Volume 150 — Wisconsin Reports

<p>Appeal from a judgment of tbe circuit court for Winnebago county: Geo. W. Buk-Nell, Circuit Judge.</p> <p>In tbis case there was a special verdict as follows:</p> <p>“(1) Was tbe plaintiff injured at tbe time alleged by tbe breaking of tbe drive-belt on tbe sticker at wbicb be was set to work? A. (by tbe court). Yes.</p> <p>“(2) Did tbe defendant at tbe time tbe plaintiff was injured negligently fail to equip said sticker with a reasonably safe drive-belt ? A. Yes.</p> <p>“(3) Did defendant at tbe time plaintiff was injured negligently fail to equip said sticker with a suitable and proper drive-belt shifting device ? A. Yes.</p> <p>“(4) Did tbe defendant negligently fail to warn and instruct tbe plaintiff as to tbe danger to which be was liable while doing tbe work at said machine equipped as it was ? A. Yes.</p> <p>“(5) Did tbe defendant negligently omit to securely guard or fence said belt ? A. No.</p> <p>“(6) If to questions Nos. 2, 3, 4, or 5, or any of them, you answer 'Yes/ then were tbe facts so found tbe proximate cause of plaintiff’s injury ? A. Yes.</p> <p>“(I) Was plaintiff furnished with a place to work as safe and free from danger as other persons of ordinary care, prudence, and'caution, engaged in like business and under like circumstances, generally furnished at tbe time of tbe injury ? A. No.</p> <p>“(8) Was plaintiff injured at tbe time and place in question as tbe result of a pure accident ? A. No.</p> <p>“(9) Did any want of ordinary care on tbe part of plaintiff contribute to cause of injury? A. No.</p> <p>“(10) What sum will fairly compensate tbe plaintiff for the injuries be sustained? A. $6,000.”</p>

<p> Life insurance: Mutual benefit societies: Amending constitution, etc.: Power to change contract: Consent to change: Payment of assessments. </p> <p>1. Although, the certificate issued by a mutual benefit society to a member provides that he shall comply with all the laws, rules, and regulations of the society, and power to repeal or amend the constitution and by-laws is reserved therein and in the charter, this does not authorize the society by any such amendment or repeal to nullify or materially alter the contract of insurance expressed in the certificate.</p> <p>2. Thus, where the contract was that the society should pay the wife of the member $1,000 upon his death, but if she died first should pay him $250 upon her death and the balance after his decease to a beneficiary named by him, no amendment to the constitution and by-laws could cut off his right to receive the $250 at the death of his wife, and make the whole sum of $1,000 payable only upon his death.</p> <p>3. Where the member continues to pay assessments after notice of - an amendment to the by-laws purporting to alter his contract, but refuses to surrender his certificate and accept a new one containing such alteration, the payments do not show a consent to the change.</p>

<p> Contracts: Construction: Conflict 'between written and printed parts: Building contract: Time for furnishing materials. </p> <p>1. Where a contract is filled in upon a printed form and the written provisions cannot he reconciled with the printed, the written provisions control.</p> <p>2. In a contract dated May 26th, hy which a manufacturer agreed to supply to a building contractor terra cotta from a factory in New Jersey for a store building being erected in Wisconsin (the plans and specifications -of which the manufacturer already had), a printed provision .that the contractor should furnish details was modified by a typewritten provision that the manufacturer should “make up and furnish to the architect all details for his correction, etc., as to measurements.” Another provision (printed, except the typewritten word “eight”) required the first shipment to be made “within eight weeks from the date of receipt by the manufacturer of proper detail drawings and complete information from which to do the work,” balance to be delivered as rapidly as the construction demanded, “provided complete drawings and information be received prior to -.” Then, in typewriting, it was stated that the manufacturer agreed to ship certain parts of the material “within the time mentioned above, or at least enough of it so that the middle store . . . can be occupied by August 1st.” According to the proof this would require shipment of July 13th. Held, that the eight-weeks period began to run from the date of the contract, and not from the time the detail drawings were approved and returned by the architect.</p>

Thomas P. Derrickson died December 9, 1909, leaving a will of which the portions involved in this proceeding are as follows: “Second. I give and devise to my daughter, Elizabeth Hamilton, the sum of one thousand dollars, and in case she dies before I do, I will that said sum of money shall go to her children in equal shares. “Third.

<p> Life insurance: Mutual ’benefit societies: By-laws as part of contract: Construction: Who may be beneficiaries: Bight to dispose of proceeds of certificate by will. </p> <p>1. Provisions in the by-laws of a mutual benefit society, which became part of the insurance contract with a certificate holder, as to who might be named as beneficiaries either originally or when a change was made, and that “no payments shall be made upon any benefit certificate to any person who does not bear such relationship as wife, surviving child, heir, blood relative, or person dependent upon or member of the family of the member at the time of his death,” and that in case no beneficiary is named or if those named predecease the certificate holder the amount due on the certificate shall be payable to the immediate relatives and heirs in a certain order therein named, and in default of any such relatives and heirs surviving “then to the next of kin who would be the distributees of the personal estate of the member upon his death intestate,” — did not deprive the certificate holder of the right, which attaches to his insurance contract under the laws of this state, to dispose by will of the proceeds of his certificate.</p> <p>2. So Jield, in a case where the beneficiary named had predeceased the certificate holder and no new beneficiary had been designated in accordance with the by-laws, and the certificate holder bequeathed the proceeds of the certificate to nieces and a cousin, who were not his heirs at law nor his immediate relatives in the order named in the by-laws, there being surviving brothers and a sister.</p>

<p> Criminal law: Homicide: Degrees: Murder in second degree: Manslaughter: “Heat of passion:” Evidence: Sufficiency: Instructions to jury: Harmless errors. </p> <p>1. Where, upon, his own testimony, accepting it as true, the accused should have been convicted, as he was, of murder in the second degree, he was not prejudiced by an incorrect definition, in the charge, of manslaughter in the fourth degree.</p> <p>2. T<? bring a homicide within the third degree of manslaughter as defined in sec. 4354, Stats. (1898), it is not sufficient proof of “heat of passion” for the accused merely to testify that he was exceedingly angry or passionate at the moment in question, but such testimony must be supplemented by proof of facts and circumstances showing such provocation as would ordinarily produce heat of passion.</p> <p>■3. Where a middle-aged man, a member of a gang of section workers on a railroad, had locked out of a box car in which they slept a boy about sixteen years old who was in the habit of returning to the car after the others had retired and disturbing their rest, and in the quarrel which followed the boy, although he was in no personal danger and there was nothing to indicate that the man intended any harm to him or to put any great affront upon him, procured a rifle and either shot at the man or, as he testified, attempted to “shoot past him” and scare him, and in so doing killed another person in the car, he was guilty at least of murder in the second degree.</p>

C. Ludwig, Circuit Judge. Action to recover of a bailee for the wrongful act of his servant while in the line of duty. Plaintiff insured one Schleisinger against damage to his automobile, while in use. The machine was kept in defendant’s garage, he receiving $2Q per month for housing and care.

Rat SteveNs, Circuit Judge. Tbis is an appeal from an order sustaining a demurrer to tbe complaint. Tbe action is in equity upon tbe official bond •of the defendant Dahl as state treasurer, and is brought against Dahl and tbe surety upon tbe bond.

Pabish, Circuit Judge. Action for partition of the following described premises, to wit: the northwest quarter of the northwest quarter and the south half of the northwest quarter of section 28, and the east half of the northwest quarter, the southwest quarter of the northeast quarter, and lot 1 of section 30, all in town 44 north, of range 4 east, situated in the county of Iron, state of Wisconsin.

Action for personal injury sustained by the plaintiff on the 11th. day of March, 1908, while, it is claimed, he was an employee of the defendant.

Action for personal injury. February 26, 1909, plaintiff was an employee of defendant. lumber company, in and about its -sawmill and lumber yard at or near Atlanta, Wisconsin. Defendant, railroad company, was a duly organized railway corporation, its stockholders being the proprietors of the lumber company and its business with little exception, being supplementary to the sawmill manufacturing and logging business of such company.

