for judgment for defendant on the verdict as changed; also for judgment notwithstanding the verdict; also for a new trial, were successively denied, and judgment entered for the plaintiff oil the verdict, from which the defendant appeals.</p> <p>To the point that sec. 1636/, Stats. (1898)', did not apply to- this case for the reason that the unguarded gearing.was not dangerous to employees working in the position in which the plaintiff was at the time of his injury, they cited Walker v. Simmons Mfg. Go. 131 Wis. 542; Powalske v. Cream City B. Go. 110 Wis. 461; Miller Kimberly & G. Go. 13(I Wis. 138; West v. Bayfield M. Go■. 144 Wis. 106; Hong v. Girard L. Go. 144 Wis. 337; Gobb v. Welcher, 75 Hun, 283; Dillon v. Nat. O. T. Go. 181 N. Y. 215.</p>

At?peal from a judgment of the circuit court for Wood county: Chas. M. Webb, Circuit Judge. This action is brought by the plaintiff as trustee of the estate of A. B. Cotey and Henry C. Cotey, as A. B. Cotey & Son, bankrupts, to recover from the defendant bank the sum of $503.50 claimed by the plaintiff to be a preference under the bankruptcy laws of the United States. It was begun by sendee of summons and complaint on April 7, 1910.

<p>Tillages: • Incorporation: Proof of statutory requisites: How court may be “satisfied:” Survey, where to be left: “Person residing” in territory: What lands may be included.</p> <p>1. Upon the hearing of an application for the incorporation of a village under secs. 854-856, Stats. (1898), the petition and accompanying papers, duly verified and conforming to the requirements of the statute, may he regarded as making a prima • facie case and authorizing an order of incorporation. The court may be “satisfied” thereby that all the statutory requisites exist, within the meaning of sec. 861.</p> <p>2. 'Leaving the survey, map, and census at the office of a corporation, which was the most frequented place in the proposed territory and the place best calculated to bring them to the attention of persons interested, was a sufficient compliance with sec. 856, requiring them to be “left at the residence or place of business within such territory of some person residing therein.”</p> <p>3. Inclusion, within the corporate limits of a new village, of considerable territory lying between the banks of the Wisconsin river, either covered by water or composed of low islands, for which police regulation was desirable, and of a strip along the bank of a river, suitable for residences, extending from the village proper to the corporate limits of a city, and traversed by a main highway along which a trolley line from the city might be extended, was not so unreasonable or improper as to warrant disturbing the decision of the circuit court.</p> <p>4. The adjacent lands which may be included with territory urban in its character within the corporate limits of a new village are such as are naturally connected therewith and are reasonably appurtenant and reasonably necessary for future growth. Language in Fenton v. Ryan, 140 Wis. 353, explained.</p>

