Volume 151 — Wisconsin Reports

Appeals from orders of tbe circuit court for Brown county S. D. BAstiNgs, Circuit Judge. Tbe complaint in tbis action alleges tbat tbe plaintiff Warren Webster & Company, as a subcontractor of Martin & Wigman, bas a lien for labor and materials used in tbe construction of tbe Beaumont hotel, and tbat tbe plaintiff Krueger, as a subcontractor of tbe Kirlcman Construction Company, bas a similar lien upon tbe same property.

circuit court for Milwaukee county: W. J. TueNee, Circuit Judge. Mandamus to compel tbe tax commissioner of tbe city of Milwaukee to recognize tbe relator as assessor of tbe Third ward of sucb city and to fully reinstate bim in sucb position. Tbe following appeared by tbe petition: Eor some time prior to January 31, 1912, tbe relator was. assessor of tbe Third ward of the city of Milwaukee, duly appointed and qualified as sucb under tbe civil service law and rules.

J. TubNeb, Circuit Judge. Mandamus to compel the tax commissioner of the city of Milwaukee to recognize the relator as assessor for the Sixteenth ward of such city and to fully reinstate him in such office from which he had been, in form, removed. The proceedings were the same in this case and based on the same state of facts as in State ex rel.

In February, 1910, John Murray, then seventeen years of age, while attending school at Neillsville, became ill. The plaintiff, a practicing physician and surgeon at Neillsville, was called by Murray’s roommate to treat him. In 1901 Murray’s mother was divorced from his father. The decree of divorce gave the custody of the child to the mother and ordered the father to pay to her $5 per month during the minority of the child for his support.

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

<p>Appeal from a judgment of tbe circuit court for Eoud du Lae county: Chesteb A. Fowleb, Circuit Judge.</p>

<p> Execution: Sale: Redemption by mortgagee: Absolute deed as a mortgage: Tender: Evidences of right: Waiver of defects: Filing of papers: Costs: Discretion: Appeal: Questions considered. </p> <p>1. In an action to enforce a right to redeem lands from an execution sale, a defense that plaintiff had parted with his title, not sustained by any evidence, cannot be considered on appeal.</p> <p>2. A deed absolute in form, but given to secure the payment of moneys due from the grantor to the grantee, with a contemporaneous contract to reconvey on. payment of the debt, establishes the relation of mortgagor and mortgagee between the parties.</p> <p>3. To entitle a mortgagee to redeem, under sec. 3007, Stats. (1898), from an execution sale, it is not essential that he should have been such mortgagee at the time the sale was made. [Whether one who takes a mortgage after the expiration of the year limited for redemption by the execution debtor can redeem under said section within fifteen months from the date of sale, not determined.]</p> <p>4. Where, when one entitled seeks to redeem land from an execution sale, the purchaser makes no objection to the papers or proofs presented, but rejects the money tendered on the ground that the offer comes too late, he thereby waives any informality or defect in such proof.</p> <p>5. When the money required to redeem from an execution sale is properly tendered by one who brings himself within the statute, the redemption is complete, and it is not defeated by his failure to file the evidences of his right in the office of the register of deeds as prescribed by sec. 3015, Stats. (1898); that provision being for tbe protection of third persons.</p> <p>6. It was not an abuse of discretion to award costs to a successful plaintiff in an equitable action to enforce a right of redemption from an execution sale, where no objection was made to the form of the action, and the defendant interposed an equitable counterclaim, and the case was tried before the court as an equity action, although the desired relief might have been otherwise obtained.</p>

<p>' Appeal from a judgment of the circuit court for Marquette county: Oiiestee A. Eowlee, Circuit Judge.</p> <p>Action upon a fire insurance policy. It appears that the defendant company sometime in October or about the 1st of November, 1909, took over the business of another insurance company known as the Poynette Mutual Fire Insurance Company and issued new policies to its members. About November 1, 1909, it delivered to plaintiff a Wisconsin standard form policy reciting that defendant “in consideration of the stipulations herein named and $4.38 premium does insure Hammond Bros., of Westfield, Wisconsin, from the 1st day of November, 1909, at noon, to the 20th day of July, 1911, at noon, against all direct loss or damage by fire and lightning, except as hereinafter provided, to an amount not exceeding $'700, to'the following described property while located and contained as described herein and not elsewhere, to wit, $100 on household goods as per form attached, all while contained in the two-story composition and gravel, cement block building situated on lot 1, block 'O’ in the village of Westfield, Wisconsin, occupied by assured as a hotel and saloon.” The rider attached was as follows:</p> <p>“On household furniture and utensils, useful and ornamental, including beds, bedding, linen, family wearing apparel and materials for same, plate, plated ware, printed books and music, musical instruments (excepting pianos and organs), mirrors, portraits, pictures, paintings, engravings and their frames (no picture, painting nor engraving to be valued at more than cost), watches and jewelry in use, fishing tackle, firearms, sewing machines, trunks, umbrellas, fuel, family stores and supplies, all while contained in the above described building.”</p> <p>This policy was issued upon an application presented to the Poynette Mutual Eire Insurance Company in which the words printed thereon, to wit, “household goods, piano or organ,” were stricken out by crosses made with a pen, and the words “hotel fum. & fix.” inserted by pen in place thereof. In the rider attached to the Poynette policy describing the property. the word “household” was stricken out by a pen line drawn through the same and tbe word “hotel” written in place thereof, so that it read: “$700 on hotel furniture and utensils,” etc.</p> <p>The complaint alleged that the defendant, by virtue of the terms and conditions of the policy described, insured the property of the plaintiff, which was destroyed, with other property belonging to the plaintiff and his co-insured, Zera Hammond, in addition to the joint property of the said plaintiff and the said Zera Hammond, so that the policy covered the individual property of the plaintiff, the individual property of his brother, Zera Hammond, and the partnership property of Hammond Bros. It further alleged that the defendant, previous to the issuance of the policy, was informed of the separate ownership of the property contained in the building described, and that it was specifically agreed between defendant and plaintiff and Hammond Bros, and Zera Hammond that the policy of insurance should cover the individual property of each of the partners as well as the partnership property, and that it was further distinctly understood and agreed by and between the plaintiff herein and said Zera Hammond and said copartnership of Hammond Bros, that all of said property in said hotel building so described, referred to in said policy and covered, thereby, should be described and insured as the property of Hammond Bros.</p> <p>The answer denied any liability to the plaintiff upon any cause of action and alleged that the defendant, on or about ■November 1, 1909, issued and delivered its policy of insurance to Hammond Bros., wherein and whereby it did insure the property of Hammond Bros, only, and it specifically denied that said policy by its terms covered any individual property belonging to the plaintiff or his copartner. It further ■alleged that the policy was executed and received by said Hammond Bros, on or about the day of its issue, and retained by said Hammond Bros, without any objection being raised by them or either of the individuals that composed the firm of Hammond Bros.</p> <p>Tbe jury by a special verdict found (1) tbat Johnson (tbe agent of defendant) and Philo 'Hammond (tbe plaintiff) bad a conversation prior to tbe delivery of tbe policy in suit relative to insurance with tbe defendant company; (2) tbat it was agreed at said time tbat a policy would be taken in tbe defendant company; (3) tbat Johnson and Philo Hammond both intended and understood at said time tbat tbe partnership property of Hammond Bros, and tbe individual property of each partner situated in tbe building was all to be insured by said policy; (4) tbat Johnson knew at said time tbat part of the property in tbe building intended to be insured belonged to tbe partnership of Hammond Bros, and part to tbe partners individually; and (5) that tbe actual value of tbe property destroyed by fire was $400.</p> <p>On such verdict tbe court entered judgment in favor of tbe plaintiff, from which tbe defendant appealed.</p>

<p>Appeal from an order of tbe circuit court for Green Lake county: Chester A. Fowlee, Circuit Judge.</p> <p>This is an appeal from an order denying a motion to vacate a preliminary in junctional order. The in junctional order was obtained from a court commissioner at the commencement of the action, February 12, 1912, upon the complaint alone, and enjoined the defendant (a public utility corporation supplying hot water for heating purposes) from disconnecting the pipes in the plaintiff’s house in Berlin from the defend • ant’s mains, and from discontinuing its service of hot water to the house during the pendency of the action.</p> <p>. Tlie complaint alleged tbat plaintiffs bonse bad been beated by bot water furnished by defendant tbrougb its mains since September 1, 1905; tbat plaintiff contracted witb defendant September 1, 1910, for beat for tbe season ending May 15, 1911, for tbe sum of $107.20 to be paid in certain monthly instalments; tbat tbe beat was furnished and tbe instalments regularly paid for tbat season, and tbat in September, 1911, tbe contract was renewed for another season; tbat tbe beat was furnished by tbe defendant under tbe renewed contract and tbe instalments paid up to and including tbe instalment due February 1, 1912; tbat defendant in January, 1912, pretended to adopt and establish certain rates and rules, and on February 5, 1912, served a copy of tbe rales on tbe plaintiff witb a notice tbat unless be complied witb rules 5, 6, and 14 by February 10 th tbe service of beat would be discontinued. Tbe rales so referred to are as follows:</p> <p>“5. Discontinuance of service. Tbe company reserves tbe right, upon five days’ notice, to cut off its service for nonpayment of bills, for failure to comply witb its rules and regulations, or to guard against fraud or loss. In case tbe service has to be discontinued under this clause, a charge will be made for turning on tbe water of an amount equal to tbe actual cost of shutting off and turning on tbe water.</p> <p>“6. Equipment paid by consumer. All service mains, radiators, thermostats, valves, piping and fitting are to be paid for and maintained by tbe consumer.</p> <p>“14. Thermostats. Tbe company reserves tbe right to furnish and install all thermostats connected to its beating system at or as near cost to tbe consumer as they can be installed, and to adjust and maintain tbe same at all times, other than .breakage by tbe consumer or worn out parts, which supplies and repairs shall be made by tbe company at cost to tbe consumer.”</p> <p>Tbe complaint further charged tbat tbe pipes and valves in tbe plaintiff’s bouse, including tbe thermostat therein, were in tbe same condition at tbe time tbe notice was served as in previous years; that bis aged motber-in-law, suffering from severe illness, lived with, him; that his house could not be properly heated in any other way than by the hot water from the main; that in case of discontinuance of service the necessary changes could not he made except with long delay, and that he would suffer irreparable injury thereby during the cold winter months.</p> <p>By the answer it was alleged that the rules 'aforesaid were adopted and filed with the Eailroad Commission in December, 1911, and have been effective since January 1, 1912, and that no action had ever been brought to change the same as provided by ch. 499 of the Laws of 1907 (secs. 1797m — 1 to 1797m — 108, Stats.) ; that the plaintiff refused and still refuses to allow the defendant to install a proper thermostat in his home, and that the notice of discontinuance was given for that reason.</p> <p>The motion to vacate the injunction was based upon the answer and certain affidavits, as well as upon the examination of the plaintiff taken under sec. 4096, Stats. It appeared by the plaintiff's own testimony taken upon this examination that there was “no agreement between the company and myself in September, 1911,” and none since that time; that there were several conversations in October 'and Uovember, 1911, in which the parties wrangled over the question of whether plaintiff should put in a thermostat, and the final result was that it was understood the company would go on and furnish heat and the plaintiff would put in a thermostat if the Eail-road Commission said he had to do so; that the plaintiff had in his house a contrivance which he considered was a sufficient thermostat, namely, a very sensitive thermometer, hung in the warmest room in the house, which rings a bell when 74 degrees is reached, which bell continues to ring until some person goes to the common room of the house and turns a wheel valve handle controlling the shut-off valve in the basement; that heat was furnished by the defendant, and that the plaintiff paid the monthly instalments up to and including the in-stalment of February 1st, when tlie notice of discontinuance was served. It also appeared by tbe affidavits of experts that tbe apparatus called a thermostat by tbe' plaintiff was not a thermostat in fact, because it did not automatically control tbe beat; that tbe rules 'aforesaid were filed with tbe Eail-road Commission and became effective January 12, 1912, but that no formal order bad been made by tbe commission approving tbe rules before tbe commencement of tbe action. Upon this showing tbe circuit court declined to vacate tbe temporary injunction, and tbe defendant appeals.</p>

<p>Appeal from a judgment of the circuit court for Columbia county: Chestee A. Eowlee, Circuit Judge.</p> <p>Action to recover for telephone service. The amount claimed was $1 per month for thirty months. The answer admitted receiving the service but pleaded a contract, antedating the public utility law, to the effect that, the price for such service should not exceed $10 per year. This was alleged: In 1902 defendant subscribed for and became the owner of one share of the common stock of the defendant of the par value of $50, paying therefor $55, under an agreement that he should be furnished telephone service for, not exceeding a charge of $10 per year and that such agreement was embodied in and became a condition of the certificate of stock.</p> <p>Tbe cause was tried by the court. Facts were found as follows : Plaintiff is a duly organized telephone company under the laws of Wisconsin and has been since August, 1902. During such time defendant has had of plaintiff the use of its telephone service without paying therefor since January 1, 1909. The service was furnished pursuant to a contract made in August, 1902, and embodied in plaintiff's certificate of corporate stock No. 55, issued to defendant upon his subscription therefor and payment of the par value and ten per cent, additional. The contract stipulated that the holder of the stock should possess, as owner, one telephone and be entitled to the use of plaintiff’s lines, in common with those having rented telephones in the same locality, subject to assessments, ratably, upon all common stock sufficient to pay the corporate expenses; but not exceeding $10' per year. The amount assessable against the common stock for 1908 was not anything, for 1909 $10, and for 1910 $10.</p> <p>Upon such facts it was held that the contract relied upon was not contrary to any law existing at the date thereof and was the measure of defendant’s liability. Judgment was rendered accordingly.</p>