0. Eschweilee, Judge. This is a creditor’s action, brought by the plaintiff to wind up the affairs of the New Exchange Company, a business corporation, joining as defendants the appellants, Dixon and Bchenning, and E. W. Hahn.

county: A. J. Vinje, Judge. The plaintiff is the owner of a strip of land fronting on Lake Geneva. A highway passes across said land adjacent to said lake.

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

<p> Railroads: Demurrage charges: Recovery lack: Rules: Place of delivery of cars: Duress: Voluntary payment: Evidence: Verdict: Omitted matters: Presumption on appeal. </p> <p>1. Under a rule of a railway company providing that when delivery of freight on a designated carload delivery track or private siding could not he made on account of such track being fully occupied, or for any other reason beyond its control, delivery should be made at the nearest available point, demur-rage could not be charged until the free time for unloading had elapsed after the car was placed at the nearest available point where it could be unloaded and, perhaps, notice given to the consignee.</p> <p>2. A rule that “cars for unloading shall be considered placed when such ears are held awaiting orders from consignors or consignees,” does not apply to the case of cars which by contract are to be unloaded on a designated carload delivery track, and which for some reason cannot be delivered there, but applies to cases where the carrier is ready to make delivery and the consignor or consignee neglects or refuses to designate the place where delivery is desired.</p> <p>3. Proof that consignees of paving materials, on being offered the use of any available tracks for the purpose of unloading, replied that they “wanted the cars placed as soon as possible to work so that they could unload and avoid teaming expense,” does not show refusal on their part to accept delivery on any track except one previously designated.</p> <p>4. The fact that plaintiffs were in urgent need of money due them on a paving contract from a railway company, and that the latter refused to pay a sum of over $6,000, so due, until a disputed bill of $434 for demurrage was settled, would not be sufficient to establish duress in the payment of such ■ demurrage charge.</p> <p>5. Where, however, the evidence was such that the jury might have found that such payment was made upon the understanding that the matter would be subject to investigation and to readjustment in case of error, the supreme court will not reverse a judgment in favor of the contractor because of an erroneous finding of duress by the jury, but will, in support of the judgment, presume a finding by the court in accordance with such evidence.</p> <p>[6. Whether or not, since the enactment of ch. 362, Laws of 1905, voluntary payment is a defense to a claim to recover a wrongful or excess charge exacted for demurrage, not decided.]</p>

<p> Statutes: Construction: Conflicts: Title: Tillages: Election of trustees. </p> <p>1. Conflicts between different statutes will not be beld to exist if avoidable by reasonable construction.</p> <p>2. Titles of acts may be resorted to in cases of doubtful construction.</p> <p>3. Cb. 329, Laws of 1901, entitled “An act to amend village charters, and providing for the election of trustees,” applies only to villages incorporated under special charters, not to those incorporated under the general charter law.</p> <p>4. Although, under ch. 11, Laws of 1911, the trustees elected in that year in a village incorporated under the general law should have been divided into two classes as therein provided, failure to so divide them was a mere irregularity not invalidating the election, and all trustees then elected were entitled to hold office for at least one year.</p>

Taxpayer’s action to restrain issuance of bonds by tbe city of Prescott. Tbe issues, as to facts, were determined tbus: All facts, exist affording plaintiff, suing as be did, legal capacity to maintain tbe action, if tbe projiosed bonds would be illegal, and defendants are proper parties.

C. Hig-bee, Circuit Judge. The action is ejectment for a small strip of land about six feet wide and twenty-five feet long in block 1 of Rublee & Ober’s subdivision, a part of Rublee & Gillette’s addition to the city of La Crosse. A substantially correct map of said block as it appears on the recorded plat of the subdivision is here given in order to make clear the contentions of the parties.

W. Helms, Circuit Judge. This is an i action to recover damages for personal injuries sustained on January 23, 1909, through the alleged negligence of the defendant in failing to have the door of a certain box car properly fastened, and in placing the car in the train on which the plaintiff was working while the door was swinging out from the side of the car a distance of eight inches, thereby causing the injuries to the plaintiff through the door coming in contact with him…

Rat Steveets, Circuit Judge. This is an appeal from three separate orders raising substantially the same point, namely, the validity of assessment ■of benefits against the plaintiff district.

<p> Guaranty: Oral evidence affecting writing: Ambiguity: Notice of default: Discharge of guarantor. </p> <p>1. Evidence of conversations prior to the signing of a written contract, with reference to the meaning thereof, is not admissible to show an understanding between the parties contrary to the unambiguous terms of the contract.</p> <p>2. Where a guaranty is of payment, not of collection, failure to give notice of a default or to demand payment promptly does not discharge the guarantor, in the absence of any connivance or gross negligence amounting to a fraud upon him.</p>

<p> Railroads: Negligence: Gross negligence: Injury to horses in car: Contract limiting liability: Agreed valuation: Damages: Principal and agent: Authority of drover to act for shipper. </p> <p>1. In order to constitute gross negligence there must he either a wilful intent to injure, or that reckless and wanton disregard of the rights and safety of another or of his property, and that willingness to inflict injury, which the law deems equivalent to an intent to injure. The element of inadvertence must he wanting.</p> <p>2. Evidence that horses shipped by plaintiff on the defendant’s railway were placed in a box ear which was switched upon a sidetrack, and that thereafter another car was pushed in upon such track and against the car containing the horses with sufficient violence to cause it to collide with a third car standing a few feet away, breaking the halters of the horses and throwing them down or upon their haunches, does not show gross negligence on the part of defendant, there being nothing to show that the manner of switching the second car and the consequences thereof were not the result either of pure accident or of that inadvertence which amounts to ordinary negligence only. The question of gross negligence should, therefore, not have been submitted to the jury.</p> <p>3. It is competent for a shipper and a railway company to agree upon a valuation in case of injury, in consideration for which agreement the railroad company accepts a lower rate of freight than it would otherwise he entitled to; and in such case a recovery hy the shipper for an injury resulting from ordinary negligence should be limited to the amount agreed upon.</p> <p>4. In the absence of evidence ter the contrary, a drover in charge of a shipment of horses has authority to enter into a contract fixing the value of the animals shipped and limiting the maximum liability of the carrier to such valuation.</p>

<p>Appear from a judgment of tbe circuit' court for Sauk county: E. Bay SteveNS, Circuit Judge.</p>

<p>Appeal from a judgment of tbe circuit court for Outa-gamie county: Joi-iN GoodlaNd, Circuit Judge.</p> <p>Tbe appeal is from a judgment dismissing tbe plaintiff’s complaint with costs.</p>

<p>Appeal from a judgment of tbe municipal court of Outa-gamie county: Thomas H. Ryan, Judge.</p> <p>This action was brought to recover upon a mutual fire insurance policy. The company does business in Outagamie county. The policy insured against loss by fire on certain property described therein for a period of five years and was issued in March, 1907. During the fall of 1908 members of the company sustained losses which were adjusted,, and the company, having no funds with which to pay the claims, levied an assessment on the members, and the members, in-eluding tbe plaintiff, were notified thereof, also tbe time when tbe same would become payable and tbe place of payment. Tbe assessment was payable April 1, 1909, and tbe plaintiff’s share thereof $10.46, which be never paid, although notified to do so. About two years after this assessment and while plaintiff was in default part of his property was destroyed by fire. He then offered to pay the assessment, which tender was refused. Plaintiff deposited in court $10.46.</p> <p>Plaintiff claims to have sustained a slight loss by reason of lightning striking his barn, which occurred during the time that a former policy issued by the defendant was in force and four or five years before the assessment, in question was made and six or seven years before the loss for which this action was brought. The by-laws of the defendant company, which are made part of the policy and printed upon it as the conditions upon which it is issued, contain the following:</p> <p>“Sec. 9. If any member of this company shall neglect or refuse to pay his pro rata share of any assessment made by said company within sixty days after the same shall be demanded by the company or its agent, the board of directors may annul the policy of the member thus in default, and collect such assessment as provided by law.”</p> <p>“Sec. 15. No person shall receive any benefit or advantage from this company under or by virtue of his policy until all assessments against him or his property are fully paid.”</p> <p>The only question submitted to the jury was the amount of loss. The court directed a verdict for the plaintiff for the amount of loss found by the jury, $1,550. Judgment was rendered accordingly, from which this appeal was taken.</p>

This is an appeal from a judgment in favor of the plaintiff resulting from loss of shipment in transit. The, complaint alleges that the plaintiff delivered to the Southern Pacific Railway Company, at Santa Anna, California, a box of household goods consigned to E. 8.