<p>Appeai, from a judgment of the circuit court for Wood ■county: Chas. M. Webb, Circuit Judge.</p> <p>This is an action to recover damages for personal injuries received by the plaintiff, a minor employed in the defendant’s mill. The plaintiff commenced working for the defendant on EriSay, May 7, 1909. On Monday, May 10th, he was put át cutting slabs and other small pieces of wood into shorter lengths on a jump saw. The operator of the jump saw places his foot upon a pedal, the revolving cross-cut saw is thereby caused to rise through a slit in the table of the machine, and it cuts the wood placed over the slit. The plaintiff was nineteen years of age. He had never before worked a jump' saw. He was shown how to operate the saw, but was not warned of any dangers arising from operating it.</p> <p>Between 9 and 10 o’clock in tbe morning tbe foreman ordered tbe plaintiff to cnt up some tbin bos material, called packing, while continning to cnt tbe slabs. It was necessary for tbe operator to pull tbe packing diagonally across tbe jump-saw table, to arrange it as best be could, and to saw it when tbe supply of slabs was small. Tbe slabs were carried to tbe table on live rollers, and at times aceumnlated to sucb an extent that some fell from tbe table. While tbe plaintiff was drawing some packing across tbe table several pieces of tbe accumulated slabs fell from tbe table, and one or more fell upon tbe pedal which operated tbe saw, causing it to rise and sever tbe fourth finger from plaintiff’s right band.</p> <p>Tbe complaint alleges negligence in that tbe pedal was not guarded; in that tbe saw. was not sufficiently protected; in that tbe defendant failed to furnish sufficient workmen to conduct the operation of this saw with reasonable safety; in that tbe live rollers conveying tbe slabs to tbe operator delivered sucb slabs too near tbe saw, causing them to accumulate and to fall onto tbe pedal and thereby starting tbe saw; and in that tbe defendant failed to warn tbe plaintiff of tbe dangers attending tbe operation of tbe jump. saw.</p> <p>There was conflicting evidence on tbe trial as to whether or not there was a guard over tbe pedal; tbe plaintiff and two former employees of tbe defendant testifying that there was no guard over tbe pedal, while seven employees of tbe defendant testified that there was sucb a guard at tbe time of tbe accident and that it bad been there for some time before. Tbe plaintiff testified that be was not informed of tbe danger and did not appreciate it before tbe accident.</p> <p>There was evidence that the plaintiff saw slabs fall from tbe jump-saw table onto tbe floor near tbe pedal operating tbe saw and that be bad picked such slabs from tbe floor. There was evidence also that, in tbe ordinary and usual course of handling tbe slabs carried onto the table of the jump saw, tbe slabs would not accumulate upon tbe table to sucb an extent tbat some would fall to tbe floor, but tbe operator would bave time to receive and handle tbem and tbus avoid tbeir accumulating. Tbe jury returned tbe following special verdict:</p> <p>“(1) Did defendant negligently fail at tbe time of tbe plaintiff’s injury to bave a safe and sufficient guard over tbe jump saw in question ? A. Yes.</p> <p>“(2) If you answer question No. 1 ‘Yes,’ then was sucb negligence a proximate cause of plaintiff’s injury? A. Yes.</p> <p>“(3) If you answer question No. 1 ‘Yes,’ then did plaintiff at tbe time of bis injury understand and appreciate tbe precise danger to wbicb be was exposed by tbe absence of said guard ? A. No.</p> <p>“(4) Did tbe defendant'negligently fail at tbe time of plaintiff’s injury to bave a safe and sufficient guard over tbe pedal in question ? A. Yes.</p> <p>“(5) If you answer question No. 4 ‘Yes,’ then was sucb negligence a proximate cause of plaintiff’s injury ? A. Yes.</p> <p>“(6) If you answer question No. 4 ‘Yes,’ then did plaintiff at tbe time of tbe accident know of and appreciate tbe precise danger to wbicb he was exposed by tbe absence of said guard ? A. No.</p> <p>“(J) Did tbe defendant negligently fail to warn plaintiff of tbe dangers incident to tbe operation of said jump saw? A. Yes.</p> <p>“(8) If you answer question No. 7 ‘Yes,’ then was sucb failure to so warn said plaintiff a proximate cause of bis injury? A. Yes.</p> <p>“(9) Did the defendant negligently fail to employ enough persons to do tbe work plaintiff was required to do by tbe defendant on said jump saw with safety to plaintiff? A. Yes.</p> <p>“(10) If you answer question No. 9 ‘Yes,’ then was sucb failure to employ enough persons a proximate cause of plaintiff’s injury? A. Yes.</p> <p>“(11) Did plaintiff in any respect fail to exercise ordinary care which proximately caused or contributed to produce his injury? A. No.</p> <p>“(3.2) What sum of money will justly compensate tbe plaintiff for bis said injuries ? A. $500.”</p> <p>Before tbe special verdict was submitted to tbe jury tbe defendant requested that tbe following question be submitted instead of question No. 4:</p> <p>“(4) Was tbe pedal in question protected at tbe time of plaintiff’s injury by tbe guard M as shown on Exhibit 0 ?”</p> <p>Tbe defendant also requested tbe following instructions, but tbe court refused to give them:</p> <p>“As to question No. 4. Tbe plaintiff in this action is an interested party, and in considering tbe weight which should be given to bis testimony you should consider tbe fact of such interest, and tbe motive which be has to testify to such statement of facts as will be favorable to himself, and a like test should be applied to tbe evidence of any other interested witness.</p> <p>“As to question No. 4. You are instructed that there is no dispute that tbe guard marked M on Exhibit C, if such guard was over said pedal, is a safe and sufficient guard. .</p> <p>“As to question No. 4. If you find that any witness has wilfully testified falsely as to any material fact, you are at liberty to disregard all the credible testimony of such witness, except as it may be corroborated by other credible evidence in tbe case.</p> <p>“As to question No. 1 defendant asks tbe court to answer said question-‘No’ or to instruct tbe jury to answer said question ‘No.’</p> <p>“As to question No. 2 defendant asks tbe court to answer said question ‘Yes,’ or to instruct the jury to answer said question ‘Yes,’ and in tbe event of a refusal so to do, to instruct tbe jury it is not necessary in order to answer question No. 3 ‘Yes’ to find that plaintiff actually understood and appreciated tbe precise danger; but if you find that tbe plaintiff, in tbe exercise of such care as a person of bis age and experience ordinarily exercises under tbe same or similar circumstances, ought to have understood and appreciated tbe precise danger to which be was exposed by tbe absence of said guard, then you should answer question No. 3 ‘Yes.’</p> <p>“As to question No. 5 you gentlemen of tbe jury are instructed that, in order to find that tbe absence of said guard was tbe proximate cause of plaintiff’s injury, you must find that the defendant in the exercise of ordinary care ought to have foreseen that an injury was likely to result from the absence of said guard.</p> <p>“As to question No. 6 defendant asks that the court answer ■said question ‘Yes/ or that the court instruct the jury to so answer said question ‘Yes/ and in the event of a refusal to so answer said question or to so instruct the jury, then to instruct the jury as follows: You are instructed that in order to answer question No. 6 ‘Yes’ it is not necessary for you to find that the plaintiff actually or in fact knew of or appreciated the precise danger to which he was exposed by the absence of said guard. If you find that the plaintiff, in the exercise of ■such care as a person of his age and experience ordinarily exercises under the same or similar circumstances, should have known of and appreciated said danger, then you should answer said question No. 6 ‘Yes.’</p> <p>“The plaintiff is presumed to be possessed of the usual faculties ordinarily developed in a boy of his age and size. He is presumed to be a person of common sense for one of his .years.</p> <p>“As to question No. 7 defendant asks that the court answer said question ‘No/ or that the court instruct the jury to answer said question ‘No,’ and in the event of refusal to so answer said question or so instruct the jury, then to instruct the jury as follows: The defendant had a right to assume that the plaintiff was possessed of the usual faculties ordinarily developed in a boy of his age and size; in other words, that he was a person of common sense for one of his years, and that he would exercise such care to avoid dangers which were visible and which he knew or ought to have known existed, as might be reasonably expected of one of his years and capacity.</p> <p>“Ah to question No. 8 defendant asks that the court answer said question ‘No/ or that the court instruct the jury to answer said question ‘No.’</p> <p>“As to question No. 9 defendant asks that the court answer said question ‘No’ or that the court instruct the jury to an.swer said question ‘No.’</p> <p>“As to question No. 10 defendant asks that the court answer said question ‘No’ or that the court instruct the jury to answer said question ‘No/ and in the event of failure to so answer ■said question to so instruct the jury that the jury be instructed: You are instructed, gentlemen of the jury, that unless you find! that the defendant in the exercise of ordinary care ought to, have foreseen that some injury was likely to result to the plaintiff from failure to employ more persons at the work in which plaintiff was engaged, then you should answer question No. 10 No.’</p> <p>“As to question No. 11 defendant requests that the court answer said, question No. 11 ‘Yes,’ or instruct the jury to SO' answer said question ‘Yes.’ ”</p> <p>The court awarded the plaintiff a judgment on the verdict. This is an appeal from such judgment.</p>

