Volume 148 — Wisconsin Reports

J. TubNeb, Circuit Judge. .Action for personal injuries. On tbe 27th day of February, 1908, plaintiff boarded one of defendant’s cars standing at tbe east end of tbe North Avenue line and became a passenger tbereon. Tbe car was soon to start upon its return trip. Tbe plaintiff was smoking and stood in tbe rear vestibule, as required by tbe rules of tbe company.

C. Esohweilee, Circuit Judge. William Goulding died testate in the month of June, 1850, and at the time of his death was the owner of certain real estate and personal property situated in Milwaukee county, Wisconsin. Decedent left surviving him his widow and three infant children. Two of the children died while still minors and left no issue. The widow died November 27, 1879.

<p>Appeal from an order of the circuit court for Milwaukee county: OeeeN T. Williams, Circuit Judge.</p> <p>The appeal is from an order granting a new trial.</p>

Tabbant, Circuit Judge. Tbe action was before this court on former appeals and is reported in 141 Wis. 639,124 N. W. 1014, where a statement of tbe facts will be found.

<p>Appeal from a judgment of the circuit court for Milwaukee county: Waijeew D. Takbawt, Circuit Judge.</p>

TaeeaNt, Circuit Judge. Action to enjoin enforcement of a special assessment tax against plaintiff’s property in the city of Milwaukee. Tbe complaint was to tbe effect that tbe imposition upon tbe property was void for various reasons.

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

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

C. EschwbileR, Circuit Judge. Action to set aside special assessments for street improvements against plaintiff’s right of way in tbe city of Milwcm-hee.

Williams, Circuit Judge. This is an action to recover for personal injuries. On .the 28th of June, 1910, the plaintiff, a boy sixteen years and eleven months of age, who had reached the seventh grade in the public schools, was set at work by the defendants operating a stamping machine or press at their tinware factory.

0. Eschweiler, Circuit Judge. Action to recover compensation for personal injury. ■ Plaintiff accompanied ber son, bis wife and two children, and tbe wife’s sister, to assist tbem, particularly tbe wife and children, to take passage on defendant’s car. All but plaintiff intended to board tbe first car going their way. She carried a basket in one band and some baby clothes in tbe other. As a car was seen approaching she efficiently signaled it to stop.

'Appeai, from a judgment of tbe circuit court for Milwaukee county: J. C. Ludwig, Circuit Judge. Edward H. Brodbead was tbe owner of certain real estate located at 89-91 Wisconsin street in tbe city of Milwaukee. He died in 1890 leaving a will under wbicb these premises were left to Erank G. Bigelow and Julia L. Cbaffee in trust during tbe life of Julia L. Cbaffee.

<p>Appeal from an order of tbe circuit court for Milwaukee county: WabeeN D. TabbaNt, Circuit Judge.</p> <p>Action to recover for an alleged injury to plaintiff’s property on First avenue in tbe city of Milwaukee by reason' of a change in tbe established grade and tbe erection of a viaduct on said avenue. Tbe appeal is from an order setting aside a verdict in favor of tbe defendant and granting a new trial.</p>

<p> Master and servant: Injury: Unguarded machinery: Duty of master: Statute construed: Questions for jury: Contributory negligence: Assumption of rislc: Special verdict: Actionable negligence: Proximate cause: Damages: Minors: Instructions to jury. </p> <p>1. A mistake whereby the wrong belt was designated in a question submitted for special verdict was immaterial where there was no doubt which belt was meant and the jury was evidently not misled.</p> <p>2. Where a rapidly revolving belt was so located as to come within two or three inches of the sleeve of the operator of a machine when he attempted to make adjustments with a wrench, it was a question for the jury whether it was so located that under sec. 1636?, Stats. (1898), it was required to be securely guarded.</p> <p>■ 3. The knives in one of the heads of a “molding sticker” in a planing mill were neither “shafting” nor “gearing” within the meaning of sec. 1636?, Stats. (1898), and were not required thereby to be guarded. Whether or not, in this case, such knives were so located that, irrespective of statutory requirements, the master was charged with the duty of guarding them, was a question for the jury.</p> <p>4. Even though, such knives should have been guarded, yet, such guarding not being required by sec. 1636j, Stats. (1898), the employer may, in an action for injuries to an employee caused by such knives, defend upon the ground that the plaintiff assumed the risk.</p> <p>5. Where the trial court refused defendant’s request to have a certain issue submitted to the jury, it cannot be deemed to have found such issue in favor of plaintiff, under see. 2858w, Stats. (Laws of 1907, ch. 346), by ordering judgment in his favor.</p> <p>6. A finding by the jury to the effect that an employer ought to have guarded certain machinery which the statute did not require to be guarded, without any finding upon the controverted issue as to whether the injured employee assumed the risk of its unguarded condition, establishes only nonactionahle negligence.</p> <p>7. A finding by the jury that the proximate cause of plaintiff’s injury was both actionable and nonactionahle negligence on the part of defendant, will not sustain a judgment for plaintiff — it being essential that there be a specific finding that defendant’s actionable negligence was such proximate cause. ,</p> <p>8. In a special verdict the question relating to proximate cause „ should he so framed that any responsive answer will disclose what actionable negligence of defendant was or was not the proximate cause of plaintiff’s injury. ■</p> <p>9. In an action for injuries to a seventeen-year-old employee in a planing mill, sustained in attempting to adjust the head of a “molding sticker” while it and the pulleys were in motion, upon evidence showing, among other things, that he had been instructed by the foreman to do so and that other employees customarily did it with the parts in motion, the question of contributory negligence was one for the jury.</p> <p>10. A finding by the jury in such case absolving plaintiff from contributory negligence cannot be considered as a finding that he did not assume the risk from unguarded revolving knives of the machine,'especially in view of the instructions given to the jury and of the statute, sec. 1636j, Stats. (1898).</p> <p>11. In an action by a minor for personal injuries, where there was no evidence of emancipation, it was error to instruct the jury that they might allow for diminished earning capacity from the time of the injury, instead of from the time of plaintiff’s majority. [Whether such error alone would be ground for reversal, not determined.]</p>

<p> Municipal corporations: Street improvements: Letting work, in several contracts: Special assessments: When payable: Premature entry on tax roll: Action to set aside: Equity: Error affecting “groundwork of tax:” Statyte construed. </p> <p>1. The Milwaukee city charter, providing that the hoard of public works shall enter into “a contract” for the work of improving a street, does not require the entire work to be let in one contract; and where there are two different kinds of work to be done (as macadamizing and cement work), they may be let to different contractors.</p> <p>2. Where the original assessment of benefits is made in a single sum for the entire work, there is no apportionment of the benefit and the law contemplates that the work should be fully completed before the assessment goes upon the tax roll and payment becomes 'compulsory.</p> <p>S. The issuing of an improvement certificate for the cost of the macadamizing in front of a lot, and the placing of the amount thereof upon the tax roll, before completion of the cement sidewalks and gutters, were, however, mere irregularities which do not affect the substantial justice of the tax and are not ground for setting it aside in equity, there being no suggestion that the remaining work is not let to a responsible contractor or will not be completed.</p> <p>4. In ch. 295, Laws of 1909 (secs. 121071, — 1 to 12107;. — 4, Stats.),— providing that in any action to set aside any tax “for any error or defect going to the validity of the assessment and affecting the groundwork of such tax” the plaintiff shall pay the amount of the taxes, interest, and charges in dispute as a condition of maintaining the action, etc., — the words “groundwork of the tax” refer to some serious jurisdictional defect, not mere irregularities in the details of the proceedings after jurisdiction is properly acquired; and accordingly the act does not apply to the case of a mere premature extension of an assessment upon the tax roll.</p> <p>[5. Whether ch. 295, Laws of 1909, is applicable to special assessments, doubted; whether it is valid, not determined.)</p>

0. Ludwig, Circuit Judge. This is an action for personal injuries resulting from a collision with defendant’s automobile.

<p> Appealable orders: Examination of party as adverse witness. </p> <p>An order requiring a party, upon his examination as an adverse witness under sec. 4096, Stats. (Laws of 1909, ch. 84), to answer certain questions and sustaining his claim of privilege as to others, is not appealable under sec. 3069, Stats. (1898).</p>

J. TueNee, Circuit Judge. Action on contract to recover for a hoisting elevator installed for defendants. Tbe plaintiffs’ claim was that they furnished an elevator in accordance with their agreement to ■do so.

J. TubNee, Circuit Judge. As to-tbe relative rights and duties of a motorman and a traveler on the street, they cited Gwrie v. Consolidated B. Co. 81 Conn.. 383, 71 Atl. 356; Lauson v. Fond du-Lac, 141 Wis. 57, 123 N. W. 629; Cawley v. La Crosse City B. Co. 106 Wis. 239, 82 N. W. 197; 2 Joyce, Electric Law, § 592; Consolidated' T. Co. v. Haight, 59 N. J. Law, 577, 37 Atl. 135; White v. Worcester C. St. B. Co. 167 Mass. 43, 44 N. E. 1052; Galbraith v. West End St. B. Co. 165…

<p>Appeal from a judgment of the circuit court for Milwaukee county: F. C. Eschweilee, Circuit Judge.</p> <p>The appeal is from a judgment of nonsuit in an action by an employee against employer for negligent injury to the person.</p>

J. TubNeb, Circuit Judge. On April 27, 1911, bis honor, Judge TubNEB, judge of the Second judicial circuit, Fifth branch, Milwaukee… Held: and that the said Fifth branch of the circuit court, until the further order of said court, will be held at the present court room in said Masonic Building, Milwaukee, Wisconsin. “Of this order let the persons above named, the sheriff of Milwaukee County, Wisconsin, the clerk of said court, the ■county clerk, and the county treasurer…

<p>Equity: Injunction: Confiscation or destruction of property: Invalid statute: Public wrong: Supreme court: Original jurisdiction: Navigable rivers: Authorized dams: Control: Sovereignty of state: Ownership of water powers: Charters: Reserved power of repeal: Eminent domain: Taking of private property: Just compensation: Due process of law: Riparian rights: Regulation: Legislative power: Declaring property a nuisance, or use a public use: Judicial questions: Statutes: Partial invalidity.</p> <p>1. An averment that property in the possession of complainant is threatened with destruction or confiscation by unwarranted statutory declaration that it is a public nuisance and by the imposition of penalties for the use of such property, sets forth a private wrong calling for the interposition of equity quia timet against ministerial officers charged with the execution of the statute.</p> <p>2. Where it is averred that all improvements to navigation constructed under former statutes and existing in the navigable rivers of the state are still recognized as such improvements by a new statute, but also by the latter declared to be public nuisances and threatened with abatement and destruction, and their maintenance, use, and up-keep penalized except upon conditions plausibly charged to be invalid and unenforceable, a threatened public wrong affecting the sovereign prerogatives of the state and calling for prevention by injunction is sufficiently averred.</p> <p>3. In the case last cited the supreme court will exercise its original jurisdiction.</p> <p>4. A statute declaring that all energy, developed or undeveloped, of the navigable waters of the state is subject to the control of the state for the public good, that the beneficial use and natural energy of the navigable waters of the state for all public uses are held by the state in trust for all the people, should be sustained as an assertion of the sovereignty of the state and the power of regulation instead of an assertion of proprietorship, especially when such construction is essential to uphold the statute.</p> <p>5. The reserved power of repeal of charters contained in the constitution or in a charter must be construed so as to harmonize it with other commands and restrictions contained in the constitution, and it does not authorize the taking without compensation of the physical property acquired under said charter. This reserved power of repeal is also subject and subordinate to the provisions of the federal constitution which forbid the state to deprive any person of life, liberty, or property without due process of law and to the substantial equivalent of the latter contained in the state constitution.</p> <p>¡6. Where a charter reserving therein no right of repeal is granted to a natural person, authorizing the construction of a dam in a navigable river in aid of navigation and' accepted by such grantee by construction of the required dam, the charter is not repealable at the pleasure of the legislature; but before acceptance it is so repealable. When such chartér is granted to a natural person, reserving to the state a right of repeal, or where it is granted to a corporation, and in either case accepted by construction of the required improvement, while there exists the power of repeal this does not include confiscation or destruction of any property which can exist notwithstanding the repeal, but all such property is protected by the usual constitutional guaranties applicable to other property.</p> <p>7. Sec. 1596, Stats. (Laws of 1911, ch. 652), is prospective only in its operation and, so far as it refers to streams not theretofore within the purview of the statute it purports to amend, it affects only dams, etc., placed in such streams after the act of 1911 went into effect.</p> <p>8. The right to use the water of a navigable river for the creation or development of power upon his own land is a riparian right appurtenant to the riparian land and belongs to the owner of such land. The gwosi-private ownership of the bed of a navigable river and all incorporeal riparian rights are subject and subordinate to the public right of navigation, but not so the ownership of the bank. Where the ownership of the hank is necessary for the construction of a dam in aid of navigation the state is powerless to construct or authorize the construction of such dam without the.consent of the riparian owner or expropriation with compensation to such owner, and the riparian owner is powerless to obtrude a dam into such navigable waters without the consent of the state. Where by joint consent of the riparian owner and of the state the riparian owner constructs such dam at his expense in aid of navigation, the consideration moving to the state is the improvement of the navigation and to the riparian owner is the creation or development of the water power. This water power and the right of the riparian owner thereunto does not in such case conflict with the public right of navigation, but is rather promotive of such right, and it continues to he a riparian right as before and the private property of the riparian owner subject to regulation 'by the state to a degree commensurate with its character and situation. It is in no sense the property of the state. Whether one person or another owns this resulting water power is not material to the interests of navigation.</p> <p>9.An act of the legislature which forbids any person to conduct or maintain or operate or use any dam or other improvements in or across any navigable stream without a franchise; which defines the word “franchise” to be one obtained under the act; which defines the word “improvements” as used in the-act to include much valuable property including the riparian land; which declares such dam and “improvements” a public nuisance subject to abatement as such and penalizes the use and maintenance of such property, — constitutes, as regards owners of formerly authorized dams, a taking of the property, if in order to obtain a franchise under the act in question the owner of the property is obliged to consent to the surrender of valuable property rights belonging to him.</p> <p>10. The legislature cannot conclusively declare property existing at. the time the statute goes into effect a public nuisance and penalize the use and enjoyment thereof.</p> <p>11. The legislature has no power to conclusively declare that a given use of property is a public use.</p> <p>12. The matters covered by the two preceding paragraphs present judicial questions, for otherwise the legislature could confiscate-property without making compensation.</p> <p>13. The act in question by declaring the property a public nuisance,.' providing for its abatement, and penalizing its use conditionally; and without any physical change in the property or its condition recognizing it as a lawful structure in aid of navigation, and allowing it to remain on condition that some other person apply for it or that the owner relinquish valuable property rights without compensation and make certain payments to the state, operates to deprive such owner of his property without due process- of law, unless just compensation to such owner is provided.</p> <p>14. The just compensation required by the constitution is not provided by permitting compensation only if some one at some indefinite time after the taking shall appear and want the property in question.</p> <p>15. The just compensation required by the constitution is not provided by a statute limiting the compensation to be awarded so as to exclude all increase in value of the property after a given date long prior to the taking.</p> <p>16. Neither is such compensation provided where a riparian owner, having no dam or charter for a dam, is for a taking of the bank not allowed the full value of his riparian rights, including the use of water for power purposes and the advantage which the land presents for creating a water power by construction of a dam; nor is such compensation provided where a riparian owner who has lawfully constructed a dam and owns the resulting water power, but whose charter to maintain the dam is repealed, is not allowed to recover the value of his water power thus improved and in that condition.</p> <p>17. To declare property a public nuisance, provide for its abatement, and penalize its use without making compensation, but at the same time permitting the owner to obviate these consequences by applying for and obtaining a franchise under which he must consent that his hitherto private property be impressed with a public use, that after a stated interval some other person may take the property for a private use, that the state or a municipality may take it for a public use, and that in the latter case he forego part of the compensation required by the constitution and pay a franchise fee to the state, is depriving such owner of his property without due process of law contrary to the federal constitution, and is invalid legislation under the state constitution as well.</p> <p>18. Private property taken by one who has the right to use so much thereof as may be reasonably necessary for his own purpose or purposes is taken for a private use.</p> <p>19. In order for part of an act to be upheld as separable it is essential that such part found to be within the constitutional power of the legislature forms, independently of the invalid portions, a complete law in some reasonable aspect so that it may fairly be concluded that the legislature would have enacted the same without the invalid portion. Where a legislative enactment has an all-pervading purpose coupled with minor details and administrative features and this purpose is unconstitutional, such minor details and administrative features cannot survive condemnation of the main purpose.</p> <p>[Syllabus by Timlin, J.]</p>