<p> Schools and school districts: Dissolution: Territory attached to other districts: Liability for debts: Remedies: Action by creditor: Parties: Power of district to borrow money for building. </p> <p>1; Where a municipal corporation, incurs an obligation and is thereafter dissolved and merged in another municipal corpo- . ration by transfer of all its property to the latter, such property remains liable upon the obligation; and this rule applies to school districts.</p> <p>2.-Sec. 424, Stats. (1898), which provides that in case of the dissolution of a school district the town board shall dispose of the property of the district, pay its debts, and distribute the balance of the proceeds as specified, does not furnish an exclusive remedy to a creditor of such school district; and if the town board fails to act and his debt is not paid he has a right to recover by action.</p> <p>3. Sec. 944, Stats. (1898), apparently relates to a case where territory is taken from one municipal corporation and attached to another without affecting the existence' of the former; but at any rate it provides a mere mode of apportionment of property and indebtedness, and furnishes no remedy for the recovery of money, hence does not exclude the remedy by action.</p> <p>4. Sec. 430, Stats. (1898), does not prohibit a school district from borrowing more than $600 for building or purchasing a school house, but the limitation is upon the amount of tax to be raised for such purpose in any one year.</p> <p>5. Where a school district borrowed money to aid in erecting a school house, issued a bond therefor payable in five years, with interest payable annually, and provided for its payment by levying a tax on the property of the district, to be annually collected, sufficient to pay the annual interest on said bond and the principal when due; and thereafter, before collection of the first tax levy, such district was dissolved and its territory divided among three other districts, an action was properly brought against said three districts to recover the amount due and to determine the proportion to be paid by each district.</p> <p>6. In such case each of the three districts is a necessary party to a complete determination of the questions involved.</p>

<p> Parties: Bringing in new defendants: Necessary parties: Executors and administrators: Husband and wife: Menial of successive motions. </p> <p>1. A motion to make the “estate” of a decedent a party to an action was properly denied where, at the time, there was no personal representative upon whom service could be made.</p> <p>2. A note and mortgage given by the purchasers of land for a part of the purchase price were transferred by the vendor prior to her death. After such death the purchasers brought suit against the transferee, alleging a defect in the vendor’s title to the land, that the consideration for the note and mortgage had therefore failed, and that the transfer of the note and mortgage to defendant was a gift and without consideration; and praying that such securities be surrendered up and canceled. It was claimed by defendant and her husband that the securities were taken by her (with his consent) in settlement of an indebtedness of the decedent to them for care and nursing; that if the securities were canceled they would have a claim against decedent’s estate for such services; and that the decedent before her death gave to her relatives considerable sums which it would be the duty of her administrator to collect and apply on such indebtedness. Held, that it was not necessary to bring in the administrator of the decedent as a party defendant, either for his protection or in order to a complete determination of the controversy.</p> <p>3. Although defendant’s husband also claimed that he expected to receive some benefit from the securities assigned with his consent to his wife, yet, there being facts before the trial court from which it might conclude that the moneys due for services rendered to the decedent were the separate property of the wife, there was no error in denying a motion that the husband be made a party.</p> <p>4. A second and third motion to bring in an additional party may properly be denied where a final order has already been made denying the first motion, which the moving parties have made no attempt to vacate, modify, or set aside.</p>

<p> Tax titles: Limitations: Constructive possession: Occupancy: Possession of part of known farm. </p> <p>1. In order that the constructive possession of a tax-title claimant, growing out of the recording of the tax deed, may ripen into an absolute title under the statute (sec. 1187, Stats. 1898), it is necessary that the land remain vacant and unoccupied during the entire statutory period; and the planting and harvesting of two crops upon a small clearing on a farm of 120 acres, accompanied by the annual payment of taxes by the occupant, is sufficient to arrest the running of the statute.</p> <p>2. Although such 'acts of occupancy are confined to one forty, their effect is not necessarily limited to that forty, but where such forty constitutes part of a known farm, as where three contiguous forties were entered as a homestead and, according to the course and custom of the country, a clearing was made on one forty and the buildings erected thereon, adverse possession of the part actually occupied will extend by construction to the remainder of the farm.</p>

<p> Pleading: Overruling demurrer ore terms: Harmless error: Bonds: Breach of conditions: Sale of stallion: Fraud. </p> <p>1. If the overruling of a demurrer ore tenus in this case was error, it is not ground for reversal, the complaint having been formally amended to meet the supposed defect at the close of the plaintiff’s case, and defendants not having been misled or prejudiced.</p> <p>2. Before paying a commission to their agent for selling a stallion, plaintiffs required from him a bond for repayment thereof, conditioned that the sale was valid and binding, that the note received for the price should be paid when due, and if not that the agent should pay back the amount paid to him. Held, that upon breach of the conditions plaintiffs might recover on the bond, even though at the time of giving it the agent had told them of facts going to show the sale and note invalid, and even though they had sold the .note to another person.</p> <p>3. Where the sale of a stallion to a number of farmers is not to be effective unless fifteen shares he taken by purchasers, such shares must be taken in good faith, and the purchase of shares by mere stool pigeons to whom the seller himself furnishes the money therefor vitiates the whole transaction.</p>

<p> Counties: Committees of county loará: Appointment of outsider: Liability for Ms acts resulting in loss: Fraud: Pleading. </p> <p>1. A county hoard has no power to appoint as a member oí a committee thereof a person not a member of the board.</p> <p>2. One not a member of the county board who is appointed to act on a committee thereof is a mere volunteer, having no official authority.</p> <p>3. One who undertakes without compensation to act with a committee and assist a county board in negotiating the sale of county bonds is not liable to the county for loss caused by an honest mistake in judgment. •</p> <p>4. In law every intendment that harmonizes with honesty and fair dealing must be presumed in the light of the alleged facts.</p> <p>5. A mere averment in a pleading that acts and omissions were fraudulent adds nothing to the pleading, nor does it change the essential character of such acts and omissions.</p> <p>6. A complaint alleging that defendant, not a member of the county board, was appointed and served on its committee to negotiate the sale of county bonds to the best and highest bidder; that two bids for the bonds were received, the lower of which was accepted; that defendant controlled the action of the committee and, through fraud and corruption on his part and by collusion with the bidder, induced acceptance of such lower bid, thereby causing pecuniary loss to the county; but that the details and character of such corruption, fraud, and collusion are to the plaintiff unknown — does not state facts showing that defendant committed a fraud in the transaction, and hence states no cause of action.</p>