<p> Railroads: Negligence: Killing of person at private crossing: Duty to signal approach of train: Questions for jury: Contributory negligence: Proximate cause: Evidence: Barmless errors: Special verdict. </p> <p>1. In. the absence of statute it is the duty of a railroad company to signal the approach of a train to a private crossing if the circumstances are such that ordinary care for the safety of persons using such crossing requires it.</p> <p>2. It was a question for the jury in such case whether defendant was negligent in failing to signal the approach of a train to a private crossing which was dangerous by reason of an overhanging hill, a curve in the track, the difficulty in seeing or hearing an approaching train, and the physical, condition of the crossing.</p> <p>.3. Upon approaching with his wagon and team the crossing in question, plaintiff’s intestate opened the gate and, leaving the team in charge of his son, after looking and listening for a train, started across the track to open the other gate, the team following about ten or twelve feet behind him. Being suddenly apprised of the approach of a train which had been hidden by the hill and the curve in the track and which was running at a high rate of speed, he turned back, grabbed the team, which was then on the track, and pushed and backed them and the wagon off the track. He succeeded in clearing the track when the train was about seventy-five feet away, but as the train passed the horses reared and swung around and he was struck a glancing blow by the engine from the effects of which he died. Held, that in view of the quickness of decision required and the physical condition of the crossing with a narrow driveway and a high bank at the side, it could not be said as a matter of law that the deceased was guilty of contributory negligence either in placing himself in a position of danger, in failing to back his team far enough, or in failing to step aside.</p> <p>4. Whether under the circumstances stated the deceased would have been justified in putting himself in the position he did merely to save his property, is not decided, it sufficiently appearing that his motive was to save his son who was driving the team, and that being a sufficient justification.</p> <p>5. Upon the facts as stated, the fright of the horses cannot he regarded as the proximate cause of the injury.</p> <p>6. Evidence of the failure of the trainmen to signal for a highway crossing about one mile before reaching .the private crossing where the accident happened, even if improperly admitted, was not prejudicial to defendant.</p> <p>7. There was no error in refusing to submit in the special verdict a question asking whether if the deceased, after reaching the crossing himself, had looked constantly up the track in the direction from which the train was coming, he could have seen such train before his team reached the crossing.</p>

<p>Appeal from a judgment of the circuit court for Pierce county: E. W. Helms, Circuit Judge.</p> <p>Action to recover for personal injuries received by plaintiff in defendant’s sawmill. The facts are stated in the opinion. The defendant appeals from a judgment in favor of the plaintiff.</p>

<p> Vendor and purchaser of land: Acceptance of deed as fulfilment of contract. </p> <p>Plaintiff contracted in February for the purchase of a farm, and in March accepted a deed after having had it examined, with reference to the description, by a lawyer. As early as May she knew that the deed did not convey all of the farm, but made no complaint then to any one, and in' September expressed herself as satisfied with her deal. In December she brought the matter to the attention of her attorneys, who notified the grantor of her claim. Held, that upon evidence showing these facts and others the trial court was justified in finding that she had accepted the deed as a fulfilment of the contract and therefore that she was not entitled to a reformation of the deed.</p>

<p> Sales: Warranty: Breach: Conditions precedent to action: Damages: Lost profits, when recoverable: Diligencé. </p> <p>1. Where, upon a sale of a gasoline engine, there was a written warranty that the engine was “made of good material and first-class workmanship, and for one year from date of shipment [the seller] will make good all breakages” under certain conditions, the warranty as to material and workmanship was absolute and distinct from the provision as to breakages, and the buyer might sue for breach of the former without availing himself of the latter.</p> <p>2. The measure of general damages for breach of the warranty as to material and workmanship was the difference between the market value of the engine as it was at the time of delivery and its market value had it fulfilled that warranty.</p> <p>3. Special damages for loss of profits caused by breach of contract are recoverable only when it is clear that they were fairly within the contemplation of the parties at the time the contract was made, and when their amount can he ascertained with reasonable certainty and their origin can be traced with like certainty to the breach of the contract; and the party seeking to recover such special damages must have exercised ordinary diligence to minimize them.</p>

<p>Appeal from a judgment of the circuit court for St. Croix county: James Wickham, Judge.</p> <p>This is an action of quo- warranto to try the title to the office of chief of the fire department of the city of Hudson. The relator claims the office by virtue of an appointment by a hoard of police and fire commissioners appointed by the mayor of the city, and the defendant by virtue of an appointment by a like board appointed by the president of the council of the city, and the sole question is which board was the legally appointed board.</p> <p>There is no material dispute as to* the facts. Hudson is a city of the fourth class. Ch. 187, Laws of 1909 (secs. 959 — - 411 to 959 — 41«., Stats.), provided for the appointment by the mayor of a board of police and fire commissioners in cities of the fourth class at some time between the last Monday in April and the first Monday of May, 1910. The charter of the city of Hudson (ch. 197, Laws of 1885) provides for the election of a president of the city council, and that “during the absence of the mayor from the city, or his inability from any reason to discharge the duties of his office, the said president shall exercise all the powers and discharge all the duties of mayor.” The last Monday in April, 1910, fell on the-25th day of the month. On that day the mayor of the city, B. W. TJtman, went to the city of St. James, Minnesota, intending to return the same evening, hut was detained and did not return to Hudson until April 27th. During such absence and on the 26th day of April, between the hours of 12 and 1 o’clock a. m., Chris Casanova, the president of the council, assumed to appoint five police and fire commissioners, who took and filed their oaths of office on the same day, and organized as a board and adopted rules. On the 1st day of July following, this hoard appointed the defendant, Lahiff, chief of' the fire department of the city, and he'qualified and took possession of the office. On April 30,1910, the mayor appointed five police and fire commissioners, who qualified and organized as a board, and appointed the relator to the disputed office July 1, 1910. The trial court held the relator to have been duly appointed and entered judgment ousting the defendant,, and the defendant appeals.</p> <p>Appellant cited, besides cases cited in the opinion, People ex rel. Ryan v. Van Anden, 116 Mich. 654, 74 N. W. 1009; Mills v. State ex rel. Smith, 2 Wash. 5.66, 27 Pac. 560; In re-Cleveland, 51 N. J. Law, 319, 18 Atl. 67, 68, 69; 32 Cyc. 1463; Wright v. Defrees, 8 Ind. 298; McCulloch v. Stale, 11 Ind. 424; Fletcher v. Pech, 6 Cranch, 87,130,131.</p>