<p> Contracts: Master and servant: Farming on shares: Joint adventure: Breach: Measure of damages. </p> <p>Under a contract whereby plaintiff was to work defendant’s farm for one year and was to be paid for his services by a share of the crops and of the increase of the stock, which provided that the parties should jointly occupy the dwelling house and share certain household expenses, that plaintiff should work out the road tax, should leave certain amounts of cut stove wood on the premises for defendant’s use, and should pay the expense of stallion service, and which gave plaintiff the right to control certain matters as to raising crops and stock, materially affecting the probable results of the year’s farming, the relationship of the parties was not strictly confined to that of master and servant, but they were to a certain extent engaged in a joint adventure; and upon a breach by the defendant, preventing plaintiff from completing the cultivation and harvesting of the crop, plaintiff’s damages were properly measured by the value of his share of the crops and of the increase of the stock at the time of such breach.</p>

<p>Appeal from a judgment of the circuit court for Marquette county: A. H. Reid, Judge.</p> <p>Tbis action was brought to quiet plaintiff’s title to mill lots 6 and 7 of the recorded plat of Neslikoro in Marquette county, together with 150 inches of water to be drawn from the millpond and hydraulic canal at any point on said lots under ten-foot head, to be measured in the conductor where it issues .on the wheel or wheels, and to abate as a nuisance ¿ certain power house and building erected by defendants in “Mill street,” which it is alleged shut off access to and use of water and power on the premises; and to compel the defendants to restore the dam and hydraulic canal and fill up Mill street between plaintiff’s lots and the canal and river, and to restore the same to their former condition as they existed prior to the flood of June 6, 1905; and immediately to build and perpetually maintain a suitable bulkhead and gate in the canal for the plaintiff’s use in taking said 150 inches of water therefrom, and to permit proper connection to be made therewith by plaintiff between said lots 'and said dam and canal substantially as existed prior to June 6, 1905; and for damages and injuries to plaintiff’s property and for other relief.</p> <p>The village of Neshkoro, including the land in controversy, was platted by Helen M. White, proprietor, September 21, 1852, and recorded September 25, 1852. The diagram on page 85, taken from the plat, shows the premises in question.</p> <p>The defendants answered by way of admissions and denials. The court made very full findings upon all the questions of fact litigated upon the trial and rendered in accordance with said findings the following judgment (omitting formal parts) :</p> <p>“It is considered and adjudged:</p> <p>“1. That the plaintiff was, at the time of the commencement of this action, and now is, the owner in fee simple absolute, of mill lots 6 and 7, fronting on Mill street, in the plat of the village of Neshkoro, in Marquette county, in the state of Wisconsin, together with the right to draw and use 150' inches of water from the mill-pond and canal described in the complaint and in said findings, for power, at any point on said lots 6 and 7, under a head of ten feet, and rights appurtenant thereto, the water to be measured at the conductor where it issues onto the wheel or wheels on said mill lots 6 and 7, and his rights and interest in said premises as such owner in fee simple, and his rights and interest in said water power, and appurtenant rights, which are the same granted and defined in the deed from George Osman and wife and Salem W. Richardson and wife to Thomas Wells, dated September 17, 1866, and recorded in the office of register of deeds of said Marquette county October 1, 1866, in volume 9 of deeds, on page 68, through which deed plaintiff derived his title, is hereby declared and established.</p> <p>“2. That the defendants, Charles T. DaMhe, Edward J. Dahlhe, Qustav E. Dahlke, tibe Neshkoro Milling Company, a corporation, and Neshkoro Light &■ Power Company, a corporation, and all persons claiming under them, or any or</p> <p> </p> <p>either of them, subsequent to the filing of the notice of the pendency of this action, to wit, February 7, 1911, be and theyare and eacb of them is hereby forever barred from any and all claims of right or title to the said premises or to said easement or right to draw or use said water or lien thereon, or any part thereof.</p> <p>“3. That the width of Mill street in front of said mill lots 6 and 1 be and is hereby established at 49| feet, excepting east of the point where the north line of said street deflects southward to connect with the south line.</p> <p>“4. That plaintiff is owner of an easement consisting of a right to tap the hydraulic canal and pond described in said complaint and findings, for the purpose of drawing the water to which he is entitled as herein adjudged, and to draw said water to any part of said mill lots 6 and I and there use the same, and to construct and maintain all necessary aqueducts or other devices for such purpose in and across Mill street and the land between said Mill street and said canal and pond.</p> <p>“5. (a) That the nuisance described in said complaint and findings, to wit, the new electric power house and its additions and foundations, together with the water-wheels, dynamos, shafting, machinery, appliances, and structures connected with or appurtenant thereto, so far as the same are within the limits of said Mill street, be abated and removed by the said defendants from the limits of Mill street as herein established on or before May 18, 1912.</p> <p>“(b) That in the event said defendants neglect or refuse to abate said nuisance before May 18, 1912, that a warrant do issue to the sheriff of Marquette county, Wisconsin, out of this court, under the seal thereof, commanding said sheriff to abate and remove said nuisance at the expense of said defendants, in the following manner, to wit, by wholly razing and removing said- building, together with the water-wheels, dynamos, shafting, machinery and appliances, and other structures connected with or appurtenant thereto from within the limits of said Mill street, and that in case such warrant be issued and executed, the said sheriff collect his own fees and charges and all of the expenses of such abatement and removal of and from the said defendants in the manner provided by law, or</p> <p>“(c) That upon the neglect or refusal of the defendants to abate and remove said nuisance as aforesaid or to otherwise comply with this judgment, upon filing an affidavit- showing such neglect or refusal, the plaintiff may apply to the court for an order for the enforcement of tbe same in sucb manner as to the court may seem proper.</p> <p>“6. That plaintiff have leave to bring and maintain another action to recover the damages which he has suffered by reason of the shortening of the hydraulic canal and relocation of the gates and other changes in the premises subsequent to the flood of 1905.</p> <p>“7. That the plaintiff, W. 0. Childs, do have and recover of and from defendants, Charles T. Dahlhe, Edward J. Dahlhe, Gustav E. Dahlhe, the Neshhoro Milling Company, and Neshhoro Light &■ Dower Company, the costs and disbursements of this action, taxed and allowed at the sum of $320.18 (three hundred twenty and 18/100) dollars.</p> <p>“Dated December 8, A. D. 1911.</p> <p>“By the Court, A. H. Beid, Judge.”</p> <p>From this judgment plaintiff appealed to this court.</p>

<p> Public lands: Homestead entry: Relinquishment: Improvements: Contracts: Validity: Public policy: Consideration: Statute of frauds: Sale of interest in land. </p> <p>1. A contract hy which a homesteader agrees, in consideration of a certain sum to he paid to him, to relinquish his homestead entry to the United States and surrender possession of the land, so that another may enter and acquire title under the homestead laws and incidentally obtain the benefit of improvements which have been made, is not contrary to public policy and is valid.</p> <p>2. The promise to pay, in such a case, is based upon a sufficient consideration moving from the homesteader, whether, after he has relinquished his entry, the promisor secures the homestead or not.</p> <p>3. Such a contract is not one for the sale of land or of any interest. therein, and is therefore not within the statute of frauds (sec. 2304, Stats. 1898). i</p>

<p> Master and, servant: Death caused by unguarded belt and pulley: Duty to guard: Practicability: Evidence: Competency: Cross-examination. </p> <p>1. In an action to recover for the death of an employee in defendant’s sawmill, the evidence is held to sustain findings by the jury that the deceased was injured by coming in contact with a pulley and belt which he was engaged in shifting, and that it was practical to securely guard said belt and pulley.</p> <p>2. A question asked of a witness for defendant as to what the practice was among “reasonably careful” millmen as to guarding of such a shaft and pulley, was incompetent, because it left the-witness to decide what millmen were “reasonably careful.” If proper at all, the question should have been as to the practice among sawmill men generally, or the great mass of sawmill men.</p> <p>3. Where on his direct examination a witness was asked only whether it was practical to guard such a shaft and belt without impairing its efficiency, a ruling excluding on his cross-examination the question whether he knew of any mill in Wisconsin where a similar shaft and pulley was guarded was, though somewhat technical, strictly correct.</p>

<p> Bills and notes: Payment: Findings of fact: Evidence. </p> <p>A finding by the trial court that a promissory note, -which had been returned to the maker marked “paid,” had in fact been paid, is held to he sustained by the evidence.</p>

The amended complaint sets forth facts of four alleged causes of action, each based upon a tax certificate covering the same piece of ground, described in the first paragraph of the complaint as “Lot one (1) of H. Bentley’s 3rd Addition to tbe village (now city) of Marinette,” except a part thereof, wbicb is alleged to be described by the metes and bounds stated in the complaint.

<p> Railroads: 'Negligence: Obstructing street crossings: Municipal ordinance construed: Injury to traveler on street at night: Damages: Evidence: Opinions of experts: Excessive award: Appeal: Reversal: When new trial ordered. </p> <p>1. A municipal ordinance prohibiting railroads from obstructing the streets with their engines or cars, without naming a time limit within which cars may remain upon a crossing, is construed as not having been intended to interfere with the ordinary usual and careful operation of railroad trains, but merely as prohibiting unnecessary stops upon street crossings, or the continuation of a necessary stop for an unreasonable or unnecessary time.</p> <p>2. Opinions of experts as to whether plaintiff’s present physical condition was caused by the injury complained of, and as to the extent of his disability, are not absolutely binding upon the court.</p> <p>S. In an action for personal injuries, where a judgment for plaintiff is reversed solely upon the ground that the damages awarded are excessive, this court will ordinarily name a smaller sum which the plaintiff may accept and terminate the litigation.</p> <p>4. But, in an action for injuries sustained through driving a team of horses against a train of cars standing at night on an unlighted railroad crossing, it appearing not only that the award of $9,500 is much too large, hut also that the evidence tending to establish defendant’s negligence is very uncertain and unsatisfactory, the judgment is reversed and the cause remanded for a new trial.</p>

<p>Appeal from a judgment of the circuit court for Racine county: E. B. Beldbn, Circuit Judge.</p> <p>On March 9, 1910, plaintiff was employed as a laborer by the defendant company. A large steam engine which stood upon a cement foundation in the engine room of defendant’s plant was being dismantled and plaintiff was instructed by the superintendent to go to the engine room and assist the other workmen there. A wheel weighing from five to seven tons, which had been detached from the engine and placed in an upright position preparatory to being rolled along the cement floor to an adjoining room, overbalanced and fell upon tbe plaintiff. This action is brought to recover damages for personal injuries sustained, tbe complaint alleging tbat tbe surface of tbe cement floor was uneven and tbat tbe face of tbe wheel was oval, but tbat owing to tbe insufficiency of the lighting in tbe room these facts were not discernible to plaintiff; tbat plaintiff’s assistants in tbe work were unskilled and ignorant and were unfamiliar with tbe kind of work to be done, and tbat plaintiff was without experience in such work and unfamiliar with tbe proper method of doing it; tbat sufficient appliances were not furnished, tbat no directions or instructions were given to plaintiff, and tbat be was not warned of tbe dangers incident to tbe work. Tbe answer was a general denial of tbe allegations of tbe complaint. At tbe close of tbe testimony tbe defendant’s motion for a nonsuit was granted and judgment entered accordingly. Plaintiff appeals.</p>

<p> Master and servant: Unsafe worlcing place: Cause of injury: Evidence: Sufficiency. </p> <p>1. To warrant a recovery in a personal injury action tlie cause of tlie injury must not rest in conjecture, but must be established to a reasonable certainty.</p> <p>2. In an action for an injury to an employee working at a machine for trimming steel springs, caused by a piece of steel striking his eye, the evidence (stated in the opinion) is held to sustain findings by the jury to the effect that the piece of steel was caused to be thrown from the floor by the fall, from the framework of said machine, of a heavy knife which had been negligently placed on the machine by defendant’s foreman.</p>