<p> Railroads: Negligence: Injury to employee of contractor: Rebuilding operations: Right of construction crew to use trestle: Contributory negligence: Evidence: Instructions to jury. </p> <p>1. In an action for injuries to a carpenter employed hy a construction company in rebuilding a railway bridge or trestle, who was struck and injured by a construction train which, on a foggy morning, was backed in upon the trestle with unusual speed and without having given any signal or warning of its approach, the questions whether the railway company was negligent in the running of such train and whether plaintiff, after having looked and listened for the train, which was expected, was negligent in attempting to pass from one end of the trestle to the other on a board walk which had been laid between the rails for the use of the concrete workers, instead of going beneath the structure, are held, upon the evidence, to have been questions for the jury.</p> <p>2. Although the walk over the trestle was laid for use by the concrete workers, yet all the members of the construction crew having been invited to use it in all matters in which it would facilitate their work, if the railway company should have anticipated injury to any person by reason of the way in which it ran the train in question its responsibility is not affected by the fact that it was a carpenter, not a concrete worker, who was injured.</p> <p>3. .Evidence relative to the usual mode of rebuilding bridges on a line of railway in operation, and to the mode of conducting the work at the time and place in question, was admissible in such case to aid in understanding questions of want of ordinary care.</p> <p>4. A requested instruction to the jury which is confused and unintelligible may properly be refused.</p> <p>5. Under the circumstances stated, it was a question for each workman to determine in the exercise of ordinary care and prudence when to use the walk and to what extent and for what purposes connected with the construction work it should be used; and a requested instruction to the jury to the effect that plaintiff had no excuse for being on the trestle unless his presence there was absolutely necessary in the proper prosecution of the work in which he was engaged, was properly refused.</p>

<p> Abortion: Evidence: Dying declarations: Coercion or inducement: Instructions to jury: Physicians and surgeons: Privilege: Experts: Competency: Statutes construed: Relevancy of testimony. </p> <p>1. No reasonable request for a statement of the circumstances under which a mortal injury was inflicted, and no reasonable or proper insistence upon such statement where such insistence is essential to diagnosis by a physician or as a protection against prosecution, will be sufficient to exclude a dying declaration.</p> <p>2. Thus, a dying declaration in which a woman charged defendant, a physician, with having attempted an abortion was not rendered incompetent by the fact that another physician, called to treat her when she was in a dangerous condition, had refused to do so until he procured from her a full history of the case, either to enable him to treat her or for his own protection.</p> <p>3. Instructions given to the jury with reference to such a dying declaration and the weight and credit to be given it, by which the jury were allowed to pass upon the mental capacity of the declarant and the question whether her declaration was made freely and voluntarily, are approved.</p> <p>4. Whether sec. 4075, Stats. (Laws of 1911, ch. 322 and ch. 664, sec. 44), is applicable to criminal cases, not determined. Baknes and Siebeckeb, JJ., are of opinion that it is applicable.</p> <p>5. Sec. 4078d, Stats. (Laws of 1905, ch. 149) — providing that “no person shall be excused or privileged from testifying fully under oath in any prosecution brought under” secs. 4352 or 4583, Stats. (1898), and providing for immunity of the witness from prosecution, for any transaction so testified to, — takes away, in tlie cases specified, not only the privilege against seltincrimi-nation, but also the professional privilege of a physician accorded by sec. 4075, Stats. Barnes and Siebecker, JJ., dissent.</p> <p>6. Sec. 1436, Stats. (Laws of 1903, ch. 426, sec. 8),- — providing that “no person practicing medicine, surgery, or osteopathy shall have the right ... to testify in a professional capacity as a physician or surgeon or insanity expert in any case, unless he or she holds a license,” etc., — does not preclude experts in bacteriology, biology, embryology, etc., from testifying as such, where they are not persons practicing medicine, surgery, or osteopathy and do not testify in a professional capacity as physicians, surgeons, or insanity experts.</p> <p>7. Where a woman upon ■whom defendant is alleged to have attempted an abortion stated in a dying declaration that her sickness followed the removal of a tube alleged to have been inserted by defendant in her uterus, but did not say that such sickness, to the point of disability, followed immediately upon such removal, and it appeared that the severe or acute sickness did not set in until three days later, evidence that her husband had sexual intercourse with her during that interval was irrelevant and inadmissible to contradict her dying declaration.</p>

0. Eschweilee, Circuit Judge. Tbis action was commenced in tbe civil court of Milwaukee county to recover $350, tbe alleged value of a horse wbicb was lost by reason of an injury received on one of tbe bridges in tbe city of Milwaukee alleged to have been defective and out of repair, with notice to tbe defendants of sucb defect. JSTo jury was demanded, and under the practice in such court the case was tried by the court and the following findings made: 1.

The plaintiff is engaged in the business of manufacturing croquet balls, toys, and novelties at Sheboygan, Wisconsin. The defendant is engaged in the manufacture of lumber. On or about January 5, 190J, the president of the defendant corporation called upon the plaintiff at its office in Sheboygan and solicited an order for the purchase of some lumber.

Appeals from a judgment of tbe circuit court for Milwaukee county: W. J. Turheb., Circuit Judge. Henry C. Payne, late of Milwaukee, Wisconsin, died testate on the 4tk day of October, 1904. Tbe defendant Lydia, W. -Payne is tbe widow of tbe deceased, tbe defendant Imogene P. Cameron is bis sister, and tbe defendant Winfield PL. Cameron is tbe son of said Imogene P. Cameron.

<p>Partnership: Assets: Beal estate: Title taken ~by one partner: Resulting trusts: Implied, trusts: Breach of faith: Waiver: Accord and satisfaction: Parol evidence affecting writing: Charitable trusts: Definiteness. -,</p> <p>1. Real estate, not suitable for a particular partnership business nor intended to be or ever is used therein, does not become assets of the firm in equity by mere verbal agreement of the owner, for a consideration, with his_ partners in such business that it shall be considered such.</p> <p>2. The foregoing is because, “No estate or interest in lands, other than leases for a term not exceeding one year, nor any trust or power over or concerning lands or in any manner relating thereto shall be created, granted, assigned, surrendered or declared unless by act or operation of law or by deed or conveyance in writing, subscribed by the party creating, granting, assigning, surrendering or declaring the same or by his lawful agent thereunto authorized by writing.” Sec. 2302, Stats. (1898).</p> <p>3. Real estate, purchased with partnership money, actually or constructively, for partnership purposes, belongs to the firm though the title be taken in the name of one partner with or without the consent of his associate.</p> <p>4., If a person purchase land with money of a partnership given him to buy land for the members to hold as tenants in common, taking title in his own name by previous consent, or subsequent acquiescence, the partners cannot claim it on a resulting trust.</p> <p>E. The rule above stated is because of the abrogation of resulting trusts. Sec. 2071, Stats. (1898).</p> <p>6. If a person deposit money with another to buy land for such person or to hold upon a charitable trust for a class, and such other invests the money, taking title in form as owner, involving a breach of good faith, an implied trust is created in favor of such person or such class according to the facts.</p> <p>7. In the circumstances last stated, if the purpose of the deposit is for the depositee to invest the money in property to be held for a class, and a breach of faith committed by not having the deed show the facts be waived by the depositor, that does not affect tbe title; as to him, in case oí the breach being against, tbe depositor it changes the implied trust into the common-law field of resulting trusts, leaving the depositor no remedy but to recover bach the money, because there is no implied trust, strictly so called, without breach of faith and no enforceable resulting trust.</p> <p>8. Where two persons close an accord and satisfaction by a contractual receipt in writing, it cannot be varied, contradicted,, or explained by verbal evidence.</p> <p>9. The rule as to trusts requiring definiteness of scheme and of beneficiaries who can enforce it, does not apply to charitable trusts.</p> <p>10.In case of a trust for charity, individual beneficiaries may be uncertain and the particular object vague, the latter may be single or broad, only stopping something short of general charity. So the class may be great or small and there may be vagueness in many respects without jeopardizing the trust.</p> <p>[Syllabus by Maksiiall, X]</p>