<p> Contracts: Construction: Waters: Losses caused by “pollution:” Measure of damages: Riparian owners: Deposits of refuse in millpond: Flowage rights: Injury to water power: Injunction: Abatement of nuisance. </p> <p>1. If the meaning of language used in a contract or receipt can be ascertained with reasonable certainty from the instrument itself, recourse cannot be had to extrinsic facts to aid in its interpretation.</p> <p>2. In an agreement by which a beet sugar company agreed to pay to plaintiffs, the owners of a grist-mill and a mill-pond upon which they cut ice, a specified sum “in full for all losses sustained by said” owners “in the past due to the pollution of the water in their pond from the refuse discharged by the” sugar company, and the latter was to “have the right to continue this agreement on the payment of” a smaller sum annually, and which further provided: “This agreement shall not abrogate any water rights which said” owners “now possess,” — the words “losses due to the pollution of the water” are held, both on the face of the writing and in view of the circumstances surrounding the parties, to have been used in a restricted sense as referring to damage done to plaintiffs’ ice''field by contamination of the water, and not including damage to the water power resulting from deposits in the mill-pond.</p> <p>.3. In an action by mill owners to recover damages for pollution of the water of a stream and the filling up of their mill-pond by refuse discharged from a beet sugar factory, and for an injunction and abatement of the nuisance, although one witness testified to the value of plaintiffs’ property before the deposits were made in the pond and its valúe afterwards, and although it is claimed that a finding by the court assesses permanent damages to the property, it is held, in view of the record and the opinion of the trial judge', that the case was tried and disposed of upon the theory that the measure of plaintiffs’ damages on account of such deposits was the cost of restoring the usefulness of the pond by their removal.</p> <p>4. The finding, not the opinion, of the trial court controls, but that does not preclude reference to the opinion or to the record in the case for the purpose of ascertaining what the finding means, when it is not so clear and unambiguous as to bar construction.</p> <p>•5. It was not an error prejudicial to defendant in such a case to enjoin the use of a large settling basin within plaintiffs’ fiowage limits, into which refuse from the sugar factory was discharged and' which lessened the capacity of plaintiffs’ pond, even though it had not been specifically alleged that such basin was an infringement of their fiowage rights, where the complaint did allege the creation of a nuisance upon plaintiffs’ property and that by filling up plaintiffs’ reservoir and diminishing its capacity defendant had virtually destroyed the water power, and general equitable relief was asked.</p> <p>•6. Where fiowage rights are established either by grant or by prescription the owner of the servient state can do nothing to impair such rights. He cannot interfere or meddle with the territory so as to impair its capacity for storage.-</p> <p>7. it was proper, in allowing as damages in such case the cost of removing deposits in the mill-pond, coming from defendant’s factory, to include deposits below the level of the bottom of plaintiffs’ dam, or below the penstock, since those deposits impaired the capacity of the pond to receive natural deposits.without injury to the water power.</p> <p>:8. It was error, however, to include in such damages the cost of removing deposits in defendant’s settling basin, which by the terms of the judgment were to be removed by the defendant.</p>

<p> Criminal law: Homicide: Trying accused l>otTi as principal and as accessory: Degrees: Confession Toy codefendant: Competency: Appeal and error: Review. </p> <p>1. An information for murder may charge a defendant in one count as principal and in another as accessory, joining other defendants, and he may be required to plead to both counts and may he tried on both at the same time.</p> <p>2. Where in an information two persons were jointly charged with murder in the first degree and also charged as accessories to the same offense, and one was permitted to plead guilty of murder in the third degree, it seems there was no error in trying the other as accessory to the crime in the higher degree; but if there was error it was immaterial where the conviction was-as principal, not as an accessory.</p> <p>3. Where a defendant is charged with having, in combination with others, committed murder, and the evidence tends to prove that the crime was committed pursuant to such combination, a confession by a co-conspirator, incriminating such defendant, is-not incompetent merely because made while the person confessing was restrained of his liberty and in response to questions by the officers having him in charge and not in the presence of any one to protect him from being unduly influenced.</p> <p>4. Where such a confession was clearly influenced by fear, favor, or the promise of reward it is not admissible; but where there are-reasonable conflicting inferences in that regard, the evidence may be admitted, leaving it to the jury to draw the proper inference and to give heed to or reject the confession accordingly.</p> <p>5. The ruling of the trial court on the competency of such evidence is not to be disturbed unless manifestly wrong.</p> <p>6. Admission as against one conspirator of a confession made by another after the fact and not in the presence of and assented to by the former, was not in this case a prejudicial error, especially since there was no assignment of error on that ground.</p>

<p> Criminal law: Bastards: Neglect to provide for. </p> <p>1. Sec. 4587c, Stats. (Supp. 1906: Laws of 1905, ch. 131), imposes upon the father of a bastard child merely a duty similar to that which it imposes upon the father of a legitimate child, and imposes that duty only in those cases of illegitimacy in which the relationship has been judicially established. It is a valid enactment.</p> <p>2. An action under sec. 4587c is not an action to enforce the judgment in the bastardy proceeding.</p>

<p>Habeas corpus: Second writ: Res judicata: Review on writ of error.</p> <p>1. An. order made in babeas corpus proceedings remanding tbe prisoner to tbe custody of tbe sheriff and fixing bail is res judi-cata as to tbe issues involved until reversed in some proper proceeding.</p> <p>2. Sucb an order is subject to review on writ of error under sec. 3043, Stats. (1898), notwithstanding tbe provision in tbe order for tbe giving of recognizance.</p>

