Volume 153 — Wisconsin Reports

<p> Dee is: Tax titles: Quitclaim by owner after judgment foreclosing tax deed: Subsequent setting aside of judgment and disco/m, tinuance of action: Collateral attach: Quieting title: Dimitation of actions: Statutes construed: “Defendant.” </p> <p>1. A quitclaim deed in tliis state is equivalent, at least for the purpose of conveying the title of the grantor, to a deed of bargain and sale.</p> <p>2 A quitclaim deed executed by the original owner of land after entry of a default judgment against him in an action to foreclose a tax- deed, operated to convey the full title, where the tax deed was in fact invalid and said judgment was' after-wards set aside and the action discontinued.</p> <p>3. An order in the foreclosure action setting aside the judgment and allowing the defendant to answer and contest the case is not open to collateral attack in a subsequent action to quiet title brought by said defendant’s grantee.</p> <p>4. Although said defendant, the original owner, had conveyed the land before applying to have the foreclosure judgment vacated, he might still, under sec. 2801, Stats., be permitted to answer and defend in that action.</p> <p>5. Under sec. 4250, Stats., a tax deed was not protected by -the statute of limitations where, although more than three years had elapsed from the time of its being recorded, an action for its foreclosure was at issue and pending during the greater part of that time and was afterwards discontinued. ' '</p> <p>6. Said sec. 4250 relates to any defense which might also serve as a cause of action, hence is applicable in cases of contested title.</p> <p>7. Although literally said sec. 4250 might appear to be personal to “a defendant,” yet, since it is a remedial -statute and should be construed liberally, one who was not named as a defendant in an action to foreclose a tax deed, but purchased the land after Us pendens filed and was therefore bound by the proceedings “to the same extent and in the same manner as if ... a party ' thereto,” is entitled to the remedies afforded by the statute.</p>

<p> Criminal law: Preliminary examination: Jurisdiction: Review of decision: Keeping house of ill-fame, etc.: Length of time. </p> <p>1. If, upon the preliminary examination of a person accused of crime, there is competent evidence to give the magistrate any room for the exercise of judgment in determining the existence of the essential facts, his decision to hold the accused for trial is within his jurisdiction and cannot, upon a plea in abatement at the trial, be reversed on the ground that it was not warranted by the evidence.</p> <p>2. Under sec. 4589, Stats., making it an offense to keep a kouse of ill-fame or to knowingly let any house or room for such use, the keeping of such house or a letting for such use for any substantial time (in this case two days) is sufficient to constitute the offense.</p>

<p>Appeal from a judgment of tbe circuit court for Sauk county: E. Ray Steven's, Circuit Judge.</p> <p>Action to recover on a demand promissory note, dated April 22, 1904, made in Illinois and by its terms made payable there, defendants being joint makers. At such date defendants resided in Illinois. Soon thereafter they removed to Wisconsin. There was a payment by defendant Yerne S. Pease within six years after such date and the six years preceding the commencement of this action, which was December 8, 1910. The six-year statute of limitations of this state was pleaded. The ten-year statute of Illinois operating on such contracts was introduced in evidence. The jury found, specially, the facts stated. The court gave judgment for defendant Edith A. Pease on her plea of the statutes of limitation, but awarded judgment against Yerne S. Pease.</p>

