Volume 149 — Wisconsin Reports

<p> Agency: Employment of physicians for person injured by automobile: Implied authority of minor son: Special verdict: Omitted facts. </p> <p>1. A minor son lias no implied authority to employ physicians, at the expense of his father, to attend a person run over and injured by the son while using the father’s automobile for his own pleasure or convenience, especially where the injury was purely accidental and without fault on the part of the son.</p> <p>2. Sec. 2858w, Stats. (Laws of 1907, ch. 346), is not applicable to a matter which the trial court refused upon request to submit to the jury.</p>

<p>•Gifts inter vivos: Fraud,: Undue influence: Mental capacity: Executors: Action by heir on behalf of estate.</p> <p>1. During the last year of his life a testator, by whose will his estate of about $112,000 was divided equally between his wife and daughter, had given to the' divorced husband of the daughter about $18,000. Evidence showing, among other things, that after the divorce the donee and his son had continued to live with the testator and his wife, who regarded and treated him as a son and were especially fond of the grandchild, and that after the death of the grandchild the donee made frequent visits to the testator and his wife and, shortly before testator’s death and at his urgent request, accompanied them to California and remained with them until testator died, is held to sustain findings of the trial court to the effect that the gifts were made In consideration of services rendered, gratitude, and affection, and that they were made voluntarily and without any undue influence or fraud on the part of the donee, and at a time when the testator fully understood what he was doing.</p> <p>[2. Whether in such case, there being an executor appointed and acting in Illinois, the testator’s daughter could, without any right of action having been transferred to her in the course of administration, maintain an action, on the ground of fraud, undue influence, and mental incapacity of the testator, to recover for the estate the moneys so given by the testator in his lifetime and to establish a lien therefor on real estate in Wisconsin alleged to have been purchased by the donee with such moneys, is not determined.]</p>

<p> Chattel mortgages: Filing: Mortgagors living in different towns:Validity of unfiled mortgage: Actual notice. </p> <p>1. A chattel mortgage given by partners, one of whom resides in a. city and the other in a town, is not duly filed under sec. 2314, Stats. (1888), unless filed in the office of the city clerk and also in that of the town clerk.</p> <p>2. Under sec. 2313, Stats. (1898), if possession of the property is¡ not delivered to the mortgagee, a chattel mortgage not filed as provided in sec. 2314 has no validity as against subsequent purchasers or mortgagees, even though they had actual notice! of it.</p>

<p> Waters: Dams: Artificial condition may become natural: Lalce or river? Question for fury: Evidence. </p> <p>1. The artificial condition of a lake or stream, originally created by a dam, may by lapse of time become a natural condition.</p> <p>2. Evidence showing, among other things, that a dam built fifty years ago across a small, unmeandered, unnavigable creek connecting two lakes had created navigable water between it and. the upper lake and had raised the level of that lake; that between the dam and the upper lake the water retained many of the characteristics of a river, its course being winding, its width varying from sixty to several hundred feet, and there being at all times a perceptible current; and that there was. but a narrow navigable channel which was kept open largely by the passing of small boats and launches, is held to sustain a verdict to the effect that such navigable water was a river,, not a lake.</p>

<p>Appear from a judgment of tbe circuit court for Washington county: JonN X. Parish, Judge.</p> <p>Action by plaintiffs to restrain tbe trustees and officers of tbe Church of Peace ‘of Washington County from diverting the uses of the church property. The court made findings of facts and conclusions of law in favor of the plaintiffs, and filed a memorandum of the decision of the court which contains the following:</p> <p>“That the plaintiffs are entitled to the relief demanded in their complaint; that the defendant church is and has been a ■German Reformed Church; that the defendants and each of them is a member of the German Reformed Church; that the •church is and has been a member of the Milwaukee Classis of the Synod of the Northwest; that the Rev. Zenlc is the legal minister and pastor of said church; that the property described in the plaintiffs’ complaint belongs to the congregation ■of the German Reformed Church of Peace and is held by the congregation as such; that the doctrines of said Church of Peace as taught therein for upwards of. forty years have been and are the doctrines of the German Reformed Church and that no doctrines of any other church have been promulgated therein; and that none but a German Reformed minister of said Synod is authorized or empowered to minister to said congregation in its church edifice.”</p> <p>This is an appeal from the judgment entered in accordance with such findings and conclusions of law.</p> <p>They cited, among other authorities, Greek 0. Church v. Orthodox O. Church, 195 Pa. St. 425, 46 Atl. 72; Boshi's Appeal, 69 Pa. St. 462, 8 Am. Rep. 275; McGinnis v. Walson, 41 Pa. St. 9 ; Sutler v. First B. D. Church, 42 Pa. St. 503; Kniskern v. I/utheran Churches, 1 Sandf. Oh. 439; Walker v. Culhbert, 10 Ala. 213; Att'y Gen. v. Dublin, 38 El. H. 459; 2 Am. & Eng. Ency. of Law (2d ed.) 24, 352-3; Kuns v. Bobertson, 154 Ill. 394, 40 ET. E. 343; Male v. Everett, 53 ET. II. 10; Marien v. Evangelical C. Cong. 132 Wis. 650, 113 ET. W. 66.</p>

<p>Appeal from a judgment of the circuit court for Wauke-sha county: Maetin L. Lueck, Circuit Judge.</p> <p>This action was brought to quiet title and declare plaintiff the owner of the land in question and bar and foreclose the defendants from any claim, right, or title to said land adverse to the plaintiff. The defendants claim title through mesne conveyances from plaintiff under a deed containing the following:</p> <p>“Reserving off the east line of the same two rods in width, running into Pewaukee lake, commencing 2 (two) rods south of the northwest corner of section 24; also a right of way from the southeast corner of the above described lot, thence running south along the east line of the southeast quarter (¿) of said northeast quarter (J) of section 23 aforesaid, into the present track used by the parties of the first part.”</p> <p>The defendants also claim title by adverse possession under a written instrument.</p> <p>The court made the following findings: That the plaintiff is the owner in fee simple and is now and has been in possession of the strip of land described in the complaint since he acquired full title to said strip, together with other real estate, by warranty deed from John C. Jones, bearing date October 3, 1867, which deed was recorded in volume 37 of Deeds, page 242, in the office of the register of deeds of Waukesha county, Wisconsin; and the court further finds in connection therewith that in the deed bearing date December 10, 1868, from William 0. Jones, this plaintiff, and wife, to D. G. Ormsby, which deed was recorded in the office of the register of deeds of Waukesha county, Wisconsin, on the 17th day of October, 1871, in volume 43, page 532, it was the clear intention of the parties to said deed to except the strip of land described in plaintiff’s complaint herein; that the defendants claim title to said strip subject to an easement of the right of way by adverse possession, founding their claim upon a written instrument, and that the testimony offered on the part of the defendants in the trial of said action completely fails to show any adverse possession that would defeat plaintiff’s title to the strip in question, therefore the defendants have no interest in said strip, either by written instrument or by adverse possession, as a matter of fact; that the defendants did not disclaim and release all claim and right to the real estate described in the complaint, but on the contrary appeared and answered and set up the claim of an interest in said real estate described in the complaint in themselves adversely to the claim of the plaintiff, founding said possession or interest on a written instrument.</p> <p>The court concluded that the .plaintiff is entitled to judgment that his claim be established against any claim of the defendants and that the defendants be forever barred against having or claiming any right or title to the lands described in the complaint adversely to the plaintiff.</p> <p>Judgment was entered in favor of the plaintiff, from which this appeal was taken.</p>

<p>Appeal from an order of the circuit court for Waukesha county: MabtiN L. Lueck, Circuit Judge.</p> <p>They cited, among other authorities, Harney v. Bwrhans, 91 Wis. 348, 64 N. W. 1031; Burnham, v. Milwaukee, 98 Wis. 128, 13 N. W. 1018; Minneapolis v. Minneapolis St. R. Go. (Minn.) 133 N. W. 80; Williams M. & R. Co. v. Raynor, 38 Wis. 119; Burton v. Douglass, 141 Wis. 110, 123 N. W. 631; Hicks P. Go. v. Wis. Gent. R. Go. 138 Wis. 584, 120 N. W. 512; Peoria Mfg. Go. v. Lyons, 153 Ill. 427, 38 N. E. 661; Weston v. Brown, 158 N. Y. 360, 53 N. E. 36; Fish v. Benedict, 74 N. Y. 613; Robinson v. Easton, 93 C'al. 80, 28 Pac. 796,; First Nat. Bank v. Snell, 144 Wis. 433, 129 N. W. 668 ; Law v. Grant, 37 Wis. 548; Rogers v. Gross, 3 Pin. 36; Wolf River L. Co. v. Brown, 88 Wis. 638, 60 N. W. 996.</p> <p>They cited Smith v. Merrill, 134 Wis. 227, 114 N. W. 508; Bussell v. Andrae, 79 Wis. 108, 112, 48 N. W. 117; Arnold v. Nat. Panic, 126 Wis. 362, 105 N. W. 828; Goliat v. Gottschalk, 142 Wis. 503, 125 N. W. 957; Miller v. L. & N. B. Go. 83 Ala. 274, 4 South. 842; Crittenden v. Armour, 80 Iowa, 221, 45 N. W. 888; Ghezum v. Kreigh-baum, 4 Wash. 680, 30 Pac. 1098; Cannon 0. Go. ¶. Taggart, 1 Colo. App. 60, 27 Pac. 238; Faraday O. & O. Go. v. Owens, 26 Ky. Law Eep. 243, 80 S. W. 1171; Winders v. Sill, 141 N. C. 694, 54 S. E. 440; Morse v. Byan, 26 Wis. 356; Fraser v. AEtna L. Ins. Go. 114 Wis. 510, 90 N. W. 476; Bwrke v. M., L. S. & W. B. Go. 83 Wis. 410, 53 N. W. 692; Gar-liclc v. Morley, 147 Wis. 397, 132 N. W. 601; Twentieth Century Co. v. Quilling, 136 Wis. 481, 487, 117 N. W. 1007; Freeman v. Harbaugh Go. 114 Minn. 283, 130 N. W. 1110; and other cases.</p>

<p> Statutes: Federal and state: Judicial notice: Pleading: Master and servant: Railroads: Injury to employee: Negligence: Defective mail crane: Questions for jury: Excessive damages: Special verdict: Omitted facts: Presumption on appeal. </p> <p>1. Acts of Congress are not foreign laws, and state courts take judicial notice of them; and, ordinarily, if the facts alleged in the complaint bring the case within a federal statute, that is suffi-ciént without pleading the statute itself.</p> <p>2. In an action against a railway company for personal injuries, an allegation that at the time of the injury the plaintiff was employed by defendant as a fireman upon an engine running between Chicago and Milwaukee and hauling passengers, baggage, and mail, shows that he was engaged in facilitating interstate commerce and hence that his rights are referable to the federal Employers’ Liability Act (35 U. S. Stats, at Large, 65, ch. 149, as amended April 5, 1910).</p> <p>3. As to such employees, the federal statute supersedes state statutes covering the same field.</p> <p>4. If in such case there was any informality about the pleading, as regards the statute, the remedy of defendant was by motion to make more definite and certain.</p> <p>5. Where the fireman on an engine, while leaning out of the cab to view the track ahead, was hit by the arm of a mail crane, and thereby the outer plate of his skull was fractured, while the inner plate, only about one sixteenth of an inch therefrom, was not broken, undisputed evidence that the arm of the crane was one inch lower than the standard prescribed by law was sufficient to sustain a finding by the jury that defendant was negligent, regardless of whether there was any conflict in the evidence as to the amount of clearance between thé side of the train and the end of the arm. ■</p> <p>6. There being evidence in such case that plaintiff had no knowledge of the mail crane and had not before fired on a mail train passing that point in the daytime, and that when firing on freight trains his attention would not be called to the danger because the arm of the crane was turned away when not in use, the questions of assumption of risk and contributory negligence were for the jury.</p> <p>7. An award of $8,700 is held not excessive for an injury to a locomotive fireman twenty-eight years of age and earning $125 a month, where his skull was fractured for a length of four and one-half inches, he was wholly incapacitated for labor for a year, and the evidence tended to show that the injury was permanent, at least without an operation the benefit from which would be uncertain.</p> <p>8. On appeal, as against an objection that the verdict is informal and does not cover all the material issues, where appellant did not at the trial request the submission of any question which would have cured the defect complained of, it will be presumed that the trial court found favorably to respondent on any material issue not passed on by the jury.</p>

<p>Certutiex» from the circuit court for Sheboygan county: Miohael KxewaN, Circuit Judge.</p> <p>■ July 31, 1909, the defendant commenced an action in equity to enjoin the state supervisor of inspectors of illuminating oils from executing ch. 363 of the Laws of 1909, known as the oil inspection law. A temporary injunction was issued enjoining the state supervisor and the inspectors from executing the law as against the defendant. A demurrer to the complaint was sustained in circuit court on October 18, 1909, and the temporary injunction was dissolved. On appeal to this court a decision was rendered sustaining the law as constitutional and affirming the orders of the circuit court sustaining the demurrer and dissolving the injunction.</p> <p>After the decision of this court an information containing numerous counts was filed by the district attorney of Sheboy-gan county charging the defendant with repeated violations of the oil inspection law during the pendency of the injunction in the equity case. The defendant was found guilty upon twenty-six counts.</p> <p>The trial court, being in doubt as to whether or not this in-junctional order issued in the action by the defendant against the state supervisor of inspectors of illuminating oils constitutes a defense to this prosecution, certifies the following question to this court:</p> <p>“Is the injunctions! order issued by Court Commissioner Ryan in said equity action a defense in this action to the criminal prosecution of the Wadhams Oil Company for the violation of said act as charged in said information, for sales of petroleum products made by said company during the pendency of such injunctional order and contrary to the provisions of said act?”</p> <p>To tbe point that tbe temporary restraining order, being granted by a court of competent jurisdiction, that is, one having jurisdiction of tbe subject matter and tbe parties, did in effect suspend tbe operation of the statute as to tbe Wadhams Oil Company while it was in force, they cited Louisville & N. R. Co. v. Railroad Comm. 157 Fed. 944; Centred of Georgia R. Co. v. Railroad Comm. 161 Fed. 925; Western R. of Alabama v. Railroad Comm. 171 Fed. 694; Ex parte Young, 209 U. S. 123, 28 Sup. Ct. 441; Hunter v. Wood, 209 U. S. 205, 28 Sup. Ct. 472; Cotting v. Kansas City 8. Y. Co. 183 U. S. 79, 22 Sup. Ct. 30; In re Neagle, 135 U. S. 1, 10 Sup. Ct. 658.</p>

Ebbob to review a judgment of the municipal court of Racine county: William SmibdiNg, Jb., Judge. Tbe plaintiff in error was convicted of having violated sec. 4405, Stats. (1898), prescribing punishment for wilfully burning any building which shall, at the time thereof, be insured against loss or damage by fire, with intent to injure the insurer. Plaintiff in error obtained insurance, in due form, on her dwelling house, through an agent.

This is an action to reform and foreclose a hill of sale executed in lieu of a chattel mortgage and covering a quantity of logs, also to foreclose a chattel mortgage upon a leasehold interest in… Held: but admits that h© agreed to take $1,500 worth of stock for $1,000, and talked matters over with Gilbert and understood that Gilbert was to be president and he himself treasurer, and that Mrs. Gilbert was to be secretary for the time being.