<p> Master and servant: Injury from defective machinery: Abnormal and unexpected movements: Questions for jury: Contributory negligence: Evidence: Instructions to jury: Special verdict. </p> <p>1. Iu an action for injuries to plaintiff’s hands, caused by the unexpected descent of the heavy beam of a beam-die press machine, used for cutting mitten linings, at which he was working, there was evidence that, upon pressure being applied to a treadle, when the machine was in perfect condition the beam made one complete movement down and up and, upon the pressure being released, came to a stop above the die to permit the removal of linings and the placing of cloth for cutting; that, by reason of defects in the machine, linings were at times only partially cut and the work of removing them became difficult; and that while plaintiff was removing partially cut linings after the beam had stopped above the die, it descended without any pressure upon the treadle and caused the injury complained of. There was also evidence that the plaintiff was a man of low intelligence and could speak but little English; that he was not familiar with machinery and- at first objected to working at the machine, but finally consented to do so; that he did not know the beam would descend without pressure upon the treadle; that the instructions given him by defendant’s foreman were general in character, confined to ordinary use of the machine; that plaintiff was not instructed to use a stick in removing the linings, though one was used customarily and was safer; that in giving the instructions the foreman placed his own hands under the beam; and that no warning of danger was given to plaintiff. Several witnesses testified that before plaintiff’s injury the beam had slipped down many times as the result of abnormal and unexpected action, giving various defects as reasons therefor; that defendant’s superintendent knew thereof; and that the machinery operated in the same way afterwards. Meld, that the question of contributory negligence was one for the jury.</p> <p>2. The mechanical impossibility of such irregular movements of the beam was not in this case such an established or conceded fact as to overcome the testimony of numerous witnesses, shown to be in a position to know and. having special knowledge on the subject, that they could and did occur; and it was therefore for the jury to determine the fact. Vorbrich v. Geuder & P. Mfg. Co. 96 Wis. 277, distinguished.</p> <p>3. Findings of the jury to the effect that prior to plaintiff’s injury the machine was liable to get in such condition that while being operated the beam would sometimes come down to the die without any pressure being applied to the treadle; that defendant had knowledge of that fact, and failed to warn the plaintiff of the danger, and was therein guilty of a want of ordinary care which was the proximate cause of the injury; and that plaintiff was not guilty of contributory negligence, — are held to be supported by the evidence.</p> <p>4. A requested instruction giving prominence to alleged tests of the machine when not in actual use and assuming facts as established upon which the testimony was conflicting,, was properly refused.</p> <p>5. The court may properly refuse to submit for special verdict proposed questions which relate to merely evidentiary matters and which, so far as they relate to ultimate issuable facts, are covered by other questions.</p> <p>6. Thus, it was not error in this case to refuse to submit a question requiring the jury to answer specifically which one of several alleged defects in the machine was the cause of the beam falling down upon the die, where the court properly submitted the ultimate question whether such irregular movement was habitual, i. e. whether the machine was liable to get into such condition that while being operated the beam would sometimes come down to the die without pressure being applied to the treadle.</p>

<p> Sales: Acceptance of order: Revocation: Burden of proof. </p> <p>1. The burden of proof to show that an order for goods was revoked before its acceptance is upon the party alleging such revocation.</p> <p>2. The evidence in this case is held not to show that defendant revoked an order for goods before its acceptance by the plaintiff.</p>

<p> Change of venue: Demand,: Sufficiency. </p> <p>Where, under subd. 6, sec. 2619, Stats. (1898), the county in which the sole defendant resided was the only proper place of trial of an action, a demand by him that the trial be had within said county, naming it, “for the reason that the said defendant, at the time of the commencement of the action and for many months prior thereto, resided and still resides in such county,” was sufficient under sec. 2621, although it did not in terms state that said county was “the proper county.” Anderson v. Arpin H. L. Co. 131 Wis. 34, distinguished.</p>

Williams, Circuit Judge. Carl Eeiman, an employee of plaintiff, was a passenger on tbe defendant road from Arena to Milwaukee, carrying witb bim in tbe passenger coaeb a sample case belonging to plaintiff wbicb contained patterns and designs used in its business, in soliciting orders.

<p>Appeal from a judgment of the circuit court for Manito-woc county: Michael Kibwan, Circuit Judge.</p> <p>Tke complaint alleges that the plaintiff purchased one share of stock in the Manitowoc County Co-Operative Company, that he was induced to make the purchase upon the fraudulent representations of the defendants, and that if the representations had been true the share of stock would have been worth $300. It is alleged that the stock is without value. Judgment is demanded for the sum which would have been the value of the share if the representations made by the defendants had been true.</p> <p>The Manitowoc County Co-Operative Company (hereafter called the company) was organized to conduct a mercantile and other business upon the co-operative plan. Its articles of incorporation yere filed in the office of the secretary of state on the 15th of June, 1904, and recorded with the register of deeds for Manitowoc county on the 18th of that month. The capital stock was $50,000, divided into 500 shares of $100 each. Fifty per cent, of the capital stock was never subscribed for, nor was twenty per cent, ever paid in.</p> <p>The defendant Carstens had been engaged in a mercantile business for about twenty-five years. He was interviewed by the promoters of the company and solicited to turn over his store to the company. To this he finally consented and transferred his stock of goods to the company. He was made manager, and was in charge of the business until it was turned over to a receiver in July, 1907. At this time the assets of the company were $16,145.44.</p> <p>The plaintiff testified that before his purchase of his share of stock both of the defendants had stated and falsely represented to him that the company was doing a good paying-business ; had paid eight per cent, dividends and was going to declare another dividend; that it was incorporated under the mutual co-operative laws of the state and authorized to do business; that they were going to increase the business by establishing branch stores and by taking up other lines of business as they got new stockholders; that they had a paid-up-stock of goods worth $10,000 or $12,000; and that he relied upon and was induced to make this purchase of stock by these representations.</p> <p>The defendants testified that they had talked with the plaintiff about becoming a member of the company, but denied having made any false statements to him.</p> <p>Plaintiff further testified that he had signed the subscription list; that he had received a certificate of stock numbered 54 and dated June 12, 1905; and that he paid the money for the share of stock to the defendant Garstens.</p> <p>The court submitted a long verdict to the jury and instructed them most elaborately and at length in connection with it. In the instructions submitted in connection with the special questions the court stated the evidence as he recollected it, gave the inferences which might be drawn from the evidence, and presented by way of argument the reasons, that should have weight in passing judgment on the evidence adduced by the parties to support their respective contentions. To illustrate: Upon one of the sub-questions of the first question, propounding the inquiry as to whether the defendants had represented to the plaintiff that the corporation owned a stock of merchandise worth $10,000 or $12,000 fully paid for, the instructions stated the facts regarding the inventory of Mr. Garstens’ stock, that the stock could be paid for only out of the funds of the company, submitted that since only fifty-four shares of stock had been issued it was manifest that the amount represented thereby would not be sufficient to pay for a stock of goods worth $10,000 or $12,000, and pointed out that if Garstens represented to the plaintiff that the company had a stock of goods worth $10,000 or $12,000 he must have known that it was not fully paid for. Bearing upon the question of whether the defendants had made the representations claimed, the court stated to the jury that they might properly consider, as bearing on this question, that the defendants had lived in the community for many years, had conducted businesses there, and must have known that the plaintiff, if he became a stockholder in the company, would learn the facts regarding the value of the stock of goods held by the company and what had been paid for it. He also stated in connection with this same question that the jury might consider the bearing of the plaintiff upon the stand, his intelligence and capacity, and whether, in view of the fact that the plaintiff’s- share of stock was numbered 54 and of the fact that each share was worth $100, the defendants could have caused him to believe that a stock of goods of the value of $10,000 or $12,000 had been bought by the company theretofore and had been fully paid for by the company. The instructions upon the other issues submitted were likewise elaborated and as extensive in their scope and treatment of the evidentiary facts bearing on those issues.</p> <p>The jury returned the following verdict:</p> <p>“(1) At or before the time when plaintiff paid for his stock in the Manitowoc County Co-Operative Company, an alleged corporation, did said defendants, or either of them, represent to plaintiff:</p> <p>“(a) That at least one half of the capital stock of said corporation had been fully subscribed and at least twenty per centum thereof had been actually paid in? A. As to Gar-siens, No. As to LehmTcuhl, No.</p> <p>“(b) That said corporation then owned a stock of merchandise of the value of $10,000- or $12,000, which had been fully paid for? A. As to Garsiens, Yes. As to LehmTcuhl, No.</p> <p>“(c) That the shares of stock of said corporation were then worth their par value? A. As to Garsiens, Yes. As to LehmTcuhl, Yes.</p> <p>“(d) That said corporation had theretofore paid a dividend of eight per cent, from its net earnings? A. As to Garsiens, No. As to LehmTcuhl, No.</p> <p>“(e) That said corporation was organized upon the mutual or co-operative plan as set forth in sec. 178 6e of the Wisconsin Statutes of 1898 ? A. As to Carstens, No. As to Lehm-Tcuhl, No.</p> <p>“(f) _That said corporation was then doing a profitable business? A. As to Garsiens, Yes. As to LehmTcuhl, Yes.</p> <p>“If you answer 'No’ to each and .all of the foregoing questions, then do not answer any of the following questions excepting the tenth.</p> <p>“(2) If as to any one or more of the subdivisions of the first question you answer ‘Yes,’ then answer this: Were any of the representations, which your answer of the first question finds to have been so made to plaintiff, substantially false at the time when they were so made to him ? A. Yes.</p> <p>“(3) If your answer to the second question be ‘Yes,’ then answer this: Which, if any, of said false representations were so made with knowledge of their falsity (a) by defendant Garsiens and (b) by defendant Lehmhuhl? A. (a) By Oar-stens, the representations specified in subdivision ‘b’ of the first question, (b) By Lehmhuhl, the representations specified in subdivision-of the first question.</p> <p>“(4) If by your answers to the third question you find that each or either of the defendants knowingly made said false representations to plaintiff, then answer this: At the time when said false representations were so made to plaintiff, was there existing between said defendants, Oarstens and Lehm-Icuhlj an unlawful conspiracy, the1 object and purpose of which was to effect, by means of said false representations, the sale of certificates of stock of said corporation, in order to thereby obtain money for said corporation, or for said defendants, or for both said corporation and said defendants ? A. No.</p> <p>“(5) If your answer to the fourth question be ‘Yes,’ then answer this: Were said false representations or any thereof made to plaintiff by defendants, or either of them, for the purpose of carrying out said conspiracy? A. -.</p> <p>“(6) If your answer to the fifth question be ‘Yes,’ then' answer this: Did plaintiff so far rely on the truth of any said false representations made for the purpose stated in the fifth question, that he was thereby induced to purchase the certificate of stock of said corporation which was issued to him? A. ,-.</p> <p>“(7) If your answer to the sixth question be ‘Yes,’ then answer this: In so relying on the truth of the representations specified in the sixth question, did plaintiff fail to exercise ordinary care to ascertain whether the same were true or false ? A. -.</p> <p>“(8) If your answer to the seventh question be ‘Yes,’ then answer this: Would the exercise of ordinary care on plaintiff’s part before be paid for said stock certificate bave disclosed to bim tbe falsity of any of tbe representations specified in tbe sixth question? A. -.</p> <p>“(9) If your answer to tbe eighth question be ‘Yes,’ then answer tbis: Specify tbe representations whose falsity plaintiff would bave discovered before be paid for said stock, if be bad exercised ordinary care to make such discovery. A. Tbe representations specified in subdivisions - of tbe first question.</p> <p>“(10) At tbe date when be paid therefor, wbat was tbe reasonable value of tbe share of stock purchased by plaintiff ? A. $100.</p> <p>“(11) If your answer to the second question be ‘Yes,’ then answer tbis: Wbat would bave been tbe reasonable value of said share at tbe date when plaintiff paid therefor, if tbe representations which your answers to tbe first question find to bave been made, bad all been substantially true ? A. $125.”</p> <p>Tbe plaintiff moved that tbe verdict be changed, that be be awarded judgment notwithstanding tbe verdict, and that be be granted a new trial. Tbe court denied each of tbe motions of tbe plaintiff, and also a motion of tbe defendants to bave tbe verdict changed, and ordered judgment dismissing tbe complaint upon tbe merits and allowing tbe defendants costs. Tbis is an appeal from tbe judgment so awarded.</p>

<p>Appeal from an order of tbe circuit court for Manitowoc county : E. B. BeldeN, Judge.</p> <p>This action was brought upon the following contract, which is made part of the complaint:</p> <p>“This agreement, made and concluded this 5th day of April, A. D. 1909, by and between the Ontonagon Valley Land Company, a Wisconsin corporation, herein called the ‘Land Company,’ party of the first part, and E. C. Sixta & Company, a copartnership composed of JE. C. Sixta and James C. Martin, herein called ‘Sixta,’ party of the second part, witnesseth:</p> <p>“1. The Land Company hereby gives to Sixta the exclusive authority and right to sell all of the lands of the Land Company particularly described in the schedule thereof hereunto attached and made a part hereof and marked ‘Exhibit A,’ for and until January 1, 1911.</p> <p>“2. The price and prices at which such lands shall be sold shall be made from time to time by the Land Company upon application of Sixta, and the terms of each sale made by Sixta shall he subject to the approval of the Land Company.</p> <p>“3. The Land Company agrees to pay Sixta, as commission for selling said lands, one dollar and fifty cents ($1.50) per acre.</p> <p>“4. Sixta shall at-his own expense advertise said lands for sale and continuously during the term of this agreement endeavor to sell said lands.</p> <p>“5. All expenses in connection with the sale and marketing of said lands shall be borne by Sixta. All cash received from the sale of said land after deducting the commission of Sixta shall be immediately turned over and delivered to the Land Company, and all securities taken upon sales shall be taken in the name of the Land Company.</p> <p>“6. At any time prior to the expiration of this contract, to wit, January 1, 1911, Sixta is hereby given the right, privilege, and option of purchasing all of the lands described in said annexed list which shall remain unsold at the time of exercising the option hereby given, at the uniform price of six ($6) dollars per acre; and it is agreed by the Land Company that all money received by it, as well as the face value of all securities received by it upon sales theretofore made by Sixta, after deducting therefrom the sum of six ($6) dollars per acre for all such lands sold, shall be credited to Sixta and considered a payment upon the purchase price of the lands which Sixta shall elect to purchase.</p> <p>“7.. It is expressly understood and agreed, however, that this contract shall vest in Sixta no right, title, interest, claim, or demand of any character whatsoever in the real estate described in the annexed schedule, nor shall this contract be recorded in the register of deeds’ office in any county where the lands described in the annexed list are located. But if Sixta shall elect to purchase pursuant to the option hereby given, then the Land Company shall execute to Sixta a contract of purchase which may be recorded. If Sixta shall elect to purchase, there shall be paid to the Land Company, at the time of such election, the sum of at least twenty thousand ($20,000) dollars, to be applied upon the purchase price to be paid for said lands, and the unpaid purchase money shall be payable in three equal annual instalments secured by mortgage of the land sold and bearing interest at the rate of five per cent. (5 %) per annum.</p> <p>“8. It is further agreed and made an express provision of this contract that in any sale made by Sixta of the lands described in the annexed schedule, there shall be reserved to the Diamond Match Company, an Illinois corporation, one half (1-2) of all the mineral rights upon said real estate, and to the Land Company one fourth (1-4) of all such mineral rights, together with the right to each of them of entering upon said land and extracting the minerals and the right to the use of the waters thereof for such purpose.</p> <p>“9. If Sixta shall exercise the option hereby given to purchase said real estate, in the conveyance thereof to him there shall be reserved to the Diamond Match Company one half (1-2) of all the mineral rights upon and in said real estate, and to the Land Company one eighth (1-8) of such mineral rights, together with the right to each of them to enter upon said real estate and mine for and extract such minerals and the right to the use of the waters on such real estate for said purpose.</p> <p>“10. It is further expressly agreed that nothing in this contract shall limit or prevent said Land Company from making sales of said real estate at any time or to any person; but the Land Company agrees not to sell any such land for a less sum than ten ($10) dollars per acre. On sales made by the Land Company no commission shall be paid Sixta, but if he shall exercise the option hereby given him the Land Company agrees to credit Sixta upon such purchase all sums over and above six ($6) dollars per acre received by it upon sales made by itself.</p> <p>“In witness whereof the parties of the second part have hereunto set their hands and seals the day and year above written, and the Ontonagon Valley Land Company has caused these presents to be signed in its corporate name by Julius Lindstedt, its president, and countersigned by Edwin G. Nash, its secretary, and its corporate seal to be hereto affixed, all by due and lawful authority of its board of directors.</p> <p>The ONTONAGON Valley Land Company, In presence of By Julius Lindstedt, Its President.</p> <p>Alma E. Klingholz.</p> <p>.Nora Diclce. Countersigned by</p> <p>(Seal.) E. G. Nash, Its Secretary.</p> <p>E. 0. Sixta. (Seal.)</p> <p>James G. Mabtin. (Seal.)”</p> <p>In addition to setting out the contract as the basis of the •action the complaint alleges that the plaintiffs were engaged in the purchase and sale of lands and in the sale of lands on commission in Wisconsin and Michigan; that on the 5th day of April, 1909, at Manitowoc, the plaintiffs made the contract referred to; that the lands embraced in the contract were 17,340 acres; that immediately after the contract was made the plaintiffs proceeded diligently to carry out its terms on tbeir part to be performed, advertised tbe lands for sale, solicited persons to buy and sold 1,380 acres, and performed all tbe conditions on tbeir part of said contract np to tbe 23d day of May, 1910, and continued performance for some time' thereafter; that plaintiffs bad prepared and were prepared tO' carry out all tbe provisions of said contract witbin tbe time and in tbe manner therein specified, and were prepared and intended to purchase all tbe lands as specified in paragraph 6-of said contract; that on May 23, 1910, without tbe knowledge of tbe plaintiff, tbe defendant, in violation of tbe terms-of said contract, sold and conveyed to tbe W. J. Hess Company, a corporation, all of tbe lands not theretofore sold by plaintiffs for a sum less than $10 per acre, and the defendant-by said sale, voluntarily and in disregard of tbe plaintiffs’ rights under said contract, disabled itself from carrying out tbe terms thereof on its part, and thereafter and during tbe month of July, 1910, informed plaintiffs that it bad so disabled itself and refused to further deal with plaintiffs under said contract, and thereby made it impossible for plaintiffs to carry out said agreement on tbeir part, although they were-able, ready, and willing so to do, to tbe plaintiffs’ damage in the sum of $100,000.</p> <p>Tbe defendant demurred to tbe complaint for want of facts-sufficient to constitute a cause of action. The court below sustained tbe demurrer, and from tbe order sustaining tbe demurrer this appeal was taken.</p>