<p>Wills: Probate: Contest: Questions involved: Evidence: Jurisdiction: Appeal from county court: Judgment: Validity: Constitutional law: Right to make will and have it carried out: Substitution of different scheme by parties interested: Termination of trust: Persons under disability: Change of venue: Parties: Executors: Settlement of accounts: Organising equitable action on appeal: Bringing in parties: Time for taking appeal: Issues: Payments by order of court: Personal liability: Setting aside orders: Waiver: Estoppel: Minors: Attorneys: Guardians ad litem: Compensation: Appeal to supreme court: Reversal: Directions for judgment.</p> <p>1. In a will contest, only evidence hearing on legality of execution, testamentary capacity, and whether the instrument purporting to he the particular person’s will is such in fact, is legitimate.</p> <p>2. A will contest cannot, properly, he turned into an action for construction, reformation, or rescission, since the sole question is whether the p.aper purporting to he the will of the testator represents his legally declared final wishes as to the postmortem disposition of his estate.</p> <p>3. On appeal from an order admitting a will to prohate, the scope of judicial power is limited hy the nature of the proceeding and the rights involved.</p> <p>4. Parties interested in a testate estate are not competent to substitute their will for that of the testator so as to have the former carried out as if it were the scheme of the latter, and the court is powerless to give validity to any such scheme.</p> <p>6.Notwithstanding fatal jurisdictional error within the scope of judicial power as to a particular subject matter, the determination involved is conclusive between the parties and their privies respecting collateral attack.</p> <p>6. In case of error hy acting beyond judicial power, the result is a usurpation and not binding on any one.</p> <p>7. Whether a judgment is jurisdictionally had for judicial error instead of for excess of power, turns on whether the court had jurisdiction of such subjects as the one deliberated upon.</p> <p>8. Jurisdiction of the subject matter has reference not only to nature of cause of action and relief sought, but judicial power of the court, referable to its organic act and other enabling-written laws.</p> <p>9.A cause of action or matter legitimately deliberated upon, may, within the scope of the court’s subjects of jurisdiction, be as broad as parties make it by pleadings, argument, or evidence admitted without objection, but if the court goes beyond that its determination is coram non judice.</p> <p>10. The abstract question in any particular case as to whether the property of a deceased person shall be distributed according to the wishes of the parties interested, or claiming to be so, instead of according to the written law or the will, is not of judicial cognizance.</p> <p>11. The right to make a will is more sacred than that to make a contract; the former being beyond judicial power to disturb on equitable grounds while the latter is not.</p> <p>12. The right to make a will was recognized as one of first importance when the constitution of Wisconsin was adopted and enjoyment thereof was guaranteed thereby,</p> <p>13. Inherent in the right to make a will there is a constitutional right to have one which is validly executed carried out according to-the intent of the testator.</p> <p>14. Proceedings to obtain admission of a will to probate constitute an action in rem to establish status to which the public is a party; but without capacity to substitute any scheme of distribution for that of the testator.</p> <p>15. Upon the person designated according to law to propose a will for probate performing his duty, judicial doors open for that particular purpose only of passing upon such proposition.</p> <p>16. A will in possession of the proper county court for determination of its admissibility to probate, being a subject of an action in rem in such court, the thing is provable or disprovable according to law and as regards whether it is what it purports to be; if proponent and persons interested drop out the subject of the action remains to be dealt with, the court’s sole function being to determine legality of execution and genuineness of testamentary declaration.</p> <p>17. In general, all interested in trust property, if sui juris, may, by agreement, terminate the trust.</p> <p>18. The rule last stated does not apply where any of the parties are under disability, or where the' settler made known, expressly or plainly, his intention that such power should not exist.</p> <p>19. Excluding merely nominal parties, all who have appeared in an action and are interested on the same side, though not necessarily on the same side of the record, constitute one party as to making application for a change of venue, and must join to satisfy sec. 2625, Stats. (Supp. 1906: Laws of 1905, ch. 282).</p> <p>20. In an appeal from a final order settling; an executor’s account, all persons adversely interested may he brought in and the proceedings organized as an equitable action to settle the dominant controversy and all others germane thereto; the persons appearing being arranged as plaintiffs or defendants according to their actual attitude, as near as practicable.</p> <p>21. In the situation last stated persons who have wrongfully possessed themselves of portions of the trust fund may be brought in and appropriate redress afforded.</p> <p>22. In case of probate proceedings had in due course for the distinct purpose of determining the amount to be allowed to an executor as counsel fees and an order being minuted on the court journal intended to finally close-the matter, the right of appeal commences to run from that date.</p> <p>23. The rule last stated does not apply to a presentment involving jurisdictional error or extra-judicial- elements indicating that the determination was not a final judicial determination of the judicial questions or a mere preliminary determination to be followed by a final order.</p> <p>24. A county court order entered on due presentation with opportunity for partie's to be heard, and ordinary advisory orders as. regards business management, of an estate, acted upon in good faith by an executor or administrator, protect such executor or administrator from personal liability.</p> <p>25. Time for appealing from a final determination in county court, made in due course in the administration of an estate, dates from such determination whether embodied in a formal order or merely minuted upon the court journal.</p> <p>26. A court memorandum, made in á hearing, on application for settlement of an executor’s final account and preliminary to the final order, as to the amount to be allowed for attorneys’ fees and compensation of guardians ad litem, does not set time running to appeal from an allowance in harmony therewith by such final order.</p> <p>27. A contract between attorneys and representatives of persons not suA juris and others, — beneficiaries of a trust fund held by an executor, — requiring such attorneys to guard the fund against undue depletion, yet stipulating for such attorneys, compensation equal to the amount the court shall allow adversary attorneys, making it for the pecuniary interest of the former to-have such amount placed high and their duty to have it placed as low as practicable, is contrary to public policy, not binding on the beneficiaries, especially ■ those who are sui juris, and does not create any legitimate basis for the court to act upon.</p> <p>28. If an executor acts, reasonably, and in good faith in the disbursement of money pursuant to an order of the supervising court within its jurisdiction,to make, he is protected thereby from personal liability.</p> <p>29. An executor who pays out trust funds pursuant to the court’s direction outside the scope of. any subject matter of such court’s jurisdiction is personally responsible therefor.</p> <p>30. Beneficiaries of a trust fund who by mistake as to their own rights or authority over such fund consent to improper disbursements therefrom to attorneys and guardian ad litem, for past services, are not estopped from insisting upon a restoration of the fund; especially is that so as to beneficiaries who are not sui juris and represented by guardians having no right to stipulate away their rights.</p> <p>31. If an executor, in good faith, disburses money of a trust fund pursuant to an order, bad for error, such order if seasonably and properly challenged, may be set aside or corrected so as to permit following the fund and recovering from the parties who received the money, but not so as to charge the executor personally.</p> <p>32. Waiver does not require any consideration, lost or gained, to support it, but does require capacity on the part of the alleged waivor to give away his rights.</p> <p>33. In the absence of bad faith, neither the doctrine of estoppel nor that of waiver applies to minors.</p> <p>34. On a general appeal from the final judgment in the settlement of an estate in county court, the circuit court becomes possessed of the whole subject matter involved in such order and may make all persons parties necessary to a final settlement or who should be present for their due protection, and the issues cannot be so narrowed by pleading or consent as to interfere with judicial competency as to the parties under disability, to decide any matter required by the evidence to be decided to fully redress the dominant wrong and all others subsidiary or germane thereto.</p> <p>35. Legitimate counsel fees for the executor in an administration matter are, in general, limited to fair compensation for services reasonably required to be done and actually performed, commonly done by one attorney, or firm of attorneys.</p> <p>36. Attorneys for beneficiaries under a will who intervene and assist in the administration of an estate are not entitled to be paid for their services out of the trust fund, and representatives of beneficiaries wbo are not sui juris have no authority to stipulate to the contrary.</p> <p>37. The duties of guardians ad litem in the settlement of an estate are, in general, merely advisory and supervisory; they have no authority to stipulate away any part of the trust fund, or to intervene and do the work of the executors or their attorneys at the expense of the estate.</p> <p>38. When this court, upon a reversal, can best promote justice by giving such precise directions as to the proper judgment to be rendered as will speedily terminate the litigation it will do so.</p> <p>39. Where the whole history of an entire subject matter, including a dominant feature and many others subsidiary or germane thereto, in the entirety affecting many persons who are parties, or may properly be made so, and the controversy, in general, is opened by a reversal on appeal to this court, the broad superintending control power, supplementing appellate jurisdiction, affords the court ample opportunity to give the . full directions suggested in the last foregoing.</p> <p>[Syllabus by Marshall, J.]</p> <p> On motion for modification of mandate: </p> <p>40. The court having jurisdiction of supervising a trust may provide for payment out of the trust fund for reasonable expenses in protecting the trust.</p> <p>41. Reasonable attorneys’ fees for services actually and rightfully rendered, doing that which is reasonably necessary in conserving a trust estate, are allowable to the trustee as expenses, and may be allowed direct to the attorney, chargeable to the trust fund; and such services may be so compensated when, from the necessities' of the case, they are rendered at the request of the cestuis que trust acting in place of the trustee.</p> <p>42. The amount of the compensation to be allowed in such cases is always within the discretion of the court, not controlled by contract, and should be determined with reference to the reasonable necessity for the services, the amount and nature thereof and the extent of the resulting benefits, and should he fixed upon the basis of compensation for somewhat similar services in official life, rather than the customary charges as between attorney and client.</p> <p>43. Ordinarily the supreme court will not go further than "to fix the compensation for services rendered on appeal, leaving the court below to deal with the matter of services rendered there; hut in extraordinary cases the higher court may cover the entire field, terminating the litigation in all respects.</p>