<p> Taxation: Personal property: Ice cut and stored: Where to be assessed: Statutes: Construction: Amendment: Board of review: Valuation. </p> <p>1. Ice cut and. stored in an ice house is a commodity and'-is assessable as personal property.</p> <p>2. The omission, in the later amendments to sec. 1040, Stats, (by ch. 191, Laws of 1901, and ch. 70, Laws of 1909), of the specific reference to “ice cut and stored” which had been inserted in that section by ch. 346, Laws of 1899, did not indicate an intention to exempt such ice from taxation, because sec. 1036, Stats. (Laws of 1899, ch. 346), classifying such iee as personal property, and the broad requirements of sec. 1040 as to the assessment of all personal property, remained unchanged.</p> <p>3. Such ice is to be assessed in the district where located, under the third sentence of sec. 1040, Stats. (Laws of 1909, ch. 70), if kept there for sale, even though the owner resides in another district and negotiates sales in that other district, making shipments by rail from the place where the ice is located to purchasers in other parts of this state or in other states.</p> <p>4. If not kept for sale in the district where located, such ice is nevertheless taxable in that district, under the fifth sentence of sec. 1040, Stats. (Laws of 1909, ch. 70).</p> <p>6. A mere opinion of the owner with reference to the value of personal property, unsupported by facts or circumstances and coupled with evasive answers as to the quantity and market value, does not so nullify the valuation of an assessor that the board of review is without jurisdiction to confirm the latter.</p>

<p> Constitutional law: Statutes: Construction: Repeal: Validity: Special, private, and local acts: Circuit courts: Salaries of judges: Classification: Requiring part of salary to be paid by county: Uniformity in county government: Taxation. </p> <p>1. Where a statute is fairly susceptible of two constructions, that one is to be preferred which will leave it valid and constitutional, rather than one which defeats it.</p> <p>2. The $400 allowed to each circuit judge by ch. 263, Laws of 1889, for “his necessary expenses while in the discharge of his duties” was not a part of the “compensation” of such judge within the meaning of sec. 26, art. IV, Const.; and the “excess over the compensation of other circuit judges,” which by ch. 377, Laws of 1897, was to be paid to the judges of the Second judicial circuit by the county of Milwaukee, was the difference ($1,400) between the salary of other circuit judges and the salary fixed for the” judges in said Second circuit.</p> <p>3. Ch. 138 and ch. 414, Laws of 1901, fixing the salaries of circuit judges at $4,000, with an additional allowance for expenses, and repealing all acts and parts of acts in conflict therewith, did not affect the salaries of the judges in the Second circuit as fixed by ch. 377, Laws of 1897, but only the salaries of such judges as were before fixed by ch. 12, Stats. (1898), which the said acts purported to amend; and the excess to be paid to judges of the Second circuit by Milwaukee county was thereby reduced to $1,000.</p> <p>4. A law relating to the salaries of one class of circuit judges does not in any ..way conflict with a law fixing the salaries of another and different class.</p> <p>5. Repeals by implication are not favored; and a general clause repealing all conflicting acts or parts of acts does not repeal other acts relating to the same general subject unless there is an actual conflict.</p> <p>6. The fact that the legislature afterwards recognizes a law as being in force tends to show that it was not the intention to repeal it at a previous session; but is not conclusive.</p> <p>7. Ch. 520, Laws of 1905, which provides that "the judges of the circuit courts shall receive as salary, in addition to the amount now received, the sum of $600 per annum,” was an independent enactment and applied to all circuit judges including those in the Second circuit.</p> <p>8. A statute relating to the creation, tenure, and salary of a state officer, such as a circuit judge, or creating, or regulating the administration of public justice by, a court of general common-law and equity jurisdiction within a judicial circuit, is neither special, private, nor local in the constitutional sense.</p> <p>9. The mere fact that in a judicial circuit consisting of a single county a statute creates a charge upon such county for part of the salary of the circuit judge or judges, does not make the law a part of the system of county government so as to render the constitutional rule of uniformity applicable; and the fact that the county is mentioned by name in the act is unimportant.</p> <p>10.Such an act does not contravene the constitutional requirement that the rule of taxation shall be uniform.</p> <p>11. Counties having a population of 100,000 or more, each constituting a single judicial circuit, have the characteristics of a class in numbers, in wealth, in amount of litigation therein, in the extra expense which they cause to the state, and in the advantages they receive from having the circuit court of several judges constantly within their boundaries, which furnish a sufficient reason for imposing upon such class a share of the expense of administering justice, from which other counties are exempt.</p> <p>Baknes, X, dissents.</p>

D. Hastings, Cirenit Judge. There was a verdict for defendant June 16, 1910. Several days thereafter plaintiff’s counsel filed a motion for a new trial. It was entered on the court record and a copy was served on defendant’s attorney; but it was not brought to the court’s attention or entered on the court journal, nor was there any formal stay of proceedings to give time for hearing it or settling a bill of exceptions.

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

D. HastiNgs, Circuit Judge. Plaintiff brought this action to recover damages for injuries sustained while attempting to board one of defendant’s interurban cars in the city of Green Bay.

D. HastiNgs, Circuit Judge. The defendant is a corporation dealing in real estate and real-estate securities at Green Bay. On October 8, 19 07, the-plaintiff purchased from the defendant at par the note of one John Mosuch and wife for $2,300, due three years after its-date (viz. September 14, 1907), secured by a mortgage upon a lot and building thereon in the city of Oshkosh, which the plaintiff bad never seen.

D. Hastings, Circuit Judge. Action for personal injury. Plaintiff, a brakeman in the employ of defendant, was injured, October 17, 1910, by having his leg run over by one ■of its trains. The circumstances, as related by him, are these: He went to the depot at Oshkosh to take the train for his home in De P'ere. The train not being dué for some little time, as he supposed, he went a short distance from the station to obtain some tobacco.

C. Higbee, Judge. In 1898 one Byron A. Simmons of Hartford, Connecticut, was tbe owner of 1,180 acres of hemlock timber land on Madeline Island, Ashland county. At this time the plaintiff was engaged in lumbering on Madeline Island. He knew the character of the land owned by Simmons, had examined the timber and cruised it, and had had some negotiations with Simmons regarding the purchase of these lands.

Paeish, Circuit Judge. This action is brought to recover the amount of a loss sustained by the plaintiff through the destruction by fire of the property insured by the defendant under its standard form of' policy, which was issued and delivered to the plaintiff. The policy describes the property covered and insured as-, located and situated on the northeast quarter of the northeast quarter of section 28, township 41, range 8 west, Bayfield county, Wisconsin.

<p> Highways: Injury from, defect: Negligence of town: Contributory negligence: Questions for jury: Trial: Improper statements by counsel: Evidence: Instructions to jury: Appeal: Harmless errors. </p> <p>1. Where a stump was situated within a few inches of the traveled track of a highway, with a root projecting into that track, at a point where the highway curved and began to descend, the jury was warranted in finding that it constituted a defect in the highway; and where the stump had occupied that position from time immemorial the jury was justified in finding that the town authorities in the exercise of ordinary care ought to have known of the defect and remedied it.</p> <p>2. Where an injury to a person traveling on a highway in a light vehicle was caused by the sudden slipping or stumbling of one of the horses and the consequent swinging of a wheel against a stump, there being no proof of excessive speed or of any great or long-continued inattention to his team upon the part of the driver, the question as to negligence of the driver was one for the jury, although he was not at the time intently watching the team.</p> <p>3. A statement by plaintiff’s counsel, in opening his case to the jury, that defendant’s counsel had “said last night that he had a witness who would testify that the persons in the vehicle in question were intoxicated,” is not ground for reversal, even though defendant’s counsel did not make the remark attributed to him in the presence of the jury.</p> <p>4. Plaintiff’s counsel asked some questions to which objection was made and sustained, and in answer to an inquiry by the court said that he wished to prove that plaintiff, at or soon after the time of her injury, said to her son-in-law that she wished to go home because she thought she was going to die. The jury was instructed to disregard this statement. Held, that there was no prejudicial error.</p> <p>5. It was error to admit testimony-of the plaintiff to the effect that her attending physician had told her she had ribs broken by the accident; but such error was not prejudicial where the physician, as a witness, described the injuries in detail and said that he did not know whether any ribs were broken, and there were other serious injuries, and the damages awarded were not excessive.</p> <p>6. It was not error to admit evidence that there was ice on the highway at the point in question, to explain the slipping of the horse.</p> <p>7. An error in charging the jury that it was the duty of the town to keep the highways in a safe condition, instead of in a reasonably safe condition, for travel, did not in this case affect any substantial right of the defendant, there being ample evidence to show a defect of long standing.</p> <p>8. To charge the jury that plaintiff can recover in the action if the evidence shows something which confessedly the evidence does not show, is not an error prejudicial to the.defendant.</p>

<p>Appeal from a judgment of the circuit court for Bayfield county: Jo-iiN R. Pabish, Circuit Judge.</p>

Paeish, Circuit Judge. This is an action to recover damages for the death of one Philip La Pointe, plaintiff’s intestate, which death is alleged to have been caused by the defendant’s failure to securely guard a certain bevel gearing at the side of a live-roller table in the defendant’s sawmill. A judgment for the plaintiff upon a previous trial was reversed by this court for error, and is reported in 144 Wis. 106, 128 IST. W. 992.

H. Reid, Circuit Judge. Action to recover for a personal injury. Plaintiff was engaged in a lumbering business at Tripoli, Wisconsin, on the Soo Railroad. The business was served by the railroad company by means of a switch track owned by it whereby freight cars to take out lumber, several at a time if necessary, could be set in to the planing-mill platform from the main track.

<p>Appeal from a judgment of the circuit court for Juneau county: Byron B. Park, Judge.</p> <p>This is a proceeding to establish the Cutler drainage district in Juneau county. It appearing that certain lands had by mistake been included within the boundaries of the proposed drainage district, the circuit judge made an order amending and changing the boundaries of the proposed district as set forth in the original petition. The proposed district as thus changed embraced 20,800 acres.</p> <p>The petition for the organization of the district states that the petitioners are all more than twenty-one years of age and are the owners of more than one half of the lands embraced within the proposed district. The president of the Jordan Land Company signed in behalf of the company. The Jordan, Land Company, it appears, owned 11,480 acres of land in the proposed drainage district and the other signers owned 1,450 acres. The Jordan Land Company is a corporation duly organized under the laws of this state. It appeared during the pendency of the petition that Certain owners of lands affected by the proposed organization had not been notified. They were duly notified.</p> <p>The court found that the petition did not contain the signatures of a majority of the adult owners of lands within the proposed drainage district who were of lawful age and represented one third in area of the lands to be affected by the work, and that the petition did not contain the signatures of the adult owners of more than one half of such lands. This holding of the court was upon the ground that the Jor-dcm Land Company was not authorized to sign the petition as an adult owner.</p> <p>This is an appeal from the judgment dismissing the petition and discontinuing the proceedings.</p>

<p>Appeal from a judgment of the circuit court for Fond du Lac county: Ohestee A. Fowlee, Circuit Judge.</p> <p>This action was brought to foreclose a mortgage on the homestead of the defendants. The execution and delivery of the note and mortgage were admitted, and the defense set up was that since the maturity of the note the defendant Ghas. D. .Smith informed plaintiff that he was making every effort possible to raise the mopey; that the defendant Ohas. D. Smith offered at various times to pay the note before it became due and plaintiff declined to receive payment, and that plaintiff agreed that he would not bring foreclosure action without giving notice to the defendants of his intention so to do, but did commence action without giving either of the defendants notice. The defendants further allege “that the defendants’ damages by reason of the failure to give them reasonable notice of intention to bring this action as plaintiff agreed to do is $200, and the same is pleaded as a counterclaim against the plaintiff’s demand upon the note and mortgage in suit.”</p> <p>There was no reply to this so-called counterclaim. The defendants offered no evidence, did not appear in the action on the hearing or in any manner present the counterclaim to the court for adjudication or make any motion upon it, and the court made no finding upon it, and obviously it was not considered in the findings or judgment. The court made and filed its findings of fact and conclusions of law, and among other findings found that there were $250.66 delinquent taxes which had been paid or redeemed by the plaintiff, and further made the usual findings of fact and conclusions of law, and judgment was rendered thereon; but in the rendition of judgment $400.12 as delinquent taxes redeemed by the plaintiff were inserted instead of $250.66. From this judgment defendants appealed.</p> <p>There was a finding by the trial court that “the mortgaged premises constitute the homestead of the defendants . . , and that said premises are so situated that they cannot he sold in parcels without injury to the interests of the parties, and that a sale of the whole will he most beneficial to them.” The judgment provided “that the mortgaged premises ... or so much thereof as may be sufficient to raise the amount due to the plaintiff . . . and which may be sold separately without material injury to the parties interested, be sold,” etc.</p>

<p> Public utilities: Discriminatory contracts are invalid: Evasions of law: Evidence: Parol evidence affecting writings: Executed contracts: Municipalities, on same footing as other patrons: Filing• schedule of rates: Recovery for previous services: Eminent domain: Talcing property devoted to another public use. </p> <p>1. By a contract between a village and a power company the latter,. in consideration of being allowed to flood the land occupied by the water and light plant of the village, agreed to purchase another site and erect thereon a new plant for the village, the power for which should be furnished by the company and taken, and paid for by the village at current legal and reasonable rates, and further agreed to pay to the village certain sums, semi-annually, to be increased at stated periods in proportion to the increase in the population of the village, which payments, bore a very close relation to the value of the power which would be needed in the new plant. In an action by the village to recover sums so agreed to be paid by the power company, the evidence is held to sustain a finding by the trial court that the contract was in fact one for the furnishing of free power to the village, — the provisions by which the village agreed to pay for the; power and the company agreed to pay certain sums to the village being inserted as a subterfuge and for the purpose of evading the public utilities law.</p> <p>2. A municipal corporation which obtains its power for the operation of a municipal water and light plant from a public utility of this state stands upon the same footing as any private consumer, and under the public utilities act (ch. 499, Laws of 1907) cannot lawfully contract, directly or indirectly, for a. more advantageous rate than other patrons are charged for like service.</p> <p>3. A discriminatory contract is not rendered valid by the fact that it is entered into before the public utility has completed its. plant or commenced to do business as such.</p> <p>4. The matter of regulating rates of charge by public-service corporations and preventing discriminations is a governmental function and one over which the legislature has a right to legislate within constitutional lines, and ally contract, not made under direct legislative authority, which runs counter to a valid law in this regard becomes superseded thereby, although made before the law was enacted.</p> <p>5. The public utilities act condemns all subterfuges whereby one consumer is called upon to pay a greater or lesser rate than that contained in the published schedule of charges, or whereby one consumer obtains a preference or advantage over another; and the regular schedule of rates cannot be departed from by making a contract which recites a ■ consideration for the departure.</p> <p>6. A statute authorizing a dam to be raised to a specified height and to flood such lands as will be overflowed thereby carries by implication the right to take the lands so flooded, even though they are already devoted to another public use.</p> <p>7. Parol evidence is competent to show that a written contract apparently valid on its face was in fact made in contravention of a statute and for the purpose of evading its effect.</p> <p>8. The rule that where a contract has been executed by one party, the other party, having received the benefit thereof, is estopped from asserting its invalidity even though it was ultra vires when made, has no application to a contract made in violation of a statute and hence in contravention of the lawfully declared public policy of the state.</p> <p>9. Under secs. 1797m — 27, 1797m — 105, subd. 2, and 1797m — 31 of the public utilities act, requiring schedules of rates to be filed with the railroad commission, and sec. 1797m — 33, making it unlawful for a public utility “to demand, collect or receive any rate, toll or charge not specified in” the schedule of rates so required to be filed, it is the duty of a public utility to fix schedules of rates for the services it proposes to render, and file the same, before the services are performed, and it cannot recover for any service except as such service is covered by rates so filed.</p>