<p>Appear from a judgment of tbe circuit court for Manito-woc county: Michael Kikwan, Circuit Judge.</p> <p>Tbe appeal is from a judgment for $2,500 and costs in an action by a servant against tbe master for negligent injury.</p>

<p>Appeal from a judgment of tbe circuit court for Sheboy-gan county; Michael KiewaN, Circuit Judge.</p> <p>On tbe evening of December 24,1909, tbe plaintiff as a passenger boarded one of tbe interurban cars of the defendant railway company. Tbe car was filled to its capacity and tbe rear vestibule was crowded and plaintiff stood upon a .step witbin tbe vestibule. After riding some distance, tbe swaying of tbe crowd against tbe plaintiff, caused by tbe swinging-motion of tbe car, forced plaintiff outward so that be collided with a trolley pole r;t tbe side of tbe track and was thrown to tbe ground. Tbis action was brought to recover damages for injuries sustained. Tbe following special verdict was returned by tbe jury:</p> <p>“(1) While being carried as a passenger on defendant’s car and standing on tbe lower step thereof, at tbe time and place stated in tbe complaint, did a trolley pole of defendant’s railway collide with plaintiff’s body and cause him to be thrown from tbe car to tbe ground and injured? A. Yes.</p> <p>“(2) Erom tbe time when plaintiff got on tbe car until be was injured, was it so crowded with passengers that be could not obtain a seat in it by tbe exercise of ordinary care and effort on bis part ? A. Yes.</p> <p>“(3) If the conductor bad exercised tbe degree of care which it was bis duty to exercise for tbe safety of passengers, would be have discovered that plaintiff was standing on tbe car step and have removed him therefrom before tbe car started from station number seven (7) ? A. Yes.</p> <p>“(4) If tbe second question be answered ‘Yes,’ then answer tbis: If tbe conductor bad exercised the degree of care specified in tbe third question, would be have seen plaintiff on tbe car step and have informed him, before tbe car started, that be could not obtain a seat in it ? A. Yes.</p> <p>“(5) If, after starting from station number seven (7), tbe conductor bad exercised tbe degree of care stated in the third question, would be have discovered plaintiff on the car step and have removed him therefrom before plaintiff was injured? A. Yes.</p> <p>“(6) In erecting so near to its railway track, as were, at tbe time plaintiff was injured, tbe two trolley poles with which bis body came in contact, did tbe defendant company fail to exercise that degree of care which it was tbe duty of that company to exercise for tbe safety of passengers riding on its cars ? A. Yes.</p> <p>“(I) If the third, fourth, fifth, and sixth questions, or any one or more of them, be answered ‘Yes,’ then answer this: Was the negligence the existence of which is found by your answers to the third, fourth, fifth, and sixth questions, or by your answer or answers to any one or more of them, the proximate cause of plaintiff’s injury ? A. Yes.</p> <p>“(8) If your answer to the seventh question be ‘Yes,’ then: State particularly what was the negligence which constituted such proximate cause. A. That negligence the existence of which is found by the answers to the third, fourth, and fifth questions.</p> <p>“(9) Before the car started from station number 7, did' plaintiff know that he could not obtain a seat in it? A. No.</p> <p>“(10) If the answer to the ninth question be ‘No,’ then answer this: By the exercise of ordinary care on his part, would plaintiff have learned before the car started from that station that he could not get a seat in it ? A. No.</p> <p>“(11) By the exercise of ordinary care on his part, would plaintiff have discovered, before his injury occurred and in time to have prevented it by any means available to him, that while standing on the car step his body might collide with a trolley pole ? A. No.</p> <p>“(12) Was there on plaintiff’s part any failure to exercise ordinary care which contributed to cause his injury ? A. No.</p> <p>“(12|) If plaintiff had not been pushed or pressed outward, as he testified that he was, by some other passenger at the rear of the car, would plaintiff have collided with the trolley pole by which he was thrown from the car step ?' A. No.</p> <p>“(13) If the court shall be of the opinion that plaintiff is-entitled to a judgment in his favor, what sum will reasonably compensate him for his injuries ? A. Twelve hundred dollars.”</p> <p>Upon such verdict judgment was entered in favor of the plaintiff, from which judgment defendant appeals.</p> <p>They cited Miller v. Kenosha E. B. Co. 135 Wis. 68, 73, 115 N. W. 355; Cumber-la,nd & W. E. B. Co. v. Thompson, 102 Md. 193, 62 Atl. 243; Johnson v. Brooklyn U. B. Go. 63 App. Div. 374, 71 N. Y. Supp. 568; Moskowitz v. Brooklyn H. B. Go. 89 App. Div. 425, 85 N. Y. Supp. 960; WUlmotl v. Corrigan G. St. B. Go. 106 Mo. 535, 17 S. W. 490; Cattano v. Metropolitan St. B. Go. 173 N. Y. 565, 66 N. E. 563; McVay v. Brooklyn, Q. G. <& S. B. Go. 113 App. Div. 724, 99 N. Y. Supp. 226; Snyder v. G. S. & G. G. D. B. Go. 36 Colo. 288, 85 Pac. 686, 8 L. R. A. N. s. 781.</p> <p>They cited, inter alia, North Chicago St. B. Co. v. Polkey, 203 Ill. 225, 67 N. E. 793; Pray v. Omaha St. B. Go. 44 Neb. 167, 62 N. W. 447; North Chicago St. B. Co. v. Williams, 140 Ill. 275, 29 N. E. 672; Karr v. Milwaukee L., H. & T. Go. 132 Wis. 662, 113 N. W. 62; La Barge v. Union E. Go. 138 Iowa, 691, 116 N. W. 816; Warner v. Ghippewa Valley E. B. Go. 108 Wis. 319, 84 N. W. 423; Graham v. Manhattan B. Go. 149 N. Y. 336, 43 N. E. 917; Beattie v. Detroit U. B. Go. 158 Mich. 243, 122 N. W. 557; Walters v. G. & N. W. B. Co. 113 Wis. 367, 89 N. W. 140.</p>

<p>Appeal from a judgment of the circuit court for Manito-woc county: E. B. Belden, Judge.</p> <p>Plaintiff, a manufacturer of Christmas tree ornaments in Manitowoc, had shipped to him from Lauscha, Germany, a number of cases of such ornaments. They reached Manito-woc via the defendant’s road, on car ferries operated by it across Lake Michigan from Frankfort, Michigan, to Manito-woc, Wisconsin. There the car containing the cases was turned over to the Chicago & Northwestern road and at once switched to plaintiff’s warehouse in the city of Manitowoc, a distance of about one mile, where plaintiff removed the cases from the car the same day. He found a number of the cases wet and contents damaged by water and mildew. It did not rain in Manitowoc the day the goods were received. They were dutiable and shipped in bond from Philadelphia to Man-itowoc. Plaintiff proved the cases were dry and shipped in good condition from Lauscha, and that they were in defendant’s possession at least six days. Defendant offered no evidence; The amount of damages was stipulated and the jury returned a verdict for plaintiff. From a judgment entered thereon defendant appealed.</p> <p>They cited, among other authorities, Atlantic O. L. It. Go., v. Riverside Mills, 219 U. S. Í86, 31 Sup. Ct. 164; Central of Ga. R. Co. v. Chicago V. Co. 169 Ala. 281, 53 South. 832; Mo. Pac. R. Co. v. Wichita W. G. Co. 55 Kan. 525, 40 Pac. 899; III. Cent. R. Co. v. Foullcs, 191 Ill. 57, 60 N. E. 890; Joseph v. Georgia R. •& B. Co. 88 Ga. 426, 14 S. E. 591; Swetland v. B. <& A. R. Co.. 102 Mass. 276; Railroad Go. v. Breiving Go. 96 Tenn. 677, 36 S. W. 392; Leo v. St. P„ M. & M. E. Co. 30 Minn. 438, 15 N. W. 872.</p> <p>cited Laughlin v. G. & N. W. R. Go. 28 Wis. 204; Lamb v. G., M. & St. P. R. Go. 101 Wis. 138, 76 N. W. 1123; Densmore G. Co. v. D., S. S. •& A. R. Go. 101 Wis. 563, 77 N. W. 904; and other cases.</p>

This is an action in equity to declare and enforce an equitable lien for unpaid purchase money upon an eigbty-acre farm. Tbe plaintiffs are husband and wife and of the ages of seventy-eight and seventy years, respectively. Prior to July 31, 1907, they owned and resided upon the farm in controversy, and had resided there for about fifty years. They had four sons and four daughters, all adults, and six of them resided away from home.

<p>Appeal from a judgment of tbe circuit court for Manito-woc county: Michael KiewaN, Circuit Judge.</p> <p>Action to recover tbe balance of tbe purchase price of a piano.</p> <p>Tbe defendant pleaded breach of warranty, seasonable rescission of tbe sale contract, and demand for tbe money already paid, and counterclaimed therefor.</p> <p>Tbe court submitted tbe cause to tbe jury on tbe subject of whether tbe conceded warranty was breached. Tbe finding was for tbe defendant. All other questions requisite to be solved in her favor to support a judgment for her were so decided by tbe court without any complaint because any of them should have been submitted to tbe jury. Judgment was rendered for defendant, and plaintiff appealed upon tbe sole ground that tbe finding as to tbe piano being defective was not warranted by tbe evidence.</p>

<p>Appeal from a judgment of the circuit court for Manito-woc county: Michael KirwaN, Circuit Judge.</p> <p>On August 3, 1907, the town board of the town of Center-ville, Manitowoc county, upon a petition of residents of parts of school districts No. 1 and No. 4, made an order creating school district No. 6 of the town out of the territory of district No. 1, and another order making a division of the school property of the old district between it and the new district.</p> <p>On appeal to the state superintendent of public instruction a decision was made reversing the order creating the new district. This decision was rendered more than ten months after the. appeal was perfected. On a writ of certiorari the circuit court reversed the decision of the state superintendent under sec. 497, Stats. (1898), on the ground that his decision had not been rendered within thirty days after the appeal had been submitted to him. The decision of the circuit court was affirmed by the supreme court in State ex rel. Schuette v. Cary, 143 Wis. 83,126 ET. W. 562.</p> <p>About six weeks after the rendition of the decision of the supreme court, which was almost three years after the order creating the new school district had been made, the relators petitioned the circuit court for a writ of certiorari to review the proceedings of the town board creating the new district, on the ground that there were jurisdictional defects in the proceedings of the town board in creating the new district. Upon proper proceedings the clerk of the new district was made a party defendant and he also made a return to the writ.</p> <p>It appears from the returns to the writ that the order creating the new district was not to take effect until the next year. . At the proper time the new district was organized, officers were elected, and resolutions adopted providing for the maintenance of a school by the district, the borrowing of money to build a school house, etc. These proceedings were repeated in each of the first two years; no district school was separately maintained by the new district; no taxes were collected by - it; and no other proceedings for the maintenance of a school taken, but the taxes in this district were collected therefrom as if it were part of the old district, and the children of the district attended school at the old district school house. The next year the new district maintained a school, collected taxes for school purposes, received an apportionment of state taxes, - paid rent for a building by making repairs, took a school census, and did the acts necessary to the existence of an' independent school district. At the next school meeting provision was made for raising the money to purchase a site for the proposed new school building, plans were prepared for the building, and it is alleged that an excavation was made and that materials for the construction of the building were hauled to the premises. The work on the new school house, it is asserted, was stopped when the writ in this case was issued.</p> <p>The defendants moved that the writ be quashed for the reasons (1) that more than two years had elapsed between the time of the making of the orders by the town board and the time of the issuance of the writ; (2) that the relators had been guilty of laches in applying for the writ; and (3) that great inconvenience to the public would result if the relief sought by the relators were granted.</p> <p>The court held that, in view of the pendency of the former action, the relators had not been guilty of laches in instituting these proceedings, that any expense incurred by the new district had not been incurred with the acquiescence of the opponents to the creation of the new district and had not been incurred because of their inactivity, and that the orders creating the new district and making a division of the school property were admittedly void. Judgment was ordered for the relators, declaring the orders of the town board creating the new district and for a division of the school property void, and giving the relators costs. This is an appeal from such judgment.</p>

<p>Appeal from a judgment of tbe circuit court for Milwaukee county-: W. J. TueNee, Circuit Judge.</p> <p>Tbe plaintiff, sixteen years and nearly five-months of age, on July 3, 1907, while employed in the bottling department of the brewery of the defendant, received an injury by being struck in the eye by a piece of glass from an exploding bottle. The injury resulted in the loss of the eye. A statement of the findings of the jury upon this trial, in addition to the statement of facts contained in the report of the case on a former appeal (144 Wis. 404, 129 N. W. 414), is all that' is necessary to fully present the facts of the case.</p> <p>The jury found that the plaintiff was directed by the foreman to assist in “piling out” bottles of beer from the steam tank to the trays in which they were carried to the labeling machine; that there was a latent danger that the bottles, after being taken from the steam tanks and set upon the trays, would explode, while they were standing still, without the application of any external force to the bottles; that the defendant had knowledge prior to the time of injury of the latent danger ; that the defendant negligently failed to warn the plaintiff of tbe latent danger, and that snob negligence was the proximate cause of the injury; that the plaintiff did not in the exercise of ordinary care know of the danger; that the explosion which caused the injury was not produced by the bottles being struck together by reason of the manner in which the plaintiff performed his work; that the defendant was not guilty of negligence in furnishing the plaintiff with a tray constructed as was the one used by him; and that no failure on the part of the plaintiff to exercise ordinary care contributed in any degree to produce his injury. The jury also agreed upon $7,000 as the sum which would reasonably compensate the plaintiff for his injuries. This is an appeal from the judgment on the verdict.</p>