<p> Sales: Cheese: Statute regulating: Validity: Evidence: Self-serving memoranda: Trial: Remarles by judge: Instructions to jury: Appeal: Exceptions: Harmless errors. </p> <p>1. A remark by the trial judge that he deemed valid a statute which defendant claimed to be unconstitutional, was not prejudicial to defendant, where no testimony was ruled out because of the statute but the case was tried and a special verdict framed as if the statute did not exist, and under the verdict, irrespective of the statute, plaintiff was entitled to recover.</p> <p>[2. Whether sec. 1670m, Stats. (Laws of 1911, eh. 381), relating to the manner of weighing and paying for cheese purchased at wholesale, is valid, not determined.]</p> <p>3. A memorandum relating to a sale, made by the vendee in his own interest but not brought to the knowledge of the vendor at the time, is not substantive evidence of the facts, as against the vendor. ,</p> <p>4. Where the fact that a check had been sent to plaintiff and returned by him as insufficient was conceded, the exclusion of the check itself when offered in evidence was not error, the mere form of the check being immaterial.</p> <p>5. A general exception to the entire charge, much of which is unexceptionable, or an omnibus exception to the refusal to give numerous requested instructions, some of which were plainly inapplicable to the issues, is not available on appeal.</p> <p>6. An instruction to the effect that as to certain questions in a special verdict the burden of proof was on the affirmative, i. e. that the jury should not answer them in the affirmative unless satisfied hy a preponderance of the evidence that they should be so answered, and that as to another question the burden was on the negative and the jury should not answer it in the negative unless satisfied by a preponderance of the evidence that it should be so answered, was not confusing nr misleading.</p>

<p> Railroads: Injury to person walking on track: Contributory negligence. </p> <p>A deaf mute who, while walking on a railroad track in the nighttime, was struck and injured by an engine coming from behind, which could have been seen while 800 feet away, is held upon the evidence to have been guilty of contributory negligence as a matter of law.</p>

<p> Trial: Findings: Omission to malee: Appeal: Directing judgment: Accord and satisfaction. </p> <p>Omission of tbe trial court in this case to make any finding upon the issue as to whether there had been an accord and satisfaction was a failure to comply with sec.\2863, Stats. (1898); but, there being a clear preponderance of the evidence to the effect that the parties had settled all of .their, differences arising out of the contract in suit, the supreme court, instead of ordering a new trial, directs a judgment dismissing the complaint.</p>

This action was brought to restrain defendant city of War terfown and its officers from taking possession of and using as a public street a strip of land 75 links wide and 11.37 chains long in the Third ward of the city of Watertown. One of the contentions of the plaintiff is that the strip of land in question was never dedicated to the public.

Tbe appeal is by defendant from a judgment of tbe circuit court, also from an order refusing leave to settle a bill of exceptions and refusing leave to amend a bill of exceptions formerly settled by tbe plaintiff upon a prior appeal in this cause.

<p> Corporations: By-laws: Offer of reward: Profit-sharing with employees: Contracts: Acceptance: Statute of frauds: Withdrawal of - offer: Discharge of employee: Fraud: Contract of employment. </p> <p>1. As a general rule, the hy-laws of a corporation are made for its . internal government and regulation, and third persons can assert no rights thereunder.</p> <p>2. But a hy-law, of a manufacturing corporation providing that any person who should have been in the regular employ of the company for a certain time should thereupon begin to share in the surplus earnings of the company, provided he did not quit or was not discharged prior to January 1st of any year, was, when communicated to the employees, an offer of a reward for constant and continuous service and, when accepted by an employee by substantial compliance with the terms of the offer before its withdrawal, became a complete and valid contract.</p> <p>3. It was not essential in such a case that the employee should have informed the company that he relied upon the offer in continuing his work.</p> <p>4. The statute of frauds relating to contracts not to be performed within one year has no application to such a case, because when the contract comes into existence-the only obligation is that of - the company to pay what is due under it.</p> <p>5. As a general rule, a person making an offer of a reward may withdraw it before it is accepted; but he must be held to the exercise of good faith and cannot arbitrarily withdraw the offer for the purpose of defeating payment when to do so would result in a fraud upon those who in good faith have attempted to perform the service for which the reward was offered.</p> <p>6. Thus, in the case stated, discharge of an employee one day before he had earned the reward, where the sole purpose of such discharge was to prevent him from securing his share of the profits offered, would not take away his right to such share.</p> <p>7. The fact that an employee had been hired under a regular contract running for one year, subject to renewal, but terminable by either party on three -months’ notice, would not affect his right to the reward.</p>

<p> Accounting: Landowner and cropper: Findings of fact. </p> <p>In an action involving the accounts between the owner of a farm and a cropper, the findings of fact by the trial court are held to be sustained, by the evidence.</p>

<p>Appeal from a judgment of the circuit' court for Rock county: Geoege Geimm, Circuit Judge.</p> <p>Action for the purchase price of some baled cotton waste, sold defendant by sample and delivered into its possession. There was no dispute as to the contract or amount of the goods. Defendant answered that the cotton was inferior to the sample; that it seasonably discovered such fact and notified plaintiff thereof and asked for orders for disposition and reshipment. Defendant, also, counterclaimed for $800 damages and the full purchase price of the cotton.</p> <p>According- to the evidence the cotton was sold for use in manufacture of cotton batting; to make a particular inspection it was necessary to open each package, but the customary way was to insert' and draw some of the material from different portions of the bales by use of a hook. When the property arrived defendant took the same into its possession without making any inspection. Soon thereafter it opened up a bale and tried to work it, thereby discovering that it was impracticable to do so with the machinery in-nse. Plaintiff was promptly apprised thereof and requested to sell the stuff for defendant’s account. Both parties endeavored to resell, no suggestion being made of any difficulty as regards its not being equal to the sample. The difficulty was supposed to be in working the stock with the machinery in use. Some five weeks elapsed after the first inspection during which there were several communications between the parties. Failing to find a market', either by itself or by plaintiff, for the stock, defendant examined several more bales and then pronounced the property not acceptable as fulfilling the contract, and, in effect, rejected the same. There was evidence tending to show that some of the bales contained cotton equal to or better than the sample and others not; but, that the average was substantially equal thereto; also evidence that, as to such kind of property, it was to be expected bales would vary in quality and the thing to expect was an average as compared with the sample.</p> <p>The court instructed the jury that, in the circumstances of the case, the burden of proof was on defendant to maintain its claim that the goods were not equal to the sample. The jury found for the plaintiff.</p>