<p>Error to review a judgment of the circuit court for Bay-field county: John K. Parish, Circuit Judge.</p> <p>The plaintiff in error, hereinafter called the defendant, was charged with the crime of murder in the first degree for the killing of one Louis Cochenour on November 7, 1909. He was tried and found guilty of the crime of murder in the second degree and sentenced to twenty years’ imprisonment in the state prison. The defendant and the deceased started deer hunting on the morning of November 7th. It appeared that they killed a deer, dressed it, divided it into two parts, and also divided the hide. The defendant returned alone, stating that the deceased had left him at a certain point and that thereafter they did not meet. Searching parties were organized and hunted for the deceased for three days. They were accompanied in each instance by the defendant, who led thorn to the place where the deer was killed and to the place where he claimed to have parted with the deceased. On the third day the body of the deceased was found by one of the searchers. The body had been penetrated by two rifle bullets, either one of which would have produced death. There was evidence tending to show that the defendant purposely kept the searchers away from the place where the body was found, and there was some evidence tending to show that while the search was being made the defendant left the other searchers and removed the body from where it originally lay to a place of greater concealment a short distance away. An inquest was held over the body where it was found, and the defendant testified that he had no knowledge of how Cochenour met his death. Thereafter he admitted and testified on the trial that lie shot Cochenour, but that he did so in self-defense to save his own life and because Cochenour had shot at him and was about to do so again when defendant killed him. The evidence of the defendant was to the effect that when he started out hunting in the morning he had a pint of whisky and that Cochenour had a quart of whisky and ’had drank some before they left, and that both parties drank quite freely before the shooting took place.</p> <p>The errors assigned are that the court erred in permitting the minutes of the coroner’s inquest to be read and received in evidence; in charging the jury that it might find the defendant guilty of murder in the second degree; and in refusing to set aside the verdict of conviction of murder in the second degree.</p>

<p>Eeboe to review a judgment of the circuit court for Marathon county: A. H. Reib, Circuit Judge.</p> <p>The plaintiff in error was convicted of the crime of murder in the second degree on an information charging that on the 24th day of February, 1910, he did wilfully, feloniously,, and of his malice aforethought hill and murder one Mary Nitsche, with a premeditated design then and there to effect the death of said Mary Nitsche.</p> <p>Mary Nitsche, a widow sixty-seven years old, lived about a block from the defendant, who was a widower fifty-two years of age. They were friends. About half past 7 o’clock on the evening of her death they were seen talking together on the street near the home of the defendant. Shortly afterward the defendant got a pail of beer from a saloon near by-About half past 9 o’clock he again came to' the saloon inquiring for a doctor and also for the son of Mrs. Nitsche. He sought the son at a factory several blocks away, went to his-home again, and then returned to the saloon and again inquired for the son and a doctor. 'When the doctor arrived,, the defendant, the doctor, and several others went to the defendant’s home and found Mrs. Nitsche lying dead on the-floor of the defendant’s bedroom. Several pillows were under her head and there was a pool of blood between her legs and on the floor. The defendant testified that the bleeding resulted from his having sexual intercourse with the deceased.</p> <p>Upon an autopsy of the deceased it was found that there-was a ragged cut or tear one and three-fourths inches long and about one and one-half inches deep on the right side of the vagina and back of the neck of the womb. This cut or-iear was torn through the mucous membrane and had penetrated the tissues beyond inside the pelvis, rupturing and mangling the arteries situated there. The testimony of the-physicians was that the deceased had bled to death and that the tearing which had ruptured and mangled the arteries must have been caused by the violent introduction into the vagina of the deceased of some hard foreign object, and that it could not have been caused by sexual intercourse alone as was claimed and stated by the defendant.</p> <p>Physicians testified that if it were assumed that the injury to and death of the deceased had been caused by the defendant by the infliction of a wound resulting from the use of a hard and blunt article as above described, this would indicate that the act was impelled by a condition of sexual perversion in the perpetrator and that it implied that he sustained no malice or animosity toward the victim.</p> <p>The court instructed the jury that there was no evidence on which they could find the defendant guilty of murder in the first degree, hut he instructed them on and submitted the case to them upon murder in the second and third degrees and upon manslaughter in the first and fourth degrees.</p> <p>The jury found the defendant guilty of murder in the second degree and he was sentenced to the state prison for the term of eighteen years. The defendant seeks a review of the proceedings of the circuit court.</p>

<p>Appeal from a judgment of tbe circuit court for Sawyer county: James Wioeham, Circuit Judge.</p> <p>Action to recover for a personal injury. Tbe issues sufficiently appear by tbe following, established by tbe evidence:</p> <p>In tbe regular course of legitimately erecting a power plant, adjacent to a public bigbway where it crossed tbe Red Cedar river at Rice Lake, Wisconsin, defendant placed and operated on its own land a small portable engine. Tbe firebox was five to fifteen feet from tbe side of tbe bridge and tbe smokestack further away. Tbe machine sat on a lower level than tbe top of tbe bridge. Tbe smokestack was ten to eighteen feet from tbe side of and reached five to ten feet above tbe roadway. Smoke from tbe stack was liable to be carried toward tbe bridge and, as proved to be tbe case, frighten horses of ordinary gentleness. Tbe engine was a necessary •appliance in constructing tbe power plant. It might have been located a little further from tbe bridge and tbe smokestack carried somewhat higher so as to have lessened, perhaps, danger of frightening horses. It was operated with due care. No unusual or unnecessary noise or emission of smoke from tbe smokestack, occurred.- The smokestack was readily observable by a person approaching tbe vicinity of tbe engine on tbe roadway. For some time before tbe occasion in question tbe engine bad been used during working hours and without interfering with convenient, safe use of tbe bridge. No arrangement was made to warn travelers of tbe presence of tbe engine or to avoid frightening horses.. Tbe engine was operated in the ordinary way, leaving users of the bigbway to look ■wholly after their own safety. As plaintiff, in tbe daytime, with, others, one of whom was the driver, was riding in a one-horse drawn vehicle across the bridge, unconscious of the location of the engine, the horse became frightened from smoke suddenly escaping from the smokestack and blowing toward the roadway, ran away, threw her out of the conveyance, and seriously injured her. The particulars of the injury were sufficiently established to enable a jury to assess damages.</p> <p>There was a motion for a directed verdict in defendant’s favor, which was denied. There was a special verdict as follows: The engine was negligently placed and operated with reference to use of the highway for driving thereon with horses of ordinary gentleness. Defendant failed to exercise ordinary care in locating and operating the engine. Such failure was the proximate cause of the injury, without any want of ordinary care on her part or of the driver contributing thereto'. She was damaged in the sum of $4,950.</p> <p>The court refused judgment on the verdict and on motion reversed the three first findings and rendered judgment in defendant’s favor.</p>