<p>Appeal from an order of the circuit court for Rusk county: James Wiohham, Circuit Judge.</p> <p>The appeal is from an order overruling a general demurrer to the complaint.</p>

<p>Appeax. from a judgment of tbe circuit court for Eau Claire county: JaMes Wickham, Circuit Judge.</p> <p>Tbis action was brought to recover balance due upon a contract for cutting, hauling, loading upon railroad cars, and '•decking logs during the season of 1907 and 1908. The complaint contained three causes of action. Recovery was had •on the first and third and denied on the second. The second cause of action was based upon a claim to recover $1,184.83, being ninety cents per thousand feet for loading on cara 1,316,842 feet of logs which had been decked. The contract provided that the plaintiff, pai’ty of the first part, during the logging season of 1907 and 1908, should cut, haul, and properly load on railroad cars at or near Winter, Wisconsin, all of the timber on certain described lands, excepting such as might be condemned by the defendant, party of the second part, and specifying the kind and quality of logs. The contract further provided:</p> <p>“Said party of the first part further agrees to cut, mark,, haul, scale, and load on cars of the O., St. P., M. & O. Ey.. Company, at or near the town of Winter, in Sawyer county, Wisconsin, during the logging season of 1907 and 1908, all of the saw-log timber from the within described land.</p> <p>“And further agrees to load said logs in such manner that they may be safely and properly transported to Eau Olaire by said railway company, provided suitable cars and suitable equipment is furnished by the party of the second part; and to load not less than 5,000 feet, board measure, on each car, on an average, and not to load an amount, the weight of which will exceed the marked capacity of each of said cars.</p> <p>“The said party of the second part further agrees to furnish a continual service of fifteen cars each day, as may be required from time to time by the party of the first part, and. in case of failure thereof to'deliver said cars, party of the first part agrees to deck all logs not loaded on cars at track — hardwood separate from pine and hemlock, etc. — as aforesaid mentioned. When said logs are so decked, it is understood that, party of the first part has fulfilled his contract, in the same-particular as though said logs were loaded on cars, it being-further understood that any logs so decked are to be landed in a convenient manner for loading on cars later. . . .”</p> <p>“Payments: In consideration of the performance of all of' the foregoing agreements on the part of the first named party, the second named party agrees as follows:</p> <p>“1st. To pay for all logs cut, hauled, and loaded on cars or decked as aforesaid, the sum of nine dollars ($9) per thousand feet, board measure, according to the scale herein provided for.</p> <p>“2d. To pay tbe same in tbe manner following: Four dollars and fifty cents ($4.50) per thousand feet tbe first of each, month as tbe logs are skidded, based upon tbe estimate of tbe amount thereof to be made by two (2) persons, one appointed by tbe party of tbe first part and one appointed by tbe party of tbe second part; four dollars and fifty cents ($4.50) per thousand feet tbe fifteenth (15th) of each month, as fast as said logs are loaded on cars or decked. . . .”</p> <p>Tbe foregoing are tbe provisions of tbe contract material on tbe questions involved upon this appeal. It is established without dispute that the fifteen cars were furnished by the defendant and loaded by the plaintiff as agreed, and in addition thereto during said logging season 1,316,842 feet of logs were cut, hauled, and decked, and that the fifteen cars a day were not sufficient to take care of all the logs covered by the contract as fast as they were hauled and as fast as it was necessary to haul them in order to complete the logging contract during the season,, and that the service performed by the plaintiff in loading tbe decked logs was additional work over and above what he would have had to perform had it not been necessary, in the course of the logging operations, to have decked any logs.</p> <p>The court found as a conclusion of law that the plaintiff was entitled to nothing for the extra work claimed under the ninety-cent provision of the contract for the loading out of th& decked logs. Judgment was entered in favor of the plaintiff on the first and third causes of action and in favor of the defendant on the second cause of action, thereby denying the plaintiff any compensation for loading the decked logs. From this judgment plaintiff appealed.</p>

<p>Appeals from orders of tbe circuit court for Eau Claire county: James Wickham, Circuit Judge.</p>

<p>Repobted from tbe circuit court for La Crosse county: E. C. Higbee, Circuit Judge.</p> <p>Tbe defendants were charged with a violation of tbe provisions of sec. 4560d, Stats., being cb. 525 of tbe Laws of 1909, in tbis, that they did on tbe 15th day of April, 1911, in tbe county of La Crosse and state of Wisconsin, unlawfully set, place, and use in an inland water of tbis state, to wit, in tbe Mississippi river, one certain net which was not then and there a landing net. Tbe respective parties, by their attorneys, stipulated in open court that a jury be waived and that tbe case be tried and determined by tbe court. Tbe judge found tbe facts as follows:</p> <p>“That, on tbe day charged in tbe complaint, tbe defendants were fishing with a seine and trammel net in what is known as tbe east channel of tbe Mississippi river and west of tbe thread of tbe stream of said channel and at a point opposite to tbe county of La Crosse, Wisconsin, and east of Minnesota Island, contrary to tbe provisions of sec. 4560cJ of chapter 525, Laws of 1909.</p> <p>“That said east channel lies between tbe Wisconsin main shore and what is known and designated upon tbe government maps as Minnesota Island.</p> <p>“That, prior to 1876, said east channel of tbe Mississippi river was tbe one usually navigated by steamboats and was designated as the main channel of the Mississippi river by the surveyors who surveyed La Crosse county in 1854.1</p> <p>“That, about tbe year 1877, tbe Chicago, Milwaukee & St. Paul Railroad Company constructed a bridge from tbe main land in La Crosse county across said east channel and across said Minnesota Island and to tbe main Minnesota shore.</p> <p>“That, prior to tbe construction of said bridge and in 187 6, tbe said Chicago, Milwaukee & St. Paul Railroad Company constructed a dam across said east channel of tbe Mississippi river near tbe bead of said Minnesota Island, thus diverting the said main channel of tbe river from tbe east side of Minnesota Island to tbe west side thereof in order to avoid constructing a drawbridge across said east channel and to throw and divert tbe channel of said river through tbe drawbridge constructed by it on tbe west side of said Minnesota Island.</p> <p>“That, since tbe construction of said dam, tbe main navigable channel of tbe Mississippi river has been to tbe west of said Minnesota Island and, since said date, tbe said east channel has not been navigable for steamboats.</p> <p>“That the construction of said dam diverting the said channel was with the consent of the War Department of tbe government of tbe United States.</p> <p>“That the said Minnesota Island was surveyed by tbe government of tbe United States as a part of tbe state of Minnesota; and tbe taxes upon tbe same have been ever since assessed and collected by tbe authorities of tbe state of Minnesota.”</p> <p>As a conclusion of law, tbe judge found tbe defendants guilty as charged in the complaint; but, being of the opinion that a question of law arose on tbe trial which was so impor-taut as to require the decision of the supreme court thereon, and the defendants consenting thereto, he reported the following question for the decision of this court:</p> <p>“Upon the foregoing findings of fact, has the circuit court ■of La Crosse county jurisdiction of this prosecution ?”</p>

<p>Appeal from a judgment of tbe circuit court for Milwaukee county: Chesteb A. Eowleb, Judge.</p> <p>They contended, inter alia, that tbe court was not bound by tbe opinion of experts as to tbe meaning and effect of foreign statutes, but these were questions of fact for tbe jury. Baxter v. O. & N. W. R. Co. 104 Wis. 301, 309, 80 N. W. 644; Head v. Hcvrgi'ave, 105 U. S. 45; Finney v. Guy, 189 U. S. 335, 343, 23 Sup. Ct. 558; Laing v. Rigney, 160 U. S. 531, 16 Sup. Ct. 366. Tbe rule which prevails here, that statutes of limitation extinguish tbe right and not tbe remedy merely, is based on tbe constitutional doctrine of vested fights, and is contrary to tbe general rule. Fingartner v. III. 8. Co. 103 .Wis. 373, 79 N. W. 433; 22 Am. & Eng. Ency. of Law (2d ed.) 1385, 1386. Tbe presumption that tbe law of another country is tbe same as our own bas no application where tbe two have different systems. St. Sure v. Lindsfelt, 82 Wis. 346, 350, 351, 52 N. W. 308; Thorn v. Weatherly, 50 Ark. 237, 7 S. W. 33; Bain v. Arnold, 33 Mo. App. 631, 632; Lawson, Presumptive Ev. pp. 435-439;-Jones, Ev. (2d ed.) § 84 (83). Tbe period of limitation is governed by tbe law of tbe forum. Campbell v. Ilolt, 115 U. S. 620, 621, 6 Sup. Ct. 209; Michigan Ins. Bank v. Ll-dred, 130 U. S. 693, §96, 9 Sup. Ot. 690; 25 Cyc. 99.</p> <p>cited, among other authorities, Title G. & T. Go. v. Trenton P. Co. 56 N. J. Eq. 441, 38 Atl. 422; Nelson v. Bridport, 8 Beav. 527, 547; Fin-ney v. Guy, 106 Wis. 256, 265, 266, 82 N. W. 595; Hunt v. Whewell, 122 Wis. 33, 99 N. W. 599; International II. Co. v. McAdam, 142 Wis. 114, 124 N. W. 1042; Mexican Nat. B. Co. v. Jackson, 89 Tex. 107, 33 S. W. 857, 31 L. R. A. 276; St. Louis, I. M. & S. B. Co. v. McCormick, 71 Tex. 660, 9 S. W. 540, 1 L. R. A. 804; Ash v. B. & O. B. Co. 72 Md. 144, 19 Atl. 643.</p>

<p> Deeds: Condition subsequent: Breach: Re-entry by grantor: Equity: Remedies: Removal of cloud on title: Ejectment: Agreement for personal services: Deed construed: Recording: Constructive notice of condition: Mortgages: Accounting: Appeal: Remanding case for statement of account. </p> <p>1. A grantor oí land who Las re-entered and is in actual possession thereof after breach of a condition subsequent may maintain an action in equity to set aside the conveyance as a cloud on his title, and need not sue in ejectment.</p> <p>2. Where a conveyance and lease were made subject to the performance by the grantee and lessee of an agreement to make certain payments and render certain services, some of which were of a personal nature and founded in the close relations existing between the parties, his death in the lifetime of the grantor and . prior to full performance of such personal services entitled the grantor to treat the condition as broken, and she was not bound to carry out the contract with his legal successors.</p> <p>3. The words “heirs, executors, administrators, and assigns” in the habendum clause of the deed and lease would not alter the case, where no such words appear in the condition.</p> <p>4. Where a substantial part of the agreement upon which a conveyance and lease are made is the performance of certain services to the grantor during her natural life, and the instruments provide that upon a failure of performance at any time the grantor may declare the same void and may enter upon and repossess the premises, the agreement will he treated in equity as a condition subsequent, and, if substantially broken through failure of the grantee to perform, the conveyance and lease will be set aside.</p> <p>5. In such a case equity takes jurisdiction, not to forfeit a title, but to quiet a title already forfeited for breach of the condition.</p> <p>6. Where a conveyance containing a condition subsequent is duly recorded, such record is constructive notice to a subsequent mortgagee of the premises, who can acquire no greater rights than the grantee; and the same is true of creditors of the grantee.</p> <p>7. Where a grantee of land subject to an agreement constituting a condition subsequent, a substantial part of which was the rendition of personal services, mortgaged the land and thereafter died insolvent, and his administratrix and heirs surrendered the land to the grantor, the mortgagee was entitled in equity to an accounting and to have a lien upon the land for the excess, if any, of moneys paid and articles furnished by such grantee,' over the rental value of the land, together with interest on the amount of such excess paid each year from the time of payment to the date of the judgment.</p> <p>8. Under the facts and circumstances of this ease, such mortgagee was also entitled to an equitable lien for the amount of the dividend she would have received had she filed her claim against the mortgagor’s estate, she having declined to file such claim in the belief that her mortgage was valid.</p> <p>9. The fact that the amounts expended by the grantee of the land were paid out in the performance of his agreement would not bar his estate from being allowed therefor in an equitable accounting, since by the grantee’s death the grantor became entitled to a rescission and restoration to her former rights. Morgan v. Loomis, 78 Wis. 594, distinguished.</p> <p>10.Upon appeal in such a case, this court, being unable to ascertain with accuracy from the record the amount of the excess of annual payments over the rental value, or the amount due upon the mortgage at the time of judgment, remands the case for a statement of the account by the trial court in accordance with the opinion of this court, to the end that, if necessary, additional testimony may be taken.</p>