<p>Appeal from a judgment of the circuit court for Kenosha county: JohN K. Papish, Judge.</p> <p>Michael <3-. O’Donnell obtained judgment against plaintiff in a tort action. In due course, the latter was arrested on an execution issued upon such judgment. In such circumstances, he deposited with defendant, as sheriff, $325 to obtain a release; it being stipulated by the attorneys that the deposit should remain sixty days for plaintiff to file a satisfactory undertaking upon appeal to this court, and that, in case of such undertaking not being so filed, the deposit should be applied on the judgment, so far as necessary to satisfy it, or unless, for cause shown satisfactorily to the court, the time for filing the undertaking should be extended. An undertaking, executed in due form, was served upon O’Donnell’s attorney and the original exhibited to him, several days before expiration of the sixty-day period. He then expressed satisfaction therewith and admitted service thereon. Plaintiff’s attorney intended to forthwith file such original but left it with O’Donnell’s attorney, at his request, so he could show it to his client. Plaintiff acted in good faith, intending to perfect the appeal and seasonably file the undertaking. After it was left with O’Donnell’s attorney, as stated, plaintiff’s attorney, as claimed, within due time called several times at the former’s office to get and file it. The latter was out of the office and the door was locked. The last ineffectual call was March 9, 1909, — the last of the sixty-day period. He called, again, in the evening of that day, about 8 o’clock, and obtained the paper. It was then too late to file it that day; but it was placed on file as soon as practicable the following morning. In such circumstances, the sheriff used the deposit to discharge the judgment, refusing any of it to plaintiff. He sued to recover the same,- — admitting that the undertaking was not filed within the sixty-day period, but alleging the delay was caused by refusal or negligence of O’Donnell’s attorney in respect to seasonably returning the paper, and to the knowledge of defendant before appropriating the deposit. The latter answered, alleging failure to duly file the undertaking or secure extension of time therefor. The cause was dismissed on the pleadings. Upon appeal, 142 'Wis. 465, 470, 125 N. W. 950, the judgment of dismissal was reversed and cause remanded for a new trial, the court holding that, under the circumstances, there was no neglect or refusal, within the meaning of the deposit agreement, to file the undertaking within the sixty-day period; that the conduct of O’Donnell’s attorney precluded the defense of failure to file being effective ; that the seasonable service of the paper on such attorney and his approval thereof and the omission to thereafter file it within such period by reason of indulging such attorney, did not warrant appropriation of the deposit.</p> <p>Upon the trial, the claim that the undertaking was seasonably served on O’Donnell’s attorney and was satisfactory to him, but the original was not immediately filed because the attorney asked time to exhibit it to O’Donnell, was established without dispute. There was some controversy about what thereafter occurred between such attorney and plaintiff’s attorney. However, that the latter tried to obtain possession of the undertaking for the purpose of filing it, that he failed till too late on March 9, 1909; that the paper was promptly filed the next morning, and that, nevertheless, defendant, with knowledge of the facts, or reasonable means thereof, appropriated the deposit, were very satisfactorily established.</p> <p>Plaintiff’s attorney testified that he relied upon O’Donnell’s attorney returning the undertaking in time for filing within the sixty days; that he visited such attorney’s office twice to obtain it, March 9, 1909, — each time finding the door locked; and that he visited it again about 8 o’clock in the evening and obtained the paper. O’Donnell’s attorney admitted the latter circumstance and did not deny, positively, that his office was locked at the time plaintiff’s attorney called thereat, 'as he stated, or that he told such attorney at the last visit, he did not think the time for filing had expired. The amount due on the judgment, including fees claimed for collecting it, was $304.31, or $20.99 less than the deposit.</p> <p>At the close of the evidence defendant’s counsel asked for a directed verdict in plaintiff’s favor for $20.99. The motion was denied. The cause was submitted by instructions, not excepted to nor appearing in the record. The cause was made to turn on whether plaintiff’s attorney failed to file the undertaking because of fault of O’Donnell’s attorney. The jury rendered a verdict in plaintiff’s favor for $20.99. Judgment was entered accordingly, a motion having been made and denied, in the meantime, to set the verdict aside and for judgment for the amount claimed in the complaint.</p>

<p> Master and servant: Injury -from dangerous machinery: Ignorance of risk: Failure to give warning: Negligence: Questions for jury. </p> <p>1. In an action for injuries sustained by an employee in a knit-goods factory, whose hand was caught by the teeth on a revolving cylinder in a “mixing picker” as he was attempting to remove clogging material from a spout through which the product of the machine was blown into another room, it is held, upon the evidence, that it was a question for the jury whether the plaintiff, considering his age, intelligence, and experience, ought in the exercise of ordinary care to have understood and appreciated the danger attending the performance of such duty.</p> <p>2. It was also a question for the jury, upon the evidence, whether the master was negligent in failing to warn the plaintiff of the danger complained of and which caused the injury; and the trial court having refused to submit that question to the jury, the special verdict as found is not sufficient in law to sustain a judgment against the defendant.</p> <p>3. A master cannot be held liable for an injury to his servant on the ground that he was negligent in not instructing or warning the servant as to a danger incident to the employment, unless he knew or ought to have known that such instruction or warning was necessary, i. e. that the servant was excusably ignorant of the risk.</p>

<p> Soldiers’ Some: Governor not a federal officer: Jurisdiction: Citation by county Court: Public administrator: Property of deceased inmate of Some: Appeal from county court: “Person aggrieved.” </p> <p>1. The governor of the National Home for Disabled Volunteer Soldiers in Milwaukee county does not derive Ms appointment from the President, from any court of justice, or from any head of a federal department authorized by law to appoint to office, but is appointed by the board of managers as the local manager or governor of said Home, and is therefore not an officer of the United States.</p> <p>2. The title to the premises occupied hy said National Home is not in the United States, hut is vested in a corporation created hy act of Congress, and the state retains its jurisdiction over the territory embraced therein.</p> <p>3. A citation to the governor of said National Home, issued out of the county court of Milwaukee county, under the provisions of eh. 120, P. & L. Laws of 1870, as amended hy eh. 471, P. & L. Laws of 1871, upon complaint of the public administrator, directing said governor to appear and submit to examination concerning the effects of a deceased inmate of the Home, is not in violation of or inconsistent with any act of Congress governing the Home.</p> <p>4. Although the rules of the institution contain certain provisions relative to the disposition of the effects of inmates dying therein, there is nothing in such citation to indicate that any federal statute or rule will be violated.</p> <p>5. An order of the county court requiring the governor of the National Home to submit to examination, at the instance of the public administrator, concerning the estate of a deceased inmate, is appealable; and the governor, being subject to certain penalties for failure to comply therewith, is a “person aggrieved” by such order and may appeal therefrom.</p>

<p>Appeal from an order of the circuit court for Milwaukee county: T. O'. Ludwig, Circuit Judge.</p>

<p> Master and servant: Personal injury: Burden of proof: Establishing cause: Conjecture: Talcing case from jury. </p> <p>1. In a personal injury action the burden is upon plaintiff to show to a reasonable certainty that defendant was negligent and that sueb negligence was the proximate cause of tbe injury.</p> <p>2. It is not sufficient in such a case to show two or more possible causes, .some of which are actionable and others not, and from such evidence permit the jury to speculate as to which one' occasioned the injury.</p> <p>3. While mounting a ladder to inspect a ventilating fan in defendant’s engine room, plaintiff, a carpenter in defendant’s employ, slipped and his hand was involuntarily thrown into the fan and injured. Assuming, as claimed by the plaintiff, that grease on his shoes caused him to slip, yet, there being no evidence from which the jury could determine whether such grease came' from the floor of the engine room or-from the floor of the garage which plaintiff had crossed before entering the engine room and of the greasy condition of which he knew, and, even if it were conceded that the grease came from the engine-room floor, there being no evidence that it had remained upon such floor long enough to show negligence on defendant’s part, a verdict for defendant was properly directed.</p>

<p> Life insurance: Mutual benefit societies: Change of beneficiary: Waiver of regulations: Assignment of policy: Equitable assignment: Rights of parties. </p> <p>1. With certain recognized exceptions, a member oí a mutual benefit association who wishes to change the beneficiary named in his certificate must do so in the manner required by the certificate and the rules of the association.</p> <p>2. The association may waive compliance with such requirements by issuing a new certificate naming the substituted beneficiary, or by some equivalent act; but it does not waive compliance by in-terpleading contesting claimants and paying the money into court. 3. Where no beneficiary is named in the certificate and the fund is payable to the estate of the insured, he may make an effectual gift thereof, or transfer the same for value, without complying with such requirements, at least where there is no express regulation forbidding it or avoiding the certificate upon such transfer.</p> <p>4. In so far as beneficiaries of the fund are named in the certificate, the insured has no title, ownership, or property which he can transfer by assignment. He has a mere power of appointment of a beneficiary during his lifetime, and in that power the beneficiary has no vested interest. '</p> <p>5. Although the insured may be equitably hound by a contract to exercise his power of appointment and change the beneficiaries, yet if he fails to execute that power equity cannot regard it as done, since to do so would nullify the rule that a change of beneficiary must be made conformably to the regulations of the association.</p> <p>6. Where, however, a certificate was payable in part to named beneficiaries and in part to the estate of the insured, and he contracted for a valuable consideration to change it and have it made payable to his minor children, but died without having carried his agreement into effect, such contract amounted to an equitable assignment of that portion of the fund which was payable to his estate, and the children were entitled to the same as against his executor.</p>

<p>Appeal from an order of the circuit court for Milwaukee county: X 0. Ludwig, Circuit Judge.</p> <p>Mandamus. The following facts appear from the petition: In September, 1910, the city of Milwaukee annexed a part of the territory of School District No. 1 of the Town of Milwaukee. The school house of the district is situated on the parcel so annexed. Prior to the time of the annexation the defendants'-Horry Stock, Nick Schriner, and Robert Milbrath were resident electors in, and the duly elected, qualified, and acting officers of, said school district. All of said officers now reside in the territory annexed to the city of Milwaukee. Since the annexation aforesaid the relators were duly elected, qualified, and have acted as the officers of that portion of the school district remaining in the town of Milwaukee. They bring this action to recover possession of all moneys, amounting to $1,315.24, papers, deeds, records,- books, and other property belonging to said district now in the bands of the defendants, and pray that the relators be given the care, keeping, and control of the school house located in the annexed territory, and further that they have a judgment or order that the annexation of part of said school district to the city of MilwauJcee did not constitute such annexed portion a joint school district with the remaining territory. The petition also asks that the defendants be commanded to refrain from claiming a division of the property and money of said School District No. 1, and for such other judgment or order in the premises as may be proper. It appears that the defendants refused to turn over to the relators the property in question, and the care, custody, and control of the school house, on the ground that by virtue of the annexation of a part of the district to the city of Milwaukee such part forms and constitutes a joint school district with the remaining territory of the district, and that the defendants constitute the legal board of directors of such joint school district, and therefore have a right to the care and keeping of the schóol house and other property of the joint district. No division of property or adjustment of credits and liabilities has been had as provided for in sec. 944, Stats. (1898).</p> <p>An alternative writ' of mandamus was issued. The defendants moved to quash the writ for the reason that neither the petition nor the writ stated facts showing that the relators were entitled to a writ of mandamus. From an order quashing the alternative writ and dismissing the action the relators appealed.</p>

<p> Street railways: Collision with vehicle crossing track: Gross negligence: Direction of verdict: Positive and negative testimony. </p> <p>1. In an action against a street railway company for death of plaintiff’s intestate, claimed to have been caused by gross negligence of a motorman whose car collided with a milk wagon on the step of which the deceased was riding, it is held that the evidence (showing that the gong was rung and that efforts were made to stop the car) did not warrant a conclusion of gross negligence, and that a verdict for defendant was properly directed.</p> <p>2. The mere negative testimony of one witness that he did not hear the bell nor see any effort to stop the car, is not sufficient to justify a reversal of the decision of the trial court based on positive testimony to the contrary.</p>

<p> Limitation of actions: Condition precedent: Notice of personal injury: Irregularity in service: Waiver. </p> <p>1. A mere irregularity in the manner of serving the notice which, under sec. 4222, Stats., must he given as a condition precedent to the right to maintain an action for injury to the person, may he waived.</p> <p>2. Where defendant received, without objection, a notice of injury which, though sufficient, was not served in the manner required hy the statute, and acted thereon, assuring the plaintiff that no further notice was necessary, the irregularity in service was waived.</p>