<p>Appeal from an order of tbe circuit court for Grant county: Geoege ClemeNtsox, Circuit Judge.</p> <p>Tbe complaint, after stating that John F. Miles died testate, and that plaintiff was duly appointed and has qualified as executor, alleges:</p> <p>“That on or about tbe 4th day of February, 1908, at tbe city of Platteville, Grant county, Wisconsin, tbe said above named John F. Miles, deceased, and tbe above named defendants, George M. Brown and Mary T. Brown, bis wife, and James M. Brown, of tbe city of Platteville, Grant county, Wisconsin, made and entered into certain articles of agreement, in writing, under their bands and seals, and bearing date tbe 4th day of February, 1908, for tbe sale and conveyance, by tbe said John F. Miles, deceased, to tbe defendants, George M. Brown and Mary T. Brown, bis wife, and James M. Brown, of tbe land hereinafter described,' a true copy of which said articles of agreement is hereto attached and made a part hereof and marked 'Exhibit A.’ By said articles of agreement tbe said Jobn F. Miles, deceased, in consideration of tbe payment to him of the claim for mechanic’s lien filed by J. O. Hughes & Son, contractors, against the property and teal estate hereinafter described; also the payment of the claim for mechanic’s lien filed by the Ereeport Gas Machine Company against said hereinafter described property; also all of the interest in full on a certain mortgage for $10,000, executed on the 11th day of December, 1906, by the said defendants, George M. Brown, Mary T. Brown, his wife, and to the said John F. Miles, deceased, and covering all of lot 10 of the original plat of the city of Platteville, Grant county, Wisconsin, according to the recorded map and plat thereof, except sixteen feet off from the north end of said lot; also all taxes and insurance upon all of the real estate and premises hereinafter described, all of which sums were to have been paid by the said defendants, George M. Brown and Mary T. Brown, his wife, and James M. Brown, to the said John F. Miles, deceased. And upon the full and complete payment of all of said claim and sums hereinbefore enumerated, the said John F. Miles, deceased, promised and agreed to and with the defendants, George M. Brown and Mary T. Brown, his wife, and James M. Brown, after and upon condition of the prompt and full performance by the defendants, George M. Brown and Mary T. Brown, his wife, and James M. Brown, of all their agreements in' said articles of agreement, to convey by good and sufficient deed to the said defendant George M. Brown, all of the following described lands and premises, to wit: Lot 10 of the original plat of the village (now city) of Platteville, Grant county, Wisconsin, except sixteen feet off from north end thereof, subject to the said mortgage of $10,000, hereinbefore described; also those certain lands in the Homestead Addition to the city of Platte-ville, Grant county, Wisconsin, heretofore conveyed to the said George M. Brown by William Wallers and wife; that in and by said articles of agreement the defendants, George M. Brown and Mary T. Brown, his wife, and J ames M. Brown, in consideration of the payment of the said mechanics’ liens hereinbefore described, by the said John F. Miles, deceased, covenanted, promised, and agreed to and with the said John F. Miles, deceased, to well and truly pay, or cause to be paid, within one year from the date of said articles of agreement, to the said John F. Miles, deceased, all sums which he would be required to pay in order to settle the said claims for me-cbanics’ liens, and also to pay him all of the interest in full, upon the said mortgage of $10,000; also to pay all taxes and insurance upon said above described property; that in and by said articles of agreement it was further understood and agreed by the parties thereto, that in the event of the failure of the said party of the second part to pay the various sums hereinbefore set forth, one year from the date of said articles of agreement, that they should forfeit forever all of the right, title, and interest in and to the said lands and premises here-inbefore described, and should vacate said lands and premises without further action .on the part of the said John F. Miles, deceased; that said articles of agreement were duly executed by the said John E. Miles, deceased, and George M. Brown and Mary T. Brown, his wife, and James M. Brown, defendants, and the execution thereof duly acknowledged, so as to entitle the same to be recorded in the office of the register of deeds of Grant county, Wisconsin, and said contract was on the 5th day of February, 1908, at 3 o’clock p. m., recorded in volume 162 of deeds, page 506, in said office of said register of deeds.</p> <p>“And plaintiff further shows to the court and alleges that at the time of making said articles of agreement the said John F. Miles, deceased, was the owner of said lands and premises, and that said lands and premises are now a portion of the estate of John E. Miles, deceased, and that upon the execution and delivery of the said articles of agreement the defendants, George M. Brown and Mary T. Brown, his wife, and James M. Brown, went into the occupancy of said lands, and premises under and by virtue of said articles of agreement and not otherwise. And the plaintiff further shows, that the said defendants, George M. Brown and Mary T. Brown, his wife, and James M. Brown, have failed to comply with their agreements in said articles of agreement contained, by neglecting and refusing to pay the said claim of J. O. Hughes & Son for lien, which plaintiff alleges amount, to $3,390.20 on said February 4, 1908; by neglecting and failing to pay the claim for lien of the Freeport Gas Machine Company, which said claim on February 4, 1908, amounted to $219.95; .by neglecting and failing to pay any insurance-upon said above described real estate, and that there is now due, according to said articles of agreement, the sum of $3,390.20 and interest thereon at the rate of six per cent, per annum from February 4, 1909; the sum of $279.95 and interest thereon at the rate of six per cent, per annum from February 4, 1909; the interest on the $10,000 mortgage from December 11, 1906, at the rate of six per cent., less the sum of $300 interest which was paid June 11, 1907; the taxes on said real estate and premises, amounting to $1,010.39; the sewerage taxes, amounting to $332.84; insurance upon said real estate and premises, amounting to $-; that the said defendants, George M. Brown and Mary T. Brown, his wife, and James M. Brown, have neglected and failed to pay any of the aforesaid sums, or any interest thereon; that the plaintiff, as such executor of the last will and testament of said John F. Miles, under and by virtue of said last will and testament of said John F. Miles, deceased, is entitled to the possession of all the real estate and premises belonging to the estate of the said John F. Miles, deceased.</p> <p>“"Wherefore the plaintiff demands judgment that the defendants, George M. Brown and Mary T. Brown, his wife, and James M. Brown, and all persons claiming under them by virtue of said articles of agreement, be adjudged to have abandoned and given up all right, title, and interest in and to the lands and premises described in said, articles of agreement, and all right of action upon or growing out of the same, and that the defendants' be forever debarred and foreclosed of and from all right and claim to said premises, and that the plaintiff recover speedy possession of said premises and the appurtenances, and that he recover from the said defendants, George M. Brown and Mary T. Brown, his wife, and James M. Brown, his costs and disbursements in this action.”</p> <p>Exhibit A referred to was duly signed, witnessed, and acknowledged, and reads as follows:</p> <p>“This agreement, made and concluded this 4th day of February, 1908, by and between John F. Miles, of the city of Platteville, Grant county, Wisconsin,' party of the first part, and George M. Brown, Mary T. Brown, his wife, and James Brown, of the city of Platteville, Grant county, Wisconsin, parties of the second part, witnesseth: that whereas the said parties of the second part have this day executed and delivered unto the said party of the first part a deed to all of lot 10 of the original plat of the village (now city) of Platte-ville, Grant county, Wisconsin, excepting sixteen feet off the north end thereof, subject to a mortgage of $10,000 now existing upon the said lands and premises in favor of the said party of the first part; and have also executed and delivered to the said party of the first part a deed to all of those certain lots in the Homestead Addition to the city of Platteviíle, Grant county, Wisconsin, heretofore conveyed to the said George M. Brown by William Wallers and wife; as a consideration therefor the said party of the first part agrees to pay or take up the claim for mechanic’s lien filed by J. O. Hughes & Son, contractors, against the said property, and also to pay or take up the claim for mechanic’s lien filed by the Ereeport Gas Machine Company.</p> <p>“Now, therefore, if the said parties of the second part shall repay to the said party of the first part, within one year from this date, all money which he shall be required to pay in order to settle the said claims for mechanics’ liens filed against the said property, and shall also pay to him all of his interest in full upon the said mortgage of $10,000, and shall also pay all taxes and insurance upon said above described property, then and in that case the said party of the first part agrees to reconvey the said lands and premises, subject to his said mortgage of $10,000, to the said George M. Brown. And in the event of the failure of the said parties of the second part to pay the various sums heretofore set forth, one year from date hereof, they shall forever forfeit all right, title, and interest in and to the lands and premises herein described, and shall vacate the said lands and premises without further action on the part of the party of the first part.”</p> <p>The defendants entered a general demurrer to the complaint and from an order overruling the same they appealed.</p>

Action to recover money paid under a lease. Tbe complaint alleges, in substance, that on November 8, 1905, plaintiff obtained from defendant a mining lease on a certain described parcel of land containing about an acre; that it began mining operations thereon on and prior to November 8, 1905, and continued to mine in and upon said land until on and after July 27, 1906, and extracted large quantities of ore, on which it paid as royalties to the defendant the total sum of…

<p>Appeal from a judgment of the circuit court for Lafayette county: Geoe&e ClemeNtsoN, Circuit Judge.</p>

Action to enjoin defendant from depositing waste material from a mineral concentrating mill on plaintiffs’ land, and to recover compensation for damages caused by trespass of that nature thereon. The issues are indicated by the following epitome of the findings: During the time material to the cause, plaintiffs were and are owners of the land in question.

I. ViNje, Judge. The complaint sets out two causes of action. The first alleges that the plaintiff, prior to February 20, 1907, was engaged in the manufacture of agricultural and other machinery at Elmira, New York, and that the defendant was similarly engaged at Eau Claire, Wisconsin.

C. Higbee, Circuit Judge. This is an appeal from 'a judgment in defendant’s favor. Tbe action is for damages for breach of a contract guaranteeing a slate roofing on tbe cburcb building of tbe plaintiff. Tbe case is stated in tbe opinion.

<p> Damages: Personal injury: Award not excessive. </p> <p>An award of $1,150 is held not excessive for fracture of a wrist caused by a fall on a defective sidewalk, it appearing that the injury was a serious one, involving long treatment and g great deal of pain, and that at the time of the trial, nineteen months after the injury, the wrist was still in bad condition.</p>

C. Higbee, Circuit Judge. The cause was submitted for the appellant on the brief of B. 8. Cowie and G. 0. Lindermam3 and for the respondents on that of 8. G. Gilman.

0. Higbbe, Circuit Judge. Louisa Schmidt died intestate on November 30, 1908, and left surviving her the plaintiff, who was her husband, and one son, the issue of the marriage between plaintiff and deceased. At the time of her death she was the owner of 160 acres of land which had been mortgaged to one Phillips to secure a loan of $450. The plaintiff joined in the execution of this mortgage.

C. Higbee, Circuit Judge. The cause was submitted for the appellant on the brief of Naylor <& McCaul, of counsel, and T. P. Abel, district attorney, and for the respondents on that of J. Ilenry Bennett, district attorney.

C. Higbee, Circuit Judge. Tbis is an action brought to recover for personal injuries sustained by the plaintiff while in the employ of the defendant, resulting from a fall from one of the defendant’s poles, which pole the plaintiff was preparing for the use of the defendant for trolley purposes.

0. IIigbee, Circuit Judge. Action to determine what compensation is due plaintiff on account of an alleged taking of land for right-of-way purposes.

C. Higbee, Circuit Judge. Action to recover compensation on account of taking lands for railway right-of-way purposes. The cause was submitted to the jury on the evidence, resulting in a verdict in plaintiff’s favor upon which judgment was rendered.

<p>ERROR to review a judgment of the municipal court of Milwaukee county: A. 0. Backus, Judge.</p>

<p>Writ of habeas corpus issued out of this court.</p>

<p>Appeal from a judgment of tbe circuit court for Milwaukee county; OkREN T. Williams, Circuit Judge.</p> <p>On February 22, 1909, Frank Glass, the decedent, while driving a team of horses, hitched to an empty coal wagon, east on Oneida street in the city of Milwaukee, fell from the wagon to the pavement, sustaining injuries which caused his death. This action is brought to recover damages for the death of said Glass, the complaint alleging that the defendants peimitted large holes to exist in the pavement at and near the point of the accident, both in the portion of the street maintained by said city and the portion between the tracks and one foot outside of each rail, maintained by the defendant railway company; that one of the wheels of the wagon on which decedent was riding dropped into a hole in the pavement, suddenly jerking and rocking the wagon in such a manner that decedent was thrown therefrom. The defendants answered separately. The city denied that any want of repair or insufficiency existed in said pavement, but alleged that, if any such defects did exist, the defendant railway company was responsible and not the city. The answer of the railway company was a general denial of the allegations of the complaint. On a directed verdict judgment was entered dismissing the complaint as to each of the defendants, and from such judgment plaintiff appeals.</p>

<p> Trusts and trustees: Creation of trust: Essentials: "Wills: Construction: Estate or interest devised: Life estate with power to use and consume: Guardians for minors: Right of divorced wife to appoint: Testamentary trustee. </p> <p>1. No particular form of words, and not even the use of the words “trust” or “trustee,” is necessary to create a trust; and, on the other hand, the use of those words does not necessarily show an intention to create one.</p> <p>2. To create a valid trust the intent so to do must he clear and the writing employed must he reasonably certain in respect to the subject matter or property embraced within the trust, the beneficiaries or persons in whose behalf it is created, the nature and quantity of their interests, and the manner in which the trust is to be performed. .</p> <p>3. While adjudicated cases are sometimes helpful upon a question of testamentary construction, the guiding principle must always he to ascertain and enforce the intent of the testator as gathered from the particular will to be construed.</p> <p>4. Testatrix, divorced from her husband and having the custody of their minor son and daughter, after mating some small bequests, gave all the rest and residue of her property, real and personal, to said children, or to the survivor of them, share and share alike, during their natural.lives and the life of the survivor, with the right to use and consume such part of his or her share as either of them should find necessary, — with remainders over. Held, that the children took a life estate with power to control and dispose of the property unincumbered by any trust.</p> <p>5. The power to “use and consume,” declared in the will, gives the right to use the corpus of the ■ estate and- necessarily carries with it the power to sell the personal estate absolutely and convey the fee of the real estate, together with the right to the possession and control of both.</p> <p>6. Whether or not testatrix had a legal right, as against her divorced husband, to appoint a testamentary guardian over the persons of their children, whose custody had been awarded to her, she had the power, as incident to the disposition of her property, to vest the title thereto in a so-called guardian, and the naming of a person as guardian for the children in her will merely made such person a trustee' of their property during minority.</p>

<p>Appeal from a judgment of tbe circuit court for Portage county: Chas. M. Webb, Circuit Judge.</p> <p>Action to recover for tbe claimed negligent killing of Louis Jeffers.</p> <p>Tbe deceased was an experienced brakeman but not accustomed to yard work, particularly in defendant’s yard at Green Bay, where be was killed. He was familiar with switching movements, called kicking, as well as those called spotting cars. At bis request be was transferred from regular freight train service to tbe particular work. Tbe fatal accident occurred during bis first day’s work and tbe first time be received such an order as tbe one in question. He bad before performed like service but not, perhaps, in a yard where there was a scale track called tbe “scale” or “scales.” He did not ask for instructions. None were given. There were no particular circumstances indicating that be required such other than tbe local custom respecting tbe name of tbe particular track. Tbe work in progress when tbe accident occurred was being done in tbe ordinary way in tbe particular yard. There was evidence to show that tbe cars were moving pretty fast, — perhaps more than ordinarily so. Tbe switching crew was composed of Gallagher, tbe foreman, Jeffers, tbe ■deceased, and one Boex, a switchman, besides tbe men on tbe engine. There was a string of six cars attached to tbe switch ■engine in front. It was on a lead track connected with two or more switch tracks to' tbe south. Tbe last car from tbe engine was a short distance north of a cross thoroughfare, called Mason street. Tbe purpose was to move tbe cars southerly across tbe street and set tbe sixth in on tbe switch track, known as the “scale” or “scales.” That was a designation given to the track by the custom in the yard. It turned to the left about 100 feet south of the street. There was a slight easterly curve in the lead track, the degree of curve being such as to enable the engineer from his ordinary position, to see a person, if standing in the street near to and west of the track, or in the act of climbing on the sixth car on such side, or perhaps if on top of the car or the one next to it. There was undisputed oral evidence that before the movement commenced the foreman and Jeffers were in pretty close company west of the track and north of the street. The foreman signaled the engineer to move southerly. A set of weighing scales intercepted the “scale” or “scales” track some twenty rods southerly of the street. There was ground for one circumstanced as Jeffers was, to understand an order to put a can in on the “scales” or ride a car in on the “scales,” to refer to the weighing scales, when the idea might be to put the car on the track on which the weighing scales were located. The-purpose at the time in question, was, as testified by the foreman, to place the car on the “scales” track by a kicking movement. That is, giving the string of ears such speed that, at. a proper point and time, the particular one could be released and the rest suddenly brought to a stop, allowing the former with the brakeman thereon to continue to a suitable clearance on the “scale” track and be there stopped by his setting the-brake. In a movement to place a car on the weighing scales, called “spotting,” the evidence tended to prove that the car would not be detached till in position and the brake set, or something done, if necessary, to prevent its moving by gravity. So, in a spotting movement, it was safe for the brakeman to mount a car next to the particular one on the way to-the latter, while in a kicking movement if he did so and in attempting to pass to the particular car, reached a point near the division between the two at the instant of the release and stop order, he was almost sure to be thrown forward to the ground and severely injured, if not killed. There was evidence to the effect that, ordinarily, there was little if any difference between the language of a kicking order and that of a spotting order. The foreman testified that in casé of the latter, with reference to the scales the word “spot” would be used and nothing be said about setting a brake or riding the car. His associate testified that the proper order “would be ‘ride this car and set a brake on it on the scales;’ that would mean a spot, not a kick. It would mean to ‘ride the car.’ ” It was of vital importance for the brakeman to understand the nature of the movement as to whether the car was to be spotted or kicked and to so shape his course as to be on the particular car in case it was to be kicked at the time of the engineer’s response to the stop signal and to be so located as to guard against an inefficient effort to release the car, resulting in its being suddenly brought to a stand with the rest.</p> <p>There was no rule or general custom in the yard by which one circumstanced like the deceased could understand, with certainty, from the language of the order given whether a kicking or a spotting movement was to • be executed. He might fairly in this case have supposed it to be the latter and so that it was safe to pass from the fifth to the sixth car while the string was being pushed down to place the latter car on the weighing scales. There was evidence tending to show that the method of designating the particular track was not only local but that the characterization in common use was “scale,” not “scales.” The foreman, testified that the latter was the usual term while the superintendent testified that the former was the one commonly used.</p> <p>About as the movement commenced the foreman said, speaking to Jeffers, “Ride the car” or “this car,” or used words of similar import, “in on the scales >and set the brake and then go to dinner.” The witness testified variously as to the precise words he used, hut there was no very material difference between his^several phrasings of the matter.</p> <p>There was undisputed oral evidence that Jeffers, as the southwest corner of the sixth car reached him, and about in Mason street, ascended the ladder and an instant later was seen on top; also that about the same time he was seen in Mason street on the east side of the track ascend the ladder at the northeast corner of the fifth car and proceed rapidly towards the sixth. After the foreman saw him, as he said, mount the sixth car and the string had attained the proper speed and was at the appropriate location, he released the particular car by using the appliance therefor at the side, gave the engineer the stop signal which was promptly obeyed, the five cars and the engine coming suddenly to a stand, the released car rapidly moving on and, at that instant, Jeffers plunging head foremost from the southerly end of the fifth car.</p> <p>All the testimony as to Jeffers having mounted the sixth car was by the engineer, the foreman, and switchman Boex. The latter testified to having seen Jeffers standing on top of the sixth car while the foreman was running with the string in readiness to give the stop signal. The one who testified to having seen the decedent mount the fifth car, was a man of mature age who had long been a resident of Green Bay. The effect of his evidence was that the cars were under his observation throughout, the whole occupying but a short time; that he saw Jeffers at a point north of the center of Mason street, on the east side of the track, ascend the ladder at the northeast corner of the fifth car and go rapidly towards the sixth, proceeding till he fell from the top; that when the man took hold of the ladder the cars were moving at a pretty rapid rate, — so rapidly that the foreman whose limbs he could see, had to run to keep up. The testimony of the foreman was the same as regards his running alongside of the car. He did so with his hand holding the switching appliance till the string reached the proper place and speed and then pulled the pin and gave tbe engineer tbe stop signal. During tbis time be made no observation as regards tbe whereabouts of Jeffers. Most of tbe time be was, perhaps, where be could not have seen him except by moving back a little from tbe side of tbe cars.</p> <p>All circumstances referred to are within tbe pleadings and tbe evidence. If all tbe oral testimony be true, Jeffers mounted tbe sixth car, then proceeded quickly, except for tbe instant Boex saw him standing still on top of tbe car, to tbe north end, descended to tbe ground at tbe northeast comer and in Mason street from which be went up tbe ladder at tbe corresponding corner of tbe fifth car, and proceeded rapidly back towards tbe sixth and met bis death in doing so. Tbe trial court adopted that theory. No one in charge of tbe movement, according to tbe evidence, saw Jeffers after be was observed by Boex, as be said, standing on tbe sixth car, till be fell from tbe fifth.</p> <p>Tbe negligence claimed is: (a) Conduct of tbe engineer and foreman in running tbe cars at an unusual rate of speed without giving proper attention as regards tbe location of Jeffers; (b) Suddenly stopping tbe car on which deceased was located without warning him that such an occurrence was impending or likely to happen; (c) Failure to furnish him a reasonably safe place to work; (d) Failure to instruct him as to tbe peculiar dangers of bis work according to tbe custom in tbe particular yard.</p> <p>Tbe trial court held that, regardless of whether Jeffers understood what kind of a movement was to be executed, or whether tbe cars were moved at an unreasonable rate of speed, or tbe string after tbe sixth ear was released, was stopped unusually quick, — be went out of bis proper course without any reason therefor and came to bis death thereby. Upon that theory tbe verdict was directed for tbe defendant and judgment rendered accordingly.</p>

<p>Appeal from an order of tlie circuit court for Portage cbunty: Qhas. M. Webb, Circuit Judge.</p> <p>One Pinkman, a nonresident of tMs state, "began an action in the circuit court for Dane county against the Wisconsin Central Railway Company to recover damages for a personal injury sustained hy him in a railway accident on the defendant’s road in the state of Minnesota. Within the twenty days prescribed hy sec. 2621, Stats. (1898), the defendant served upon plaintiff’s attorney a demand in writing that the venue he changed because the lines of the defendant road do not extend into Dane county and it was therefore not the proper place of trial. Upon stipulation the venue was duly changed from Dane county to Columbia County. In that county an issue was made up and tbe action remained there several terms. It was then stipulated to change the place of trial from Columbia County to Portage County, and an order was duly entered changing the place of trial to Portage County pursuant to the stimulation. The defendant’s lines extend into both Columbia and Portage counties. The case was tried in Portage County and subsequently the costs of the trial, amounting to $604.90, were taxed against Columbia County, and by an order of the court allowed. Columbia County objected to the allowance against it of any costs for the reason that the action was not begun in Columbia County; that the cause of action did not arise therein, and the plaintiff was not a resident thereof; and it appealed from the order of the court allowing costs to be taxed against it.</p>

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

Apeeal from a judgment'of tbe circuit court for Portage county: Chas. M. Webb, Circuit Judge. Action for equitable relief.