<p>Appeal from an order of the circuit court for Dane county: E. Ray Steveks, Circuit Judge.</p> <p>Action against wholesalers and retailers for damages caused by putting on the market and selling to tbe intestate, a boy about eleven years of age, a toy pistol, whereby he came to his death.</p> <p>In the complaint, by appropriate allegations, this was stated: Defendants, Wiemann & Muench, wholesale dealers, sold a toy pistol, with other like articles, to the other defendants, who were retail dealers, for the purpose of supplying the trade with such goods. The retailers, pursuant thereto, placed said articles on sale and sold one to the intestate. In using it he came to his death. Both of such sales were made in and by residents of this state, and the consequences stated happened therein. Sales of such character are expressly prohibited by statute and punishable by imprisonment in the county jail, not more than six months, or fine, not exceeding $100, or both. The particular sale was made with full knowledge of the dangerous character of the article.</p> <p>The facts were set forth in one cause of action, grounding the claim of liability on an executed combination of wholesalers and retailers to work off to customers for use, toy pistols in violation of the statute, and in a second cause of action, grounding the claim of liability on the article sold being to the knowledge of defendants inherently dangerous.</p> <p>There was a general demurrer to the complaint by Wie-mann & Muench which was overruled. They appealed.</p> <p>They cited Curtin v. Somerset, 140 Pa. St. 10, 21 Atl. 244; First Presbyterian Cong, v. Smith, 163 Pa. St. 561, 30 Atl. 279; Losee v. Clute, 51 N. T. 494, 496; McCaffrey v. Massberg & G. Mfg. Co. 23 R. I. 381, 50 Atl. 651, 653; Bragdon v. PerMns-Campbell Co. 87 Fed. 109, 113; Brown v. C., M. & St. P. B. Co. 54 Wis. 342, 359, 11 N. W. 356, 911; Cole v. German S. & L. Soc. 124 Fed. 113, 63 L. R. A. 416, 422; Insurance Co. v. Tweed, 7 Wall. 44, 52; Bellnio v. Columbia C. Co. 188 Mass. 430, 74 N. E. 684; Fishburn v. B. & N. W. B. Co. 127 Iowa, 483, 98 N. W. 380; Mo. Pac. B. Co. v. Columbia, 65 Kan'. 390, 69 Pac. 338, 341; Washington v. B. & O. B. Co. 17 W. Va. 190; Fawcett v. Bailway Co. 24 W. Va. 755; Schwa/rtz v. Shull, 45 W. Va. 405, 31 S. E. 914, 917; Shippers C. & W. Co. v. Davidson, 35 Tex. Civ. App. 558, 80 S. W. 1032; Terminal B. Asso. v. Larkins, 112 Ill. App. 366, 370; Peoria v. Adams, 72 Ill. App. 662, 672; Andrews & Co. v. Kinsel, 114 Ga. 390, 40 S. E. 300; Pittsburg B. Co. v. Horton, 87 Ark. 576, 113 S. W. 647, 18 L. R. A. w. s.' 905, 907; Holmes v. Delaware & H. Co. 128 App. Div. 24, 112 N. Y. Supp. 421, 422; Carter v. Towne, 103 Mass. 507; Ar-icamos V. T. Co. v. Mcllroy, 97 Ark. 160, 133 S, W. 816, 819; Lutz v. A. é P. B. Co. 6 N. Mex. 496, 30 Pac. 912, 16 L. E. A. 819, 827, 829; Glaypool v. Wigmore, 34 Ind. App. 35, 71 E. E. 509, 510, 511; 1 Thomp. Comm, on Eeg. § 49; Thomp. Comm, on Eeg. (White Supp.) § 54; and other an-thorities.</p> <p>cited, among other cases, Evans v. Waite, 83 Wis. 286, 288, 53 E. W. 445; Horton v. Wylie, 115 Wis. 505, 508, 92 E. W.'245, 95 Am. St. Eep. 953; Klatt v. N. 0. Foster L. Go. 97 Wis. 641, 645, 73 E. W. 563; Stafford v. Ghippeiua Valley E. B. Go. 110 Wis. 331, 358, 85 E. W. 1036; Sharon v. Winnebago F. Mfg. Go. 141 Wis. 185, 188, 124 E. W. 299; Binford v. Johnston, 82 Ind. 426, 42 Am. Eep. 508, 512; 1 Sutherland, Dam. (2d ed.) 35; Hasbrouch v. Armour & Go. 139 Wis. 357, 365, 121 E. W. 157, 23 L. E. A. n. s. 876; Waters-Fierce Oil Go. v. Deselms, 212 IT. S. 159, 29 Sup. Ct. 270, 53 L.' Ed. 453; Clement v. Grosby & Go. 148 Mich. 293, 111 E, W. 745, 10 L. E. A. u. s. 588; Wellington v. Downer K. O. Go. 104 Mass. 64; Stowell v. Standard Oil Go. 139 Mich. 18, 102 E. W. 227; Poland v. Earhart, 70 Iowa, 285, 30 E. W. 637; Ives v. Welden, 114 Iowa, 476, 87 E. W. 408, 54 L. E. A. 854; Driscoll v. Allis-Ohalmers Go. 144 Wis. 451, 129 E. W. 401; Glettler v. Sheboygan L., F. & B. Go. 130 Wis. 137, 109 E. W. 973; 29 Oyc. 565; Keeley v. G. N. B. Go. 139 Wis. 448, 451, 121 E. W. 157; Milwaukee & St. P. B. Go. v. Kellogg, 94 U. S. 469, 24 L. Ed. 256; Sparks v. Wis. Gent. B. Go. 139 Wis. 108, 120 E. W. 858; Cleveland, O., O. & St. L. B. Go. v. Patterson, 37 Ind. App. 617, 623, 75 E. E. 857; Powers v. Harlow, 53 Mich. 507,19 E. W. 257, 51 Am. Eep. 154; Dunlap v. Wagner, 85 Ind. 529; Weiclc v. Lander, 75 Ill. 93; Lane v. Atlantic Works, 111 Mass. 136.</p>

<p> Master and/servant: Injury: ’Negligence: Fellow-servants: Leaving employment: Stopping to rest: Contributory negligence: Settlement: Release of claim: Rescission: Mental incompetency: Voluntary payment to wife of injured person. </p> <p>1. Members of a carpenter’s repair gang engaged in making repairs and changes on the premises of the master, in the discharge of the latter's duty to provide a safe place to work, are not fellow-servants with ordinary employees who are simply employed to carry on the employer’s business.</p> <p>2. If a servant voluntarily and unnecessarily leaves his employment and assumes a position of peril merely for his own pleasure or convenience he ceases to be an employee for the time being and becomes either a trespasser or at best a mere licensee.</p> <p>3. But a workman employed in hard physical labor who, while stopping for a moment’s respite of the ordinary and usual nature, steps a few feet from his line of travel, is not thereby divested of his character as an employee.</p> <p>4. Plaintiff, a member of a gang of carpenters who were repairing defendant’s coal dock, was required, in the performance of his duties, to cross a platform underneath a rig upon which a suspended clam-shell bucket was operated. His line of travel crossed the path of the bucket at right angles. In one of his trips across this platform he stopped a minute or two to rest and had stepped to the edge of the platform, about eight feet from his line of travel, and was looking down upon a vessel at the dock, when the bucket, which had been started without; warning, swept him off the platform, injuring him severely. Meld, that the jury were justified in finding that defendant’s failure to give warning before starting the bucket constituted a want of ordinary care, and that plaintiff was not guilty of contributory negligence in stopping upon the platform as he did.</p> <p>5. One who has received money or property in settlement of a disputed claim and given a release cannot maintain an action at law on the claim without rescinding the contract of settlement for some legal cause and returning or offering to return the consideration received.</p> <p>6. Where, at a time when an injured employee was incompetent to act, the employer secured a release signed by the employee’s wife and by the employee himself with a mark, and turned over to the wife a check in settlement of the claim for the injury, and the wife used the proceeds of the check without her husband’s knowledge or consent, the transaction constituted a voluntary payment to the wife without the husband’s knowledge, rather than a settlement and release of the claim; and the rule above stated as to rescission is inapplicable.</p>

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

Eat SteveNS, Circuit Judge. Action in ejectment. It was tried by tbe court. Tbe issues and nature of tbe evidence are indicated by tbe following epitome of tbe findings: In 1895, defendant Emma Severson> as administratrix of tbe estate of one Torboug, sold and conveyed tbe real estate in question for $110 to one Erickson. He is a brother of Emma Severson wbo is tbe widow of said Torboug.

D. Hastíeos, Circuit Judge. Tbe complaint in substance alleges tbat on or about tbe 1st day of October, 1903, tbe plaintiff and tbe defendant formed a partnership for tbe purpose of buying and selling real estate in and around Brown county, Wisconsin, under an. agreement that tbe plaintiff should contribute one half of the money needed for various deals that should arise, and that the-defendant should pay the other half; that the parties co-operate in the care and labor of…

Fowlee, Circuit Judge. Tbis action was brought to restrain the collection of a tax levied in 1907 for the years 1904, 1905, and 1906 upon property alleged to have been omitted from the roll in such years, and determine its validity, and recover possession of personal property seized under a warrant for the collection of such tax, prevent the commencement of other actions for the collection of the tax, and for general relief.

<p> Injunction: Contracts: Exclusive right to manufacture patented article: Parties: New contract superseding former one: Husband and wife: “Improvements” on patented machine: Bight to use: Estoppel: Trade-names: Bestraining use of man’s own name: Unfair competition. </p> <p>1. In an action to establish an exclusive right to manufacture and sell certain saw swages patented by defendant, and to enjoin him from manufacturing and selling similar machines in violation of his contract under which plaintiff claims, the defendant’s wife, who is the record owner of the patent, is a proper, if not a necessary, party.</p> <p>2. The inventor of a saw swage gave to a corporation, by contract, an exclusive right to manufacture and sell such swage, together with the inventions and improvements on the same which had been or might be invented. Afterwards the patent on the swage was formally transferred to the inventor’s wife, but without consideration and without intention to make any practical difference in the ownership and control thereof by the husband. A new contract, signed by the wife and differing in some respects from the former one, was then made with the corpora-, tion, which in terms declared that it should supersede all other and former contracts respecting such swage. Thereafter the manufacture and sale went on as before, royalties being paid to the wife, with the husband’s knowledge, and deposited to the credit of a bank account in her name, upon which, however, checks were drawn by husband and wife indiscriminately. Held, that the second contract was to all intents and purposes the contract of the inventor, so far as the corporation was concerned, and that it superseded the earlier contract.</p> <p>3. A new saw swage invented and patented by the same inventor, but designated in the specification of the patent as an improvement on the former machine and so treated by the parties for a number of years, was an “improvement” covered by the contracts giving the corporation exclusive rights of manufacture and sale.</p> <p>4. The inventor having invented a third saw swage of similar character hut with some changes, and the corporation having, after some discussion and negotiation, agreed that he might manufacture and sell such new swage himself, and having allowed him thereafter to proceed to make patterns and models in its shop at a considerable cash outlay, paid to it hy him, with full knowledge of his intention to use such patterns and models in a shop of his own in manufacturing the new swage, the corporation was estopped from claiming any right, hy virtue of its contract, to manufacture and sell such third swage.</p> <p>5. A man’s name is his own property and he has the right to every honest and fair use of it in his business, but he cannot resort to artifice or use it in such manner as to mislead the public in respect to the identity of another business firm or establishment or the article produced by it, and thus cause injury to such other beyond that which results from the mere similarity of name.</p> <p>6. Thus, where a man named White invented a saw swage and granted to plaintiff the exclusive right to manufacture and sell the same and any improvements thereon, and plaintiff had, with his knowledge and consent, put such invention and an improved form thereof upon the market under the names of the “White Swage,” “New White Swage,” and “Improved White Swage,” and had at great expense and by efforts extending over a number of years established a reputation and demand for the article, such inventor was properly enjoined, at the instance of the plaintiff and upon proof of actual injury to its trade by deception of customers, from advertising and selling another swage of his own later invention under such names or any combination thereof, including the name “New Improved White Swage.” Fish Bros. W. Go. v. La Belle W. ~WorTas, 82 Wis. 546, explained and distinguished. Siebeoker, Kerwin, and Tim-lin, JJ., dissent.</p>

Action to recover on an insurance policy. The cause was tried by the court. The facts found, or otherwise appearing, are as follows: A policy of insurance was, in due form, issued by defendant on plaintiff’s property, as.alleged in the complaint. Within the life of such policy, unless it sooner lapsed for failure to pay an assessment.as hereafter mentioned, the property was destroyed by fire.

D. Hastings, Circuit Judge. On the morning of Thursday, July 8, 1909, the plaintiff was a passenger on a street car of the defendant company. She took a ear near her home in Marinette and went to Mene-kaune to purchase fish, and took the same car to return to her home in Marinette. The car was going westerly on Hall avenue, and at South Raymond street, where the plaintiff wished to alight, she was the only passenger left in the car.

<p> Waters: Title to Toed of lake: Pourprestures: Accretion and reliction: Riparian owners: Right of access: Ejectment: Judgment. </p> <p>1. Where the title to the bed of a lake is in the state one cannot, by building up land or erecting a pourpresture therein, acquire such title.</p> <p>2. If, by dredging, a riparian owner makes an embankment or island above the water in front of his land at a place below low-water mark, where the title to the bed of the lake is in the state, he acquires no title thereto, even though by reason of subsequent accretion or reliction his ownership may be extended over the space between his original shore line and such embankment or island.</p> <p>3. Where the title to the bed of a lake is in the state, a riparian owner’s right of access to deep water is an incorporeal right and cannot be recovered in ejectment.</p> <p>4. Where in ejectment a riparian owner, alleging that he had title-in fee simple and was entitled to possession of the premises in question, sought to recover an embankment which had been raised above the water by dredging in front of his land, but was unable to show title thereto because such title was in the state, a judgment dismissing the complaint on the merits was proper. -</p>

<p>Appeal from an order of tbe circuit court for Eorest county: JóHN GoohlaND, Circuit Judge.</p> <p>Action by Forest County against John H. Dawley, its county judge for tbe years 1907, 1908, and 1909, and tbe United Surety Company, surety upon bis official bond, to recover certain sums of money claimed to bave been unlawfully paid said Dawley for alleged services rendered tbe county. Tbe complaint, after alleging tbe incorporation of plaintiff, tbe due election and qualification of said Dawley as county judge, tbe incorporation of tbe defendant surety company, and the due execution and filing of tbe bond, states:</p> <p>“That heretofore, to wit, at tbe various times between tbe —■— day of-, 1907, and tbe 31st day of December, 1909, tbe defendant John II. Dawley, while county judge for said county at or about tbe dates set forth in tbe schedule hereto annexed marked Exhibit B and made a part of this complaint, collected and received from said plaintiff tbe several sums of money mentioned in said schedule, amounting in the aggregate to tbe sum of $1,102.06; that said John H. Dawley, during his continuance in office as such county judge, did not faithfully discharge the duties as such county judge, and did not well and truly pay over and account for according to law to the proper authorities the moneys which came into his hands while such county judge, an itemized statement of which moneys so received by the said defendant John H. Dawley is set forth in Exhibit B hereto attached; that the sums of money received by said defendant under items twenty-four and twenty-five of said schedule were obtained by said John H. Dawley as the salary of the register of probate for the years 1908 and 1909, which salary had theretofore been fixed by the board of supervisors to be received by the register of probate of said county and said salary for said years was so received by said Dawley as an additional perquisite and compensation for services rendered by said defendant Dawley as county judge, notwithstanding that the board of supervisors of said county had heretofore duly fixed the salary of said office of county judge for said years 1908 and 1909; that all of the moneys received as stated in items one to twenty-three inclusive of said schedule was received by the defendant Dawley while county judge of said county, and was collected and received by him for services performed as county judge as the fees and emoluments of his said office, notwithstanding that such fees and emoluments were not by law authorized to be received by him, and it was the duty of the said defendant Dawley to pay over and account for to the proper authorities according to law the moneys of said plaintiff which so came into his hands, and said defendant Dawley neglected and refused so to pay over and account for said moneys and unlawfully converted and appropriated said moneys to his own use and still unlawfully retains said moneys and all of them, as stated and enumerated in said schedule hereto attached and identified as Exhibit B.”</p> <p>The items referred to in Exhibit B are for services as assistant to the sheriff; for excess per diem for the commitment of children, of insane, and of feeble-minded persons; for copying and indexing records in the office of the county judge; for services in destroying ballots; for per diem in habeas corpus proceedings; for labor permits granted; for services in investigating death; for special sessions; for sale of real estate of deceased persons; and for salary of register of probate.</p> <p>The bond in question was for the sum of $3,000, named the board of supervisors of Forest County as obligee, and was conditioned as follows:</p> <p>“Whereas, the said John H. Dawley is the duly elected county judge of and in the county of Forest, Wisconsin: Now, therefore, the condition of this obligation is such that if the said John II. Dawley shall faithfully discharge the duties of the office aforesaid and shall well and truly collect and pay over, or account for, according to law, to the proper authorities, the moneys or property which may come into his hands by reason of his holding such office, then this obligation to be void, otherwise to remain in full force and effect.”</p> <p>The defendant surety company demurred to the complaint on the grounds (1) that the plaintiff has no legal capacity to sue,, in this, that plaintiff is not the obligee named in the bond upon which said action is based, and that therefore plaintiff is not authorized to sue thereon; (2) that there is a defect of parties plaintiff, in this, that the board of supervisors of Forest County:, being the obligee named in the bond upon which this action is based, are necessary and proper parties plaintiff to an action to enforce the terms of said bond, but are not made parties plaintiff herein; (3) that several causes of action have been improperly united; and (4) that the complaint does not state facts sufficient to constitute a cause of action.</p> <p>Erom an order overruling the demurrer the defendant United Surety Company appealed; .</p>

B, Belden, Circuit Judge. A certain instrument in writing hearing date August 6, 1887, was prepared by one Benedict, now deceased, as the last will of Charles Grant and Mary C. Grant, to which was subscribed the name of Charles Grant in his own handwriting, and that of Mary 0. Grant by mark, said persons being husband and wife, the instrument purporting to be a joint will.