<p>Appeal from a judgment of tlie circuit court for Milwaukee county: J. C. Ludwig-, Circuit Judge.</p> <p>The plaintiff was injured on March 15, 1910, in defendant’s factory by the breaking of a belt on a planing machine which the plaintiff was feeding. The plaintiff was fifty-four years of age and had worked for the defendant for thirteen years. This is an action to recover damages for the injuries suffered by him by reason of the breaking of the belt.</p> <p>The complaint alleges that the belt was worn and defective and was so placed that the person operating the machine could and would inadvertently come into contact with the belt and the pulley on which it ran; that the belt was not inclosed or guarded as Were like belts on like machines in the city of Milwaukee and vicinity; that such inclosing and guarding could be done at but a nominal expense and so as to effectively protect from injury by a breaking of the belt the person operating the machine; that on March 15, 1910, the truck load of lumber which the plaintiff was to feed into the planer was so placed at the left of the planer, because of the crowded condition of the shop in which the plaintiff was working, that it was necessary for the plaintiff to reach over the belt which broke in order to take the lumber from the truck; and that while the plaintiff was so employed at the planer one of the belts on the machine suddenly broke and the broken end flew with great force against the plaintiff, causing the injuries. The injuries suffered are particularly described, negligence on the part of the defendant in several respects is alleged, and damages are demanded.</p> <p>Tbe answer denies tbat tbe belt was defective; tbat tbe person operating tbe planer was required to reach over tbe .belt to secure tbe lumber it was bis duty to feed into tbe planer; and tbat tbe belts were unguarded or so situated tbat tbe person operating tbe maebine would inadvertently come into contact with tbe belts or be compelled to stand in dangerous proximity to tbe belts in tbe performance of bis work; and alleges contributory negligence on tbe part of tbe plaintiff in failing to inspect and report any defective condition of tbe belts; and tbat tbe plaintiff assumed tbe risk.</p> <p>Exception was taken on tbe trial to tbe opinion evidence of a witness as to tbe guarding of similar belts on iron-working machines and to tbe evidence of this witness tbat such belts could be guarded and tbat they were ordinarily guarded in Milwaukee factories. Exception was also taken to tbe refusal of tbe court to permit tbe defendant to show tbat factory inspectors bad not suggested tbat this belt should be guarded and to tbe exclusion of evidence tbat feeders of planers objected to belt guards. Tbe defendant objected to evidence tbat tbe injury as described would account for tbe plaintiff’s nervous condition and tbat such nervous condition would be a cause of tbe loss of sexual power.</p> <p>Evidence was presented by the defendant tending to show tbat whatever guarding there was of such belts in Milwaukee factories was to prevent injuries to persons by reason of their clothing being caught in tbe pulleys and belts, and tbat such guards were not designed to prevent injuries from tbe breaking of belts, and tbat guards for this purpose were ineffective and a source of greater danger.</p> <p>Tbe plaintiff was at tbe hospital for four or five days. The physician who attended him after be returned to bis borne testified tbat tbe plaintiff’s left leg was very much contused, swollen, and discolored, there was considerable enlargement of tbe veins, bis testicles were enlarged and discolored, and tbe scrotum was almost black. At tbe time of trial plaintiff’s testicles were still enlarged and there was some enlargement of tbe veins; be was shaky and bad no control of bis nerves.</p> <p>Tbe plaintiff testified tbat after tbe accident be bad lost bis sexual power. Tbe medical testimony in plaintiff’s behalf as to bis condition in tbis respect at tbe time of tbe trial was tbat tbe plaintiff’s testicles were of good size and tbat bis organs were apparently normal; tbat tbe physicians were unable to tell whether tbe testicles were larger than they were before tbe accident; tbat tbe accident was sufficient to account for tbe plaintiff’s nervous condition; tbat tbe nervous condition of a man may affect bis sexual power, but tbat plaintiff’s nervous condition was not an adequate cause for tbe loss of sexual power.</p> <p>Tbe court denied a motion for a verdict for tbe defendant, and refused to give certain instructions and to submit certain questions requested by the defendant.</p> <p>Tbe jury found tbat tbe plaintiff was injured by a broken belt while at work at tbe planer in tbe defendant’s factory; tbat tbe belt was so located as to be dangerous to employees in tbe discharge of their duties; tbat tbe failure to guard or fence tbe belt was tbe proximate cause of tbe injuries suffered by tbe plaintiff; and tbat tbe plaintiff was not guilty of contributory negligence.</p> <p>Tbe court in submitting tbe elements of damage for which compensation was proper included tbe element of loss of sexual potency; tbe appellant excepted and now avers tbat tbe court erred in tbis regard.</p> <p>Tbis is an appeal from tbe judgment on tbe verdict in plaintiff’s favor for $2,000 damages and for costs.</p>

<p>Taxation: Board of review: Certiorari: Jurisdictional errors: Valuar tion of real property: Improvements: Evidence of true value: Presumptions.</p> <p>1. The judicial review, on certiorari, of the action of a hoard of review extends only to the correction of jurisdictional errors.</p> <p>2. An assessor’s valuation laid before a hoard of review is presumed, in the absence of evidence to impeach it, to be correct; and it is also presumed that the decision of the board of review as to valuation is correct.</p> <p>3. The fact, shown before a board of review, that real property is not on a paying basis as presently managed does not establish its value; nor does the fact that old buildings thereon if torn down would be worth only the wreckage establish their value as a going concern; nor does the fact that the owner will derive a larger revenue from a lease of the land for ninety-nine years, which has been made to one who will tear down the old and erect new buildings, show that the present buildings are not worth the assessor’s valuation.</p> <p>4. Evidence of such facts is not evidence of the market value of the property or the price which could ordinarily be obtained for it at private sale (sec. 1052, Stats.); and the affirmance by the board of review of the assessor’s valuation, notwithstanding such evidence, was not a jurisdictional error.</p>

<p> Municipal corporations: Power to license occupations: Elevators: Milwaukee city charter: Statutes: Construction. </p> <p>1. A city has no authority to impose license taxes upon persons engaged in particular occupations or, for the purpose of regulating such occupations under the police power, to require that persons engaged therein he licensed, unless such authority has been expressly or by necessary implication granted by the state. It cannot be implied from the “general welfare” clause in the city charter.</p> <p>2. A statute giving power to license must he strictly construed, and doubt or ambiguity arising out of the language employed must be resolved in favor of the public.</p> <p>3. Neither the general statutes nor the charter of the city of Milwaukee give that city power to license elevators or elevator operators.</p>

<p>Chain Belt Co. v. Milwaukee, ante, p. 188, followed.</p>

0. Esghweileb, Circuit Judge. Tbe complaint in tbis action alleged tbat plaintiff entered into an agreement with tbe defendant whereby be was to secure a purchaser for certain real estate owned by tbe defendant and tbat be was to receive for bis services all in excess of $48,000 paid for tbe property; tbat be found a purchaser who was able, ready, and willing to pay $50,000; tbat tbe parties were brought together and that tbe proposed terms of tbe purchaser were accepted by…

A vpiiiAT. from an order of tbe circuit court for Milwaukee county: OekeN T. Williams, Circuit Judge.

<p> Appeal: Undertaking: Liability of sureties: Affirmance in whole or in part: Direction for new judgment: Interest. </p> <p>1. The sureties upon a bond or undertaking on appeal are held only according to the language of their bond.</p> <p>2. Where, on appeal, a judgment in plaintiff’s favor for damages was reversed, and a new trial was ordered unless plaintiff should elect to take judgment for a certain smaller sum, in which case judgment for that sum was ordered to he rendered in her favor in the trial court, it cannot he said that the judgment appealed from was affirmed even in part; and the judgment thereafter entered upon plaintiff’s election to take the smaller sum could not properly go against sureties who, hy their undertaking on appeal, became responsible for payment of damages only in case the judgment appealed from were affirmed in whole or in part.</p> <p>3. The plaintiff in such case having been given the option to take judgment for a certain sum and no more, it was error to include in the judgment interest on that sum from the date of the verdict.</p>

O. EsohweixeR, Circuit Judge. This is an action to recover damages for personal injuries sustained by the plaintiff.

0. Eschweileb, Circuit Judge. This is a controversy to determine the ownership of the proceeds of a benefit certificate in the Firemen… Held: enjoyed and disposed of by it, subject to its by-laws 'and regulations.” Sec. 1987. “The members of the paid fire or police department in any city heretofore or hereafter organized, who comply with the constitution and by-laws of such organization, are constituted a body corporate in such city under the name of ‘The Firemen Eelief…

<p> Municipal corporations: Streets: Change of grade: Measure of damages: Special verdict: Unnecessary question: Evidence: Instructions to jury: Appeal: Harmless errors: When verdict set aside. </p> <p>1. The true measure of damages to abutting property for a change in the grade of a street is the difference in the market value of the property immediately before and immediately after such change.</p> <p>2. The submission to the jury of an improper question relating to a mere evidentiary fact is not a material error if, without such question, there is a complete special verdict.. The answer to such surplus question may be disregarded.</p> <p>3. In an action involving assessment of damages for a change in the grade of a street, evidence relating to the loss of rentals and to the cost of restoration is proper as bearing on the question of depreciation, but neither can be made an independent ground of recovery.</p> <p>4. The evidence as to the cost of restoration should be confined to a time at or about the date of the assessment.</p> <p>5. Error in admitting evidence of the cost of restoration four years afterward was not prejudicial where questions as to the market value before and after the change of grade were properly submitted and answered in the special verdict and such answers were supported by other competent and sufficient evidence; even though, in answer to another question, improperly submitted, the jury found the cost of restoration to be precisely the same amount as the difference in the market value.</p> <p>>6. In all inquiries relating to value, where there is no known, regular, and continuous market, such as exists in the exchanges or such as exists generally for consumption goods, a wide range of investigation is permitted and the rules governing the admission of evidence are liberal.</p> <p>7. In an action involving assessment of damages for a change in the grade of a street, it would have been proper to instruct the jury to the effect that the testimony of witnesses who measured distances and made memoranda thereof at the time, if otherwise credible, is of greater weight than the evidence of witnesses who merely give their recollection based on estimates of such distances; but the refusal to give such an instruction is not ground for a reversal where the evidence related to a matter not directly in issue, but forming one of the bases for the estimates of value or of damages made by the witnesses, and those estimates also rested upon actual inspection of the property.</p> <p>:8. Upon appeal it is not sufficient ground for setting aside a verdict that it is against the weight of evidence, where there is some credible evidence to support it and it does not appear to be perverse.</p>

Halsey, Circuit Judge. This is an action o-f ejectment. Plaintiffs and defendants-claim title from a common source, to wit, the will of M. B. Kneeland, who died July 1, 1875, seised in fee simple of the premises involved in this suit. The will, omitting purely formal parts, is as follows: “First. I direct that as soon as is convenient after my decease all my just debts be paid. “Second.

Williams, Circuit Judge. Action under sec. 1164, Stats. (1898), to recover the sum of $286.11 paid the defendant city, under protest, for a special assessment against plaintiffs property, which assessment, it' is claimed, was void for certain irregularities therein not here necessary to specify.

Appeals from judgments of the circuit court for Milwaukee county: E. C. EschweileR, Circuit Judge. These are two actions in tort which were tried together before the same jury and on the same evidence. The defendants owned and operated, by means of employees, a dredging outfit for the digging of drainage ditches through swamp lands.

C. Eschweiler, Circuit Judge. Tbe plaintiff suffered tbe loss of three fingers and tbe partial loss, of a fourth finger on bis left band on a cough drop, machine while be was working for tbe defendant, and brings this action by bis guardian ad -litem to recover damages for tbe injuries. Tbe cough drop machine consists principally of two .brass rollers between seven and eight inches long and four inches in diameter.

0. Eschweilee, Circuit Judge. Tbe complaint sets forth two causes of action, one on express contract and one on quantum meruit. In tbe cause of action on express contract tbe plaintiffs allege an agreement on tbe part of tbe defendant to pay them as commission for procuring a purchaser for certain described premises all said property sold for over and above $54,000.

Appeals from judgments of tbe circuit court for Wauke-sha county: MabtiN L. Lubck, Circuit Judge. Tbe appellants in each case, on November 22, 1912, moved' that tbe record therein be remitted to tbe trial court.

D. HastiNGs, Circuit Judge. This action was brought to recover damages for the death of a boy about fourteen years of age who came in contact with the highly charged wires of the defendant. The accident occurred on what is known as Hamilton and Merryman Company Island in the city of Marinette, where the Republic Lumber Company as lessee was engaged in the lumber business.

C. Eschweiler, Judge. Tbe plaintiff, as administratrix of ber husband’s estate, brings this action to recover damages for tbe death of ber bus-band, who was billed by tbe explosion of a gas enameling oven in tbe factory of tbe defendant on tbe night of March 6, 1911, about 9 :35 o’clock in tbe evening.

Tarrant, Circuit Judge. Action to recover for a personal injury. Held: though that it was not characterized by passion or prejudice. Upon the ground, -that the verdict expressed the honest judgment of the jury, but was so excessive as to be clearly contrary to the evidence, a new trial was ordered, contingent upon plaintiff' not electing to- take judgment for $4,000 less than the jury award.

E~r.~r.ot?. to review a judgment of tbe municipal court of Milwaukee county; OreeN T. Williams, Circuit Judge. This is a writ of error to tbe municipal court of Milwaukee county to review a judgment of tbat court. Tbe plaintiff in error was found guilty of violating sec. 1 of an ordinance of tbe city of Milwaukee and sentenced to pay a penalty of $25 and costs.