<p>Appeal from a judgment of the circuit court for Waupaca county: Ohas. M. Webb, Circuit Judge.</p> <p>On March 4, 1907, the plaintiff corporation and the defendant, a domestic railroad corporation, entered into a contract whereby the plaintiff undertook to construct for the defendant a railroad from Waupaca to Scandinavia. The work was completed on January 24, 1908. The specifications for the work provided for clearing the right of way, constructing the roadbed, including excavating and grading, erecting bridges, etc., laying the ties and rails, and ballasting and surfacing the track. Any changes or modifications were to be as directed by the chief engineer. The contract specifically provides:</p> <p>“No claim for extra work shall be allowed unless such work shall have been done pursuant to a written order from the engineer in charge, and such claim shall have been made at the first estimate after such extra work was executed.”</p> <p>“It is also mutually agreed that when any work under this agreement for which no price is specified therein, shall be done by the contractor at the request of the chief engineer, then the contractor shall be entitled to a price to be fixed and determined by said chief engineer.”</p> <p>“The railway company is to pay the contractor eighty (80) per cent, of the amount of work done each month, according to the engineer’s estimate, payment for same to be made on or before the tenth day of the month next succeeding.</p> <p>“As soon as practicable after the first day of each and every month, and from and after the commencement of the work herein by the contractor, the said chief- engineer shall furnish to the railway company a certificate and estimate of the approximate amount and value of the various kinds of work done and material delivered in the work or on the railway company’s grounds, from the commencement of the work up to the said first day of the month; and on or about the tenth day of the month next succeeding the railway company will pay- to the contractor the total amount of said estimate less the amount theretofore paid to the contractor, on account of any previous estimate, less twenty (20) per cent, of said estimate, which last named percentage or sum the railway company shall retain until the full and final completion of the work contemplated to be done under this contract, in strict accordance with the terms thereof; and when the entire work hereinabove agreed by the contractor to be done shall have been entirely finished and completed to the satisfaction and acceptance of the said chief engineer, and he shall have furnished the railway company a certificate to that effect, and shall with said certificate also present his estimate of the amount and value of the various kinds of work done by the contractor under the terms of this agreement, which estimate shall be final and conclusive between the parties hereto, then the railway company will pay the sum or sums, if any, shown by said final estimate to be due to him under the terms of this agreement, together with the twenty (20) per cent, above referred to, and any and all percentages by it retained as aforesaid, and such payment shall be in full settlement for all work done by the contractor under the terms of this agreement.”</p> <p>The agreement provided that the track supplies and the ties should be delivered to the plaintiff by the defendant on flat cars. The evidence shows that part of these supplies and ties were delivered to the plaintiff by the defendant in box cars and part in gondola cars.</p> <p>In January, 1908, after the work was concluded, the plaintiff filed with the chief engineer two statements for force or extra work, one a demand based on extra work in ballasting and filling low points on the road, and the other for extra work made necessary because the supplies and ties were partly delivered in box and gondola cars and for transporting some of this material from Scandinavia to Amherst Junction at the chief engineer’s direction. These two items are substantially all that is involved in the issues tried in the present case.</p> <p>After the plaintiff’s proposal that the differences between the parties should be submitted to arbitration as provided in the agreement had been rejected, the plaintiff filed its claim for a lien upon the railroad and its right of way, including fhé depot grounds of the defendant.</p> <p>The referee to whom the matter was referred found in effect that the extras charged in these two claims had not been performed by the plaintiff pursuant to a written order from the engineer, but that the work had been done upon his verbal •order; that other extras for which the plaintiff had been paid had not been furnished upon written orders, but that they ■had been furnished at the chief engineer’s verbal direction; ■and that payment therefor had been made on monthly accounts upon the engineer’s approval. The two bills for extras here presented were not presented at the end of the months when furnished, but were held back until the comple1 tion of the work to which they pertained upon the engineer’s suggestion, and were then approved upon condition that the plaintiff perform and finish certain small items of work embraced in the agreement. These were afterwards performed ■by the plaintiff with the exception of some burning of brush .and some bolting, which the referee found had not been done because of defendant’s failure to furnish the bolts and because the engineer had ordered that the burning of brush be stopped. The referee reduced the amount claimed by the plaintiff by the amount of these two items by allowing the defendant the cost of performing the work not performed by the plaintiff, ■and reported on this basis in favor of the plaintiff. The report- of the referee was approved by the court and judgment was entered in accordance therewith. This is an appeal from the judgment.</p>

<p>Appeal from a judgment of tbe circuit court for Waupaca county: Chas. M. Webb, Circuit Judge.</p> <p>Proceedings were commenced in tbe county court for tbe probate of an alleged lost will under sec. 3191, Stats. (1898). Tbe county court refused to admit tbe will to probate, and on appeal to tbe circuit court tbe will was probated. Tbe case was tried before a jury in tbe circuit court and tbe following verdict returned:</p> <p>“(1) Did William Ziegenhagen execute a valid will on or about June 9, 1900, at tbe office of Connell & ITart, in Wau-paca, Wisconsin? A. (by tbe court). Yes.</p> <p>“(2) Did said testator in said will dispose of bis property as set forth in Exhibit ‘A’ attached to tbe petition of proponents, and name Augusta Wendt as executrix ? A. (by tbe court). Yes.</p> <p>“(3) Did said testator leave tbe will in tbe office of Con-nell & Hart until sometime in tbe year 1905 or 1906, and then take tbe same into bis own possession and carry it away with him? A. (by tbe court). Yes.</p> <p>“(4) Said testator, William Ziegenhagen, died January 21, 1909. Did he prior to his death destroy or cause to be destroyed said will, with the intention of revoking it? A. No.</p> <p>“(5) Did Marie Ziegenhagen and Fred Ziegenhagen, or either of them, at any time prior or subsequent to the death of William Ziegenhagen, destroy or suppress said will, or cause same to be done, without the knowledge or consent of William Ziegenhagen ? A. Yes.”</p> <p>The court approved the verdict of the jury and made the following findings: That said William Ziegenhagen died in the village of Weyauwega, Waupaca county, Wisconsin, January 21, 1909; that at the time of his death he was an inhabitant of said village and owned property, both real and personal, in the state of Wisconsin; that at the time of his death he was eighty years of age and had resided in said village since 1899 ; that he left surviving him his widow, Marie Ziegenhagen, seventy-five years of age, his son, Fred.Ziegen-hagen, forty years of age, and a daughter, Augusta Wendt, forty-six years of age, his sole and only heirs at law; that another son, August Ziegenhagen, who went to Montana twenty-one years ago, has never since been heard from, and a daughter, Minnie Ziegenhagen, who was incompetent, died February 14, 1908; that in the year 1895 said William Ziegenhagen owned a 180-acre farm in the town of Bloomfield, Wisconsin, valued at $11,000, and personal property thereon of the value of $1,500, all of which at that time he conveyed to hip son, Fred Ziegenhagen, in consideration of a mortgage on said premises of $2,000 payable jointly to himself and wife, and crops raised on said premises for the year 1895, and a contract that said Fred would support said William Ziegenhagen and his mother, Marie Ziegenhagen, during the remainder of their natural lives; that said William Ziegenhagen continued to live on said farm with his wife and son and'daughter Minnie until the spring of 1899, when he bought a small home in the village of Weyauwega, moved there, and lived alone one and one-third years, when Fred Ziegenhagen married, after which time Marie Ziegenhagen and daughter Minnie went to live with him; that immediately after the death of said William his widow went to live with her son Fred, with whom she continued to live; that in the spring of 1900 William Ziegenhagen brought suit against Fred Ziegenhagen and Marie Ziegenhagen with reference to their property matters ; that no complaint was ever served and the matter was settled out of court, by which settlement Fred agreed to pay his father the sum of $500 for the crops that were raised on his farm during 1895 and also $150, a year, to be paid semiannually, in lieu of furnishing him food as mentioned in the contract for life support; that Fred Ziegenhagen failed and refused to pay the first semi-annual payment of $75 when it became due and also failed and refused to pay the $500 according to his agreement for the first year’s crops, and suit was brought by said William against Fred in circuit court in 1901 to enforce payment of the same; that said action was duly tried September 7, 1901, and said Marie Ziegenhagen appeared at theNrial to render what assistance she might to her son to defeat her husband’s claim; that judgment was rendered in said action in favor of William Ziegenhagen for the full amount of his claim, which was paid; that said William Ziegenhagen gave his daughter, Augusta Wendt, about $30 worth of furniture at different times, and after settlement of said action with his son in 1900 gave her $1,000 in money, which is all the property'he ever gave her; that the value of the real estate owned by said William Ziegenhagen, deceased, at the time of his death was $3,000 and the value of the personal property was $2,400; that said deceased, at the law office of Connell & Hart in the city of Waupaca, on the 9th day of June, 1900, duly signed and executed in writing and published in presence of two witnesses, Samuel A. Connell and John O. Hart, his last will and testament, and said witnesses at said time and place in presence of said testator and at Ms request and in the presence of each other duly subscribed said will as attesting witnesses; that said will in substance was as follows:</p> <p> “Last Will and Testament of William Ziegenhagen. </p> <p>“I, William Ziegenhagen, of the village of Weyauwega, Waupaca county, Wisconsin, being of sound mind and memory, do make, publish, and declare this my last will and testament, hereby revoking all former wills, bequests, and devises by me made:</p> <p>“After payment of my just debts and funeral expenses I give, devise, and bequeath to my wife, Marie Ziegenhagen, the share of my property which the law allows her.</p> <p>“I give and bequeath to my son, Fred Ziegenhagen, one dollar.</p> <p>“I give and bequeath to my daughter, Minnie Ziegenhagen, the sum of one thousand dollars providing she is alive at the time of my death. In case she does not survive me the same shall go to my daughter, Augusta Wendt.</p> <p>“I give, devise, and bequeath to my daughter, Augusta Wendt, all the remainder and residue of my estate of whatever name, title, and description, real, personal, or mixed, and hereby appoint her executrix of this will.</p> <p>“In witness whereof I have hereunto set my hand and seal this 9th day of June, 1900. '</p> <p>“William Ziegehhageit. (Seal.)”</p> <p>That due execution of said will and the provisions thereof were clearly and satisfactorily proven by Samuel A. Connell and John 0. Hart and Augusta Wendt, witnesses on the trial of this action; that at the time of writing, signing, witnessing, and executing said instrument bearing date on or about the 9th of June, 1900, said William Ziegenhagen was of full age and also of sound mind, and before and since the making of said will had always been through his whole life to time of last sickness of sound mind; that said testator left said will in the office of Connell & Hart until sometime in 1905 or 1906, when he took the same into his own possession and carried it away with him; that said William Ziegenhagen was the custodian of the will of one Follendorf, a neighbor, and kept-said Eollendorf’s will, together with his own private papers,, locked in a drawer in a closet in his residence; that Marie-Ziegenhagen, his wife, would occasionally get the key and unlock the drawer containing said valuable papers and look the same over; that said William Ziegenhagen had a stroke of paralysis several days prior to his death, and remained in a paralyzed condition until he died; that immediately after he suffered said stroke of paralysis said Marie Ziegenhagen took from him the key to said drawer and took therefrom all of his valuable papers and put them in her bosom; that she permitted said William Ziegenhagen to sit in a chair in his paralyzed condition for two days before calling in any help for him; that said Marie Ziegenhagen had taken the part of her son, Fred Ziegenhagen, as against her husband on different occasions and was disposed to aid said son and was always on very friendly terms with said son; that Fred Ziegenhagen, when notified of his father’s illness, although he lived only a short distance from his sister, Augusta Wendt, did not send her any word of her father’s serious illness; that he went at once to his father’s house in the village of Weyauwega and was there with his mother several hours béfore the arrival of said Augusta Wendt; that said William Ziegenhagen recognized the existence of his will down to a short time before his death; that said William Ziegenhagen did not, prior to his death, destroy or cause to be destroyed said will with the intention of revoking it; that said will was never revoked or canceled by said testator, but that Marie Ziegenhagen and Fred Ziegenhagen, or one of them, did, at some time prior or subsequent to the death of said William Ziegenhagen, destroy or suppress said will, or cause the same to be done, without the knowledge or consent of said William Ziegenhagen, and that said will cannot be found, though diligent search and inquiry have been made.</p> <p>And as conclusions of law the court found that Exhibit “I” wbicb is fully set out in tbe testimony, bearing date June 9,. 1900, and propounded as sucb as tbe last will and testament of said William Ziegenhagen, deceased, should be established' and admitted to probate as -and be adjudged to be the last will and testament of said deceased, and that letters testamentary thereon be directed to issue to Augusta Wendt, named therein as executrix thereof, upon her complying with all requirements of law in that behalf provided; that the judgment, of the county court refusing to admit said instrument to probate as the last will and testament of William Ziegenhagen,. deceased, should be reversed; that said mutter, together with the records and files relating thereto, should be remanded and transmitted to the county court of Waupaca county, with directions to said court to proceed in said matter in the manner-provided-by law; that the proponent, Augusta Wendt, should h9.ve.full costs against the estate.</p> <p>Judgment was entered accordingly, from which this appeal was taken.</p>

<p> Summons: Signature. </p> <p>■Omission of the signature from the copy of summons served upon defendant, where the annexed papers, served therewith, advise the defendant of the name and address of the plaintiff's attorney, is a mere irregularity and not a jurisdictional defect.</p>

<p>Appeal from an order of tbe circuit court for St. Croix county: E. W. Heláis, Circuit Judge.</p>

<p>(1) Trial: Setting aside perverse verdict. (2-5) Municipal corporations: Liability -for negligence: Waterworks: Improper construction: Reliance on expert advice: Bréale in main: Injury to property: Delays in stopping flow: Questions for jury. (6) Appeal: Questions considered: Matters not litigated.</p> <p>1. Where the answer to one material question of a special verdict plainly shows that the jury made such answer perversely or by reason of passion or prejudice, the court may properly set the entire verdict aside, and should do so unless satisfied that the answers to the other questions were not affected by such perversity, passion, or prejudice.</p> <p>2. In furnishing water to private consumers a municipal corporation is acting in a private business capacity and not in its governmental capacity, and for any failure to exercise ordinary care proximately causing injury to another is liable to the same extent as a private person or a corporation operating a waterworks system.</p> <p>3. While it would be negligence to attempt to construct and operate a system of waterworks without expert advice as to the location of valves, the size and strength of pipes, and other details of construction, yet in a case where reputable engineers differ in their opinions it cannot be held a want of ordinary care to adopt in good faith a plan proposed by one school of experts in preference to another; and should an accident happen resulting in damage to a third person, proof of such good-faith action based on the advice of competent and reputable experts furnishes a complete defense against liability. Piper v. Madison, 140 Wis. 311, explained.</p> <p>4. The fact that the location of a valve 260 feet distant from a water tower, instead of in the basement of the tower where the feed pipe turns upward, is not in accordance with the best engineering, does n,ot establish negligent construction, without proof of some added danger on that account; and where, in a water system embracing an average of twenty-nine miles of mains, there have been but three breaks in the mains in twenty-four years, and the 260 feet of pipe leading to the water tower is located at the highest point of the system and is not tapped by service pipes, the likelihood of a break therein is, it seems, so remote as scarcely to be a substantial factor in the problem of location of such valve.</p> <p>5. Where water was found to be entering the cellar of plaintiff’s premises in the vicinity of a water tower on defendant’s system, and defendant’s employees, uncertain where the leak was located, spent three hours in uncovering and shutting off nine valves which controlled the water supply of that district, and in consequence plaintiff’s premises were flooded and its property damaged, when by opening a valve in the waste pipe of the water tower and two hydrants near by, and reducing the water pressure temporarily, the tank in the tower, from which the water was coming, could have been emptied in a few minutes, it was a question for the jury whether defendant was chargeable with negligence.</p> <p>“6. The claim that the city was liable in such' case on the ground that the water tower was a nuisance because located in a public street, will not be considered on appeal, where no such claim was made in the complaint or at the trial.</p>