<p>Appeal from a judgment of the circuit court for Sauk county: E. Rat Stevehts, Circuit Judge.</p> <p>Action to recover for services. The American Society of Equity of North America (hereinafter called American Society) is a corporation without capital stock organized under the laws of the state of Indiana. Its objects are, in general, to promote the interests of farmers. The organized forms of the Amemcan Society are local unions, county unions, state unions, and a national union, or the American Society, also department and district unions. The national union is the supreme head of the organization and grants charters to subordinate unions. January 11, 1906, the Wisconsin State Union of the American Society of Equity (hereinafter called Wisconsin State Union) was organized at Eau Claire, receiving a charter from the national union. Its officers were and are a president, a vice-president, a secretary, a treasurer, and a board of directors of 'wbicb tbe above mentioned officers are ea; officio members, also one state organizer, and as many local organizers as tbe board of directors may see fit to commission. At tbe annual state coiivention of tbe Wisconsin State Union held in Eau Claire in 1908 tbe plaintiff, who previously bad been a district organizer for tbe American Society, was elected state organizer of tbe Wisconsin State Union, and tbe board of directors, at a meeting held January 17, 1908, passed a resolution engaging bim as state organizer and fixing bis compensation. He continued to render services as sucb state organizer till some time in March, 1909. Tbis action was originally brought against tbe American Society to recover balance of $370.43 claimed to be due bim. Tbe American Society put in a general denial and alleged that whatever services were performed were rendered for tbe Wisconsin State Union, and not for it, whereupon tbe Wisconsin State Union ivas made a party. Among other defenses it alleged that it is a society with authority to act and wbicb has acted under secs. 2002 and 2003 of tbe Statutes and tbe acts amendatory thereto, and not otherwise, and that tbe Wisconsin State Union is not capable of suing or being sued. Tbe case was referred, and tbe referee, in addition to tbe facts above set out, found that tbe Wisconsin State Union is not organized under cb. 92, Stats., wbicb includes secs. 2002 and 2003; that there was a balance of $99.40» due plaintiff, for wbicb be was entitled to judgment. Tbe trial court held that no liability was shown against tbe Ameñcan Society, and that tbe Wisconsin State Union could not be sued in tbe name of its organization, and entered judgment dismissing tbe action as to both defendants. Erom sucb judgment tbe plaintiff appealed.</p>

<p>Dependent and neglected children: Commitment to state public school: Proceeding before county judge sitting as court: Validity: Constitutional law; Certiorari: Matters reviewable: Appeal.</p> <p>1. Proceedings for the commitment of dependent or neglected children to the state public school, which under sec. 573/, Stats., - are to be had before the county judge, are valid if had before the county judge sitting as a court.</p> <p>2. Said statute does not confer judicial powers upon the county judge contrary to sec. 2, art. YII, Const, of Wis.; nor does it violate the provision in amendm. V, Const, of U. S., respecting due process of law.</p> <p>3. Where commitment proceedings under sec. 573/, Stats., are brought to the circuit court for review on writ of certiorari, neither an alleged error in denying an application for a continuance nor the weight or credibility of the evidence in support of the findings of the county judge can be considered, neither of such matters being jurisdictional; nor can they be considered upon an appeal to this court from the judgment of the circuit court.</p>

<p>Appeal from a judgment of the circuit court for Polk county: Feaek A. Ross, Circuit Judge.</p> <p>Action for wrongful destruction of plaintiff’s property. Complaint was made to the effect that, in the spring of 1907, plaintiff owned and possessed, on certain lands specified, wood of the value of $600, which defendants, without his permission, set fire to and burned up.</p> <p>Defendants answered thus: The land on which the wood was located was the property of defendant Searle. In 1905, be licensed plaintiff to place a mill thereon. After operating the mill for some time he removed it, leaving a large amount of wood, sawdust, and rubbish on the land. Thereafter Searle employed defendant Horton to clean up the premises and fit the same for a farm. In so doing the wood was burned. Long prior thereto plaintiff ceased to have any right to occupy the premises and abandoned the wood as worthless.</p> <p>Such proceedings were taken that a referee appointed to hear, try, and determine the case made findings to this effect : At the time of the fire plaintiff was occupying the land by permission of Searle, the owner. Horton in executing the latter’s order to clean up the premises did not use reasonable care to avoid burning the wood. Thereby destruction thereof occurred. The wood was reasonably worth $446.80.</p> <p>On such facts plaintiff was awarded judgment with interest from the time of the destruction of the wood.</p> <p>The court found, further, that negligence of defendant Horton, acting under direction of defendant Searle, was the proximate cause of plaintiff’s loss without any want of ordinary care on his part contributing thereto.</p> <p>Judgment was rendered accordingly.</p>

JI. Reid- Circuit Judge. Action involving tbe validity of a will. In due proceeding in tbe county court of Oneida county for tbe establishment of an instrument proposed as tbe last will and testament of William Francis Ball to be sucb will in fact, tbe petition tberefor was denied. An appeal from sucb decision was taken to tbe circuit court for sucb county, resulting in an affirmance thereof, based on findings to this effect: 1.