<p>Appeal from a judgment of tbe circuit court for Milwaukee county: J. C. Ludwig, Circuit Judge.</p> <p>Action to recover for breach of contract to employ plaintiff at stipulated compensation per month. The alleged period of employment was during June, 1910, and the compensation $155. It was claimed that plaintiff was discharged without cause on the 6th day of the month and so was prevented from. earning the agreed compensation for the rest of the month. Defendant claimed that plaintiff was employed, subject to be discharged at pleasure, and that he was discharged 'accordingly. On the evidence and verdict plaintiff was entitled to the amount for which judgment was rendered.</p> <p>cited, among other cases, Babcock v. Appleton Mfg. Co. 93 Wis. 124, 127, 67 N. W. 33; Winkler v. Bacine W. & C.Co. 99 Wis. 184, 187, 188, 74 N. W. 793; Barker v. Knickerbocker L. his. Co. 24 Wis. 630,' 638; Van Wmlcle v. Satterfield, 58 Ark. 617, 25 ¡5. W. 1113, 23 L. R. A. 853, 855.</p>

<p>Corporations: Control by courts: Deadlock in affairs: Receivers: Appointment pendente lite: Appeal: Discretionary order: Error as to existence of power.</p> <p>1. The power of the circuit court to appoint a receiver for a corporation exists under its general equity jurisdiction, and is not limited to cases coming within the express provisions of the statutes.</p> <p>2. The rule that where a court refuses to exercise a discretionary power on the erroneous assumption that the power does not exist the order appealed from should be reversed, has no ap- • plication to cases in which there is no sufficient ground shown for the exercise of the court’s discretion, nor to cases in which the court decided that, even if it had the power, it would in the exercise of its discretion deny the motion.</p> <p>3. The mere fact that a deadlock exists between contending groups of stockholders and that charges of misconduct are made against the group in control, does not authorize a court of equity, upon affidavits and in advance of a trial upon the merits, to appoint a receiver for a solvent corporation and thereby wrest the control of its property and business from its duly elected officers, where such charges of misconduct are denied and where there is no imminent danger of loss of the corporate property or of any other injury to the moving party which cannot be fully compensated by the final decree.</p> <p>[4. Whether or not a mere deadlock in the affairs of a corporation, caused by contending factions among the stockholders, preventing an election of directors and a harmonious conduct of its business, would be sufficient ground for a court of equity by final decree to dissolve the corporation, appoint a receiver, and direct a sale of the corporate property and a distribution among the shareholders, not decided.]</p>

<p>Appeal from an order of the circuit court for Milwaukee county: W. J. Turner, Circuit Judge.</p> <p>The appeal is from an order denying a motion for the appointment of a receiver pendente lite.</p>

<p> Vendor and. purchaser of land: Marketable, title: Cloud upon title: Deed on foreclosure of second mortgage: Specific performance: Tender: Sufficiency: Tender at trial: Accounting: Discretion. </p> <p>1. An apparent cloud .upon the title to' land, requiring a resort to evidence aliunde the record in order to show its invalidity, is sufficient to render the title unmarketable.</p> <p>2. A title which is open to judicial doubt is not marketable.</p> <p>3. A duly recorded sheriffs deed upon'-the foreclosure of a second mortgage is a cloud' upon the title previously acquired under a foreclosure of the first mortgage', although the second mortgagee was a party to the earlier action; and one who had contracted to convey the land free and clear from incumbrances was not entitled to specific performance upon tendering merely the title acquired under such first foreclosure.</p> <p>4. The decreeing of specific performance rests largely in the discretion .of the court; and where a good title was not tendered by plaintiff until upon the trial of the action it was not an abuse of discretion to award specific performance only upon payment to defendants of the amount properly chargeable to plaintiff upon an accounting as to interest, taxes, rents, etc.</p>

<p>(1) Continuance: Absence of witness: Diligence. (2) Fire insurance: Ownership of property: Loss payable to trustee: Trust deed a mortgage.</p> <p>1. An application for a continuance because of inability to procure the testimony of a nonresident witness, made nearly two years after issue joined and after the cause was called for trial, was properly denied on the ground of lack of diligence, where no attempt to take the deposition of the witness had been made.</p> <p>2. Where a fire insurance policy provided that the loss if any should be payable to a certain person, “trustee, as his interest may appear,” the insurer was chargeable with knowledge of the character of the trust; and where such trustee was the grantee named in an ordinary trust deed executed by the insured to secure payment of its corporate bonds, that deed was in legal effect a mortgage for the purposes of the insurance, and did not make the trustee the owner of the property or render the policy void on the ground that the insured was not the- owner.</p>

<p> Injunction: On whom binding: Town supervisors: Persons having notice: Violation: Contempt of court: Punishment: Procedure: Failure to find essential facts: Harmless errors: Imposing penalty: Attorneys’ fees: Ditches and drains. </p> <p>1. A town supervisor who, after service upon him of an order restraining the taking of any steps toward the construction of a drainage ditch, with another person having knowledge of the injunction, resorted to a subterfuge whereby the latter dug the ditch under arrangement with a landowner who was to pay him therefor and in return receive a rebate of the drainage tax levied against his land, were properly convicted of contempt of court for violation of the injunction.</p> <p>2. Where an injunctional order was directed against certain defendants as the board of supervisors of a town, it is no defense in a proceeding for contempt that in doing the prohibited acts they were not acting as a town board but as agents of the state, exercising police power.</p> <p>3. An injunctional order restraining certain defendants, as the board of supervisors of a town, and all persons acting under or by virtue of their authority, from proceeding with the construction of a drainage ditch, was binding not only on such defendants but on all persons having notice of it.</p> <p>4. Acts alleged to be a violation of an injunctional order are not punishable under secs. 3477, 3489, 3490, Stats. (1898), unless they were calculated to or actually did defeat, impede, or prejudice the rights or remedies of a party to an action; and the court should so determine and adjudge before imposing any fine, and should also determine and adjudge whether or not actual loss resulted to any party, so that proper disposition may he made of the fine imposed.</p> <p>5. Failure of the trial court to find these essential facts in express terms is not prejudicial error since the enactment of sec. 3072m, Stats. (Laws of 1909, ch. 192), if the record affirmatively shows that the misconduct found was in fact calculated to impede or prejudice the rights of a party and that such party suffered loss in conseguence thereof.</p> <p>6. Where an action was commenced by the owners of lands at the lower end of a proposed drainage ditch, primarily to prevent the collection of a tax for benefits where damage rather than benefits would result, and to prevent the flooding of their lands, the construction of a small part only of the ditch above them, in violation of an injunctional order, was calculated to defeat, impede, and prejudice their rights, even though actual damage was not thereby done to their lands; and such facts appearing in the record sustain the imposition of a penalty upon the guilty persons.</p> <p>7. In such case it was the duty of the plaintiffs to bring to the attention of .the court the fact that its order was being set at defiance, and to employ attorneys for that purpose and, where defendants contested the proceeding and sought a writ of prohibition from the supreme court, to instruct their attorneys to resist that application; and it was proper to impose upon the guilty parties the payment of attorneys’ fees so incurred.</p> <p>8. The fact that in such case the money was ordered paid to the-attorneys instead of to the parties,’was at most an irregularity without prejudice, and does not call for a reversal.</p> <p>9. Emerson v. Huss, 127 Wis. 215, distinguished.</p>

<p> Fraud: Exchange of lands: False representations as to taxes: Duty to make inquiry: Notice to agent: Collusion: Pleading: Evidence: Special verdict: Discretion. </p> <p>1. A complaint alleging that plaintiff and defendant made an agreement for exchange of lands, whereby plaintiff was to assume and pay the taxes on certain lots which defendant was to convey to him; that as an inducement for the exchange defendant represented that such taxes would not exceed $200, although, as he knew or had reason to know, they amounted to $458.83; that in reliance upon such representations plaintiff entered into the agreement, and by reason thereof sustained damage in the sum of $266.83, states a good cause of action.</p> <p>2. It is not necessary in all cases of fraud that the deception should have been by means of any trick or artifice. A mere falsehood relative to a material fact is often sufficient.</p> <p>3. Although plaintiff’s testimony in this case, corroborated by another witness, that defendant made the false representations alleged was contradicted by defendant and some members of his family who heard at least a part of the conversation, this court cannot say that a verdict for the plaintiff was not supported by such clear and convincing evidence as the law requires in proof of fraud.</p> <p>4. There being nothing suspicious or improbable in defendant’s statement that the taxes would not exceed $200, plaintiff had a right to rely thereon and was not bound to examine the city records to ascertain the truth.</p> <p>5. Where a third person acts in collusion with an agent to defraud his principal, the latter is not chargeable with notice of information which the agent receives in the- course of and relative to such collusive transaction; and this rule is especially applicable where the agent is requested not to communicate such knowledge to his principal.</p> <p>6. In an action based on alleged false statements by defendant as to the amount of the taxes on his lots, whereby plaintiff was induced to make an exchange and to assume payment of such taxes, evidence as to the relative value of the properties exchanged was admissible.</p> <p>7. In actions for fraud great latitude in the introduction of evidence is allowed.</p> <p>8. It is not an abuse of discretion, under sec. 2858, Stats. (Supp. 1906: Laws of 1903, ch. 390, sec. 1)., to deny a request, made at the close of the testimony, for submission of a special verdict, when there is but a single issue, which can be clearly defined and succinctly placed before the jury in the form of a general verdict.</p>

<p>Appeal from an order of tire circuit court for Milwaukee •county: WaRREh D. Tareaht, Circuit Judge.</p> <p>The order appealed from stayed execution on a judgment for deficiency in foreclosure proceedings and set such judgment aside.</p> <p>May 18, 1901, plaintiff commenced an action in the circuit court for Milwaukee county, making the debtor and mortgagor, Walter E. Wright, and Laura W. Potter, a second creditor .and mortgagee of Wright, defendants. The complaint was in the usual form and was served upon defendants. The •debtor did not appear. Laura W. Potter answered; admitting the allegations of the complaint, but claiming she was not holder of the legal title, although her interest was created by deed, in form; that it was given to secure Wright’s indebtedness to her of $1,025.71. She asked for judgment protecting the rights of all parties. The answer was not served upon Wright. The court found facts requisite to a judgment ■of foreclosure in plaintiff’s favor; also found facts in harmony with the answer of Laura W. Potter, and determined that, in case of a surplus arising from the sale to collect plaintiff’s claim, she was entitled thereto on her claim. Judgment was so rendered and fixing the amount of the indebtedness to Laura W. Potter and providing for the payment of the surplus, if any, to her. The sheriff reported a deficiency to the amount of the indebtedness to her. The notice of motion to confirm the report was not served on Wright, but was on the attorney for defendant Potter. The report was confirmed and judgment for deficiency ordered in her favor. Wright had no notice thereof until a short time prior to January 24, 1912. lie then notified Laura W.-Potter that her judgment was void and demanded a release thereof. She refused, whereupon he moved the court, on affidavit setting forth the facts, for an order perpetually staying execution and setting the judgment aside. Both motions were heard together and granted with the usual costs. Laura W. Potter appealed.</p>