<p> Slander: Justification: Truth of charge: Other instances: Pleading: Evidence: Acquittal in criminal prosecution: Appeal: Harmless errors: Briefs. </p> <p>1. In an action for slander where the complaint alleged that.defendant had said of plaintiff, a manufacturer of cheese, that he was a swindler and a cheat and that he had swindled and cheated one of his patrons hy wrongfully accusing such patron of having sold adulterated milk, for the corrupt purpose of extorting money from said patron, the defendant, pleading in defense the truth of the words spoken, was properly allowed to allege and prove other instances in which plaintiff had extorted money from his patrons in a like corrupt manner, tending to show that he was in the hahit of cheating and swindling them.</p> <p>2. In such action the admission of testimony as to the state of health of the patron named in the alleged slanderous words at the time plaintiff is alleged to have extorted money from him, was not prejudicial error.</p> <p>3. Acquittal in a criminal prosecution is not competent evidence against the defendant in a civil action, brought hy the person so acquitted, for a slander alleged to have been uttered concerning the transactions involved in the criminal case.</p> <p>4. A brief assigning error upon the refusal to instruct as requested and upon the giving of portions of the charge, referring to pages in the printed case, but not giving the portions of the charge excepted to or the substance thereof, and not stating the principles of law applicable thereto, is not a compliance with Supreme Court Rule 10.</p>

<p> Executors and administrators: Giving bond: Extension of time: Stay of proceedings. </p> <p>1. Where, after requiring an executrix appointed by the will without bond to give a bond, the county court made an order staying all proceedings for thirty' days, it had power to accept and approve a bond given by the executrix after the expiration of the stay.</p> <p>2. Nothing in secs. 3794, 3795, or 3796, Stats. (1898), precludes such extension of the time for giving bond. The provision in sec. 3796 that “no person named executor in any will, who neglects to qualify for twenty days after probate thereof, shall intermeddle or act as such,” merely forbids the executor before qualification to take upon himself the duties of executor or to interfere with the property of the estate.</p>

<p>Railroads: Injury to passenger: Negligence: Customary appliances, Door of toilet room: Failure to provide door check.</p> <p>Where the door to the toilet room in a passenger car was con structed and operated as such doors usually are, and there wait-nothing obviously dangerous in such construction or operation, failure to provide a door check to prevent it from closing suddenly was not such negligence on the part of the railroad company as renders it liable for an injury to a passenger who, as he was about to close the door, lost his balance by reason of a sudden swaying of the car, thrust his hand against the jamb of the door to save himself from falling, and was injured by the sudden closing of the door upon his thumb, caused by the same swaying of the car.</p>

Lueck, Circuit Judge. The cause was submitted for'tbe appellant on tbe brief of Holt & Goombs, and for the respondent on that of Merton, Newbury & Jacobson. -- '

E>. Hastings, Circuit Judge. Action for a personal injury. Plaintiff was injured, in tlie employ of defendant, working at a small circular saw. A piece of wood was caught on the up-spring of the saw teeth and, thrown forward striking plaintiff in the eye. The saw was uncovered. The trial was on the theory of negligence in having the uncovered saw being the proximate cause of the injury, resulting in a verdict for plaintiff and assessing damages at $4,500.

circuit court for Brown county: S. D. HastiNgs, Circuit Judge. This is an action in deceit brought to recover the purchase price of a mare and colt sold by.defendant, appellant, to the plaintiff, respondent. The right of recovery is based upon alleged fraud in concealment of a material fact and false representation.- Before action brought the plaintiff returned or offered to return the property and demanded the purchase money.

Parish, Circuit Judge. Tbe appeal is from a judgment in a garnishment action. Tbe plaintiff began an action against W. A. Behnke and A. L. Behnke, copartners, setting forth a first count or cause of action for tbe reformation of a lease executed by plaintiff to said defendants in which tbe leased property was by mis-tabre incorrectly described.

Parish, Circuit Judge. Tbe issues in this case can perhaps be best understood by stating in condensed form the findings of fact and conclusions of law made by the court.

Apkeal from a judgment of the circuit court for Taylor county: Jomar K. Pabish, Circuit Judge. Action to recover the balance of the purchase price of railroad ties sold under an oral contract. Plaintiff claimed the agreement was that the ties were to be delivered on the railroad track of a certain logging road running into Rib Lake. The ties were delivered upon said railroad track, but before they were loaded on cars and shipped they were burned.

Appeae from a judgment of tbe circuit court for Bayfield county: JohN K. Parish, Circuit Judge. This was originally an action brought against Marion and wife to foreclose a real-estate mortgage given by them October 6, 1906, to O. P. Swanby, plaintiff’s intestate, to secure payment of five negotiable notes of $450 each, payable to the order of Swanby, one falling due on Jannary 1, '1908, and one on January 1st of each year thereafter until January 1, 1912.

<p> Contracts: Conditional acceptance of offer. </p> <p>Plaintiff, a company engaged in the fishing business, offered to pay-H. $300 for the use of his tugboat for the season. H. replied, by way of a counter offer, "Go for three hundred for thirty days, you pay expenses one way.” Plaintiff then wired: “Terms accepted, engage Capt. Garland, writing;” and also wrote to H., inclosing two copies of a lease and saying: “Please sign one copy and return it to us at once so that we may know the matter is settled. . . . We wired you this morning that your „ terms were accepted and to engage Capt. Garland. And we will write him also and engage his services. We want no other man if wé can get him. . . .” H. promptly informed plaintiff that he would not consent to the engagement of Capt. Garland, but plaintiff did not recede in the matter of such engagement until about a week later, at which time H. had leased his boat to another person. Held, that plaintiff’s acceptance of the counter offer was conditional upon the engagement of the captain named, and that as there had been no assent to such condition no contract was closed.</p>

<p>Joint school districts: Alteration: Jurisdiction: Failure to give notice: Certiorari: To whom directed: Who may sue out the writ: Laches.</p> <p>1. A writ of certiorari to review tbe action taken at a joint meeting of two town boards and a village board to pass upon a petition for alteration of school district boundaries, was directed, among others, to the town clerks, to the village clerk who had acted as clerk of said joint meeting, and also to his. successor in office. The former village clerk made return that he had kept a record of the meeting and had turned over all papers pertaining thereto to his successor. The successor-made return of the records as within his official custody. Beld, that the writ could not be quashed for misdirection.</p> <p>2. Unless the statutes (secs. 418, 419gs, Stats.: Supp. 1906) relating to notice of the meeting to pass upon a proposed alteration of a school district are complied with there is no jurisdiction to, make such alteration.</p> <p>3. Resident taxpayers in- a school district, having children of school age, have such an interest in the matter as entitles them to invoke the remedy of certiorari to review a proceeding to alter Such district.</p> <p>4. The fact that a writ of certiorari to*review a proceeding to alter a school district was quashed for misdirection and because the relators did not show that they had an interest entitling them to ■ sue out the writ, does not avail to show unnecessary delay or laches on the part of relators who promptly thereafter applied for a second writ.</p>

<p> Insurance against fire: Proof of title to realty: Possession: False swearing, by insured: Findings of fact: Evidence: Burden of proof. </p> <p>1. In an action to recover for a loss under a policy insuring a dwelling bouse, proof of possession of tbe property at and prior to tbe time when tbe policy was issued was sufficient ■prima facie evidence of plaintiff’s title to tbe real estate, especially where tbe policy described tbe bouse as bis and was issued upon a written application stating that tbe building was upon land owned by bim.</p> <p>2. Altbougb plaintiff contradicted bimself several times and gave some evidence strongly indicating that be wilfully swore falsely, yet upon tbe whole record, it appearing among other things that be did not understand tbe English language well and that be was considerably confused in answering questions on cross-examination, it is held tfiat findings by tbe jury to tbe effect that neither in his proofs- of loss nor in bis examination before a justice under tbe policy bad be knowingly and intentionally sworn falsely as to matters relating to tbe insurance, should not be disturbed.</p> <p>3. An instruction to the jury in such case that tbe burden of proof both as to falsity of statement and as to wilfully false swearing was upon tbe defendant, was correct* Tbe burden of proof did not shift.</p>