<p>Appeals from a judgment of the circuit court for Fond du Lac county: Chesteb A. Fowler, Circuit Judge.</p> <p>■This suit was commenced November 10, 1903, for the purposes (1) of determining what volume of water the defendant is entitled to draw from that mill-pond which furnishes the so-called “West Water Power;” (2) restraining the defendant from withdrawing from said mill-pond more than the volume of water so determined; (3) restraining the defendant from drawing from said mill-pond upon lot 9 of Grand Chute Island in the Fourth ward of the city of Appleton as per John Stevens’s map of 1879, more water than sufficient to furnish 700 horse power; (4) for damages for past excessive use of water.</p> <p>The defendant interposed (1) a plea in abatement for defect of parties; (2) a plea of the ten-year statute of limitations; (3) an answer to the merits; (4) a counterclaim calling for the ascertainment and determination of the water power which plaintiff and defendant own under their respective grants, and tbe volume of water eacb is entitled to draw from said mill-pond according to priority of grant, and tbe places at wbicb they may draw it; (5) restraining plaintiff from using more water or power than tbe amount so determined; (6) at any other place than the place so ascertained or determined; (7) also seeking an award of damages to tbe defendant for plaintiff’s excessive and wrongful use of water. Plaintiff by reply to this counterclaim interposed defensive matter, but did not plead any statute of limitations. This counterclaim avers a grant of August 27, 1864, by West to Woodward, and that under this and other grants the defendant is entitled to water sufficient to produce at least 675 horse power, making at least 450 horse power under the Woodward grant, and that for six years next prior to the commencement of the action the plaintiff has, by its excessive use of water under other grants, interfered with and impaired defendant’s rights under such grants.</p> <p>Findings of fact well supported established that Grand Chute Island divides the Fox river at Appleton into the north and south channels. About 1857 Edward West, owning said island and the south shore of said south channel, built a bulkhead across the south channel from the head of said island and a wing-dam from such head into said north channel, and those structures made the West water power. In 1870 West made a canal for power from the pond made by said bulkhead and wing-dam, extending about 1,600 feet in the general direction of the river flow, through said island, nearly to its lower end. In 1876 the wing-dam was replaced by a solid dam from the head of said island to the north shore "of the river' and the said bulkhead was rebuilt higher, whereby, and by dashboards permanently maintained on said dam, the head of said power was increased 2.4 feet. The improvement of 187 6 which so increased the head was made by a company and paid for by subscriptions given by the public for the public benefit. The dam was built on land no part of which was owned by this company, although the owners of the land were members of the company and contributed to the said fund. This company never used or attempted to control any of the water power otherwise than by mahing a quitclaim deed relating to the West water power to West and his heirs and assigns, declaring that the latter and those holding the lots or water power from or under them might draw water from the pond to fill West’s canal and through said bulkhead for hydraulic purposes without let or hindrance by such association.</p> <p>“The average flow of Eox river at O-rand Chute Island is about 150,000 cubic feet per minute, 4-7 of which, or about 86,000 cubic feet per minute, is appurtenant to said West water power. Said flow of the river varies from less than 20,000 cubic feet per minute in dry seasons, to more than 500,000 cubic feet per minute in freshets. To furnish 137,397 cubic feet per minute required to fill all said grants prior to the grant of the remainder and furnish the volume due said north shore of the river, the whole flow of the river must be at least 240,000 eubic feet per minute. Eor considerably more than half the time said flow is less than 200,000 cubic feet per minuta”</p> <p>“The following table [see page 74] shows the dates, ownership, and power granted of all grants by said West to the parties hereto and to others, prior to said grant of the remainder, and the volume of water and power due each grant at the normal heads at the lots conveyed with the grants respectively; the volume due each grant prior to the increase of head in 1876, wherein no head is specified, of horse power and inches of water being computed at the prior head, and the present power of such volume at the increased head.”