B. Belden, Circuit Judge. Action to enjoin the defendant from charging telephone rentals for certain telephones furnished the city of Kenosha. Plaintiff claims the defendant is the successor of the Citizens Telephone & Telegraph Company and, as such, is required to furnish the telephones in question free of charge pursuant to the terms of sec. 8 of an ordinance adopted by the city in March, 1903, and accepted hy the Citizens Telephone & Telegraph Company.

<p> Municipal corporations: Death caused by insufficiency of sideioalk: Condition precedent to action: Notice of injury: For whose benefit action may be maintained: Nonresident aliens: Widow of resident: Domicile: Evidence: Admissions: Appeal: Harmless error. </p> <p>1. Service of notice of injury as provided in sec. 1339, Stats., is not a condition precedent to the maintenance of an action to recover damages for death of a person caused hy insufficiency of a public highway.</p> <p>2. Where a person whose death was caused in this state by a wrongful act, neglect, or default was a resident of the state, had taken out his first citizenship papers, but left a widow in a foreign country who, at the time of his death, purposed joining him here, such widow should not be deemed a nonresident alien, but is entitled to the rights secured to surviving relatives by secs. 4255, 4256, Stats., even though the death occurred prior to the amendment of said sec. 4256 by ch. 226, Laws of 1911.</p> <p>3. In an action against a city to recover damages for death of a person, alleged to have been caused by insufficiency of a sidewalk, an error in permitting a witness to testify to an admission by the mayor, after the accident, that he knew the sidewalk was dangerous, was so far cured by an explicit instruction to the jury to disregard such evidence as not to be ground for reversal of a judgment against the city.</p>

<p>Appeal from a judgment of the municipal court of Milwaukee county: A. C. Bacicus, Judge.</p> <p>The appellant was convicted in the district court of Milwaukee county of having leased and let, as landlord, through his agent, a, certain room, in the building occupied by him in the city of Milwaukee, to be used for the purpose of prostitution and lewdness, contrary to an ordinance of the city. The trial on appeal to the municipal court of Milwaukee county resulted in a conviction.</p> <p>There was evidence before the court that the appellant stated that he, as occupant of the premises in question, had rented out rooms for the night and by the hour. There was evidence also that the appellant was occupying the premises at the time he is accused of having committed the offense, and that he had been in possession of them for two years previous, thereto. It was admitted that the appellant had a verbal lease from month to month of the premises.</p> <p>The evidence of the specific violation of the ordinance upon which the conviction rested was that a man, accompanied by a woman not his wife, had gone to the premises in the nighttime, had rented a room from the wife of the appellant, and had occupied the room and the bed therein with the woman who came with him. Knowledge of the purpose for which the room was rented was supported by the evidence that the man asked the woman who accompanied him, in the presence of tbe wife of tbe appellant, wbat her ebaxges were for occupying tbe room with bim, that sbe gave tbe amount thereof, and that tbe man replied, “All right.” There was evidence also that tbe appellant bad stated that bis wife rented tbe rooms that were rented at night and that be was tbe proprietor of tbe place.</p> <p>There was evidence tending to show that men and women would meet near this bouse, go into it, and occupy a room for tbe purpose of prostitution.</p> <p>Tbe court found appellant guilty of tbe offense charged and imposed a fine of $50. Judgment was awarded in tbe city’s favor for this amount and for tbe costs of tbe action. This is an appeal from tbe judgment.</p>

<p>Appeal prom a judgment of the circuit court for" Milwaukee county: WarreN D. TarraNt, Circuit Judge.</p> <p>This action was brought against the defendant to recover upon a benefit certificate or policy for $1,000 issued September 1, 1888. The plaintiffs recovered judgment for $363.93 damages and costs, said damages being the amount which the court below held balance due plaintiffs upon the certificate or policy. Upon the trial the defendant admitted there was due and paid over $536.07, and the judgment recovered was the difference between this amount and the face of the certificate less $100. The case was tried by the court without a jury, and the court found that the defendant made the certificate or policy September 1, 1888, to the deceased, O'laus Jaeger; that said Jaeger paid all assessments levied and imposed upon him by the Grand Lodge for the maintenance of his certificate or policy, and did also pay all lodge dues imposed upon him and required to be paid, and at the time of his death was in all respects a member of said order in good standing; that at a regular meeting of said Grand Lodge in 1897 a by-law was enacted requiring every member then belonging to said order or who should subsequently join to submit to a deduction of ten per cent., or $100 of the $1,000 stipulated in his policy to be paid his beneficiary or beneficiaries upon his death, said $100 to be paid into a guarantee fund, and the remaining $900 only should be paid to the beneficiary or beneficiaries designated in said policy; that the wife of said Claus Jaeger, who was designated as beneficiary in his said policy, died at the city of Milwaukee on or about the 1st day of January, 1906; that in pursuance of a stipulation contained in said policy, said Claus Jaeger on the 27th day of February, 1906, changed the beneficiary originally named and designated his six children as beneficiaries, namely, Adolph, Carl, Henry, Helen, Paul, and Fred, and requested that the amount of insurance due on such policy, less ten per cent., be paid to said newly designated beneficiaries, and that, such ten per cent, thereof, pursuant to the above mentioned by-law, be paid into the guarantee fund; and that a memorandum of such declaration changing such beneficiaries and providing for a deduction of ten per cent, of the amount designated in the policy to be paid into the guarantee fund was indorsed on said policy and subscribed by the grand secretary of said Grand Lodge; that from and after said incorporation of said Grand Lodge of Wisconsin of the Order of Hermann’s Sons, said defendant corporation duly assumed all the obligations of said Grand Lodge which it had entered into prior to its said incorporation, and thenceforth'and up to the time of'the death of said Claus Jaeger received and collected all the assessments payable by said Jaeger upon said policy and all other assessments levied upon all members of said order; that about the year 1897 said Grand Lodge enacted a certain by-law to meet the losses due to the increasing death rate of members, also to the effect that all members who should be such on and prior to the 1st day of March, 1898, should from and after that day be required to pay for the maintenance of their respective policies of $1,000 each certain monthly assessments, varying according to ages attained by such members at the time of becoming members, increasing from ages between eighteen and twenty-five years up to ages between forty and forty-five years, and that members who at the time they became members had attained an age between forty and forty-five years should pay a monthly assessment of $2.75; and that by said by-law it was further provided that all members who should become members after said 1st day of March, 1898, should be required to pay on policies of $1,000 lower monthly assessments, which also varied and increased between the ages of eighteen and twenty-five years up to between forty and forty-five years, and that all persons who at the time of becoming members had attained an age between forty and forty-five years should pay a monthly assessment of $2.04; that said Claus Jaeger became a member of Robert Blum Lodge No. 4 in 1879, and was then forty-four years of age, and from and after March 1, 1898, paid for the maintenance of his policy a monthly assessment of $2.75 up to tbe time of .bis death, all of which assessments were duly paid to said Grand Lodge; that said Jaeger died on the 3d day of January, 1910, and at the time of his death was a member in good standing of said Robert Blum Lodge No. 4; that on the 11th day of January, 1910, due notice of the death of said Claus Jaeger was given in writing to said Grand Lodge, and more than ninety days expired before the commencement of this action; that on the 26th day of March, 1910, Adolph Jaeger, Carl Jaeger, Henry Jaeger, and Ered Jaeger, four of the beneficiaries designated in the policy, did, for value received, duly assign and transfer to plaintiff Gustav Jaeger all their right, title, and interest in said policy and in and to said sum of $1,000 mentioned therein, and ever since said Crustav Jaeger has been and still is the owner of an undivided four-sixths of said policy and the money thereby secured; that the plaintiffs Paul Jaeger and Helen Jaeger, two of the beneficiaries designated, are minors, and are still the owners of an undivided one-sixth each of said policy; that upon proceedings duly had in the county court of Milwaukee county said Gustav Jaeger was on the 9th day of April, 1910, duly appointed general guardian of the above named minors, and letters of guardianship were duly issued, and said Gustav Jaeger ever since has been and still is the general guardian of said minors; that the defendant Gi'and Lodge has in its possession a reserve fund exceeding $20,000; that before the commencement of the trial of this action said defendant paid to the plaintiffs $536.07, the amount admitted to be due upon said policy, wdthout prejudice to the rights of plaintiffs to continue said action for the sum of $463.93 and interest thereon, denied by defendant to be due; that at its annual session in August, 1909, said defendant adopted an amendment to its by-laws to'the effect that all members of said order who were such prior to the 1st day of March, 1898, should be advanced to their attained age as of that date, or in lieu thereof be given the following options: First, the privilege of paying in cash the amount they ought to have paid into the benefit fund had they been charged the present table of rates from the time they were initiated into the order to the 1st day of March, 1898, to wit: that they should be charged one payment a month at the age at which they were initiated at the rate provided by the present table of rates, against which they should be credited with the amount they actually paid during that period of time, and the balance should be the deficiency; second, that said members may have said deficiency charged against their benefit certificate with two and one-half [per cent.] simple interest so long as the same remains unpaid, with accrued interest thereon, which deficiency, with interest at the time of the death of said member, should be deducted from the face of his benefit certificate, and that said by-laws should apply only to members who were initiated into the order before March 1, 1898; that pursuant to the above by-laws the grand secretary of said defendant did about September, 1910, compute the amounts of said alleged deficiencies to be charged against the respective policies of members who joined before March 1, 1898, and that the amount so computed as a deficiency against the policy of Glaus Jaeger was $363.93; and that said secretary issued a printed circular in which each member was requested to signify his choice whether he would pay the deficiency in cash, or would suffer the same to be deducted,- with two and one-half per cent, interest, from the amount of his policy at his death; that said Glaus Jaeger never acquiesced in said amendment and did not manifest any choice as to whether he would pay cash or suffer the same to be deducted from the amount of his policy; that before the commencement of this action the plaintiffs duly demanded of defendant payment of the amount of $1,000 named in the policy, which payment was refused.</p> <p>The court concluded that said by-law of 1897, which required every member then belonging to said order and every future member to submit to a deduction of ten per cent., or •$100, at bis death from his $1,000 policy, to be paid into a reserve fund, and that only the remaining $900 should be paid to the beneficiary or beneficiaries of such policy, was and is unreasonable and void as to said Claus Jaeger and all members who joined said order prior to the passage of said law, but that since, in and by the written declaration made by said Claus Jaeger for the substitution of said six children as beneficiaries in lieu of his wife, who had died, he requested that ten per cent., or $100, of the amount of the policy be deducted from such policy and paid into the reserve fund of said Grand Lodge, he, said Claus Jaeger, consented to such deduction and thereafter was, and these plaintiffs now are, estopped from questioning or disputing the right of the Grand Lodge to deduct said $100 from the amount of said policy; that said amendment of its laws enacted by said defendant at its session in 1909, to the effect that each member of said order who had joined prior to the 1st day of March, 1898, should be required to pay the difference between the total amount of assessments he had paid from time of initiation to said 1st day of March, 1898, and the amount which he would have paid had he paid the highest rate of assessment then payable by him according to the then present rates of assessments, or to suffer such deficiency to be deducted from the amount of his policy with two and one half per cent, interest added at the time of his death, was and is unreasonable and void; that there is now due and owing from the said defendant to the plaintiffs the sum of $363.93, with interest thereon from the 12th day of April, 1910.</p> <p>Judgment was entered in accordance with the findings of fact and conclusions of law, from which this appeal was taken.</p> <p>They cited Wuerfter v. Trustees Grand Grove, 116 Wis. 19, 92 N. W. 433; Ledehuhr v. Wis. T. Co. 112 Wis. 657, 88 N. W. 607; Bruger v. Prince-ion & Si. M. Mut. F. Ins. Co. 129 Wis. 281, 109 N. W. 95;. Baumann- v. Metropolitan L. Ins. Go. 144 Wis. 206, 128 N, W. 864; Langan v. Supreme Council, 174 N. Y. 266, 66 N. E. 932; Beach v. Supreme Tent, 177 N. Y. 100, 69 N. E. 281; Weber v. Supreme Tent, 172 N. Y. 490, 65 N. E. 258; Hale v. Equitable Aid Union, 168 Pa. St. 377, 31 Atl. 1066; Newhall v. Supreme Council, 181 Mass. Ill, 116, 63 N. E. 1; Gaut v. Supreme Council, 107 Term. 603, 64 S. W. 1070,. 55 L. R. A. 465, 470; and other cases.</p>

Appeals from a judgment of tbe circuit court for Milwaukee county: W. J. TueNee, Circuit Judge. Prior to April 15, 1902, tbe plaintiff owned a number of city lots in tbe north balf of block 220 in tbe Eighteenth ward of Mihuauhee upon which he operated a plant for cutting, sawing, and dressing stone, with the necessary buildings and appliances.

0. Eschweilee, Circuit Judge. Tb© defendants Riemer and Sullivan made and delivered to the defendant Somers their joint promissory note dated May 30, 1907, for $200 with interest, payable on or before October 1, 1907. Somers sold the note to one Allerton, who in turn sold it to the plaintiff. At maturity the defendants refused payment, and plaintiff brought this action to recover thereon.

<p>Appeal from a judgment of tbe circuit court for Milwaukee county: J. O. Ludwig, Circuit Judge.</p> <p>Action by tbe administrator of tbe estate of Matbias Ku-ratb, deceased, to recover damages sustained by tbe parents on account of tbe death of tbeir minor son, aged fifteen and one-balf years. Tbe complaint alleges tbat on tbe 27 th day of September, 1908, while said Mathias Kurath, in tbe exercise of due care, was crossing Broadway street at tbe intersection of Ogden avenue, in Milwaukee, be was negligently run over and killed by one William Gaston, who was at tbe time of tbe accident a servant in tbe employ of tbe defendant and acting within tbe scope of bis authority as such servant. It further alleges tbat tbe deceased was a bright and intelligent boy, a student in tbe Seventh district school and in a school of fine arts in tbe city of Milwaukee and tbat be gave promise of a brilliant future as an art student; tbat be resided with bis parents, both of whom survive him, are aged, and will soon be unable to properly support themselves; tbat they have heretofore received tbe earnings of said Matbias Kurath and were in part dependent npon bis earnings for tbeir support; and that by reason of tbe negligence of tbe defendant tbe parents •of said Matbias Kurath have suffered damages in tbe sum of •$10,000.</p> <p>Tbe answer was a general denial as to tbe material allegations of tbe complaint.</p> <p>Tbe jury found (1) that Matbias Kuratb was injured while crossing Broadway at tbe intersection of Ogden avenue •on tbe morning of September 27, 1908, by being struck by an ■automobile driven by one William Gaston, from wbicb injuries said Matbias Kuratb died; (2) that William Gaston, when be was about to turn into Broadway from Ogden avenue, and at tbe time of tbe accident, ran tbe automobile in •question at an unreasonably fast rate of speed; (3) tbat said unreasonably fast rate of speed was tbe proximate cause of tbe injury; (4) tbat no want of ordinary care on tbe part of Matbias Kuratb contributed to tbe injury; (5) tbat William Gaston at tbe time of tbe accident was still in tbe employ of tbe defendant; (6) tbat William Gaston was charged by tbe •defendant with tbe duty of selling gasoline while be was in ■defendant’s garage and collecting tbe proceeds of such sales; ■(7) tbat on tbe morning in question William Gaston did sell some gasoline to a stranger; (8) tbat William Gaston forgot to collect tbe amount due from said stranger for said gasoline upon tbe delivery thereof; (9) tbat William Gaston, after •said stranger left tbe garage, took tbe automobile in question .and drove with it out on tbe streets for tbe purpose of finding and collecting from said stranger tbe amount due for tbe gasoline; (10) tbat tbe defendant company allowed William Gas-ton, while in its employ, to run or operate an automobile; (11) tbat tbe parents of said Matbias Kuratb sustained dam•ages in tbe sum of $1,750, resulting from tbe death of tbeir ■son.</p> <p>Tbe defendant moved on tbe minutes of tbe judge to set aside tbe verdict and for a new trial. Tbe motion was beard by the court and taken under advisement. It was not, however, acted upon by the court during the term, nor was it continued. At the following term the court rendered a decision setting aside the verdict and granting a new trial, from which, order the plaintiff appealed. This court held on such appeal, that pursuant to sec. 2878, Stats., as amended (Supp. 1906:. Laws of 1901, ch. 100), the motion was constructively overruled by the failure of the trial court to act thereon during the term, and that the trial court had no jurisdiction to act upon it at the subsequent term. See Kurath v. Gove A. Co. 144 Wis. 480, 129 3ST. W. 619. After the remittitur from this, court reached the trial court, it .sought to amend the record by showing a waiver of the requirement that the motion be-decided within the term. This court held that the record could not be so amended by the trial court. See State ex rel.. Kurath v. Ludwig, 146 Wis. 385, 132 N. W. 130. Upon the-first appeal the order was reversed and the cause remanded for further proceedings according to law. Subsequently the-trial court entered judgment upon the special verdict in favor-of the plaintiff. This is an appeal by the defendant from such judgment.</p>