<p>Appeal from a judgment of tbe circuit court for Milwaukee county: LawbeNce W. Halsey, Circuit Judge.</p> <p>Edwin Reynolds died February 19, 1909, leaving surviving him his widow, who was his second wife, and an adopted daughter. His will, executed September 9, 1905, was duly offered for probate. By this instrument he made various specific bequests and provided certain annuities, 'among them an annuity of $3,000 per year for his wife for a period of ten years. The residue of the estate was disposed of as follows:</p> <p>“Nineteenth. All the rest, residue and remainder of my estate, both real and personal, I give, devise and bequeath in trust to Charles F. P. Pullen, Nellie M. Reynolds and Fred W. Niles of. Milwaukee, Wisconsin, to have and to hold the same for the period of ten (10) years after my death, for the purpose of investing the same, receiving the income therefrom, distributing the residue as hereinafter provided, and carrying out all of the provisions of this will; and I authorize and empower them to sell and convey any part of my estate, either real or personal, at- any time in their discretion, and to reinvest the proceeds thereof in such income-producing securities as in their judgment will be for the best interests of my estate.</p> <p>“Twentieth. I direct that my trustees above named, shall before the expiration of said trust, convert all of the property and estate remaining in their hands into money for the purpose of distributing the same among the beneficiaries hereinafter named, and I direct that they shall pay therefrom, and I give and bequeath the said residue of my estate as follows, to wit: To my wife, Nellie M. Reynolds, thirty (30) per cent, thereof, to Arthur Fairchild, five (5) per cent, thereof, to Fmma R. Robinson, five (5) per cent, thereof, to Dorothy Cunningham, five (o) per cent, thereof, to Charlotte Smith, five (5) per cent, thereof, to Jane A. Cunningham, five (5) per cent, thereof, to Mrs. Emily Rogovsky, five (5) per cent, thereof, to the Protestant Nome for the Aged of Milwaukee, Wisconsin, five (5) per cent, thereof, to the Teachers’ Pension Fund of Providence, R. I., five (5) per cent, thereof, to the judge of probate of the county of Tolland, Conn., and his successors in office in trust for the purpose of using the income thereof and such portion of the principal as may be necessary for the maintenance of the Reynolds family burying plot in Mansfield, Conn., five (5) per cent, thereof, to Myra H. Robinson of Mansfield, Conn., two and one-half (2-J) per cent, thereof, to Edwin R. Robinson of Mansfield, Conn., two and one-half (2-|) per cent, thereof, to Winthrop Reynolds, son of John I). Reynolds, of Andover, N. J., two and one-half (2-£) per cent, thereof, to G. Osmar Reynolds, Jr., of Pelham Manor, N. Y., two and one-half (2J) per cent, thereof, to Grace B. Reynolds of Pelham Manor, N. Y., two and one-half (2-J) per cent, thereof, to Mrs. Emma J. Gardner of Mansfield, Conn., two and one-half (2^) per cent, thereof, to Nellie M. Oahoon, two and one-half (2-|) per cent, thereof, to Mrs. Harriet M. Bowes, two and one-half (2-J) per cent, thereof, to Esther Hoffner, two and one-half (2£) per cent, thereof, and to Susie Johnson, two and one-half (2-£) per cent, thereof.</p> <p>“Twenty-first. The annuity provided in Paragraph II to be paid to my wife, Nellie M. Reynolds, during her life, shall nevertheless terminate at the expiration of the trust hereinbefore created, at the end of ten (10) years from my death if she be then living.”</p> <p>Rmma R. Robinson, the adopted daughter and heir at law of the deceased, filed objections to the probate of the will, alleging mental incompetency in the deceased and undue influence exercised by a brother. The widow renounced the provisions of the will for her benefit and elected to take in lieu thereof the share of the testator’s estate as provided by secs. 2171 and 2172, Stats. (1898), under the following stipulation, filed with the court on December 23, 1909 :</p> <p>“It is hereby stipulated and agreed by and between the heirs at law of Edwin Reynolds, deceased, and the legatees and beneficiaries under the last will and testament of said deceased, dated September 9, 1905, and filed for probate in the county court of Milwaukee county, Wisconsin, as follows :</p> <p>“Eirst. That the objections filed by Mrs. Emma R. Robinson to the probate of said will be withdrawn and that said will be immediately admitted to probate.</p> <p>“Second. That in consideration of the withdrawal of such objections and. to avoid all further controversy and litigation concerning tbe admission of said will to probate, the widow of said, deceased, Nellie M. Reynolds, does hereby elect to take the share of the estate of said deceased as provided by law under sections 2171 and 2172 of the Statutes of the state of Wisconsin, which is understood to be a dower interest in any lands of which the deceased died seised, and one third of the net personal estate of said deceased which shall be in lieu of the annuity and legacy provided to be paid to her under said will.</p> <p>“Third. The legacy to Nellie M. Reynolds of thirty (30) per cent, of the residue of the estate having lapsed by reason of her election to renounce such legacy and take the provision allowed her under the laws of the state of Wisconsin, the amount of such lapsed legacy being thirty per cent, of the residue of the estate of said deceased, descends to Mrs. Emma R. Robinson as sole heir at law of said deceased, and shall be paid to her as such heir at law by the executors of said will at the time of the payment of the specific legacies and widow’s share of such estate, which distribution shall be made as soon •as practicable after the expiration of the time limited for creditors to file claims against said estate under the laws of the state of Wisconsin.</p> <p>“October 5th, 1909.”</p> <p>This stipulation was signed by all the legatees and beneficiaries under the will except the Milwaulcee Protestant Nome for the Aged and the guardian for the minor legatees. The attorney for the Milwaulcee Protestant Nome for the Aged signed the stipulation with the- exception of the last paragraph. The guardian ad litem filed a statement objecting to the stipulation and agreement “so far as they attempt to announce the law relating to the time when, the manner in which, and the persons to whom disposition shall be made of that portion of the estate renounced by the widow.”</p> <p>February 24, 1911, the attorney for the Milwaulcee Protestant Nome for the Aged and the guardian ad litem petitioned the probate court for construction of the will, alleging their “doubt about the proper construction, meaning, and effect of said will taken in connection with, the stipulation and agreement of the widow to take the provision made by law.”</p> <p>The court held it had power to construe the provisions of the will without reference to the provisions of the stipulation, and that the thirty per cent, of the residue of the estate, which under the will was to go to the widow upon the termination of the trust estate, by reason of the widow’s election to take the provision made for her by law remained part of the residue of the estate and was to be distributed at the end of the trust period as provided by the will.</p> <p>On appeal to the circuit court the judgment of the probate court was affirmed except as to the payment of a small annuity and the distributive shares going to each residuary legatee, and as so modified the judgment was approved. The modifications made by the circuit court are immaterial to this appeal, except that the circuit court held that the vesting of the interests in the residue, which' was to be distributed at the end of the trust period, was postponed until that time.</p> <p>This is an appeal from the judgment of the circuit court.</p> <p>contended, inter alia, that the heir is not to be disinherited except by express declaration or devise or by necessary implication from the testator’s language. Anderson v. Wilson (Iowa) 136 1ST. W. 134, 139; Bond’s Appeal, 31 Conn. 183 ;„ Beck’s Appeal, 78 Pa. St. 432; Bowker v. Bowker, 148 Mass. 198, 19 ET. E. 213. A residuary. bequest which fails or lapses for any cause, and is not otherwise disposed of by the will, becomes intestate estate and descends to the heir. In re Bradley’s Will, 123 Wis. 186, 101 ET. W. 393; Barrington v. Pier, 105 Wis. 485,498, 82 ET. W. 345; McHugh v. McGole, 97 Wis. 166, 177, 72 ET. W. 631; Will of Adelman, 138 Wis. 120, 125, 119 ET. W. 929; Beekman v. Bonsor, 23 ET. Y. 298; Kerr v. Dougherty, 79 El. Y. 327; Booth v. Baptist Church, 126 ET. Y. 215, 245, 28 ET. E. 238; Lyman v. Goolidge, 176 Mass. 7, 9, 56 ET. E. 831; Dresel v. King, 198 Mass. 546, 85 N. E. 17. It is entirely competent for legatees under a will to enter into contracts with each other in regard to their respective interests under the will, and, where their claims are conflicting, to compromise them; Hatcher v. Cade, 55 Ga. 359; Willcins v. Hukill, 115 Mich. 594, 73 N. W. 898; Ford’s Estate, 185 Pa. St. 420, 39 Atl. 1106. The agreement of all the legatees binding their respective interests is a valid consideration for the agreement of each. Steinway v. Steinway, 163 N. Y. 183, 57 N. E. 312. Legatees may agree to any division of the property devised to them that they see fit. If all the legatees are of age and the agreement is not vitiated by fraud, accident, or mistake, the division will bind all. And if some are minors, and they ratify it on coming of age, all are bound, and the title of each to the several-ties so divided and set apart is perfect. Brewster v. Demar-est, 48 N. J. Eq. 559, 23 Atl. 271; Foote v. Foote, 61 Mich. 181, 28 N. W. 90; Hatcher v. Cade, 55 Ga. 359. Such an agreement between legatees by way of stipulation will be enforced against the individual interests of those who' join therein, and the omission of one of the legatees to sign the agreement will not invalidate it against those who did sign. Woodward v. Woodward, 16 N. J. Eq. 83.</p> <p>to the point that the thirty per cent, of the residue renounced by the widow became intestate estate, cited the following additional authorities: Ford v. Ford, 88 Wis. 122, 59 N. W. 464; Burnet’s Exrs v. Burnet, 30 N. J. Eq. 595; Witherspoon v. Watts, 18 S. O. 396; Sawyer v. Freeman, 161 Mass. 543, 37 N. E. 942. He also contended that the stipulation should be sustained as to the interests of those who signed it, citing, among other cases, Will of Dardis, 135 Wis. 461, 115 N. W. 332; 40 Oyc. 2107; Bailey v. Wilson, 21 N. O. 182; Smith v. Smith, 36 Ga. 184; Turner v. Campbell, 59 Ind. 279; Stevens v. Clough, 70 N. H. 165, 47 Atl. 615; Steinway v. Steimoay, 78 N. Y. 418, 37 N. Y. Supp. 742; S. C. 157 N. Y. 710, 53 N. E. 1132.</p> <p>Milwaukee Protestant Home for the Aged, to the point,that the widow’s renunciation did not have the effect to make her share of the trust fund intestate estate, cited Lewis v. Sedgwick, 223 Ill. 213, 79 N. E. 14; McMwrphy v. Boyles, 49 Ill. 110; Bequa v. Graham, 187 Ill. 67, 58 N. E. 357; Dunshee v. Dunshee, 251 Ill. 405, 96 N. E. 298, 299 ; Marvin v. Lediuith, 111 Ill. 144, 149; Blatchford v. Neivberry, 99 Ill. 11, 62; Isenhart v. Brown, 1 Edw. Ch. 411, 413; Carper v. Growl, 149 Ill. 465, 469, 36 N. E. 1040; 2 Scribner, Dower (2d ed.) 527; 2 Williams, Executors, 669.</p> <p>contending that the part renounced by the widow was not thereby taken out of the trust, but remained therein to be sequestered for the benefit of the disappointed legatees, cited among other authorities: 2 Story, Eq. Jur. (13th ed.) 423; 1 Woerner, Am. Law of Administration (2d ed.) p. 273; Jennings v. Jennings, 21 Ohio St. 56; Dean v. Hart, 62 Ala. 308; McBeynolds v. Counts, 9 Gratt. (Ya.) 242; Levengood’s Estate, 38 Pa. Super. Ot. 491; Evans's Estate, 150 Pa. St. 212, 24 Atl. 642; MaskeTl v. Goodall, 2 Disn. 282; Sarles v. Sarles, 19 Abb. N. O. 322 ; Bussell v. Wright, 133 Wis. 445, 113 N. W. 644; Jones v. Knappen, 63 Vt. 391, 22 Atl. 630; Lattav. Brown, 96 Tenn. 343, 34 S. W. 417; Plympton v. Plympton, 6 Allen, 178; Hinkley v. House of Befuge, 40 Md. 461; Hoskins v. Hos-kins, 43 Iowa, 452; Han.dc v. McComas, 98 Ind. 460; Mc-Callister v. Brand's Heirs, 11 B.' Mon. (Ky.) 370; Boe’s Ex’rs v. Boe, 21 N. J. Eq. 253.</p>

<p> Discovery: Examination of adverse party: Affidavit: Requisites and sufficiency: Discretion: Notice: Irregularities: Foreign corporations: Right to sue in this state: Jurisdiction: Service of process on officer in state: Appeal: Review. </p> <p>1. Where plaintiff seeks to examine the defendant under sec. 4096, Stats., before issue joined, if his affidavit shows affirmatively that he has no cause of action the examination will be denied; but the affidavit need not state facts sufficient to constitute a cause of action, nor is it even necessary that plaintiff should know that a cause of action exists. All that the statute requires is that the general nature and object of the action be stated, and that a discovery is sought in order to enable the party applying for it to plead.</p> <p>2. The right of foreign corporations to sue in the courts of this state rests upon comity, and in the absence of legislative prohibition they may maintain such actions in certain cases without having complied with sec. 17706, Stats.</p> <p>3. A contract between foreign corporations to exchange property of one or more for stock in another, which is neither made nor to be performed in this state and does not relate to property within the state, is not affected by sec. 17706, Stats., either as to its validity or as to tlie right of one of such corporations to maintain an action thereon in the courts of this state.</p> <p>4. In such a case it is immaterial to plaintiffs right to examine an officer of the defendant corporation before issue joined, whether an action for specific performance can or cannot be maintained here upon contract to convey land in another state, where the affidavit states that the action is brought to enforce the promises and undertakings of defendant or, if specific performance be impossible, to recover damages.</p> <p>5. Where the president of defendant corporation was named in the summons as an individual defendant, and a notice was given for an examination under sec. 4096, Stats., describing him as ‘'one of the above named defendants,” while the subpoena was directed to him “individually and as an officer of the corpora^ tions named,” etc., service of such papers upon him was sufficient to authorize his examination as an officer of the corporation, and the irregularity, if any, should be disregarded.</p> <p>6. Under subd. 13, sec. 2637, Stats. (1898), when a foreign corporation ‘has property within this state, service of process may be made upon it by service upon an officer thereof, being within the state, and it is immaterial whether at the time of service such officer is in the state on business of the company or not.</p> <p>7. The same rule applies to service of a notice of examination under .sec. 4096, Stats., to enable the plaintiff to plead.</p> <p>8. Where the matters upon which discovery is sought to enable a party to plead are obviously within the knowledge of the party applying for the examination it will be denied; but where the facts sought are not obviously within the knowledge of the party, and the affidavit is in compliance with the statute, examination should be permitted.</p> <p>9. The affidavit in this case, showing among other things that the cause of action is based on a contract of subscription to the capital stock of plaintiff; that plaintiff had tendered performance, but defendant had failed to perform; that the books and records in defendant's possession show the transactions and proceedings with reference to said contract; and that discovery thereof is necessary and is sought in order to enable the plaintiff to plead, — is held sufficient to justify an order for the examination of the president of defendant, a foreign corporation, upon whom service had been made.</p> <p>10.The examination of a party under sec. 4096, Stats., is at all times under the supervision of the trial court, and the discretion of that court respecting such examination will not be interfered with except in cases of clear abuse.</p>

<p>Appeal from a judgment of tbe circuit court for Milwaukee county: E. C. Esci-iweilee, Circuit Judge.</p>

<p> Limitation of actions: Adverse possession: Ejectment against tenants: Effect as to landlord: Privity. </p> <p>An action of ejectment brought by the true owner of land against tenants occupying the same operates to interrupt the running of the statute of limitations (in this case sec. 4211, Stats. 1898) in favor of the landlord, when he is in possession only through such tenants, although he is not a party to the suit. To that extent there is privity between tenant and landlord.</p>

<p>Appeal from a judgment of the circuit court for Milwaukee county: J. C. Ludwig, Circuit Judge.</p>

<p>Appeal from au order of tbe circuit court for Milwaukee county: WabeeN D. TaeeaNT, Circuit Judge.</p> <p>Tlie appeal is from an order -sustaining a, demurrer to the complaint;</p>

0. Esohweiler, Circuit Judge. This action was brought to -recover for personal injuries resulting to tbe plaintiff while she was riding in a single top buggy going southerly on the west side of Eleventh street in the city of Milwaukee. The defendant, who was driving a team of horses, collided with the plaintiff on Eleventh street at the intersection of Vliet street, causing the injuries complained of.