<p> Dams: Flowage of land: Measure of damages: Market value: Adaptability to business uses: Profits: Evidence: Instructions to jury: Excessive damages. </p> <p>1. In determining the damage to land from the flooding of a part thereof by means of a dam, evidence of the profits of a business theretofore conducted on the land is not competent to establish the market value of the land; but evidence of the adaptability of the land to business purposes is admissible and proper to be considered.</p> <p>2. The lands flooded in this case were of an unusual character, being located at the broadening of a ravine or canyon of scenic beauty, frequented by tourists, and improved by a building which had been used as a restaurant, boarding house, etc. The witnesses testifying as to the value of the land took into consideration that the business conducted there would produce an income, but, although they did not use the words “profits” and “income” with strict nicety, did not base their estimates of value on the actual profits that had been or were expected to be realized from such a business. The court explicitly instructed the jury to find as the measure of damages the difference, if any, in the market value of the property before and after flowage, and told them that they could not allow any sum for any injury to the business conducted on the land, and that in fixing the market values they could not assess any sum for remote or speculative values or consider any speculative or remote use to which the property might be put. Held, that there was no error prejudicial to the defendant in the admission of such testimony and submission thereof to the jury.</p> <p>3. An award of $4,500 for the injury to plaintiffs’ land by the flow-age thereof is held not excessive as a matter of law.</p>

<p> Divorce: Division of property. </p> <p>One and one-half aeres of land were purchased with $300 of the wife’s money. Later the husband purchased an adjoining acre with his own money, made various improvements, and built a house. Fourteen years afterwards the premises were sold for $2,900, with $1,800 of which an eighty-acre farm was bought in the wife’s name. This farm was maintained and improved by the combined efforts and contributions of husband and wife, although he worked the larger part of the summer season as a bricklayer, leaving his wife and children to carry on the farm, and furnishing them little or no money. Out of a legacy received by the husband he paid off an incumbrance of $666 on the farm. In an action by the wife for divorce, the court found the value of defendant’s personal property to be $1,400 and the value of the farm $3,500. Held, that in making a division of the property the wife should have the farm and personalty, charged with the payment to the husband of $1,500, in addition to certain payments already made by her pursuant to the judgment of the court below.</p>

<p> Lalces and ponds: Navigability: Legislative declaration: Question of fact. </p> <p>1. The power of the legislature to declare that nonmeandered labes are neither navigable nor public waters, is doubted. Assuming that it has such power, its intent to destroy the public character of labes navigable in fact must, to be effective, be expressed in plain and unambiguous language and not be left to doubtful inference.</p> <p>2. Sec. 1607a, Stats. (1898), providing that labes which have been meandered and returned as navigable by the government surveyors, and also those which have been meandered and are nav- - igable in fact, are declared to be navigable and public waters, is not to be .construed as a declaration that nonmeandered labes are nonnavigable.</p> <p>3. A nonmeandered labe or pond, if navigable in fact, is a navigable and public body of water.</p> <p>4. The navigability of a nonmeandered labe is in every instance a question of fact to be determined from the evidence in each particular case.</p>

<p>'Appeal from an order of tbe circuit court for Dane county: E. C. Higbee, Judge.</p> <p>This is an action to recover fees turned over by tbe plaintiff to tbe defendant while be was its register of deeds, and to recover from it fees due for services rendered as sucb register of deeds. A claim against tbe county was filed by tbe plaintiff, and from a disallowance thereof by tbe county board be appealed to tbe circuit court for Dane Gounty. His claim, embodied in a complaint, is as follows:</p> <p>“Now comes S. T. Burgess and hereby makes claim against said Dane Gounty of tbe state of Wisconsin, and in support of said claim respectfully sets forth and shows as follows:</p> <p>“That be was duly elected to tbe office of register of deeds of said Dane Gounty, Wisconsin, at tbe general election held in tbe month of November in tbe year 1906, and that thereafter on tbe 7th day of January, 1907, be duly qualified and assumed tbe duties of said office of register of deeds and con-tinned to discharge the duties thereof under said election of the year 1906 until the 2d day of January, 1909; that he was likewise duly elected to said office at the general election held in the month of November in the year 1908, and on the said 2d day of January, 1909, succeeded himself as such register of deeds and did then and there duly qualify and assume the duties of said office; that from and since the 7 th day of January, 1907, and continuously to the date hereof, he has been and still is duly elected and qualified register of deeds as aforesaid and has throughout said period discharged and still is discharging the duties of said office.</p> <p>“That from and since the 7th day of January, 1907, and until the 31st day of March, 1910, he has collected as such register of deeds fees for filing and recording instruments in the said office of register of deeds in the amount of $18,339.05, which said fees in the said amount of $18,339.05 he has paid over to the treasurer of Dane County, Wisconsin, and did so pay over to the said treasurer and into the treasury of said •county on or before the said 31st day of March, 1910, and since the said 7th day of January, 1907, the said sum of fees as above set forth.</p> <p>“Claimant further says that the said fees were the property of and belong to this claimant and that they still are the property of and belong to this claimant, and that he is entitled to the same, and that he hereby makes claim against said Dane ■County for the amount thereof, and attaches hereto and makes a,s a part of this claim an itemized' statement marked Ex> hibit No. 1 setting forth the date and amount of each payment of such fees by him to the said treasurer.</p> <p>“Claimant further says that he has received from said county no consideration or equivalent whatever for the money so paid over to Dane County or for any part thereof.</p> <p>“And this claimant further says that at the date of each of said payments and throughout his term of office until after the 31st day of March, 1910, that this claimant was led to believe and did believe that the title to said fees was in Dome Dounty and that this claimant was only entitled to receive a salary instead of said fees, and that each and all said payments were made on said mistaken belief and information; that on or about the 27th day of April, 1910, for the first time he was informed of the fact that the title to said fees was in this claimant and not in said Dane County; that at the time of each and all of said payments and until on or about the 27th day of April, 1910, this claimant was led to believe and did believe in fact that the county board of Dane County had taken proper action fixing his said compensation as such officer on the basis of salary instead of on the basis of fees, whereas in truth and in fact said county board had taken no action whatever pertaining to or affecting claimant’s-right to said fees as the compensation of said office. And claimant did not know in fact at any of said dates of payment nor until on or about the 27th day of April, 1910, that said county board had taken no action whatever affecting in any way the rights of this claimant in and to said fees. That this claimant paid said money to said county under the mistaken belief that the same was due to said Dane County, and under the further mistaken belief that as such register of deeds he was bound to pay the same; and claimant further says that in fact, at each and all of the times of payment hereinbefore set forth, he was under no obligation to pay the said moneys or any part thereof to said Dane County, and that said Dane County had no right to receive the same or any part thereof, and that said Dane Comity has no right to retain the same or any part thereof, as this claimant is now informed and verily believes; that on or about said 27th day of April, 1910, for the first time-during the entire period covered by this claim, or at all, this claimant was informed that the Dane County board of supervisors had not in fact changed the system of compensation of the register of deeds for or during any part of the said two terms of office of this claimant, and that the only pretended claim of said Dane County to said fees was based upon a certain resolution adopted by said county board, of supervisors at its annual meeting for the year 1901 and on the 24th day of January, 1902, in the said annual session of said county board, a copy of which said resolution on which said pretended claim of said Dane County to said fees was-based is hereto attached, marked Exhibit No. 2, and made a part of this claim; and this claimant further says that from and since the said 27th day of April, 1910, this claimant has-continuously asserted his right and title to and still claims- and asserts his title to the said fees so paid over to said Dane County and to each and all of said fees in the amount herein-before set forth.</p> <p>“Claimant further says that between the said 7th day of January, 1907, and the date hereof the said Dane County had paid out to this claimant and to assistants of this claimant items which are properly chargeable to this claimant against his said claim in the amount of $11,800, as this claimant verily believes; that all of such sums as were paid to this claimant personally were paid to him upon vouchers issued to him by the clerk of said county, which said vouchers were receipted for to said clerk upon stubs, a copy of the form of which said stubs is hereto attached and marked Exhibit No. 3 and a copy of which said vouchers is hereto attached and marked Exhibit No. 4, both of which said exhibits are hereby referred to and made a part of this claim; that said Dane County y has also paid out certain other sums for postage since the said 7th day of January, 1907, and prior to the date hereof, which are properly chargeable to this claimant against his said claim hereinbefore set forth in the amount, as this claimant verily believes, of not to exceed $350.</p> <p>■' “This claimant further alleges as a further and separate claim against the said county that during the term of his office, to wit, since the 7th day of January, 1907, and prior to October 1, 1907, he has filed and indexed marriage, birth, accident, and death certificates, as required by law, to the number of 4,758 such certificates, for each of which certificates filed and indexed by him prior to the 1st day of October, 1907, he makes claim against said Dane County in the sum of twenty-five cents; that he has also similarly filed and indexed since the 2d day of January, 1909, and prior to the date thereof, certain other marriage, birth, and death certificates as required by law, being marriage, birth, and death certificates filed with him by the state and local registrars of vital statistics, in the total number of 640 'such certificates, for each of which he hereby makes claim against said Dane County in the sum of ten cents. That his accounts and claims against Dane County are as follows, to wit:</p> <p>Fees received by him as register of deeds and belonging to bim as register of deeds paid into tbe treasury of Dane County between tbe 7th day .of January, 1907, and tbe 31st day of March, 1910, as hereinbefore set forth in the amount of. $18,339 05</p> <p>Filed and indexed 4,758 birth, death, accident, and marriage certificates prior to October 1, 1907, at 25 cents each . 1,189 50</p> <p>Filed and indexed 640 birth, death, and marriage certificates received from local and state registrars of vital statistics at 10 cents each. 64 00</p> <p>Total . $19,612 55 Against which there should be credited to Dane County</p> <p>items- as hereinbefore set forth in the total amount of 12,150 00</p> <p>Balance due and owing to this claimant over and above all offsets . $7,462 55</p> <p>“Claimant further says that no part of said claim has been paid.</p> <p>“Wherefore said 8. T. Burgess makes claim against said Dome County for the sum of $7,462.55.”</p> <p>Exhibit 1 contains a list of payments of fees by the plaintiff to Dane County from March 30, 1907, to March 31, 1910, inclusive. Exhibits 3 and 4 show that the payments to plaintiff were made for salary. Exhibit 2 is as follows:</p> <p>“Whereas, by chapter 410, Laws of 1901, the county board of any county in this state may by resolution change the method of compensating the register of deeds, his deputies, clerks, and copyists, from fees now provided by law to salaries, and may fix the amount of the salaries paid the register of deeds thereafter elected, his deputies, clerks, and copyists: therefore it is resolved that the method of compensating the register of deeds for Dane County to be elected during the ensuing year, to wit, the year of 1902, his deputies, clerks, and copyists, be and the same is hereby changed from fees now provided by law to salaries and the salary of the said register of deeds be and the same is hereby fixed at the sum of $1,800 per annum; that the said register of deeds shall be allowed one deputy to be appointed by said register of deeds and paid by the county, and that the salary so paid to such deputy shall be in the amount of $900 per annum, payable monthly, and two copyists appointed by the said register of deeds and paid by- the county, and that the sum so paid to such copyists shall be in the amount of $400 per annum for the first copyist and $300 for the second copyist, both payable monthly; that all fees, per diem, and all other emoluments of whatever kind, received by said register of deeds, his deputies, clerks, and copyists, shall at the end of each quarter be paid into the county treasurer’s office and his accounts audited in the manner provided by law.”</p> <p>The defendant demurred as follows:</p> <p>“And now comes the defendant, by Vroman Mason, district attorney for said Dane Gounty, defendant’s attorney, and demurs to the complaint herein on the ground that it appears on the face of said complaint that the same does not state facts sufficient to constitute a cause of action, and on the further ground that it appears on the face of said complaint that the plaintiff has not legal capacity to sue, in this, that the statement of plaintiff’s claim filed in the office of the county clerk of said county, which said claim is the basis of this action, did not set forth the various items of said claim with sufficient accuracy as required by section No. 677 of the Wisconsin Statutes of 1898 and acts amendatory thereof and supplementary thereto, and that said statement of plaintiff’s claim was not’ verified as required by said section with sufficient accuracy and positiveness.”</p> <p>Erom an order sustaining the demurrer the plaintiff appealed.</p>

Lueck, Circuit Judge. Iu 1906, an action was brought by plaintiffs and John H. Harris against Charles A. Welch and the White Rock Mineral Spring Company for damages claimed to have been caused by Welch having made, in his own behalf and in behalf of the Spring Company and its stockholders, false and fraudulent representations.

<p>ERROR to review a judgment of the circuit court for Grant county: George Cxemewtson, Circuit Judge.</p> <p>The plaintiff in error, hereafter referred to as the defendant, was convicted on October 20, 1910, on an information charging him with having committed the crime of rape upon the person of one Mary Eraizer, the complaining witness, on the 24th day of September, 1910.</p> <p>The complaining witness testified to the following effect: She was a widow sixty-five years of age at the time of the alleged assault. Por a little more than a year ending in April, 1910, the defendant had hoarded and during the cold weather roomed at her home. He was a horse trainer, and during the warm weather slept on the fair grounds, which were close to her home. On the night of September 23,1910, sbe was alone. It was a rainy and stormy night. At about 11 o’clock sbe was awakened by some one walking around tbe bouse and trying tbe doors and windows. She went to a window and asked who was there and the defendant gave bis name, asked if sbe was alone, and said be wanted to get in. He-was told be could not get into tbe bouse that nigbt. Tbe defendant persisted in trying to get in at tbe doors and windows and tbe complaining witness became frightened, went to different windows of tbe bouse, raised them, and called for help to different neighbors. Tbe defendant then threatened to shoot her through tbe window if sbe screamed again. Presently tbe defendant went around tbe bouse and opened tbe cellar door and went down into tbe cellar way. While be was down in tbe cellar way trying tbe door tbe complaining witness bad put on some clothes and thrown a shawl over her bead. Sbe opened tbe front door and went out, locking tbe door after her. Sbe ran over to tbe kitchen door of a neighbor’s bouse, rapped upon it and called tbe name of tbe neighbor, but no one came to let her in. While sbe was at tbe door sbe beard some one walking or running, and on looking around saw tbe defendant almost-upon her. Sbe ran screaming around tbe bouse and was caught by him in front of tbe house. Sbe was held tightly with one arm and band while be placed tbe other band over her mouth and nose, tbe thumb-being forced into her mouth under the plate of her false teeth. In tbe struggle her eye glasses were bent out of shape and knocked off. Tbe defendant then dragged and pulled her over onto tbe porch of her bouse, took tbe key from her, opened the door, pushed and dragged her into the bouse, locked the-door, and put tbe bey in his pocket. Tbe.complainant testified that sbe screamed as long as sbe was able and that this-was tbe reason tbe defendant put bis band over her mouth. After they were in tbe bouse tbe defendant held her fast while they went into tbe back part of the bouse. Sbe suffered from thirst and tbe defendant permitted her to get a drink of water. He then grasped her and pulled and dragged her np stairs and into a room, looked the door, and proceeded to take off his clothes. She observed him removing his clothing and removed the wet shawl she had worn out in the rain. She testified that she was then afraid to scream for fear that she would not be allowed to live. He then took off her shoes and stockings, removed her skirts, and threw her upon the bed. She testified that she pushed him away as long as she had strength and that she was exhausted and almost terrorized by feár. He then tried to have intercourse with her, but failed because she was not in a suitable position. He then took her by the feet and dragged her into position and then accomplished the act of sexual intercourse. After the act. he allowed her to get np. She got some clothes, crawled down stairs and dressed herself, went into the cellar way, locked the door between it and the dining room, and stayed there from 2 o’clock until nearly 6 in the morning. She testified that she was afraid to go out for fear the defendant would hear her, follow and overtake her, misuse her again and probably kill her, and she was afraid to go out when there was nobody moving on the streets. Shortly before 6 she went to the house of the neighbor at whose door she had knocked during the night, and on being admitted told him what had occurred. While she was at this house the defendant left her house and she shortly went home. About 11 o’clock she was driven down to a justice’s office and made the complaint. She was confined to her bed for two days. She says she slept very little for four nights thereafter. The skin on her nose was broken, the membrane of the mouth was .abrased and broken by the defendant’s thumb, there was an abrasion on her arm and a large bruise on the calf of her leg.</p> <p>There was evidence that the cries of the complainant were-heard by one person from an eighth to a quarter of a mile away and by another person three blocks away. The neighbor to whose home she went in the morning, another neighbor who came in later and who took her down to the justice’s office, and tbe justice, all testified tbat sbe was very nervous and excited. Her nearest neighbor testified tbat when sbe came to bis bouse in tbe morning sbe looked like a crazy woman and tbat be hesitated to let her in. Sbe was permitted to testify as to what sbe stated to some of these persons. A physician testified to tbe bruises and to tbe very nervous state of tbe complainant.</p> <p>Tbe defendant was arrested on October 7, 1910, in another county, where be bad been traced by tbe officers.</p> <p>Tbe defendant prosecutes this writ 'to review tbe trial wherein be was found guilty as charged in tbe information and sentenced to tbe state prison for tbe term of fourteen years.</p>