<p> Sales: Brokers: Bought and sold notes: Statute of frauds: Authority of brokers: Adding specifications: Custom: Ratification: Breach of contract: Damages: Duty to minimise: Place of delivery: World market. </p> <p>1. Bought and sold notes, signed hy brokers who are agents for both buyer and seller and containing the terms of sale, satisfy the statute of frauds and constitute a binding contract.</p> <p>2. Brokers acting for both parties to a sale of copper were authorized to insert in the contract specifications as to the particular brand and shape, where the insertion of such provisions by the broker was usual and customary in the trade.</p> <p>3. Where, in such a case, the seller, upon receiving from the brokers a telegram stating the terms of the sale, wired to a third person to deliver the copper, and also wired to the brokers that he had done so, he thereby ratified the sale upon the terms stated.</p> <p>4. As a general rule, in actions for breach of executory contracts of sale tbe damages are tbe difference between tbe contract price and tbe market price at tbe time and place fixed by tbe contract for delivery, with interest from tbe time of tbe breach.</p> <p>5. Upon breach of a contract for sale of copper to be delivered at a recognized world market, tbe principle that tbe buyer is bound to exercise reasonable diligence to minimize tbe damages did not necessarily and as matter of law require him to accept delivery, with an equalization of freight, at another place at which there was no recognized market.</p>

<p>Appeal from a judgment of tbe circuit court for Milwaukee county: OkreN T. Williams, Circuit Judge.</p> <p>Action for a personal injury. January 25, 1910, plaintiff, while walking on a sidewalk in front of premises occupied by defendant in tbe city of Milwaukee, stepped, by reason of tbe walk being covered witb ice and there being no sand, ashes, or other material thereon, slipped, and was injured. There then existed in the city of Milwaukee a duly adopted ordinance requiring every person circumstanced as defendant was to keep the walk in front of his premises sprinkled with ashes, sawdust, or sand, under penalty of not less than $1 nor more than $5 and $5 per day for the time the failure to obey the ordinance should continue. Defendant so failed and on that account plaintiff claimed he was liable to her for her injury. The court dismissed the case upon the ground that the ordinance did not impose any such liability on defendant.</p> <p>They cited, among other cases, Smith v. Milwaiücee B. & T. Exch. 91 Wis. 860, 64 N. W. 1041; Mueller v. Milwaukee St. R. Go. 86 Wis. 340, 56 N. W. 914; McCall v. Chamberlain, 13 Wis. 637.</p>

J. TueNee, Circuit Judge. This is an action for damages for personal injuries suffered by the plaintiff while employed by the defendant as a laborer in unloading freight from the package freighter Clarion in the Menomonee river canal in Milwaukee harbor. The falling over of a pile of sheet steel piled on the deck of the boat caused plaintiff's injuries.

<p>Appeal from a judgment of tbe circuit court for Milwaukee county: J. C. Ludwig, Circuit Judge.</p> <p>Tbis action was brought to recover damages for trespass committed upon tbe land of plaintiff. Tbe action was tried by tbe court without a jury, and tbe court found that the plaintiff was tbe owner of tbe land in question, and being desirous of selling tbe property caused to be erected' upon tbe same a board sign offering tbe property for sale, and that tbe defendant unlawfully entered upon tbe premises and took down and removed tbe sign and disturbed tbe plaintiff in tbe use and enjoyment of said land and bis occupation thereof; that tbe defendant at other times before and after tbe aforesaid unlawful- entry unlawfully entered upon tbe land and trespassed thereon and disturbed plaintiff in tbe use and occupation thereof; that tbe defendant removed and destroyed tbe said sign, tbe property of tbe plaintiff, to bis damage in tbe sum of $4.30; that tbe defendant is occupying premises adjoining plaintiff’s land under tbe terms of a lease and claimed tbe right under said lease to use, enjoy, and occupy tbe land of tbe plaintiff.</p> <p>And as conclusions of law tbe court found that tbe plaintiff is entitled to judgment for the sum of $4.30 damages and costs and that tbe defendant be enjoined from interfering with tbe property of tbe plaintiff.</p> <p>Judgment was entered, accordingly, from which this appeal was taken.</p>

<p> Banks and banking: Pledges: Negotiable paper: Bolder in due course: Payment of consideration: Burden of proof: Larcenous pledge: Bankers’ lien: Bight and duty of setoff: Application of payments. </p> <p>1. In an action by tbe true owner to recover negotiable bonds pledged to a bank by one whose title was defective, tbe burden of proof is upon tbe defendant to show that it acquired tbe title in due course, which includes proof that it paid out tbe money agreed to be paid therefor or parted irrevocably with a valuable consideration.</p> <p>2. As between the true owner of tbe negotiable paper in such a case and tbe pledgee, tbe right of tbe latter to enforce tbe security is governed by tbe same rules of law as tbe right of a purchaser or indorsee of like paper; but the titles acquired are different, since where tbe innocent purchaser obtains an absolute title tbe innocent pledgee, up to tbe time of sale of tbe pledge, acquires only a lien.</p> <p>3. A reserve bank which credited its correspondent bank with tbe proceeds of a personal note given by an officer of tbe latter and secured by bonds of a customer which be bad wrongfully taken, bad in addition to tbe security of such bonds a bankers’ lien enforceable by setoff against tbe credit balance of said correspondent bank for tbe sum so wrongfully credited.</p> <p>4. Tbe pledgee bank did not in sucb case become a bolder of the bonds in due course by tbe mere crediting of tbe proceeds of tbe note, nor by subsequent payment of drafts of tbe correspondent bank to an aggregate amount exceeding tbe entire credit balance at tbe time of tbe pledge, where sucb balance was augmented from time to time by additional deposits so that it never fell below tbe amount of sucb wrongful or mistaken credit.</p> <p>5. Tbe subsequent sending to and acceptance by the correspondent bank of a “reconcilement sheet” showing the debit and credit items appearing upon tbe books of tbe reserve bank, including tbe erroneous credit and tbe then existing credit balance, did not change the situation nor amount to an irrevocable application of tbe debit items to tbe payment of tbe credits thereon appearing.</p> <p>6. Tbe rule governing tbe presumption of application of payments will not be applied to work injustice.</p> <p>7. Where, in tbe case stated, tbe pledgee bank, when it received notice of tbe defect in tbe pledgor’s title to tbe bonds, bad and at all times bad bad in its possession a credit balance due tbe correspondent bank in excess of tbe credit given on account of tbe wrongful pledge, it bad tbe right, and it was a duty which it owed tbe true owner of tbe bonds, to revoke sucb credit and enforce its right of offset by cross-entry or otherwise.</p>

<p> Torts: Joint wrongdoers: Release of one, when releases all: Writing construed: Intention: Covenant not to sue. </p> <p>An instrument under seal whereby an injured person, in consideration of sums paid to him, released one of two joint wrongdoers from all actions, claims, and demands on account of the injury, and covenanted not to sue that one, but stated that it was expressly understood that said sums were received not as an accord and satisfaction for the whole injury suffered, but only as a part satisfaction thereof, is construed, in accordance with the manifest intention, not to be a technical release within the rule that a release of one joint wrongdoer releases all, but to be merely a covenant not to sue; and, so construed, it is not a bar to an action against the other wrongdoer.</p>

<p>Appeals from a judgment of tlie circuit court for Oneida county; A. Hi Reid, Circuit Judge.</p> <p>Action for loss caused by defendants, acting in concert, aiding in the departure of a person alleged to be in plaintiffs lawful custody as sheriff, from tbe latter’s jurisdiction.</p> <p>One Kitchen, deputy under plaintiff as sheriff of Cheboy-gan county, Michigan, had a warrant, issued in a civil action, for the arrest and holding to bail of one George Schoettle, a minor, living with defendant Eugene Schoettle, his father, whose residence was in Ohio, but domiciled in prcesenti in said county. The deputy visited such domicile to execute the warrant, but, instead of tailing George into actual custody, he explained to Mr. Schoettle the purpose of the visit, exhibited, read the papers to and left copies thereof with him, George being present, and accepted Mr. Schoettle3's promise to produce tbe boy at tbe county seat tbe next morning in consideration of bis being left at borne in tbe meantime. Tbe purpose of seeking to bold G-eorge to bail was to prevent bis leaving tbe state pending litigation witb bim and enforce payment of any judgment wbicb might be rendered against bim. Tbe officer relied on Mr. Schoettle’s promise and did not serve tbe papers other tban as aforesaid. He returned tbat be duly executed tbe writ and defendant escaped from custody. According to tbe promise, Mr. Schoettle took George to Cheboygan, tbe county seat, going by tbe train on which tbe officer returned, but did not deliver tbe boy into tbe officer’s actual custody. Upon arriving at Cheboygan tbe officer went directly to bis borne, telling Mr. Schoettle to have George at tbe court bouse at 9 o’clock a. m. Mr. Schoettle then visited a lawyer’s office in company witb Thomas Martin to secure legal advice. While they were there tbe officer came in and after staying a while went away to make inquiries respecting proposed bail. After examining tbe papers and bearing Mr. Schoettle’s statement of tbe case and what bad occurred, tbe lawyer advised tbat tbe writ was void; that George was not in legal custody and was free to leave tbe county if be desired. Eollowing tbat, Martin and defendant Holmes, in aid of Mr. Schoettle and George, took tbe latter by team to a railroad station outside Cheboygan county, where George took a train and left tbe state. Such proceedings were thereafter bad in tbe action against George tbat tbe service of papers on bim was adjudged valid and a recovery in due form was bad against bim for $5,000 and costs. After due return of execution thereon unsatisfied, action was commenced against tbe plaintiff and bis bondsmen for damages for a negligent escape and judgment was rendered therein against bim for $2,000 and costs. Tbe judgment was affirmed on appeal and paid. Subsequently, tbe sheriff commenced this action for damages. Tbe cause was submitted to a jury resulting in a verdict of wbicb tbe following is an. abridgment:</p> <p>1. Was tbe officer, under bis writ, authorized to take George Schoettle into bis custody? A. Yes.</p> <p>2. Did tbe officer, when in a position to do so, intend to take George under tbe writ ? A. No.</p> <p>3. If you say Yes to question 2, did tbe officer personally inform George of sucb intention ?</p> <p>4. If you say No to question 3, was George so informed before tbe conference at tbe law office ? A. No.</p> <p>5. Did George submit to custody by tbe officer? A. No.</p> <p>6. If you say Yes to question 5, did Holmes know of sucb submission before aiding George to leave tbe state ?</p> <p>7. Did Mr. Schoettle, upon tbe officer’s visit to bis resi.dence, give sucb officer reasonable ground to believe George-bad submitted to arrest ? A. Yes.</p> <p>8. If you say Yes to question 7, did tbe officer rely tbereon to plaintiff’s injury ? A. Yes.</p> <p>Tbe court changed tbe answer to tbe second question to Yes, answered tbe third in tbe affirmative, changed tbe answer to tbe fifth question, and held that, on tbe undisputed evidence, as to Mr. Schoettle at least, George was actually placed under arrest, and that be, in legal effect, submitted thereto. On tbe verdict as so changed judgment was rendered against Mr. Schoettle, but as to defendant Holmes tbe cause was dismissed with costs.</p> <p>Defendants’ counsel moved tbe court to strike out questions 7 and 8 and tbe answers thereto and for judgment, wbicb was denied.</p> <p>Plaintiff’s counsel moved for a new trial as to Holmes, in case of denial of judgment against him, because tbe answer to question 6 should not have been made to depend on tbe fifth question being answered. Tbe court, for want of an answer to question 6 or conclusive evidence in favor of plaintiff in respect thereto, ordered judgment dismissing tbe case as to Holmes, as before stated, and denied- the motion for a new trial.</p> <p>Both sides appeal.</p>

C. Ludwig, Circuit Judge. Tbe appeal is by tbe defendant J. J. Schissler from a judgment of foreclosure and sale adjudging plaintiff’s mortgage to be prior to appellant’s mortgages. Tbe appellant, bis brother, and one Spumy were copartners in tbe real estate and loan business under the firm name and style of Sehissler Bros. & Spurny in the city of Milwaukee during all the times mentioned herein.

Halsey, Circuit Judge. This is an action of replevin to recover possession of a hotel range and certain other articles comprising a part of the outfit for a restaurant.

Luece, Circuit Judge. Action for personal injuries. Tbe defendant owned and operated a large establishment for tbe manufacture of structural steel work at Waukesha. Tbe plaintiff, a young man twenty years of age, was employed as a helper about tbe shop, doing such work as be was directed to do, March 15, 1909. He bad previously worked in various iron and bridge concerns for some months at a time during tbe greater part of tbe time for more than three years.

ERROR, to review a judgment of tbe circuit court for Sawyer county: A. H. Rexd, Judge. John F. Dietz, bis wife, Hattie, and bis son, Leslie, were prosecuted, for tlie murder of one Oscar Harp, aud upon the trial of the case before the circuit court for Sawyer county in 'May, 1911, the wife and son were acquitted and John F. Dietz was convicted of murder in the first degree and sentenced to imprisonment for life. He prosecutes this writ of error to reverse that sentence.