Lueck, Circuit Judge. This action was brought to recover damages occasioned by the loss of a carload of sheep pelts shipped from Monroe, Michigan, consigned to the “order of Mainzinger Bros., Milwaukee, Wisconsin, notify Uber Bros, at Hartford, Wisconsin.” The pelts were shipped September 10 or 11,1909, over the Lake Shore & Michigan- Southern Railway and received by defendant as connecting carrier at Franklin Park Junction, Illinois, on the 14th day of September, 1909, at…

W. Helks, Judge. The appeal is by the defendant O. Ii. Ingram from a judgment rendered against both defendants for $525 damages and $277.28 costs. The facts are fully stated in the opinion. Upon the question of excessive publication they cited 25 C'yc. 387; Coleman v. MacLennan, 78 Kan. 711, 98 Pac. 281, 20 L. R. A. N. s. 361; Redgate v. Roush, 61 Kan. 480, 59 Pac. 1050; Mertens v. Bee Pub. Co. 5 Neb.

Action to recover damages for failure to acquire certain timber standing on lands purchased by plaintiffs from tbe defendant and which it is alleged the defendant falsely and fraudulently represented belonged to it at the time of sale and was included in the purchase of the lands.

0. Ludwig, Circuit Judge. In tbe year 1902 plaintiff contracted to buy certain property of tbe defendant, designated as Spring Bank, for $53,000. Plaintiff paid $2,000 in casb on tbe contract and later made other payments. To secure another payment be conveyed to tbe defendant certain land in Nebraska, valued at $2,000’, as collateral security, and also deeded outright to tbe defendant certain other real estate.

<p>Appeal from a judgment of the circuit court for Milwaukee county: J. 0. Ludwig, Circuit Judge.</p> <p>On February-24, 1908, Robert T. Hohnbach died, leaving n will which was thereafter duly admitted to probate. His widow died on February 28, 1908, four days after his death. The plaintiffs herein are the minor grandchildren of the testator, and by their guardian this action is brought for the construction of the will, their contention being that the fee to the real estate is vested in them and that the children of the testator receive but a life estate or conditional fee. The defendants, the children of the testator, contend that, having survived the testator and his widow, they take an absolute fee in the land, and that the death of the devisees referred to in the will means their death prior to the death of the testator or prior to the death of the widow. The controversy arises over tbe first and fifth paragraphs of the will, the material parts of which are as follows:</p> <p>“First. After the payment of the expenses of my last sickness, funeral charges, expenses of administratioii, and all of my just debts and liabilities, I do hereby give, devise and bequeath unto my beloved wife, Lina Hohnbach, for and during the term of her natural life and widowhood, all of my property and estate of whatsoever kind and nature, and wheresoever the same may be, and in case she shall again marry, I direct that she shall take nothing under this will, but shall be entitled to all her statutory provisions.”</p> <p>“Fifth. All of the rest, residue and remainder of my estate, I do hereby give, devise and bequeath to all of my children, including my said daughter Glam, in equal shares, or to the child or children of any deceased child or children, by right of representation, but I do hereby direct that in case any of my said children shall die without leaving lawful issue them surviving, but leaving a husband or wife them surviving, as the case may be, the share or shares which are herein-before given to any of my said children, shall revert to my other surviving children, or the child or children of any such surviving child or children, hy right of representation.”</p> <p>The trial court found in favor of the defendants, and from a judgment entered in accordance with such finding plaintiffs appeal.</p> <p>He cited, among other cases; Littlewood’s Will, 96 Wis. 608, 71 N. W. 1047; Eg-gleston v. Swartz, 145 Wis. 106, 129 N. W. 48; Korn v. Friz, 128 Wis. 428, 107 N. W. 659.</p> <p>They argued, among other things,.that a life estate having been created by this will, the death of any of the devisees during the widow’s lifetime would have divested them of their share and their children would have taken, hy substitution, the parents’ share. Death of the devisees here means death at any time prior to tbe widow’s death. If tbe gift is after a life estate, or a time is appointed for payment, tbe words “in case of death” refer to death at any time before tbe vesting in possession, whether before or after the death of testator. 30' Am. & Eng. Ency. of Law (2d ed.) 709 ■; Matter of Den-ton, 137 N. Y. 428, 433, 33 N. E. 482; Page, Wills, § 676.</p>

<p> Appealable, orders: Pleading: Contract for services, etc.: Sufficiency of complaint: Causes of action not stated, separately: Remedy. </p> <p>1. An order of tlie circuit court affirming an order of the civil court of Milwaukee county overruling a demurrer, is appealable under subd. 3, sec. 3069, Stats.</p> <p>2. In an action on contract to recover a balance claimed to be due for services of plaintiff and moneys advanced in the erection of a factory building for defendant, the complaint (set out substantially in the opinion) is held, on demurrer, to be sufficient.</p> <p>3. Where a complaint sets up two causes of action, pleaded together and not separately stated, the remedy is by motion, not by demurrer. •</p>

<p> Criminal law: Arson: Evidence: Sufficiency: Good reputation: 'Weight: Review on writ of error. </p> <p>1. One convicted of crime lias not only the right to the solemn judgment of the trial court on the question whether his guilt was sufficiently proven, hut upon writ of error he has the right to demand the deliberate opinion and judgment of this court upon the same question.</p> <p>2. The evidence in this case (stated in the opinion) is held insufficient to sustain the conviction of a person charged with burning in the nighttime the dwelling house of another.</p> <p>31 In such a case the facts that defendant had for years led the industrious and exemplary life of a reliable and law-abiding citizen, and that by his honest labor he had accumulated some property, do not prove his innocence; but a reputation of that kind carries much weight, especially when the evidence of guilt is doubtful and circumstantial.</p>

<p>Appeal from an order of the circuit court for Milwaukee county: W. J. Tuenee, Circuit Judge.</p> <p>This action was brought by the plaintiff, a taxpayer of the city of Milwaukee, against the defendant city and its officers to restrain them from constructing and operating a municipal electric light and power plant, using money and issuing and selling bonds for that purpose.</p> <p>Between 1902 and 1908 the defendant city took proceedings for the authorization and issue of bonds for the construction of a municipal electric lighting plant before the first suit (Neacy v. Milwaukee, 142 Wis. 590, 126 N. W. 8) was commenced. One hundred and fifty thousand dollars of these bonds were sold and $60,000 of the proceeds thereof invested in a site for a plant. This issue of bonds was subsequently declared void by this court. Neacy v. Milwaukee, 142 Wis. 590, 126 N. W. 8. Other money was spent before the above decision, in addition to the $60,000 for the land for a site, by way of expense for engineering, plats, and plans and specifications for machinery.</p> <p>In May, 1911, the legislature of the state of Wisconsin passed ch. 75, Laws of 1911 (sec. 927 — 19a, Stats.), whereby provision was made to validate the bonds theretofore held invalid by this court, and the defendant city took the steps indicated by the law for the purpose of validating the bonds, and other steps were taken to carry on the.proposed work.</p> <p>Application was made for a temporary injunction, which resulted in the making of the following order by the court:</p> <p>“That said defendants, and each and every of them, be and are hereby, until the trial and final determination of this action by this court, strictly restrained and enjoined from doing any act or thing looking to or in connection with the making or entering into any new contract or incurring any new or additional liability for the construction, erection or purchase of any municipal light or power plant, or any part thereof, or any equipment or machinery therefor, or for machinery, equipment or plant as described and referred tó in the complaint herein in Exhibit A thereto annexed.</p> <p>“That said defendants, and each and every of them, be and are hereby, until the trial and final determination of this action by said court, strictly restrained and enjoined from diverting or transferring any further, other or different sums of money from that certain fund of the city of Milwaukee known as the municipal lighting fund, as referred to and described in the complaint herein, and from drawing or signing any city order for the payment of any money, or from paying any money or sum of money whatsoever, for the construction, erection or purchase of any municipal light plant, or any equipment or machinery therefor, in any way whatsoever in connection with or incident to such plant, its machinery or equipment, except upon any contract therefor heretofore duly entered into by said defendant city of Milwaidcee.</p> <p>“It is hereby further ordered that said defendant, city of Milwaukee, and said defendants, ... be and are hereby, until the trial and determination of this action by said court, strictly enjoined and restrained from issuing, selling or disposing of the one hundred thousand dollars of municipal electric light bonds described in the complaint in this action, or .any part or portion thereof, and from attesting, signing, countersigning or attaching the corporate seal of said city of Milwaukee to said bonds, or any of them. . .</p> <p>The appeal is from the foregoing order.</p>

Williams, Circuit Judge. Tbe plaintiff seeks to bave a contract for tbe purchase and sale of stock in tbe Westfabl File Company declared rescinded, and to recover tbe money paid by bim to tbe defendant as tbe consideration for tbe sale.

<p>Appeal from a judgment of the circuit court for Milwaukee county: E. 0. Eschweilee, Circuit Judge.</p> <p>This is an action of mandamus brought on relation of the city of Milwaukee to compel the defendant company to pave with asphalt pavement on a concrete foundation that portion of Walnut street in said city lying between tbe outside rails of its double track and one foot on either side thereof. From a judgment awarding a peremptory writ in accordance with the petition the defendant appeals. The material facts are simple and practically undisputed. June 6, 1887, the city by ordinance granted to the Milwaukee City Railway Company, the defendant’s assignor, the right to lay and operate a double-track street railway upon Walnut street, which ordinance contained the following provision:</p> <p>“Section 4. The rights and privileges accorded by this ordinance shall remain and be in force up to the first day of July, 1924, unless sooner terminated by law, and said railway company shall keep and maintain in good and thorough repair during the continuance of said term, at its own costs and charge, all the portion of said Walnut street lying between the outside rails of the tracks hereby authorized to be laid, and one foot therefrom, towards the curb line, of the same material as that of which the said street shall be composed at any time when such repairs shall be necessary.”</p> <p>The tracks were laid and the railroad operated thereon pursuant to this ordinance. At some time after the passage of the ordinance the street was paved from curb to curb with a wooden block pavement. Prior to January, 1900, this franchise, with others of a similar nature on other Milwaukee streets, had been purchased by the defendant with the purpose of combining all the street-car lines in the city into one system, and the city council of Milwaulcee on January 2, 1900, passed an ordinance entitled:</p> <p>“AN OejdinaNce authorizing the Milwaulcee Electric Railway <& Light Company to construct, maintain and operate street railways in the city of Milwaukee over and along the streets, highways, bridges and viaducts named herein, and providing for a uniform and concurrent date for the termination of all franchises and right of ways heretofore or hereby granted to said company, or to its predecessors and assigns and providing for the rates of fare to be charged and for certain transfer privileges.”</p> <p>By sec. 1 of tbis ordinance permission was given to the defendant to lay tracks and operate street cars thereon “on those streets in the city of Milwaukee and in the manner and upon the conditions herein set forth.”</p> <p>Secs. 2 and 3 are as follows:</p> <p>“Sec. 2. The poles of said railway company are to be placed or replaced according to a plan submitted to and approved by the board of public works; provided, however, that said board shall have the right to change the location of poles as indicated on the plan so submitted, and all poles to be placed or replaced according to the said approved plan and under the supervision and direction of the said board of public works. The track of the said railway shall be of the gauge of not more nor less than four feet eight and one-half inches, and shall not be elevated above nor depressed below the established grade of the street. It shall be laid with modern improved rails, as approved by the board of public works, and in such manner that carriages and other vehicles can easily and freely cross said streets at any and all points and in any and all directions, without obstruction, and shall be laid as near the center of said streets and as near together as practicable. It shall be the duty of said railway company at all times to keep in good repair the roadway between the rails and for one foot on the outside of each fail as laid, and the space between the two inside rails of its double tracks with the same material as the city shall have last used to pave or repave these spaces and the street previous to such repairs, unless the said railway company and the board of public works of said city shall agree upon some- other material, and said company shall then use the material agreed upon. Said railway company shall operate thereon street railway cars and carriages by means of power produced by electricity conducted upon wires suspended over and above its tracks, or such other power as may be agreed upon between said city and the said railway company, its successors and assigns.</p> <p>“Sec. 3. All rights reserved or secured to said city by and under all ordinances now in force or the laws of Wisconsin relating to regulating the speed and headway of cars, the time that cars shall be operated each day, the laying of tracks, stringing of wires, and the use and operation of all cars and tracks and everything connected with the exercise of the rights hereby or heretofore granted to said railway company and its predecessors, are hereby reserved to said city the same as though this ordinance had not been passed, and the same shall extend and apply to all franchises hereby granted except as herein otherwise expressly provided.”</p> <p>Ry sec. 4 permission is granted to occupy and use for street railway purposes, in addition to the streets already occupied, a considerable number of streets and parts of streets, with certain provisos and stipulations as to the use of viaducts and bridges and as to the extension of lines within the city limits, which are not material here.</p> <p>By sec. 5 all the rights and privileges conferred by the ordinance are declared to extend to December 31, 1934, and all the rights and privileges theretofore conferred upon the company or its assignors are extended to the same date.</p> <p>By sec. 6 rates of fare and transfer privileges are regulated; by sec. 7 all rights previously conferred by the city on the defendant and its assignors are confirmed; and by sec. 8 the defendant agrees to furnish electric power to swing all the swing bridges in the city crossed by the 'company.</p> <p>Secs. 9 and 10 are as follows:</p> <p>“Sec. 9. Whenever the said city shall determine to pave or repave any street upon which street-car tracks are or shall be situate, the board of public works shall give notice thereof to said railway company, and thereupon said railway company shall immediately make all such repairs, connections, conduits and improvements as it shall then deem necessary for the use and operation of its tracks and railway; after any such street shall be paved by said city the pavements thereon and the pavements upon any and all streets heretofore paved by said city shall not be opened or disturbed by said railway company for any purpose whatsoever, except by permission in writing therefor signed by the mayor and the members of the said board of public works. And whenever any such permit shall be given the city engineer shall promptly give plans and specifications for opening and closing the pavement, and said railway company shall do such work according to such plans and specifications and under the supervision of said board of public works and city engineer and to their satisfaction, and said board shall have power to employ necessary and competent inspector or inspectors to actively superintend the work, and his compensation shall be paid by said railway company; and if said railway company shall fail or neglect or refuse to properly replace or repair any pavement so opened the city shall have the right to replace or repair the same by and under the direction of said board of public works, and said railway company shall pay the actual cost and expense thereof.</p> <p>“Sec. 10. The provisions of all ordinances now existing, so far as the same or any or either of them, relate to the use and operation of said railways, such as the removal of snow and ice therefrom, the joint use of tracks by other companies or persons, the occupation and use of streets, bridges and public places, and the repairing, replacing, strengthening and maintaining the same, the gauge, grade and elevation of tracks and the manner of constructing the same shall not be construed or deemed to be repealed hereby, but shall be and remain in force with the same effect as though this ordinance had not been passed.”</p> <p>The remaining sections are not material to the questions arising in this case.</p> <p>Some time prior to 1911 the wooden block pavement on Walnut street, including that part within the rails of the street railway tracks, became worn out, decayed, and rotten, so that repair with wooden blocks was practically impossible, and in September, October, November, and December of that year the. city laid an asphalt pavement on a concrete foundation in the street from the curb on each side to a line one foot outside of the outermost street railway track. The defendant refused to lay such a pavement between its rails or on the one-foot strip outside of its rails, claiming that it was not compelled to do so by either ordinance, and this action was commenced February 3, 1912, to compel it do so. From judgment awarding the peremptory writ the defendant appeals.</p>