<p>Obiginal action brought in this court on the relation of Harry W. Bolens against James A. Brear, Secretary of State, and others; also</p> <p>Appeal from an order of the circuit court for Dane county: E. Rat Stevens, Circuit Judge.</p> <p>The facts are stated in the opinion.</p> <p>In support of the various contentions as to the invalidity of ch. 658, Laws of 1911, there were cited, in the briefs above mentioned, the following, among other authorities: Pollock ■v. Farmers’ L. & T. Co. 157 U. S. 429, 580, 581, 15 Sup. Ct. 673; Brown v. Maryland, 12 Wheat. 419, 444; Weston v. •Charleston, 2 Pet. 449; Dobbins v. Comm’rs, 16 Pet. 435; Kermard v. Manchester, 68 1ST. H. 61, 36 Atl. 553; Second Ward Sav. Bank v. Milwaukee, 94 Wis. 587, 595, 69 N. W. 359; Kingsley v. Merrill, 122 Wis. 185, 200, 99 N. W. 1044; Philadelphia & S. S. Co. v. Pennsylvania, 122 U. S. 326, 7 Sup. Ct. 1118; Black v. State, 113 Wis. 205, 89 N. W. 522; Magoun v. Ill. T. <& S. Bank, 170 U. S. 283,18 Sup. Ct. 594; Kochersperger v. Drake, 167 Ill. 122, 47 N. E. 321; Estate of Cope, 191 Pa. St. 1, 21, 43 Atl. 19; Estate of Mahoney, 133 Cal. 180, 65 Pac. 389; Huber v. Martin, 121 Wis. 412, 434, 105 N. W. 1031, 1135; Yick Wo v. Hopkins, 118 U. S. 356, 369, 6 Sup. Ct. 1064; Bell’s Gap B. Co. v. Pennsylvania, 134 U. S. 232, 237, 10 Sup. Ct. 533; Blauson v. Bocine, 13 Wis. 398; State ex rel. Dwinnell v. Gaylord, 73 Wis. 316, 325, 41 N. W. 521; O’Connor v. Fond du Lac, 109 Wis. 253, 264, 265, 85 N. W. 327; Baihbone v. Wirth, 150 N. Y. 459, 469, 45 N. E. 15; 8 Cyc. 779 et seq.; State ex rel. Williams v. Samuelson, 131 Wis. 499, 111 N. W. 712; TJnionB. T. Co. v. Kentucky, 199 U. S. 194, 26 Sup. Ct. 36; Selliger v. Kentucky, 213 U. S. 200, 29 Sup. Ct. 429; Metropolitan L. Ins. Co. v. New Orleans, 205 U. S. 395, 27 Sup. Ct. 499; Buck v. Beach, 206 U. S. 392, 400, 27 Sup. Ct. 712; State Tax on Foreign-held Bonds, 15 Wall. 300, 319 ; Chicago <$> N. W. B. Co. v. State, 128 Wis. 553, 108 N. W. 557; Beals v. State, 139 Wis. 544, 121 N. W. 347; 37 Cyc. 811; Wis. Cent. B. Co. v. Taylor Co. 52 Wis. 37, 87, 8 N. W. 833; Knowlton v. Moore, 178 U. S. 41, 82, 20 Sup. Ct. 747; State ex rel. Wink-ler v. Benzenberg, 101 Wis. 172, 76 N. W. 345; Essex Co¡. Park Comm. v. West Orange, 77 N. J. Law, 575, 73 Atl. 511, 512; State v. Whitcom, 122 Wis. 110, 99 N. W. 468; State ex rel. Bisch v. Trustees, 121 Wis. 44, 98 N. W. 954; Phipps v. Wis. Cent. B. Co. 133 Wis. 153, 113 N. W. 456; South Nashville St. B. Co. v. Morrow, 87 Téuu. 406, 11 S. W. 348, 2 L. R. A. 853; Wcvrd v. Maryland, 12 Wall. 418; Sprague v. Fletcher, 69 Vt. 69, 37 Atl. 239; 37 L. R. A. 840; In re Stanford’s Estate, 126 Cal. 112, 54 Pac. 259 ; Oliver v. Washington Mills, ll Allen, 268; Connolly v. Union 8. P. Co. 184 U. S. 540, 560, 561, 567, 22 Sup. Ct. 431; Clark v. Kansas City, 176 U. S. 114, 119, 20 Sup. Ct. 284; Cotting v. Kansas City S. Y. Co. 183 U. S. 79, 22 Sup. Ct. 30; Gulf, C. & S. F. B. Co. v. Ellis, 165 U. S.-150, 159, 160, 17 Sup. Ct. 255; W. C. Peacock •& Co. v. Pratt, 121 Eed. 772, 776; Northern. Pac. B. Co. v. Walker, 47 FecL 681; Philadelphia F. Asso. v. New York, 119 U. S. 110, 120, 121, 1 Sup. Ct. 108; 8cm Mateo Co. v. Southern Pac. B. Co. 13 Red. 722, 733; Nunne-macher v. State, 129 Wis. 190, 223, 108 N. W. 627; People v. Raymond, 37 N. Y. 428; State ex rel. TIessey v. Daniels, 143 Wis. 649, 128 N. W. 565; Kirtland v. Hotchkiss, 100 U. S. 491, 498; New' Orleans v. Stempel, 175 U. S. 309, 20 Sup. Ct. 110; Tappan v. Merchants’ Nat. Bank, 19 Wall. 490; Orleans Parish v. New York L. Ins. Co. 216 U. S. 517, 523, 30 Sup. Ct. 385; U. S. v. Brie B. Co. 106 U. S. 327, 1 Sup. Ct. 223; Hartman v. Greenhow, 102 U. S. 672, 684; Owensboro Nat. Bank v. Owensboro, 173 U. S. 664, 19 Sup. Ct. 537; Opinion of the Justices, 53 N. H. 634; Dyer v. Melrose, 197 Mass. 99, 83 N. E. 6; Dyer v. Melrose, 215 U. S. 594, 30 Sup. Ct. 410; Hamilton v. Fond du Lac, 25 Wis. 496; Richards v. Tarr, 42 Nan. 547, 22 Pac. 557.</p> <p>They cited, besides other cases, Glasgow v. Bowse, 43 Mo. 479; Wilcox v. County Comm’rs, 103 Mass. 544; Drexel &■ Co. v. Comm. 46 Pa. St. 31; Comm. v. Brown, 91 Ya. 762, 21 S. E. 357; New Orleans v. Hart, 14 La. Ann. 803; W. C. Peacock & Co. v. Pratt, 121 Red. 772; Wintz v. Gerardey, 31 La. Ann. 381, 388; Waring v. Mayor, etc. 60 Ga. 93, 99; Alderman v. Wells, 85 S. C. 507, 67 S. E. 781; Seligman, Income Tax, ch. 5, and eases cited; Nennan, Income Taxation, ch. 1; Black v. State, 113 Wis. 205, 89 N. W. 522; Nunne-macher v. State, 129 Wis. 190,108 N. W. 627; Beals v. State, 139 Wis. 544, 121 N. W. 347 \Magoun v. III. T. & S. Bank, 170 U. S.-283, 18 Sup. Ct. 594; Billings v. Illinois, 188 U. S. 97, 104, 23 Sup. Ct. 272; Blackstone v. Miller, 188 U. S. 189, 23 Sup. Ct. 277 ; Clark v. Titusville, 184 U. S. 329, 22 Sup. Ct. 382; Kochersperger v. Drake, 167 Ill. 122, 47 N. E. 321; Knowlton v. Moore, 178 IJ. S. 41, 20 Sup. Ct. 747; Flint v. Stone Tracy Go. 220 TI. S. 107, 31 Sup. Ct. 342; In re Appointment of Revisor, 141 Wis. 592, 124 N. W. 670; Ex parte Gerino, 143 Cal. 412, 77 Pac. 166; 23 Am. & Eng. Ency. of Law (2d ed.) 328, 342, 394; 27 id. 603, 618; Chicago &-N. W. R. Go. v. State, 128 Wis. 553, 108 N. W. 557; State v. Bullen, 143 Wis. 512,128 N. W. 109 ; Matter of Cornell, 170 N. Y. 423, 63 N. E. 445; Froihingham v. Shaw, 175 Mass. 59, 55 N. E. 623; Liverpool & L. & G. Ins. Go. v. Board, 221 U. S. 346, 356, 31 Sup. Ct. 550; 37 Cyc. 802, 805, 824; Metropolitan L. Ins. Go. v. New Orleans, 205 IJ. S. 395, 27 Sup. Ct. 499; New Orleans v. Stempel, 175 IT. S. 309, 20 Sup. Ct. 110; Kidd v. Alabama, 188 U". S. 730, 23 Sup. Ct. 401; Bristol v. Washington Go. 177 IJ. S. 133, 20 Sup. Ct. 585; Bonaparte v. Tax Court, 104 U. S. 592; Simpson v. Hopkins, 82 Md. 478, 33 Atl. 714; People v. M. S. & N. I. R. Go. 4 Mick 398; U. S. v. Erie R. Go. 106 IJ. S. 327, 1 Sup. Ct. 223 $ Railroad Go. v. Collector, 100 U. S. 595; State Railroad Tax Oases, 92 U. S. 575, 607; Blaclcstone v. Miller, 188 IT. S. 189, 204, 23 Sup. Ct. 277; Bell’s Gap R. Go. v. Pennsylvania, 134 IJ. S. 232, 10 Sup. Ct. 533; Savings & L. Soc. v. Multnomah Co. 169 IJ. S. 421, 427, 18 Sup. Ct. 392; Society for Sawings v. Goite, 6 Wall. 607; Kidd v. Alabama, 188 U. S. 730, 733, 23 Sup. Ct. 401, 402; Cooley, Taxation (3d ed.) 387 et seq.j St. Joseph v. Ernst, 95 Mo. 360, 367, 8 S. W. 558; Drexel v. Gomm. 46 Pa. St. 31; Cooley, Const. Lim. (2d ed.) 291, 309; Stockdale v. Ins. Gos. 20 Wall. 323, 331; Schuylkill Nav. Go. v. Elliott, 21 Fed. Oas. 762; U. S. Trust Go. v. New Mexico, 183 IJ. S. 535, 22 Sup. Ct. 172; Flanders v. Merrimack, 48 Wis. 567, 4 N. W. 741; Morrow v. Green Bay, 55 Wis. 112, 12 N. W. 437; People ex rel. Metropolitan St. R. Go. v. Tax Gomm’rs, 199 U. S. 1, 46, 47, 25 Sup. Ct. 705; Tucker v. Ferguson, 22 Wall. 527; Delaware Railroad Tax, 18 Wall. 206; Hoge v. R. & D. R. Go. 99 IJ. S. 348; Davidson v. New Orleans, 96 U. S. 97; Memphis G. L. Go. v. Taxing Dist. 109 IJ. S. 398, 3 Sup. Ct. 205; Merchants’ & M. Bank v. Pennsylvania, 167 U. S. 461, 463, 17 Sup. Ct. 829; Travellers’ Ins. Co. v. Connecticut, 185 U. S. 364, 371, 372, 22 Sup. Ct. 673; State v. Clement Nat. Bank, 84 Vt. 167, 78 Atl. 944, 952; Cooley; Const. Lim. (7tb ed.) 574; Paul v. Virginia, 8 Wall. 168, 180; McKane v. Durston, 153 IJ. S. 684, 687, 14 Sup. Ct. 913; Dwryea v. Muse, 117 Wis. 399, 406, 407, 94 N. W. 365 ; London County Council v. Att’y Gen. [1901] App. Cas. 26, 45; Tstradyfodwg <& P. M. S. B. v. Bensted, [1907] App. Cas. 264; Tennant v. Smith, [1892] App. Oas. 150, 164; Corke v. Pry, 32 Scot. L. Eep. 341, 3 Tax Cas. 335; Mc-Dougall v. Sutherland, 31 Scot. L. Eep. 630, 3 Tax Oas. 261; Pratt & Eedman, Income Tax Law (8tb ed.) 1, 13, 14, note.</p> <p>A brief was filed by F. C. Winkler, as amicus curiae, upon the question whether the court has or should exercise jurisdiction in these actions.</p> <p>In a brief filed by Miller, Mack & Fairchild, as amici curice, they contended that the tax imposed by ch. 658, Laws of 1911, is levied directly upon receipts from interstate and foreign commerce, and is therefore a regulation of interstate and foreign commerce, in violation.of sec. 8, art. I, Const, of IJ. S. Fargo v. Michigan, 121 IJ. S. 230, 7 Sup. Ct. 857; Philadelphia ■& S. S. Co. v. Pennsylvania, 122 U. S. 326, 7 Sup. Ct. 1118; Galveston, H. & S. A. B. Co. v. Texas, 210 U. S. 217, 28 Sup. Ct. 638; Western Union T. Co. v. Kansas, 216 IJ. S. 1, 30 Sup. Ct. 190; State ex rel. Carr v. Woodruff S. & P. C. Co. 114 Ind. 155,15 N. E. 814; Northern Pac. B. Co. v. Baymond, 5 Dak. 356, 40 N. W. 538; Vermont <& C. B. Co. v. Vermont Cent. B. Co. 63 Vt. 1, 21 Atl. 262, 731; Delaware & H. C. Co. v. Comm. 1 Pa. Sup. Ct. Oas. 36, 17 Atl. 175; People ex rel. C. T. B. Co. v. Miller, 178 N. Y. 194, 70 N. E. 472. The scheme of taxation proposed by the act' is necessarily a tax upon gross receipts. In other words, tbe word “income,” as used in the act, means practically gross receipts, not profits. People v. Sup’rs, 4 Hill (N. Y.) 20, 23; Mundy v. Van iloose, 104 Ga. 292, 30 S. E. 183, 786; Reg. v. Gomm’rs, L. R. 4 H. L. 449, 470, 483, 39 L. J. Q. R 253, 23 L. T. Rep. N. s. Ill; Jones v. Ogle, L. R. 8 Oh. App. 192, 196, 42 L. J. Oh. 334, 27 L. T. Rep. N. s. 367; In re West Riding of T. P. B. B. Soc. 43 Oh. D. 407, 415, 59 L. J. Ch. 197, 62 L. T. Rep. N. s. 486.</p> <p>David S. Wegg, as amicus curice, argued, among other things, that any tax imposed upon interest coupons or dividends upon stock in the hands of nonresidents is extraterritorial, not within the jurisdiction of the taxing power, and void. The situs of such intangible property is in the domicile of the owner. It is not here and cannot be taxed here. State ex rel. Dwinnell v. Gaylord, 73 Wis. 316, 41 N. W. 521; Renier v. Hurlbut, 81 Wis. 24, 50 N. W. 783; Bragg v. Gaynor, 85 Wis. 468, 482, 55 N. W. 919; Parker v. Stough-ton M. Go. 91 Wis. 174, 180, 64 N. W. 751; Perrigo v. Mil-luomkee, 92 Wis. 236, 65 N. W. 1025; Kingsley v. Merrill, 122 Wis. 185, 99 N. W. 1044; State v. Bullen, 143 Wis. 512, 128 N. W. 109; Railroad Co. v. Jackson, 7 Wall. 262, 267, 268; St. Louis v. Ferry Go. 11 Wall. 423; State Tax on Foreign-held Bonds, 15 Wall. 300, 319, 320; Bailey v. Railroad Go. 22 Wall. 604; Murray v. Charleston, 96 U. S. 432 ; Kirt-land v. Hotchkiss, 100 U. S. 491; 106 U. S. (Appendix) 704; New Orleans v. Houston, 119 U. S. 265, 7 Sup. Ot. 198; New York, L. H. & W. R..Oo. v. Pennsylvania, 153 U. S. 628, 648, 14 Sup. Ot. 952; Savings <& L. Soc. v. Mult-nomah Go. 169 U. S. 421, 426-428, 18 Sup. Ot; 392; New Orleans v. Stempel, 175 U. S. 309, 20 Sup. Ot. 110; Bristol v. Washington Go. 177 U. S. 133,141, 143, 20 Sup. Ot. 585; Stale Board v. Comptoir Nat. d’Escompte, 191 U. S. 388, 402, 404, 24 Sup. Ot. 109; Fargo v. Hart, 193 U. S. 490, 499, 24 Sup. Ot. 498; Pennsylvania L. Mut. F. Ins. Go. v. Meyer, 197 U. S.' 407, 416, 25 Sup. Ot. 483 ; Union R. T. Go. v. Kentucky, 199 U. S. 194, 26 Sup. Ct. 36; Metropolitan L. Ins. Go. v. New Orleans, 205 U. S. 395, 27 Sup. Ct. 499; Buck v. Beach, 206 U. S. 392, 406, 407, 27 Sup. Ct. 712; Liverpool •& L. & G. Ins. Go. v. Board, 221 U. S. 346, 31 Sup. Ct. 550; Boyd v. Selma, 96 Ala. 144, 11 South. 393, 16 L. R. A. 729; North Carolina B. Go. v. Oomm’rs, 91 N. 0. 454; Oliver v. Washington Mills, 11 Allen, 268. The provisions of the income tax law applied to nonresident holders of shares of stock in railway companies, corporations of Wisconsin, are invalid. _If the tax is on the dividends or profits derived from such shares of stock, then it is a tax on the shares themselves. -Railroad Go. v. Jackson, 7 Wall. 262; Weston v. Gharleston, 2 Pet. 449; Almy v. California, 24 How. 169; Dobbins v. Gomm’rs, 16 Pet. 435; Fairbank v, U. S. 181 U. S. 283, 21 Sup. Ct. 648; Selliger v. Kentucky, 213 U. S. 200, 29 Sup. Ct. 449; Brown v. Maryland, 12 Wheat. 419; Philadelphia & S. S. Go. v. Pennsylvania, 122; U. S. 326, 7 Sup. Ct. 1118; Galveston, II. <& S. A. R. Go. v.. Texas, 210 U. S. 218, 28 Sup. Ct. 638; Pollock v. Farmers’' L. •& T. Go. 157 U. S. 429, 15 Sup. Ct. 673; Pollock v. Farmers’ L. &. T. Go. 158 U. S. 601, 618, 15 Sup. Ct. 912. Put shares of stock in Wisconsin railway companies which pay-taxes on their property under ch. 315, Laws of 1903, are exempt from further taxation when owned or held by individuals of the state. Being exempt in the hands of residents of' the state, they are likewise exempt in the hands of nonresidents. If a tax on the dividends or profits derived from, such shares of stock is a tax on the property of the company-which such shares represent, the tax is invalid. Sec. 25,, ch. 315, Laws of 1903. If the tax on the dividends is neither-a tax on the shares of stock nor on the property of the company which the shares represent, but is a tax on the dividends,, separate and apart from both the shares of stock and the property, then such dividends as are received by nonresidents are: not taxable under the act.</p> <p>In a brief by Lines, Spooner, Lilis & Quarles, as amici curice, they contended (1) tbe income tax act is void because it discriminates against residents and in favor of nonresidents, contrary to art. IV and amendm. XIV, Const, of U. S.; (2) said act is void because it remits tbe income tax to tbe extent of taxes paid upon personal property, tbus creating an unlawful discrimination in favor of persons owning personal property as against those owning none.</p> <p>A brief filed by Oscar M. Fritz, as amicus curice, was devoted to tbe proposition that tbe income tax act is invalid because under subd. 2, 3, sec. 1087m — 22, tbe tax is imposed by a different rule, and is rendered unequal in its operation, upon income of tbe same kind, in tbe same situation, and used for tbe same purpose. These provisions unquestionably subject tbe income of a resident to a higher rate of taxation than tbe income of a nonresident of tbe same character, although tbe income of each is equal in amount and is derived from the same source, under tbe same circumstances. Sec. 1, art. I, Const.; sec. 1, amendm. XIV, Const, of U. S.; State v. Whitcom, 122 Wis. 110, 118, 99 N. W. 468; Black v. State, 113 Wis. 205, 219, 89 N. W. 522; W. G. Peacock ■& Go. v. Pratt, 121 Fed. 772, 776; Pollock v. Farmers' L. <&, T. Go. 157 U. S. 429, 599, 600, 15 Sup. Ct. 673.</p> <p>The following opinions were filed January 9, 1912:</p>