<p>Appeal from a judgment of the circuit court for Brown county: S. D. Hastings, Circuit Judge.</p> <p>cited, among other-cases, Nor or oss v. Griffiths, 65 Wis. 599, 27 N. W. 606; Wegge v. Madler, 129 Wis. 412, 109 N. W. 223; Farris v. Bentley, 141 Wis. 671, .124 N. W. 1003; Willow Biver Glub v. Wade, 100 Wis. 86, 76 N. W. 273; Green Bay & M. G. Go. v. Teküah P. Go. 140 Wis. 417, 122 N. W. 1062; O. Beclc G. Go. v. Milwaukee, 139 Wis. 340, 120 N. W. 293; Chicago & N. W. B. Go. v. Groh; 85 Wis. 641, 55 N. W. 714; 30 Am. & Eng. Ency. of Law (2d ed.) 475, 502; 21 Am. & Eng. Ency. of Law (2d ed.) 437; 24 Am. & Eng. Ency. of Law (2d ed.) 979; Priewe v. Wis. State L. & I. Go. 93 Wis. 534, 67 N. W. 918; III. S. Go. v. Jelca, 123 Wis. 419, 101 N. W. 399; Clark v. Potter, 32 Ohio St. 49; Ewing's Lessee v. Burnet, 11 Pet. 41; Tates v. 'Milwaukee, 10' Wall. 497; Lathrop v. Bacine, 119 Wis. 461, 97 N. W. 192; Delaplaine v. G. •& N. W. B. Go. 42 Wis. 214; Montgomery v. Shaver, 40 Oreg. 244, 66 Pac. 923; Matter of Mayor, etc. (In re Water Front), 113 App. Div. 84, 98 N. Y. Supp. 1063; Carroll v. Price, 81 Fed. 137; McGloskey v. Pacific 0. Go. 160 Fed. 794.</p> <p>cited Drake v. Curtis, 1 Cush. 395; Tufts v. Oharlestown, 117 Mass. 401; Wheeler-v. Stone, 1 Cush. 313; Paine L. Co. v. Oshkosh, 89 Wis. 449, 61 N. W. 1108; and other cases.</p>

<p>Appeal from a judgment of the county court of Walworth county: Jay E. LyoN, Judge.</p> <p>To the point that the use by the vendor of the words “about77 or “more or less,77 with reference to the number of acres in the tract sold, will not preclude a recovery by the purchaser for fraudulent representations as to the quantity of land where there is a large discrepancy between the actual and 1‘epresented number of acres, counsel for respondent cited Boddy v. Henry/126 Iowa, 31, 101 N. W. 447; Paine v. Upton, 87 N. T. 327; Wilson v. Bandall, 67 N. T. 33'8; Belhnap v. Bealey, 14 N. T. 143; Tcvrbell v. Boimnan, 103 Mass. 341.</p>

<p> ‘Trusts and trustees: Express trust: Absolute deed how shown to be in trust: Evidence: Foreign wills: Power to sell land: Authority to execute in this state: Executors: Survivor: Ejectment: Recovery of undivided interest. </p> <p>1. A trust to take and. hold the title to lands for the real owners as a convenience in conveying the same and to make conveyances at their direction, is an express trust under subd. 5, sec. 2081, Stats. (1898).</p> <p>'2. Under sec. 2302, Stats. (1898), a deed absolute on its face cannot be shown by oral evidence to have been made in trust.</p> <p>■3. To impeach such a deed and engraft upon it a trust, there must be clear and convincing evidence in writing establishing the fact beyond reasonable controversy.</p> <p>•4. The trust need not, necessarily, be embraced in one instrument, but whether in one or more it must be in such form as to comply with the statute (subd. 5, sec. 2081, Stats. 1898) without the aid of oral evidence.</p> <p>•5. A letter signed by the grantee in a deed absolute, stating that he has made a purchase of land of the grantor in such deed and that he takes the title in trust, but not describing the lands nor expressing the purpose of the trust or naming the beneficiaries, is not sufficient to meet the requirements of the statute; neither is a resolution of the board of directors of a corporation interested in such purchase, not signed by such grantee though adopted while he was present, which fails to describe the land' or to name the parties for whose use the title was to be held.</p> <p>6. Where a foreign will gives the executor power to sell and convey real estate, a duly authenticated copy of the will and of the probate thereof in the state of the testator’s domicile, when recorded in this state in the office of the register of deeds of the' county where real estate of the testator is situated, is sufficient to authorize the conveyance of such real estate without probating the will in this state, and is presumptive evidence of the authority of the sole surviving executor to make such conveyance.</p> <p>7. Under the statutes both of Michigan and of Wisconsin (sec. 2137, Stats. 1898) a power of sale given by will to three executors, can be rightfully executed by the sole surviving executor.</p> <p>8. Under the statutes of this state relating to the action of ejectment, an undivided interest in the land may be recovered, although suit be brought for the whole.</p>

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

Appeal fi*om a judgment of the circuit court for Milwaukee county: OeREU T. Williams, Circuit Judge. The plaintiff is a fire insurance company. One Greene was appointed as its agent to represent it in Chicago. Said Greene was employed under two contracts, one written and •one oral. The written contract authorized the agent to write surplus lines of insurance in certain specified states.