<p> Conspiracy: When actionable: “Open or rough shadowingBring-ing person into public disrepute: Preventing freedom of action: Aggravating circumstances: Joint and several liability: Acts of one conspirator binding on all: Liability of master for torts of servant: Evidence: Weight and sufficiency: Mitigation of damages: Conclusions of fact: Leading questions. </p> <p>1. One who has knowledge that detectives in his employ or under • his control propose to engage in “open or rough shadowing” of a person under surveillance, and consents thereto, cannot escape liability therefor on the plea that he did not know what the term meant.</p> <p>2. A conspiracy to libel a person or to commit any other wrong to his person, reputation, or property may, when damage follows, he the subject of a civil action.</p> <p>3. “Open or rough shadowing,” which consists in openly and putA licly following and watching a person, being calculated to pub-\ lish him as suspect and to bring him into public disrepute,; ridicule, and contempt, is an unlawful act, and a conspiracy to do such act is actionable.</p> <p>4. When such open or rough shadowing is accompanied by acts of trespass such as entry into plaintiff’s house and pursuing him into his attorney’s office, and by threats, insults, eavesdropping, and ambiguous and uncalled-for communications with his employer, these constitute circumstances of aggravation for which the persons taking part in the conspiracy are liable.</p> <p>5. In such a case the evidence of the defendants as to what their purpose was in the surveillance is not conclusive on the court or jury, but the plaintiff may show by circumstantial or other evidence, and the jury may find therefrom, that the purpose was different from that claimed.</p> <p>6. The liability of conspirators to civil damages is joint and several, and, when the existence of a conspiracy has been shown prima facie, the plaintiff may give in evidence as bearing upon his damages the acts and sayings of any conspirator done or spoken in pursuit of the common purpose, whether that conspirator be a party or not.</p> <p>7. Such acts and sayings are evidence against oth'er conspirators, not under the rule respondeat superior, hut under the law of conspiracy, which makes each the agent and spokesman of all engaged in the unlawful enterprise. The plaintiff may, however, invoke either rule for the purpose of connecting any of the parties with the tort.</p> <p>8. A purpose to prevent a person from leaving the state or the city of his residence until it is determined whether or not to have him arrested, is in itself not a lawful purpose to be undertaken by private individuals.</p> <p>9. Surveillance for such purpose, if maliciously done, is a violation . of sec. 4466a, Stats., and gives to the injured party a cause of action.</p> <p>10. In an action for damages for a conspiracy to injure plaintiff by open and rough shadowing, defendants may show in mitigation of damages that their intentions were good, that the acts complained of were done without malice and in pursuance of a supposed legal duty, or that the plaintiff’s reputation was so bad that the acts of the defendants were not likely to injure him much, if at all; but such facts do not constitute a justification or defense.</p> <p>11. Conclusions of fact are not always inadmissible in evidence. So far as they relate to collateral facts not directly in issue, they often save much delay and circumlocution, and hence should not be too rigidly excluded; and the same is true of leading questions.</p>

<p>Appeal from an order of the circuit court for Milwaukee county: E. 0. Eschweilee, Circuit Judge.</p> <p>On April 10,' 1910, the petitioner filed an affidavit in circuit court for Milwaukee county under the provisions of sec. 1752, Stats. (1898), and procured from said court an order directed to Joseph G. Millmann, secretary of the Stege-man Motor Car Company, to show cause why he should not be required to transfer certain stock on the books of the corporation.</p> <p>The petition alleged that one John W. Mapel purchased and paid for forty shares of the capital stock of the Stegeman Motor Oar Company; that thereafter said company delivered to Mapel certificates for twenty-five shares of the stock, but refused to issue certificates for tbe remaining fifteen shares; that Mapel, for a valuable consideration, assigned fifteen shares of said stock to the petitioner, and that petitioner delivered to Joseph 0. Millmann, as secretary of said company, the original written assignment of said shares of stock and requested that such transfer be made.</p> <p>In his answer respondent alleged that the Stegeman Motor Oar Company agreed to sell forty shares of stock to John W. Mapel, and that on March 28, 1912, said company received a letter from Mapel containing three cheeks, namely, that of John W. Mapel for $1,500', check of John J. Mapel for $1,000, and check of 8. A. Holyohe, the petitioner, for $1,500, with instructions that fifteen shares of the stock be issued to John W. Mapel, ten to John J. Mapel, and fifteen to 8. A. Holyohe; that stock certificates as requested were issued to John W. Mapel and John J. Mapel, and the check of 8. A. Holyohe was returned to John W. Mapel, and he was informed that neither the respondent nor any officer of the corporation had authorized the issue of any stock to 8. A. Holr yohe. The answer further alleged that the assignment referred to was of no force or effect, for the reason that the assignor named therein was not at the time of the execution thereof nor at any other time the owner and holder of a certificate of fifteen shares of such capital stock purported to be assigned thereby, nor was the said John W. Mapel entitled to have the same issued to him, for the reason that he had not paid therefor, and for the further reason that there was no agreement between Mapel and the said company for the purchase of the stock; and further, that petitioner did not present to respondent as secretary of the above named company a certificate for such shares of stock properly indorsed by John W. Mapel, as required.</p> <p>A hearing was had on the order to show cause and testimony was introduced. The application of the petitioner was denied, and from the order denying such application this appeal is taken.</p>

J. TubNEk, Circuit Judge. Plaintiff, a foreign corporation, on tbe 30tb day of April, 1910, entered into a written lease witb tbe owner of a building situated in Milwaukee, a part of wbicb was occupied by tbe defendant, for three years commencing on tbe 1st day of April, 1910. Plaintiff claims defendant’s lease of tbe premises in question expired May 1, 1910.

W. Bueetell, Circuit Judge. This is an equitable action brought' against Ed. Broehm and the German M. E. Church of Brillion to perpetually enjoin them from using certain grounds, located witbin fifteen rods of the plaintiff’s dwelling house, for burial purposes in violation of the terms of sec. 1454, Stats.

D. Clevelahd, Judge. Tbe defendant was prosecuted for, and by tbe verdict of a jury found guilty of, having violated plaintiff’s ordinance requiring tbe driver of a vehicle in turning from a street into a cross street to tbe right, to make tbe corner as near tbe right-hand curb as possible. Judgment was entered accordingly.

<p>Appeal from a judgment of the county court of Winnebago county: Feed Beglingee, Judge.</p> <p>This is an appeal from a judgment for costs rendered against the plaintiff on the verdict of a jury.</p>

W. BubNell, Circuit Judge. They contended, inter alia, that prior to the adoption of the general charter provisions the special charter did not require the filing or verification of claims founded on tort. Bradley v. Eau Claire, 56 Wis. 168, 14 N. W. 10; Kelley v. Madison, 43 Wis. 638; Jung v. Stevens Point, 74 Wis. 547, 43 N. W. 513; Sommers v. Marshfield, 90 Wis. 59, 62 N. W. 937; Hill v. Fond du Lac, 56 Wis. 242, 14 N. W. 25.

<p>Appeal from a judgment of the circuit court for Winnebago county: Geo. W. Bveeell, Circuit Judge.</p>

On June 21,1911, the plaintiff and defendant entered into a contract by tbe terms of which, the plaintiff agreed to sell to' the defendant a farm in Winnebago county and also certain described personal property located on such farm. In part payment for the aforesaid property the defendant agreed to> convey to the plaintiff a house and lot which he owned in the city of Oshkosh.

W. BueNell, Circuit Judge. This is an action to recover damages for the loss of two 'fingers of the plaintiff’s left hand, which were cut off by a rip-saw in the defendant’s mill, September 19, 1910. The plaintiff was twenty-seven years of age; an Austrian, who had been in this country three years and had been a common laborer. He was employed by the defendant August 5, 1910, and was first set at work in the glue department on a self-feeding machine called a sticker.

The plaintiffs sought to obtain a judgment declaring invalid certain proceedings under the general city charter law extending the corporate limits of the city of Kewaunee. Upon a trial, objection was made to any evidence under the complaint upon the ground of insufficiency. The objection was sustained and judgment of dismissal entered. On appeal the decision was affirmed. 148 Wis. 242, 126 N. W. 662, 127 N. W. 942.

This is an appeal from a judgment, based upon tbe verdict of a jury, in an action of replevin; by wbicb judgment certain live stock and farm.machinery of tbe value of $900 were adjudged to be plaintiff’s property and tbe plaintiff was also adjudged to recover $200 damages for tbe detention of tbe property. Tbe parties to tbe action are brothers, tbe plaintiff’s age being forty-seven and tbe defendants’ thirty-nine and thirty years respectively, and all are unmarried.

<p>Appeal from a judgment of the circuit court for Richland county: Georgkk ClemeNtsoN, Circuit Judge.</p>

On April 1, 1909, the defendant negotiated a loan of $40,000 from the plaintiff. As evidence of such loan-the defendant executed and delivered to the plaintiff eighty bonds with interest coupons attached, for $500 each. The first in-stalment of said bonds, amounting to $3,000, became due April 1, 1911, and a certain amount thereof became due annually thereafter until April 1,1919, when the last instalment would become due.

On November 12, 1893, Mary Curry died testate. January 23, 1894, Phil Allen, Jr., was appointed executor and, as sucb, executed a bond signed by tbe defendants W. A. Jones and John Allen as sureties, and approved by tbe county judge. At' tbe time of bis appointment as executor, two minors, Susan Mary Rink and Florence Evangeline Rink, were interested in tbe estate, but no guardian ad litem was appointed for them in tbe probate proceeding.

This action was begun originally in the county court of Grant county as a proceeding to determine heirship in the estate of Thomas Richmond, deceased. The administrator of the estate in his petition for the settlement thereof alleged on information and belief that the deceased left' him surviving Martha Richmond, a daughter, his only child and sole heir at law, but that her right to the estate was denied by Henry Richmond, who claimed to be a brother of deceased.

0. Higbee, Circuit Judge. Action to recover compensation for damages caused to the widow of Eranit Sloan, hy his death, alleged to have been produced by negligence of defendant’s servants. Issues were duly joined. All conditions precedent to tbe right to maintain the action were alleged and admitted or proved.

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

C. Higbee, Circuit Judge. They contended tbat tbe bill of lading simply says tbat after forty-eigbt hours after notice tbe carrier’s liability shall be that of warehouseman only. This does not amount to an agreement to bold as carrier for sucb full forty-eigbt hours, regardless of tbe lapse of a reasonable time meanwhile.

0. Higbee, Circuit Judge. This action was brought to recover wages alleged to have been earned between June 16, 1908, and October 3, 1910, tbe balance sued for being $361. Tbe defendant Buttles was tbe owner of a large farm, and on April 1, 1907, entered into a tbree-year contract or lease with bis codefendant by which tbe latter agreed to work tbe farm on shares.