C. Eschweilee,, Circuit Judge. Proceedings involving the right of contribution between cosureties. Three persons, John C. Koch, deceased, Henry A. Koch, the respondent, and one Loeber, signed a guaranty of certain debts of a corporation in which all were stockholders. Subsequently, one became bankrupt and later a second bought the stock owned by the third, giving his promissory notes therefor.

<p>Appeal from a judgment of tbe circuit court for Milwaukee county: Chesteb A. Fowleb, Judge.</p> <p>Tbe plaintiff was an employee of tbe defendant and brings tbis suit to recover damages for injuries sustained while riding in a freight elevator in defendant’s store. Tbe alleged negligence on tbe part of tbe defendant consisted in employing an incompetent person to operate tbe elevator. Tbe act which it is claimed was responsible for plaintiff’s injury consisted in bringing tbe elevator to a stop suddenly, so that it bounded and threw tbe plaintiff off tbe platform and down the elevator shaft. Tbe trial resulted in a verdict and judgment for tbe plaintiff. Tbe defendant contends that plaintiff was guilty of contributory negligence as a matter of law; that there was no evidence which warranted tbe jury in finding that tbe defendant was negligent; that there was no evidence to sustain tbe finding of tbe jury that tbe alleged negligence on defendant’s part was tbe proximate cause of plaintiff’s injury; that tbe court erred in admitting evidence prejudicial to tbe defendant; that tbe court erred in its charge to tbe jury; that tbe court erred in refusing to submit to tbe jury a question propounded by tbe defendant; and that tbe verdict is excessive.</p>

<p>{1) Pleading: Liberal construction. (2-10) Municipal corporations: Milwaukee city charter: Viaducts: Changing grade of streets: Injury to abutting property: Liability: Assessment of benefits and damages: Questions for jury: Appeal: Record: Presumptions: Harmless errors.</p> <p>1. Upon a demurrer ore tenus a complaint will be liberally construed and all reasonable presumptions allowed in its favor.</p> <p>2. Tbe provision in the Milwaukee city charter that no lotowner who shall have signed a petition for a change of the street grade or for the grading of the street in conformity with such altered grade shall be entitled to compensation, etc., does not constitute an exception to the statutory right to recover for damage caused by such a change, but rather a condition which goes to defeat it, and hence is matter of defense.</p> <p>3. An “exception” exempts something absolutely from the operation of a statute by express words in the enacting clause, while a “proviso” defeats its operation conditionally.</p> <p>4. Under ch. 376, Laws of 1901, providing for the construction of viaducts, the damages to abutting lotowners on a street upon which such a viaduct is built are to be ascertained in the same manner as in cases of alteration of street grades, and a contrary intent is not evinced by the provision in sec. 2 of that act, that “as soon as practicable” after plans, specifications, and an estimate of cost have been made, “the city may enter upon the construction” of the viaduct. An estimate of benefits and damages must therefore be had before the city proceeds with the construction.</p> <p>5. Where the city omits to take the necessary steps for the assessment of benefits and damages before proceeding with the work, an abutting lotowner whose property is damaged by the construction of the viaduct may maintain an action against the city to recover such damages.</p> <p>■8. The construction of a viaduct in a street graded to an established grade is an alteration of such grade which, under the charter of Milwaukee, entitles abutting owners to recover the actual damages sustained by reason thereof.</p> <p>7. It being admitted that prior to the paving of a street (on which a viaduct was afterward constructed) the city had by ordinance established the grade thereof, proof that the common council ordered said street to be paved with granite blocks, but on petition of the property owners permitted them to pave it with cedar blocks; that street levels of the established grades were furnished by the city engineer; that the work was done conformably to such levels, and when completed was approved by the department of public works; and that the common council allowed and ordered paid to such owners the cost of paving the street intersections, — is held to justify the 'ruling of the trial court, that as a matter of law the street when paved was graded to the established grade.</p> <p>8. In such case, the original bed' of the street having been of a low and swampy nature, the fact that after fourteen years use a new survey showed the actual grade to vary from the established grade at the time of paving, did not raise such a conflict as to require submission of the evidence to the jury.</p> <p>9. In the absence from the record of the instructions upon the subject of damages, this court must assume on appeal that the jury was properly limited to the actual depreciation in the market value of plaintiff’s property, and cannot say that evidence admitted over objection as to the original cost of'the buildings and land, as to the effect of the viaduct and its use upon the light and dampness of plaintiff’s property, and as to the effect of the noise and vibration upon the property itself and its occupancy, was prejudicial to the defendant.</p> <p>10.The city in constructing a viaduct having acted in disregard of the statute and being therefore a trespasser upon plaintiff’s property rights, is liable for injury to the foundation and walls of plaintiff’s building caused by vibrations from the driving of piles for the foundations of the viaduct piers, that being a proximate result of the construction of the viaduct and attributable to the city’s wrongful act.</p>

<p>Appeal from orders of tbe circuit court for Milwaukee county: WaeeeN D. Taeraitt, Circuit Judge. Affirmed.</p>

Eeeoe to review a judgment of tbe municipal court for the Eastern district of Waukesha county: Chaelbs E. AesmiN, Judge. To the point that it was necessary for the state to prove that defendant was a licensed saloon keeper, they cited Jensen v. State, 60 Wis. 577, 19 N. W. 374; Brubaker v. State, 89 Ind. 577; State v. Wade, 63 Yt. 80, 22 Atl. 12; Peterson v. State, 63 Neb. 251, 90 N. W» 964; Bloomington v. Strehle, 47 Ill. 72; State v. Nethlcen, 60 W. Ya. 673, 55 S. E. 742.

Ross, Circuit Judge. Pursuant to tbe provisions of secs. 4117 — 4134, Stats. (1898), tbe Sioux Land Company made application to tbe circuit court for Douglas county for tbe appointment of a commissioner to take depositions to perpetuate tbe testimony of certain persons named in tbe petition, relative to tbe title of lands in which petitioner claimed an interest, so that tbe same might be used as evidence against all persons, under tbe provisions of secs. 4130 — 4134, Stats.

Ross, Circuit Judge. This action is brought by the plaintiff to recover $593.81 from the defendant.

<p>Appeal from a judgment of the circuit court for Barron county: A. J. Vinje, Circuit Judge.</p>

Action to foreclose tax-sale certificates representing special assessments under the charter of the city of Superior for the construction of a sewer.

This is an action to recover damages for personal injuries received by tbe plaintiff while employed by tbe defendant as helper to an operator of a dolley or riveting device. On April 16, 1910* repairs were being made in defendant’s dry dock of its shipyards at Superior to tbe deck of a steel -freight boat.

Douglas-county: Charles Smith, Judge. This is an action brought to recover upon a Wisconsin standard fixe insurance policy.

<p> Statutes: Construction: Railroads: Fences, when required: “Commencing to operate.” </p> <p>1. Upon a question of statutory construction precedents are an unsafe and unsatisfactory guide, because they rarely present precisely similar language relating to the same subject matter and. in the same connection and surroundings.</p> <p>2. Consideration of the purpose and object of the statute is a recognized aid to interpretation if, after examining the statute itself and applying it to the subject matter regulated thereby, .there still exists an ambiguity.</p> <p>3. But if a statute (Standing by itself, without resort to rules of interpretation, conveys a definite and clear impression when applied to the subject regulated, that is the best evidence of its, meaning.</p> <p>4. Tlie rule that dropping words out of a statute in a revision and re-enactment thereof indicates an intent to change the statute in that respect, cannot prevail against the plain meaning of the statute as rewritten, whether such words he simply omitted or a new form of expression he substituted therefor.</p> <p>5'. A railroad company does not commence to “operate” its road, within the meaning of sec. 1810, Stats. (1898), requiring it to fence its right of way within three months after so commencing, until it commences to use the road for transporting freight or passengers as a common carrier.</p>

Appeals from a judgment of tbe circuit court for Douglas county: FbaNK A. Ross, Circuit Judge. Plaintiffs owned certain lots abutting on BCugbitt avenue in the city of Superior, purchased by them in 1909, and on which they have resided since the purchase thereof. In 1892 Hughitt avenue was paved, and the lots in question paid more than $2 per square yard for such paving. In 1910 proceedings under ch. 539, Laws of 1909, were instituted to repave the avenue.

Ross, Circuit Judge. On June 7, 1909, C. A. L. Loomis was the owner of a two-year-old stallion which was on a farm then rented by the plaintiff, W. 3. Loomis. The plaintiff also owned a male colt which was being kept in the same pasture, as -were several other colts and horses.

<p>Appeal from a judgment of tlie circuit court for Wash-burn county: Ebakk A. Eoss, Circuit Judge.</p>

<p>Appeal from a judgment of the circuit court for Douglas county: Eeank A. Ross, Circuit Judge.</p> <p>Action to- recover for a personal injury. The pleadings and evidence presented the question of whether defendant was actionably negligent in sending plaintiff, its servant, on a dark night to a point oh its dock to discover whether there was any one there stealing coal, there being an open pit, which was unknown to him, but actually or constructively known to defendant, so located that, in executing the order, he was liable to fall into it and be injured.</p> <p>There was evidence tending to prove that January 9, 1911, the day of the injury, plaintiff had been serving defendant as a watchman, on its coal dock in Superior, Wisconsin, for some two days, but bad not, during that time, been in the particular region, nor did he know of the obstructions there. Defendant’s superintendent suspected that some one or more persons under cover of darkness had been in the habit of going upon the dock and stealing coal. On the particular evening he thought he heard thieves at their work and directed plaintiff to go to a designated point on the dock by a particular way and endeavor to capture them. The instructions were so given that plaintiff supposed, and had a right to, that he was to go- quickly and in a manner best calculated to make his expedition efficient. There was a way which was customarily used by teams in which plaintiff could have safely traveled substantially to the place to which he was directed by keeping inside the traveled track. It was so dark and the conditions were such that he was liable to wander outside such way and come in contact with the hole while hurrying to get to the particular point.</p> <p>There had been a fire on the dock the previous fall and, in clearing up after it, a large amount of wreckage was strewn about the cleared part of the dock. This wreckage and some standing cars and piles of lumber were in the course plaintiff was liable to go in the performance of his task. The ground and surface of the dock, not incumbered by wreckage, were covered with ice, snow, and coal dust.</p> <p>Plaintiff proceeded, hurriedly, intent on the particular purpose of the expedition. In doing so he came in contact with one obstruction after another, backing off each time and taking a new start towards the objective point. lie traveled in the road some of the time and some of the time outside of it. The conditions were such that he could not tell, definitely, about that without paying particular attention to the matter, which he did not do, by reason of the fact that he was, all the time, intent upon getting to the place where the disturbance was supposed to be going on.</p> <p>He went as directed aroimd a coal pile, then across a railroad track, and by some cars and, finally, endeavored to go more directly to tbe particular place. As be proceeded be came in contact witb some obstruction from wbicb be escaped and kept on, not having any familiarity witb the conditions, but most of tbe time in tbe track used by teams.</p> <p>Some of tbe time be got outside of it and went over timbers, but tbey were covered witb snow and ice and coal dust so as to make nearly a level surface. In tbe end be got out of tbe track, reached tbe brink of tbe pit, wbicb was pretty near tbe traveled way, and fell in. It was not readily observable because of tbe darkness and surroundings. He did not see it at all or know of it till be took tbe fatal step. At tbe last instant be was walking on wbat appeared to bim to be a level surface, wben a single step caused bim to drop into tbe bole wbicb was about six feet deep.</p> <p>Tbe cause was submitted to the jury, resulting in findings to tbe effect that plaintiff’s injury was proximately caused by want of ordinary care on tbe part of defendant’s superintendent and that plaintiff was free from any contributory negligence. There were further findings so that, in tbe whole, according to tbe verdict, plaintiff was entitled to judgment, wbicb was accordingly rendered.</p>

<p> Constitutional law: Officers: Members of assembly: Eligibility to office whose salary is increased during their term: Grain commissioners: Appointment: Time: Directory- statute: Recommendation: Incompatible offices: Vacating one by accepting other:Qualifications. </p> <p>1. By oh. 440, Laws of 1909, the salary of grain commissioner was; fixed at $200 per month, $100 of which was payable out of the state treasury and $100 out of the funds or fees collected “after-all legal obligations, including any moneys advanced by the state, have been fully paid.” By ch. 458, Laws of 1911, the same monthly stipend was made payable wholly out of the funds or fees collected, and the words above quoted were-omitted. Held, that the salary was not thereby increased so as to render a member of the legislature of 1911 ineligible to the office of grain commissioner, under sec. 12, art. IV, Const.</p> <p>2. The scope of the law in this respect cannot be broadened or varied, or an increase thereby in the emoluments of the office-he shown, by allegations in pleadings, such as, for example, an allegation that under the act of 1911 payment of the salary is more secure and certain, or that under the act of 1909 there might be times when the amount of funds or fees collected would not be sufficient to pay that part of the salary which was payable therefrom.</p> <p>3. The provisions of said sec. 12, art. IV, Const., should be narrowly construed in favor of eligibility; and ineligibility should not be declared upon grounds resting in mere speculation or conjecture.</p> <p>4. A statutory requirement as to the time of making an appointment to a public office is directory merely; and the governor may legally appoint a state grain commissioner in October, although by law he should have made such appointment in January preceding.</p> <p>5. The provision in the statute creating a grain commission (sec. 2, ch. 19, Laws of 1905), to the effect that the governor before making an appointment thereto shall request the board of trade of the city of Superior to recommend a person for the position, is satisfied where such recommendation has been in fact made without request, even though the appointment is not made until nine months afterward.</p> <p>6. The board of trade having made one recommendation for the position, no further action by the governor in that behalf was made necessary by a subsequent notice from the board of trade that if the person so recommended was not satisfactory it would like the opportunity to make another recommendation.</p> <p>7. Where two offices are incompatible the acceptance of one by the incumbent of the other ipso facto vacates such other, at least in cases where such incumbent can vacate the first office by his own act.</p> <p>8. Under secs. 961, 962, Stats. (1898), a member of the assembly can resign and the office becomes vacant by his own act; and acceptance of an incompatible office has the same effect.</p> <p>[9. Whether the office of member of the assembly and that of grain commissioner are incompatible, not determined.]</p> <p>10. The alleged fact that a person appointed to the office of grain commissioner is without experience to enable him to properly judge and grade grain, does not affect his right to hold the office.</p>