<p> Parol evidence affecting writings: Indivisible contract: Fraud: Bale of land and of personalty: Deeds not containing the whole contract: Statute of frauds: Part performance: Equity: Specific performance by vendee: Definiteness of contract: Reference: “Taking of an account:” Appeal: Immaterial errors: Order of proof. </p> <p>1. The rule that excludes parol evidence when offered to add to,' modify, or contradict a written instrument is inapplicable in the following among other cases: (1) when the writing does not on its face plainly purport to contain the entire contract and is shown by competent evidence to have been a mere part of an entire oral contract, and the oral contract is not inconsistent with and does not contradict the writing; (2) where there is a distinct contemporaneous parol agreement and one of ,%the parties seeks to make use of a written agreement for purposes inconsistent with the parol agreement and under such circumstances as to render that use fraudulent.</p> <p>'2. A case cannot be brought within the first exception by oral evidence of the language used by the parties in their negotiations or in their alleged contract, where relief is not sought on the ground of fraud or mistake, and the parties stand upon the contract and do not seek rescission or reformation.</p> <p>3. Deeds, showing upon their face that they are for the purpose of transferring title and not purporting to contain all the stipulations and conditions of the contract pursuant to which the transfer is made, do not bar parol evidence of such contract.</p> <p>4. It is no ground for reversal that parol evidence which was in fact competent was admitted out of the proper order and before the evidence establishing its competency was introduced.</p> <p>-5. Although a deed and a previous writing in the form of a receipt executed by plaintiff contained no reference to a sale of anything but the real estate conveyed, yet, where it appeared that the grantor was a manufacturer owning practically all the stock of an active manufacturing corporation which occupied the premises in question and to whose wants they were well adapted, that plaintiff was desirous of retiring from business, and that the writings made no provision for the future of the corporation, which had no factory or real estate of its own, these facts tended to show, and formed a basis sufficient for tlie court to decide as a preliminary question, that the writings did not contain the whole contract, thus opening the way for parol proof thereof.</p> <p>6. Where the main inducement for plaintiff to sell the real estate, without which he would not have sold it, was defendants’ agreement to buy the assets and capital stock of the corporation, and defendants, having acquired the real estate, sought to repudiate that part of the contract relating to the personal property and objected to the admission of parol evidence in proof thereof, this was making such fraudulent use of the writings as also to entitle plaintiff to prove the real agreement by parol.</p> <p>7. It having been properly decided in such case that the writings did not contain the whole contract, it then followed that all that was said and done by the parties with reference to the purchase and sale became admissible.</p> <p>8. An entire and indivisible parol contract for the sale of both real and personal property, if invalid as to the real estate under the statute of frauds, is invalid also as to the personal property.</p> <p>9. Where, in pursuance of such a contract, a partial payment was made by the purchaser and a receipt given for the same by the vendor, containing the terms of sale of the real estate, and subsequently the-real estate was conveyed and possession delivered to the purchaser, there was such part performance of the entire contract as to take it out of the operation of the statute of frauds, and the status quo was so far altered that to then hold void the unexecuted portion of the contract would operate as a fraud on the vendor.</p> <p>10.In a case where the vendee in a contract of sale might have spe(cific performance for a breach on the part of the vendor, the doctrine of mutuality requires equity to give similar relief to the vendor on his application, even though the substantial part of his relief is the recovery of money.</p> <p>11.Where part of an entire contract relates to personal property and the rest to a subject matter, such as land, over which the jurisdiction is ordinarily exercised, specific performance may be had of the contract as a whole, including that part relating to the personalty.</p> <p>12.Where a contract is definite in the main features thereof and in most of its details, but as to one particular is left in such condition that an inquiry as to reasonable value or reasonable time for performance is essential, that will not defeat the whole contract nor bar specific performance.</p> <p>13. Where, in an action for specific performance embracing in part the personal property and stock in trade of a manufacturing corporation, it became necessary to determine what articles were on hand at a certain date, what ones were sold and what acquired after that date, and the fair value of each, this constituted the “taking of an account” for the information of the. court which authorized an order of reference.</p>

'Appeal from a judgment of the circuit court for Milwaukee county: W. J. TurNer, Circuit Judge. Tbis is an action in ejectment, originally brought by Ephraim Mariner, now deceased, to obtain possession of lot 5 of block 1J4 of tbe city of Milwaukee. The plaintiff claimed title to said lot by virtue of two tax deeds, one issued by tbe city of Milwaukee and tbe other by tbe county of Milwaukee on account of taxes for tbe year 1854.

<p>Corporations: Ultra vires: Suit by minority to restrain acts of majority: Employment of attorneys to defend: Liability of corporation for their services: Power of officers: Executed, contracts: Estoppel: Consideration: Religious, societies.</p> <p>1. If a corporation, by action of a majority of its members which would be binding in a matter within the corporate power, in good faith decides a disputed question, and the minority bring suit to restrain the corporation and its officers from carrying such decision into effect upon the ground that it would be a usurpation, and the majority in good faith take action, valid in form, by which the corporation assumes the defense and authorizes the employment of attorneys to conduct the same, the attorneys so employed have a valid claim against the corporation for the value of their services, even though the litigation be determined in favor of the minority.</p> <p>2. The fact that the acts which are attacked and which the attorneys are employed by the corporation to defend are finally determined to be ultra vires, does not render the employment of such attorneys ultra vires and* their services chargeable only to the officers individually through whom they were employed.</p> <p>b. The managing officers of a corporation have, without special authorization, the power to employ counsel to defend an action against it when they reasonably and honestly believe the interests of the corporation require it.</p> <p>4. Where a contract of employment by a corporation, made in good faith, is fully executed by the other party, the corporation receiving the services as contracted for, the corporation cannot successfully plead ultra vires to avoid performance on its part, even if the contract be ultra vires, provided it be not tainted by fraud or prohibited by statute or condemned by sound public policy.</p> <p>•5. The duty of a corporation to pay for services rendered for it under an ultra vires contract of employment does not depend upon the corporation being enriched or benefited at the expense of the party so dealing with it in good faith, it being sufficient that the other party acted upon the faith of the contract to his disadvantage.</p> <p>6. The principle which requires other corporations to perform their contracts, though ultra vires, which have been executed by the other parties thereto, applies equally to religious corporations in their business transactions, even though its application may work hardship.</p> <p>Winslow, C. J., and Timlin, X, dissent.</p>