<p> Waters: Dams: Flowage of land,: Consent of owner: Release: Contract construed: Statutes: Action for damages: Evidence. </p> <p>1. Under a contract made in 1906 defendant had the right to overflow, by means of a dam thereafter to be erected, any part of a certain tract of land owned by plaintiff, for a compensation to plaintiff of $25 per acre. Pursuant to such contract it was in 1907, before the dam was constructed, by mutual agreement and arbitration determined that 1.2 acres would be overflowed and, in consideration of $30 paid by defendant, plaintiff acknowledged satisfaction and discharge of any damages that might thereafter be caused “by such flowage,” and defendant released “the balance of the land” from the contract of 1906. In arriving at such amount of overflow it was assumed that the dam would have a head of nineteen feet, but it was after-wards constructed with a head of twenty feet, and a large area of the land in excess of 1.2 acres was flooded thereby. Eeld, that the words “such flowage” in the agreement of 1907 meant the flowage of 1.2 acres; that by the release in that agreement defendant had given up all right under the contract of 1906 to overflow the “balance of the land,” meaning the remainder thereof after subtracting the 1.2 acres; and that therefore there was no consent by plaintiff to the flooding of such remainder.</p> <p>2. Neither the general milldam law (ch. 146, Stats. 1898) nor sec. 1852, Stats. (1898), governs the case.</p> <p>3. The defendant being the assignee of the persons authorized by ch. 155, Laws of 1903, to build the dam, and holding its power of eminent domain under that statute, to he exercised as provided in secs. 1777a-1777(Z, Stats. (1898), the plaintiff had the right to maintain an action for the flowing of the remainder of his land, unless such action should he stayed upon defendant’s application under sec. 1777d.</p> <p>4. Plaintiff was not bound in such action to show what damage was caused by a dam at a twenty-foot head over and above the damage caused by a nineteen-foot head, but was entitled to recover . for all damage to the remainder of his land, excluding the 1.2 acres.</p>

<p> Fidelity insurance: Indemnity bond: Construction: Exhausting remedy against others: “Knowledge” of the employer: Pleading: Defenses: Representations in application: Negligence: Bad faith: Findings of fact: Banks and banicing: “Kiting" checks. </p> <p>1. An indemnity bond issued by a surety company insuring a bank against loss through dishonesty of employees, providing that the employer might at any time transfer an employee from one position to another without notice to the company, was not affected by the promotion, without notice to the company, of the assistant cashier to be cashier, especially where such change was one in name only and did not alter the character of the work done by such employee.</p> <p>2. An indemnity bond by which a surety company agrees to pay to the employer the amount of any loss he-shall sustain “through the dishonesty ... or through any act of omission or commission of any of the employees, done or omitted in bad faith,” and which provides for prompt notice of any loss, for the furnishing of proof thereof within six months, and that no action shall be maintained on the bond unless commenced within one year from the time of making claim for the loss, is essentially an insurance contract guarantying payment, and is not a mere ' guaranty of collection upon which the employer can recover only after exhausting his remedies against those primarily liable.</p> <p>3. A provision in such a bond that the employer shall notify the surety company of certain facts — such as that an employee is dishonest or has acted in had faith — if the same shall “come to the knowledge of the employer,” is construed to mean actual knowledge, and not mere constructive notice. It did not, in this case, require a hank to notify the company of facts of which it had no actual knowledge, hut of which it might have known had its officers made a critical examination of its hooks from time to time.</p> <p>4. Where an indemnity bond insuring a hank against loss through dishonesty of its employees did not require examinations of the hooks of the hank to he made, representations in the application for the bond that the hank would be examined periodically by its officers and directors should, in order to be available as a defense to an action on the bond, he pleaded.</p> <p>6. Mere negligence in respect to such examinations on the part of the officers or directors of the hank, resulting in a loss, is not a defense to an action on the bond unless the negligence was such as to amount to fraud or had faith.</p> <p>6. A finding of fact by the trial court, to the effect that transactions prior to the issuance of the bond, in which a “kiting” of checks had been permitted by an employee of the bank, were the result of ignorance and an error in judgment and not of any had faith on the part of such employee, is held to he sustained by the. evidence.</p>

<p> Tax titles: Constructive redemption: Misinformation given by county cleric: Who may redeem: Statutes: Construction. </p> <p>1. Sec. 1165, Stats. (1898), relating to redemption of land sold for taxes, should be liberally construed.</p> <p>2. Although the owner of land knew- that the taxes thereon for a previous year had not been paid, and had been informed by the county clerk of the amount required to redeem, yet when thereafter, within the time for redemption, his agent, to whom he had given sufficient money for the purpose, offered to redeem and was informed by the county clerk that there were no delinquent taxes, and by reason of such misinformation they were not paid, there was a constructive redemption by such owner.</p> <p>[3. Whether a prospective purchaser of land under an oral agreement pursuant to which a deed had been deposited in escrow and he was to accept such deed and pay the consideration if on examination he found the title good, was within the term “other person” in sec. 1165, Stats. (1898), and had a sufficient interest in the land to entitle him to redeem from a tax sale, doubted.]</p>

<p> Municipal corporations: Fixing ward boundaries: Legislative question: Equality in population: Invalid ordinance: Validation by subsequent statute: Constitutional law: Amending city charterr General or special law? </p> <p>1. Substantial equality in population is the primary object sought to be attained by ch. 436, Laws of 1901, giving to the common council in cities of the first class power periodically to “redistrict, readjust and change the boundaries of wards, so that they shall be as nearly equal in population as may be;” but queere-whether the council may not lawfully consider the growth of population and make allowance for changes which that growth is reasonably certain to produce within a very short period in-the future.</p> <p>2. The question of the division of a city into wards is, in general,. a legislative question.</p> <p>3. The legislature may by a subsequent statute cure defects or irregularities in municipal proceedings which it might have dispensed with, or made immaterial by prior law, and suck ratification or curative effect may result by implication as well as by direct legislative act. - . .</p> <p>4; Thus, even if an ordinance passed in an attempted exercise of the power granted by cb. 436, Laws of 1901, was void when passed, because the wards were-not “as nearly equal in popula- ' tion as may be,” yet it was recognized and validated by the subsequent enactment of eh. 661-, Laws of 1911, bounding assembly and senatorial districts by ward lines and expressly providing that the wards therein referred to should be the same as the wards fixed by said ordinance.</p> <p>5. The act of 1911 being a general law reapportioning the state into senate, assembly, and congressional districts, the mere fact that it incidentally has the effect above stated does not bring. it within the prohibition of sec. 31, art. IY, Const., against amendment of city charters by “special or private” law.</p>

The' city of Monroe is the county seat of Green county, with a population of about 4,500, and is a city of the fourth class, operating under the general charter law of the state. Three policemen are employed by it to whom it pays salaries of $75, $65, and $60 per month, respectively. Eor several years the rate of taxation in the city has been approximately two per cent, on the assessed valuation of all property, real and personal.

<p> Pleading: Joinder of causes of action: Mortgages: Foreclosure: Ashing for deficiency Judgment. </p> <p>A complaint asking foreclosure • of real-estate mortgages and of a pledge of personal property, all given to secure payment of a promissory note, and asking also for judgment for the deficiency, if any, after sale of the mortgaged and pledged property, states hut a single cause of action. An intimation in Plankinton v. Hildebrand, 89 Wis. 209, that in an action to foreclose a real-estate mortgage; where a deficiency judgment is asked, two causes of action are united, is disapproved.</p>

as to tbe right of appeal contended that an appeal is given from judgments in all forms of action, and that tbe statute does not confer a new right but merely changes tbe practice. Dixon v. Oneida Go. 82 Wis. 515, 52 N. W.' 445; Rowland v. Needham, 10 Wis. 495; Minneapolis, St. P. & S. S. M. B. Go. v. Railroad Commission, 136 Wis. 146, 116 N. W. 905; Mitchell v. Kennedy, 1 Wis. 511; Western Union R. Go. v. Dickson, 30 Wis. 389 ; State ex rel. Milwaukee Med.