<p> Limitation of actions: Pleading: Claims against decedent: Contracts: Validity: Consideration: Oral promise to pay for services by legacy: Breach: Measure of damages: Evidence. </p> <p>1. With reference to a claim against the estate of a decedent the statute of limitations must always be considered although not pleaded.</p> <p>2. An oral promise, accepted by the promisee, to compensate by,, a legacy services previously performed for the promisor by one not a member of his family, is based upon a sufficient consideration and is valid and binding.</p> <p>3. Such an agreement is deemed a new and substitutionary contract, not within the purview of sec. 4243, Stats. (1898), and not affected by subsequent expiration of the time within which an action upon the original liability to pay for the services must have been brought had such liability continued.</p> <p>4. Where the promise to compensate by a legacy is based upon a past or executed consideration, such as services previously performed and moneys paid out at the request of the promisor, the amount recoverable for a breach thereof is measured by the reasonable value of the services performed and the amount of the moneys so paid, with interest at the legal rate.</p> <p>5. The amount agreed to be paid by legacy in such a case may* be proved as having some evidential bearing on the reasonable value of the services where the disparity is not too great, but is not conclusive.</p>

<p>Appeal from an order of tbe circuit court for Milwaukee county: W. J. TueNeb, Circuit - Judge.</p> <p>Mandamus proceeding to coerce tbe clerk of tbe city of Milwaukee to submit to its electors, under cb. 476, Laws of 1911, a proposed alteration of tbe city charter. Tbe purpose of sucb alteration was to allow tbe city to conduct tbe business of furnishing its citizens with ice.</p> <p>All conditions precedent in tbe law to calling a special election in respect to tbe matter of tbe proposed change were satisfied, but tbe clerk refused to make the call. Whereupon an alternative writ of mandamus was sued out to coerce him to do so. Such proceedings were thereafter had that appellant moved the court to quash such writ, which was overruled. This appeal followed to test the validity of such law. .</p>

<p> Mortgages: Assignment: Foreclosure: Previous agreement for extension: Validity. </p> <p>1. An agreement by which, for a valuable consideration paid by the mortgagor, the time for payment of a note and mortgage is extended, is valid though not in writing.</p> <p>2. Such agreement is binding upon one to whom the note and mortgage were assigned after the due date of the note but before the extended time had expired, although such assignee was assured by the assignor that the note was then past due.</p>

<p> Master and servant: Negligence of chauffeur of hired automobile: Injury to occupant: Liability of master: Sunday contracts. </p> <p>1. A chauffeur employed at a public garage and sent out in charge of a hired car to operate and manage it is, while so engaged, the servant of the keeper of the garage and not of the hirer of the car.</p> <p>2. If such chauffeur, while acting within the scope of his duty, is guilty of a want of ordinary care in driving the car which results in injury to the occupants, the master is liable.</p> <p>3. In such case the cause of action is based upon the tort or negligence and not upon the contract of hiring, and it is therefore immaterial whether or not the contract was void because made and performed on Sunday.</p>

<p> Appeal: Harmless errors: Prejudice must appear: Special verdict: Sufficiency: Omitted matters: Form of questions: Negligence: Street railways: Injury to traveler on highway: Proximate cause: Instructions to jury. </p> <p>1. A judgment must tie affirmed on appeal unless both error and prejudice to the appellant are made to appear.</p> <p>2. Where several grounds of negligence are alleged in the complaint, such of them as are not supported by evidence or are not rele- • vant under the evidence as the facts finally appear therein may properly be dropped out of the case and omitted from the special verdict.</p> <p>3. A special verdict specifically found defendant negligent upon two grounds alleged in the complaint. A similar finding upon a third ground was made in answer to a question which? in the absence of proper instructions, was too general, but no more appropriate question was suggested by defendant. There was also a general finding that defendant was guilty of a want of ordinary care which was the proximate cause of the accident. Held, that the last finding refers by fair implication to the two items of negligence specifically and properly found, and, no prejudice to defendant being shown, a judgment for plaintiff should not be reversed because of such informalities in the verdict.</p> <p>4. In an action for death caused by a collision between an electric car and a buggy, a question in the special verdict, “Was there a proper and sufficient headlight in use on such ear at the time of the accident?” was faulty, in the absence of instructions as to the legal test of a proper and sufficient headlight, since the jury might set up a standard of its own in that particular.</p> <p>5. Two questions in such special verdict, (1) “Was the gong or bell on the car which collided with the buggy sounded within a reasonable time before the accident?” and (2) “Was the car at and just prior to the accident run at an unusually rapid and dangerous rate of speed?” though imperfect, were fairly within the discretion vested iñ the circuit court with reference to the form of questions to be submitted.</p> <p>6. An instruction, in suck case, that negligence is the proximate cause of an injury only when that injury is the natural and. probable result of such negligence and when in the light of attending circumstances the injury ought to have been foreseen by a person of ordinary care and prudence, is approved.</p> <p>7. An instruction not incorrect in law, though not applicable to any question submitted to the jury, is not ground for reversal unless it appears that the jury was misled or the appellant prejudiced thereby.</p>

<p>Appeal from a judgment of the circuit court for Milwaukee county: E. C. Eschweiler, Circuit Judge.</p> <p>This action, is brought on four town orders. The first cause of action involved an order for $200. The court permitted a recovery on this order to the amount of $150 and interest. The appellant contends that a recovery of only $50 and interest should have been allowed on this cause of action. The order was drawn for three alleged items of indebtedness: (1) a partial payment of $100 on account of a road roller purchased by the chairman of the town from the plaintiff; (2) a partial payment of $50 on a road machine purchased for road district number 26 of the defendant town; and (3) a partial payment of a like amount on the alleged purchase of a like machine for road district number 6 of the town. No complaint is made as to the decision of the circuit court in reference to the last two items. The appellant contends that the first item of $100' should have been disallowed for reasons hereinafter stated. The roller was purchased pursuant to a petition made under sec. 1223a, Stats. (Supp. 1906: Laws of 1899, ch. 83, sec. 2). No question is raised as to the sufficiency of the petition. Various defenses to this portion of the order are set up in the answer, but the points relied on to defeat recovery are: (1) the contract of purchase was signed by the chairman of the town instead of by the town board; (2) the roller was ordered shipped to Wisconsin before the contract of purchase was made, and no recovery can be had thereon because of noncompliance with sec. 11706, Stats. (Supp. 1906) ; and (3) the contract being for the purchase of the machine on credit for a period of time extending beyond the term of the supervisors then in office, it was void. No question is raised in reference to the right of the plaintiff to obtain a partial recovery on the order. Under the contract of purchase it was agreed that the roller should be paid for in five equal annual instalments with interest. The order in suit was drawn to include the first payment of $100.</p> <p>The second cause of action was based on a town order for $400 given in part payment for a rock crusher purchased by the town board of the defendant town on September 23, 1907, for $1,600, to be paid in four annual instalments of $400 each, the first to become due and payable March 1, 1909. The action was brought on the order which first fell due. There was no pretense that this machine was bought by virtue of ch. 83, Laws of 1899, or that any petition had been made to the chairman requesting any such purchase. It further appeared that no action had been taken by the electors authorizing the purchase or levying any tax to pay for the same, and it also appeared that the highway taxes of the town were payable in labor. There was some testimony tending to show that the town officers used the stone crusher two or three days in the fall of 1907. A new town board was elected the following spring, and the defendant attempted to show that thereafter the machine was not used, but the court excluded the testimony. Judgment was awarded for plaintiff on this order. Defendant appeals. The decision of the court on the orders involved in the third and fourth causes of action is not complained of.</p>

<p> Justices’ courts: Appeal: When taken: Unlawful detainer: Undertaking to stay execution: Breach: Failure to appeal: Recitals: Es-toppel. </p> <p>1. An appeal from justice’s court is not taken until both, a notice of appeal and an affidavit of good faith, are presented to the justice as required by sec. 3754, Stats. (1898).</p> <p>2. Where the defendant in an action of unlawful detainer gave notice of appeal from a judgment of restitution and an undertaking to stay execution under sec. 3368, Stats. (1898), conditioned to pay the costs of the appeal and the rent and other damages accruing during the appeal, but did not perfect the appeal by filing any affidavit of good faith, such conditions of the undertaking never became operative and hence could not be breached.</p> <p>3. Although such undertaking recited that an appeal had been taken, and upon the filing thereof a writ of assistance, which had been issued, was returned unexecuted and defendant remained in possession of the premises for two weeks or more before she was put out on a second writ, those who executed the undertaking were not estopped from claiming that no appeal had in fact been taken.</p>

<p>MaNdamus. Tbe alternative writ was issued out of tbis court on April 3, and on tbe return thereto tbe cause was argued on April 23, 1912.</p>

<p>Appeal from a judgment of tbe circuit court for Milwaukee county; E. C. Eschweileb, Circuit Judge.</p> <p>Tbis is an action to recover damages for personal injuries received by tbe plaintiff while employed by tbe defendant as fireman at tbe roundhouse, machine, blacksmith, and repair shops of tbe defendant in Milwaukee. It was plaintiff’s duty to oil or grease and to start and stop an engine to supply power in tbe various buildings. Tbe complaint alleges negligence on tbe part of tbe defendant in not furnishing tbe plaintiff a safe place to work, in not warning him of tbe dangers of bis employment about tbe engine, in furnishing an engine which was defective, and particularly in furnishing a defective, decayed, and wornout belt, which was used to run tbe governor on tbe engine and which ran on a pulley on a shaft with tbe ■fly-wheel and on a pulley attached to a shaft connected with the governor. The answer denied these negligences and alleged that the plaintiff was negligent and assumed the hazards and dangers that caused his injuries.</p> <p>The plaintiff testified that on the morning of January 3, 1910, he came from the boiler into the room where the engine stood, lifted a bar in the fence guarding the engine, the shafting, and the attached eccentric, drive pulleys, fly-wheel, and belts, and bent down to lift the cover from a grease cup between the pulley on which the large belt ran which transmitted power to the main shaft, and the pulley on which the belt ran which was connected with the governor; that the belt operating the governor broke, whipped up, and struck him on the right side of the head with such force as to render him unconscious; and that he fell down and received the injuries complained of.</p> <p>The theory of the defense was that the plaintiff was caught in the pulleys or moving parts of the engine and thus injured.</p> <p>There was medical evidence that the plaintiff had an injury on the right side of the head; that an operation was performed upon him because of it; that the right shoulder was severely bruised; that the elbow and wrist of the right arm were injured; that several ribs were broken; and that he had nerve and brain troubles as a result.</p> <p>There was evidence that the belt which plaintiff claims struck him traveled between 360 and 370 feet per minute, and that if the belt were to break while going at that rate it would not fly up, but would simply drop to the floor. There was evidence also that the belt was found lying on one side of the engine and that the plaintiff was found lying on the other side, where he could not have been reached by the belt. There was evidence on these questions, in behalf of the plaintiff, to the effect that the engine had pounded frequently; that such pounding came from the drive shaft and might have resulted in a jerking upon the belt which would tend to cause it to break suddenly and cause it to fly violently up and out from the point of breakage; and there was evidence that one end of the belt lay near the plaintiff’s head when he was discovered.</p> <p>There was no positive evidence as to how the injuries suffered by the plaintiff, other than the one upon the head, were received, for there were no eye-witnesses of the accident. The circumstances all corroborate the inference that they were inflicted by the moving or revolving parts of the engine, either by the plaintiff having been caught and drawn against the moving parts of the machine or by his falling upon them.</p> <p>The jury returned the following verdict:</p> <p>“(1) Was the plaintiff injured on January 3, 1910, while in defendant’s employ and at defendant’s roundhouse? A. (by the court). Yes.</p> <p>“(2) Was the plaintiff struck on the head by a part of the governor belt attached to the stationary engine in defendant’s roundhouse? A. Yes.</p> <p>“(3) Did the defendant negligently fail to provide a safe, proper, and suitable governor belt for said stationary engine ? A. Yes.</p> <p>“(4) If you answer the second and third questions each ‘Yes,’ then answer this question: Was such failure of the defendant to provide a proper, safe, and suitable governor belt for said stationary engine the proximate cause of plaintiff’s injuries ? A. Yes.</p> <p>“(5) Was the plaintiff guilty of any want of ordinary care which proximately contributed to his injuries? A. No.</p> <p>“(6) If the court should be of the opinion that plaintiff should recover, at what sum do you assess his damages? A. $3,500.”</p> <p>This is an appeal from a judgment on the verdict.</p>

<p> Street railways: Wrongful ejection of passenger: Special verdict: Inconsistency: New trial: Evidence: Credibility of witnesses: Questions for jury: Punitory damages. </p> <p>1. In an action for the wrongful ejection of a passenger from a street car, a finding of the special verdict that plaintiff’s conduct was not such as to justify the conductor in ejecting him is not inconsistent with a finding that he was not ejected under circumstances of aggravation or cruelty, with vindictiveness or malice; hence there is no such conflict in the verdict as requires a new trial.</p> <p>2. The evidence being conflicting, the jury were not bound to believe the statements of either of the participants in their entirety.</p> <p>3. The allowance of punitory damages is never a matter of right hut, even where the proper elements are found to exist, rests in the sound discretion of the jury.</p>

<p>Appeal from an order of the circuit court for Milwaukee county: OReeu T. Williams, Circuit Judge.</p> <p>In June, 1909, the defendant, Joseph Finnis Brown, was arrested and charged with a crime. Such proceedings were had that he was admitted to bail upon a recognizance signed by himself as principal and his mother, Mary Brown, as surety. The surety, not having justified, deposited $1,000 with the clerk of the court, who accepted the same in lieu of bail, or, as it was claimed, in lieu of the justifying of the surety, and thereupon the defendant was admitted to bail. The defendant while upon trial before the court and in December, 1909, absconded, and upon motion of the district attorney the court on December 6, 1909, made an order forfeiting the bail so deposited, and pursuant to such order the clerk of the "court on July 7, 1910, paid over the $1,000 so deposited to the treasurer of Milwaukee county. In July, 1911, the defendant returned to Milwaukee and surrendered himself to the authorities, and on October 26, 1911, withdrew his plea of not guilty and pleaded guilty and was sentenced to the state prison at Waupun. On November 4, 1911, application was made by Mary Brown, upon notice duly served upon the district attorney of Milwaukee county, for an order to reinstate the recognizance of the defendant which had been forfeited December 6, 1909, and for general relief. The application was based upon an affidavit made by Mary Brown setting forth in effect that on the 28th day of June, 1909, when the defendant was' arrested, she signed the undertaking as surety, and, being unable to qualify, deposited with the clerk of the municipal court the sum of $1,000 in lieu of qualification on her part; that while the defendant was being tried he absconded and failed to appear; that thereafter the undertaking and bond were declared forfeited by the court; that in July, 1911, the defendant returned to the city and on August 15, 1911, was taken into custody; that on October 26, 1911, defendant withdrew his plea of not guilty and entered a plea of guilty and was sentenced to the state prison at Waupun, Wisconsin; that af-fiant is a widow and is dependent upon her own labor for support; that in order to qualify as surety on the undertaking she was obliged to mortgage her home in the sum of $1,000; that she made the affidavit as a basis for a motion that the undertaking and bond of defendant be reinstated and the moneys deposited by her be returned to her. Upon this motion, which was heard November 27, 1911, the court made the following order:</p> <p>“It is ordered, that the order of this court of December 6, 1909, declaring the recognizance of the defendant forfeited, and that the one thousand dollars ($1,000) so deposited by Mary Brown as a surety be converted into the treasury of Milwaukee county, be and the same hereby is vacated, set aside, and canceled, and the recognizance of the defendant reinstated, in force and effect as though it had never been forfeited.</p> <p>“On like motion, it is further ordered, that the said sum of one thousand dollars ($1,000) so converted into the treasury of Milwaukee county be returned and delivered to the person by whom the same was deposited.”</p> <p>The plaintiff appealed from this order.</p>