<p> Master and servant: Injury to servant: Incompetence of fellow-servant: Mischievous act of boy: Scope of employment. </p> <p>1. While plaintiff, a boy fifteen years old, was engaged with another boy a year older in cleaning up sawdust and other refuse around the saws in a furniture factory, the other boy moved a suspended frame carrying a circular crosscut saw and blocked it over the saw table near which plaintiff was working. Then, by shifting the belt from the loose pulley to the tight pulley, he started the saw for the purpose of cutting a stick in two. The frame and saw, becoming released, swung hack by force of gravity against the plaintiff and cut off his arm. Whether in starting the saw the other hoy was acting within the scope of his employment is held, upon the evidence, to have been a question for the jury.</p> <p>2. Upon evidence tending to show four instances of mischievous or sportive conduct on the part of a boy between sixteen and seventeen years old employed about the saws in a furniture factory, the opportunity of the employer for observation, and that plaintiff, a co-employee, was injured by a mischievous and negligent act of the boy in starting a circular saw, it is held that the jury might have found that the boy was incompetent because of his youth and mischievous propensities to be employed around dangerous machinery, and that the employer ought in the exercise of ordinary care to have known that fact.</p> <p>Barbes, Marshall, and ViNJE, JJ., dissent.</p>

<p>Highways: Defects: Injury to traveler: Contributory negligence: In- " structions to jury: Proximate cause: Failure to define ordinary care: Appeal: Harmless errors.</p> <p>1. In an action for personal injuries alleged to have been caused by defects in a highway, the charge to the jury as to contributory negligence (stated in the opinion) is held to have substantially and fairly covered that issue.</p> <p>2. A requested instruction in such case, to the effect that a traveler has a right to presume that the highway is in a reasonably safe condition and is not cabled upon to look specially as to whether it is safe and free from defects, was objectionable, since it might be understood by the jury as absolving the traveler from all obligation to look at the highway over which he is passing. Wall v. Highland, 72 Wis. 435, distinguished.</p> <p>3. In order that negligence of the plaintiff or of the driver of the vehicle in which she was riding on a highway might be found to have contributed proximately to cause an injury to plaintiff, it was sufficient that an injury to some person should reasonably have been anticipated as a probable result of such negligence, and it was not necessary that injury to the plaintiff specially should have been anticipated.</p> <p>4. An omission, in the charge to the jury, to define “ordinary care”' is held in this case not to have been prejudicial to the plaintiff, although such a definition was included in a requested instruction which the court refused to give.</p>

<p>(1, 4, 5) Pleading: Demurrer: Decision: Facts stated according to■ legal effect: Intendment in favor of complaint. (2, 3) Municipal corporations: Restraining illegal expendieres: Taxpayers’ action: School districts: Building school house.</p> <p>1. A decision upon' demurrer should not be for judgment and for costs, but should he with leave to plead over upon condition of' paying ten dollars costs.</p> <p>2. Where there is imminent danger of public money being illegally expended by the officers of a municipal corporation, taxpayers-of such municipality, acting seasonably, may maintain a suit in equity to prevent such expenditure.</p> <p>3. If the electors of a school district, duly assembled at a special meeting for that purpose, pass unfavorably upon a proposition to build a school house, and later, within a year, at a second meeting determine to the contrary, the latter is illegal and a taxpayers’ action will lie to prevent carrying it out.</p> <p>4. Matters of mixed law and fact, the ultimate of which is, in a broad sense, a fact, may be pleaded according to their legal effect.</p> <p>■5. In testing a complaint upon challenge for insufficiency every fact, necessary to entitle the plaintiff to some judicial relief within the competency of the court to grant, which can be reasonably inferred from the language used, giving thereto, as a whole, the broadest meaning in favor of the pleading it will reasonably bear, should be considered to be as efficiently stated as matters expressly and plainly alleged.</p> <p>[Syllabus by Marshall, J.]</p>

This is an action for damages for slander. On and for some time prior to February 15, 1910, the plaintiff, W. M. Wiese, and the defendant, A. M. Riley, were in the employ of the United States on the Menominee Indian reservation in the conduct of the business of logging thereon, and were operating under what is known as the Menominee Logging Fund, located at Ueopit, Wisconsin.

This action was brought by the plaintiff as administratrix to recover damages for the death of her husband, alleged to-have been caused by the negligence of the defendant.

<p>Appeal from a judgment of the circuit court for Langlade ■county: JohN GoodlaNd, Circuit Judge.</p>

On or about October 1, 1908, Arthur Lutz, a minor, son of. the defendant herein, was living with his sister on his father’s farm and doing the work thereon under the supervision of his father, who visited the place from time to time. Said Arthur Lutz negotiated with the plaintiff for the purchase of a piano, the price of which was $200.

EyaN, Judge. This is a creditors’ action to set aside tbe conveyance of' real estate and sale of personal property by John Ilenseleii to bis son, August Henseleit,-Ax 1900, as fraudulent against creditors. Tbe present action is by tbe Geo. Walter Brewing Company, tbe assignee of Christian Walter as trustee of tbe estate of Geo. Walter, deceased. Tbe defendants Algrim are made parties to tbe action solely because in 1907 they purchased a portion of tbe real estate conveyed.

<p> Municipal corporations: Sidewalks: Crossings: Reasonable safety. </p> <p>A plank sidewalk four feet wide was joined at an alley by a crosswalk consisting of three planks, aggregating thirty inches in width, laid lengthwise at the same level across the alley, and on each side of them a similar plank so inclined, to facilitate the passage of vehicles over the crossing, that at the outer edge of the sidewalk there was a drop of about four inches to the crosswalk; but the drop did not exceed two inches at any place where a pedestrian would naturally be expected to walk. In an action for death of a person who, it was alleged, while walking on the outer edge of the sidewalk in the evening stepped onto the inclined plank and was thrown to the ground, it is held, as matter of law, that the walk was reasonably safe for travel.</p>

Boss, Circuit Judge. The relator, in due form, sued out a writ of certiorari to test the validity of an order of the town board of the town of Parrón, in Barron county, Wisconsin, changing tbe boundaries of a school district. Due return was made of all proceedings of record upon which such order was based.