<p> Mutual benefit societies: Constitution and by-laws: How far contractual: Amendment: Assessment fund: Wrongful diversion of revenues: Injunction: Amotion of officers: Irregularity: Be--instatement: Bepayment of expenses of litigation: Equity: •Costs: Discretion: Appeal: Beview. </p> <p>1. The “constitution and by-laws” of a mutual benefit society provided that all moneys received from assessments, except three per cent, thereof, should be placed to the credit of a fund, established for the payment of benefit certificates and known as the assessment fund, and that the laws in regard to such fund should not be amended except in the manner therein provided. Provision was also made for the collection of additional revenues, to be placed in a general fund, to defray necessary expenses for management, benefits, or agitation. Held, that the provision in respect to the assessment fund was contractual and could be modified only by amendment in the manner prescribed, or by mutual consent.</p> <p>2. The society engaged an organizer, under a contract by which he was to receive as part of his commission seventy-five per cent, of the first twelve assessments of each new member he obtained, and at several, successive meetings of the general council a resolution was adopted providing that said seventy-five per cent, of the first twelve assessments should be carried into and credited to an agitation fund; but no amendment of the constitution and by-laws was otherwise attempted. This diversion of moneys from the assessment fund was acquiesced in for several years, but suit for an injunction was finally brought by members of the society. Held, that relief against future diversion of the fund was properly granted.</p> <p>5. Every corporation has at common law, as incident to its existence, the power of amotion. Generally this power is to be.exercised only for cause and after notice and hearing, but the statute, or the articles where the statute does not forbid, may provide otherwise.</p> <p>4. Where officers of a mutual benefit society, acting in good faith for what they deemed to be the best interests of the society, and under tlie advice of counsel, attempted to remove certain subordinate officers, but in so doing proceeded irregularly, without notice or bearing, they should not be required to repay to the society moneys expended by them out of the corporate funds for attorneys’ fees and other necessary expenses in unsuccessfully defending an action by the officers so removed to compel reinstatement.</p> <p>5. In an action against a corporation and its officers to enjoin a wrongful diversion of corporate funds and to recover moneys improperly paid out, judgment having gone in favor of the plaintiffs and the trial court in its discretion having awarded costs against such officers individually, the supreme court on appeal declines to review such discretion.</p>

<p>Appeal from a judgment of the circuit court for Milwaukee county: F. C. EschweileR, Circuit Judge.</p> <p>On or about February 15, 1909, John C. Wilhelm was received into the Order of Columbian Knights as an insurance member, and thereafter during his lifetime paid the required dues and complied with the rules and regulations of the order. He died on August 14, 1910, and after proof and due notice of his death demand was made by the plaintiff, the beneficiary of the insured, for the amount due upon the certificate of insurance, which payment was refused, and this action was brought to recover the amount alleged to be due. By its answer to the complaint the defendant alleged that the certificate of insurance was void because of misrepresentations made by the insured in his application for insurance, as to his condition of health, previous illness, etc., and on the trial testimony was introduced tending to show that the insured, prior to the time of his application for insurance, had been afflicted with certain ailments which in his application he denied having-had, and that in June, 1908, he was confined to a hospital and at that time underwent a surgical operation. At the close of the testimony the court directed a verdict for the defendant, and from a judgment entered on such verdict this appeal is taken.</p>

0. EschweilbR, Circuit Judge. Action brought by plaintiff as administrator to recover damages for the death of his intestate, John H. Tidmarsh, alleged to have been caused by the negligence of the defendant. Deceased met his death under the following circumstances: In the yards of the Pennsylvania Coal and Supply Company, located at the southern terminus of Eifteenth street in the city of Milwaukee, the defendant owns and operates two parallel tracks running east and west.

<p>Appeal from a judgment of tbe circuit court for Milwaukee county: W. J. TubNeb, Circuit Judge.</p> <p>Tbe plaintiff in October, 1908, was granted a divorce from bed and board for two years on tbe ground tbat tbe defendant was given to intoxication. Tbe judgment gave tbe custody of tbe four minor children of tbe parties to tbe defendant, and provided for tbe payment of certain sums monthly for her support and tbat of her children. Tbe judgment also provided tbat at tbe end of tbe two years either party “may proceed in tbe action as be or she shall deem for bis or her best interest.” It appears by tbe opinion of tbe trial judge tbat at tbe time of tbe judgment tbe defendant bad not been using intoxicating liquors since tbe commencement of tbe action, a period of a little less than two years. Tbe parties lived separate and apart after tbe judgment, and in December, 1910, tbe plaintiff filed bis petition alleging only tbe entry of the original judgment and tbat tbe parties bad complied therewith, and praying tbat an absolute judgment of divorce be granted to him. A general demurrer to this petition was overruled, and an answer was filed by defendant alleging improper conduct of various kinds on tbe part of tbe plaintiff during tbe two years, but not alleging adultery, and praying for tbe dismissal of tbe proceeding.</p> <p>After tbe taking of testimony tbe trial court found, among other things:</p> <p>“1. Tbat upon tbe findings made in tbe action at tbe time tbe interlocutory judgment herein was entered, tbe plaintiff was entitled to an absolute decree of divorce, and that tbe intention of tbe court at tbat time in and by said interlocutory judgment reserved tbe right to enter a final judgment upon the record as it stood at tbat time, upon tbe application of either party, providing tbe parties did not unite during tbe period of such interlocutory judgment.</p> <p>“2. Tbat more than two years has elapsed since tbe date of tbe entry of such interlocutory judgment, and no appeal therefrom has been bad and no order has been made or entered since tbe date of the entry of said interlocutory judgment changing the status of the parties to this action, that the plaintiff and defendant have not lived or cohabited together since the date of the entry of said interlocutory judgment, and that the parties have not and cannot live together as husband and wife.</p> <p>“3. That the defendant in this action has not since the commencement thereof been given to the use of intoxicants, that there is nothing in the record of the plaintiff which should prevent the court from granting the relief prayed for in his petition, that he is now performing his duties as a father and has, ever since the decree was entered, to the best of his ability, and that he has devotion for his children and has done what he is doing for the best interests of the children.”</p> <p>Other findings with relation to the property and custody of the children were made and the plaintiff was granted an absolute divorce, also the custody of the eldest son, and required to pay a monthly sum for maintenance, while the defendant was given the custody of the other three children. Erom this judgment the defendant appeals.</p>

<p> Husband and wife: Necessaries furnished to wife: Liability of husband: Pleading: Appeal from civil court of Milwaukee county: Judgment when reversed: Return of clerk: Appeal to supreme court: Findings' of fact: Presumption. </p> <p>1. For necessaries furnished his wife a husband is liable only under special circumstances and conditions, and these must be pleaded in order to state a cause of action against him.</p> <p>2. Under subd. 3, sec. 28, ch. 549, Laws of 1909, judgments of the civil court of Milwaukee county are not to be reversed on appeal unless it affirmatively appears that manifest error in that court deprived the appellant of a fair trial, and that by reason thereof his rights cannot he protected and substantial justice done without a reversal of the judgment.</p> <p>3. No such prejudicial error resulted where, after overruling a demurrer ore terms to a complaint which failed to allege the necessary special circumstances to entitle plaintiff to recover for necessaries furnished to defendant’s wife, the trial court proceeded with the trial and found, upon the evidence, that such special circumstances and conditions existed, — there being nothing in the record to show that defendant was surprised by the court’s ruling or was unable to produce his evidence on those issues, or that he did not fully meet those issues with such evidence as he could command.</p> <p>4. Appeals to the circuit court from the civil court of Milwaukee county should be taken in the manner provided by ch. 160, Stats., relating to appeals from justices’ courts; and the return of the clerk should contain the evidence taken upon the trial.</p> <p>5. Where, upon such an appeal, the return did not contain the evidence, but the judgment was affirmed by the circuit court upon the minutes of the clerk and the findings of the judge of the civil court, such findings will, upon an appeal to the supreme court, be presumed to have been sustained by the evidence.</p>

Eowlee, Judge. Action to recover damages sustained, by the statutory claimants in such cases, for the alleged negligent killing of plaintiff’s intestate.

<p>■'(1, 2) County courts: Appeal: Allowance after time limited: Bond not seasonably filed: Curing error. (3-15) Wills: Construction: “Residue:” “Then living:” Realty: Equitable conversion: Executors: Payment of taxes, etc., from personalty: Accumulations: Perpetuities: Income from realty: Persons presumptively entitled: Expectant estates: “Securities” at “par value:” “Children:” “Nephews."</p> <p>1. Under sec. 4035, Stats. (1898), providing that after the time for appealing has expired no appeal from the county court shall he allowed hy the circuit court without “reasonable notice” to the party adversely interested, it was not error in this case — a proceeding for construction of a will — to allow such an appeal to he taken on oral notice in court, other appeals in the same matter being then pending, all the parties being present and all except one consenting, the trial of the appeal being continued to a later date and not concluded for several months, and there being no showing of surprise or hardship.</p> <p>:2. Notice of an appeal from the county court having been duly given although the required bond was not seasonably filed, and, after the filing of such bond, the circuit court having proceeded with the trial in all respects as if the appeal had been properly taken, it will be considered on appeal to the supreme court that the circuit court impliedly, if not expressly, approved of the procedure followed, and that the default in the timely filing of the bond was cured.</p> <p>'3. The terms "residuum” and “residuary estate” properly mean what remains of a decedent’s estate after debts and expenses are paid and particular legacies deducted. ■</p> <p>4. If it appears, however, that a testator intended there should be a succession of residuums to be distributed from time to time, his intention in that regard should he carried out despite the usual significance of that term.</p> <p>5. A will drawn by an experienced and able lawyer for a successful and methodical business man, disposing of an estate of more-than half a million dollars, of which about $200,000 was in real, estate, gave the testator’s wife, aged sixty-three years, the use during life of the homestead, and its contents, providing that, the taxes and repairs should be paid out of the residue of the estate, also bequeathed to her his horses and carriages and. $30,000 in cash and securities, and then set apart in trust $250,000, the income of which was to be devoted to her support during life. At her death $125,000 of this trust estate was. to go to found a children’s hospital, provided certain conditions, should be met within four years after the wife’s death, and in default thereof such sum was to fall into the residue of the estate and be distributed under the residuary clause to the then living children of his brothers and sisters, with one exception. Cash legacies of $3,000 (increased by codicils to $5,000) were-given to his nephews and nieces at the time of his death. Other cash legacies were given to various relatives, some payable after his wife’s death, with the provision that in case of the legatee’s, previous death the sum bequeathed should fall into the residue. Then came the residuary clause which declared that “after providing for the devises, bequests, and legacies therein mentioned” and “after the use of so much” as was necessary to defray taxes and repairs on the homestead and the payment of two additional legacies, he gave the “balance of the residue and remainder of my estate in equal parts to the then living children of my brothers and sisters,” except one. Held, that the-testator had in mind but one residue, not a succession of them; and such residue could only he definitely determined, and hence-distributed, when the bequest to the children’s hospital was-either earned or forfeited; and that the words “then living” had reference to that time and not to the time of testator’s death.</p> <p>6. Where, as in this case, the scheme of the will can be carried out without the conversion of real property into money, the estate-being ample to pay all specific legacies and demands without the-sale of any realty, and the will provides explicitly for the sale-of the homestead after death of the widow but makes no reference to any other sales, and the residuary clause applies to “all the rest, residue, and remainder of my property . . . both real and personal,” the doctrine of equitable conversion cannot be-applied so as to construe the will as dealing only with personal property.</p> <p>7. Where a will directs that taxes and repairs on the testator’s homestead, which is devised to his widow for life, he paid from the residuary estate, these expenses must he paid from the personal estate' before resorting to the real estate or the rents thereof.</p> <p>8. No specific directions having been given for disposition of the income arising from real estate and personalty included in the residuary estate, the testator must he deemed to have directed that it accumulate until the time when such residuary estate is to he distributed.</p> <p>9. As to the income from the personal estate such accumulation is permitted, hut secs. 2060-2063, Stats. (1898), do not permit accumulations of the rents and profits of real estate except for certain specific purposes and uses which are not present here.</p> <p>10. Under sec. 2064, Stats. (1898), therefore, the rents and profits of real estate must go and should he distributed annually to the persons entitled to the next eventual estate.</p> <p>11. Such persons in this case are, until the residuary legatees become absolutely fixed by the earning or forfeiting of the hospital bequest, the living nephews and nieces of the testator whose estate in expectancy fulfils all the calls of said sec. 2064.</p> <p>12. While the word “securities” construed strictly does not cover corporate stock, but rather bonds or evidences of debt, it is generally used in a broader sense and as embracing certificates of stock.</p> <p>13. Where the testator, who owned both stocks and bonds, bequeathed to his wife $25,000 in cash or, at her election, “securities . . . of said amount of $25,000 at par value,’’ she was entitled to take bank stocks at their face value, although they were actually worth much more.</p> <p>14. The word “child” in a will may sometimes be construed as applying to a grandchild, and “nephew” may be held to cover grandnephew, but only when the evident purpose of the testator demands such a construction.</p> <p>15. Bequests to “children” of testator’s brothers and sisters and to “nephews and nieces” living at the time of his death are held, in this case, not to include the son of a nephew who died before the testator, especially in view of the facts that the will was drawn with much care and great precision of expression and that in other instances provision is expressly made therein for the children of a legatee to take in case of the latter’s death.</p>

The plaintiff is the owner of lots 3, 4, and 5, and the north five feet of lot- 6, block 29, Carman’s addition to the city of Monroe. This property is located on the east side of Adams street and had been inclosed by a fence for many years. Plaintiff also owned at one time other property lying immediately to the south of that described, and a hoard walk had been maintained adjacent to said property and on the east side of Adams street for about thirty-five years.

<p> Criminal law: Murder: Separate trials: Evidence: Confessions of co-defendant: Conspiracy: Instructions to jury. </p> <p>1. There was no abuse of discretion in denying an application by one of two defendants jointly charged with murder, for a separate trial on the ground that she desired to call her eodefend-ant as a witness, where, previous to the trial, such codefendant had made two confessions in both of which he implicated her, and there was no showing that he had changed his attitude or had made any different statements or was willing to, hut merely the affidavit of the moving party, made on information and belief, that she could prove by him that she was not guilty; and where upon the trial such codefendant declined to take the stand.</p> <p>2. Where such application was also based on the ground that the confessions of the codefendant were calculated to prejudice her upon a joint trial, it was not error to deny it if such confessions were proper to go before the jury in case she were tried sep- ' arately.</p> <p>3. The mere fact that defendants jointly charged with murder were co-conspirators in the crime, does not render the confession of one admissible against the others.</p> <p>4. Upon prima facie proof that one of two codefendants admitted the truth of a confession made by the other, such confession becomes competent evidence against the former.</p> <p>5. The trial court having had the advantage of seeing the witnesses on the stand and hearing them testify, its decision to admit the confession of one defendant as evidence against his codefendant is sustained notwithstanding the written testimony is not clear, — particularly in view of the fact that the jury was instructed to disregard such confession unless satisfied beyond a reasonable doubt that its truth was admitted by the codefendant.</p> <p>6. Erroneous general instructions as to the admissibility of statements and acts of co-conspirators and the evidence of an accomplice, referring evidently to confessions of a codefendant who did not testify, were rendered harmless by an explicit instruction that such confessions were binding only on the defendant making them unless, beyond a reasonable doubt, they were acquiesced in and assented to by the other.</p> <p>7. The trial court is not required in a criminal case, even upon request, to take up the different items of evidence relied on to establish the defendant’s guilt and instruct the jury as to each that it is insufficient in itself to prove guilt.</p> <p>8.’ Upon the trial of a wife and her alleged paramour for the murder of her husband, a requested instruction to the effect that the jury must find the wife not guilty unless “she was an active participant in the design and doing her part at the time in its furtherance,” was misleading, in that the jury might infer therefrom that the wife could not be convicted unless she assisted the other defendant in delivering the blows which resulted in her husband’s death, and was therefore properly refused, the court correctly charging that it was sufficient if a conspiracy in fact existed and the wife conspired, confederated, and agreed with her codefendant to commit the murder.</p>