</p> <p>West conveyed away his land in parcels and his water power so that after the grant of February 26, 1882, and before the grant of the rest and residue on June 18, 1887, there was considerable land on the north and south sides of the canal belonging to West. This land abutted upon the water power, but by reason of prior grants of water power could not be given a fraction of the water power proportionate to area and location without materially interfering with the prior grants of power made by West. West did not convey bis water power in proportion- to tbe area of land conveyed, and be seems in all cases to bave limited tbe power granted by specifying tbe number of inches of water or tbe number of borse power, except in tbe grant of August 27, 1864, called tbe Woodward grant, and tbe grant of June 18, 1887, called tbe grant of tbe remainder. Besides tbe increase of bead made by tbe improvement of 1876, there is an increase in bead from tbe up-stream end at tbe bulkhead to the down-stream end along the canal of about nine tenths of a foot, and tbe court found that the present normal head is 9.5 feet at the bulkhead and 10.4 feet at the paper mills of the plaintiff and defendant on the canal.</p> <p> </p> <p>The plaintiff’s paper mill, erected in 1887, is situate on the south side of the canal near its lower end, and it claims and owns under said grant of June 18, 1887, all the rest and residue of the water power not theretofore granted away by said West, and also claims and owns under said grant of April 5, 1870, 3,000 square inches of water at a uniform head of ten feet. This latter grant was originally made to the Appleton Iron Company and was included with a grant of a parcel of land at the lower end of the canal now owned by the plaintiff, but not used for any purpose requiring the expenditure of water power.' To fill this grant of 3,000 square inches at a head of ten feet requires a volume of 31,702 cubic feet of water per minute. Plaintiff now has in said mill water wheels requiring at a head of ten feet a volume of 63,865 cubic feet per minute to run them at full capacity. This grant of 3,000 square inches of water, if drawn and used on the tract specified in the grant, would be wasted or discharged into the north channel of the Fox river if discharged by the shortest route. Plaintiff wastes or discharges it into, the south channel, but this results in no loss or injury to the defendant.</p> <p>The defendant claims and owns under this grant of August 27, 1864, called the Woodward grant, also the grant of 1,000 inches of water made September 5, 1864, the grant of thirty horse power made December 23, 1867, and the grant of seventy-five horse power made April 15, 1869. The volumes of water required to fill said grants at a head of seven and one-half feet are respectively 8,935, 2,200, and 5,500 cubic feet per minute, which volumes at the present head of 9.5 feet will produce respectively 160, 39, and 99 horse power. No part of the power of either of these three grants has been used on either of the lots with which it was granted since 1885. Defendant also owns power granted by tbe said West with, contiguous lots on the north side of the canal near the lower end thereof, namely, the said grant of 200 horse power net of December 29, 1879, the said grant of 400 horse power dated July 16, 1881, and the said grant of 100 horse power dated February 26, 1882. The volumes of water required to fill said last mentioned three grants at a head of 9.5 -j- .9 = 10.4 feet are respectively 12,692, 20,308, and 5,077 cubic feet per minute.</p> <p>The learned circuit court found, upon evidence tending to support such findings, that all grants by West of a specified horse power had reference to a theoretical horse power, and that the actual available horse power is eighty per cent, of this theoretical horse power. In all such grants by West, inches of water meant theoretical inches, evidently using the latter term as employed in J anesvilh Cotton Mills v. Ford, 82 Wis. 416, 52 N. W. 764; that ordinarily the velocity for passage of water through-flumes or bulkheads to be used for power is two feet per second, and the drawing at any greater velocity causes undue waste by reducing the head. There was no such adverse, exclusive, or uninterrupted user of water by the defendant under the Woodward grant as is necessary for a basis of limitation or prescription and no estoppel in pais. Respecting the grant of December 29, 1879, now owned by defendant, the court found that- the original deed from West to Fleming specified, in addition to the land, the thing granted as follows:</p> <p>“Together with the right to draw from the canal and use for hydraulic purposes on the aforesaid tract of land so much water as not to exceed in all 200 horse power.”</p> <p>This deed contained a clause of warranty, however, as follows:</p> <p>“Warranting among other things that the above bargained premises with 200 horse power net of water power as above granted to be used for hydraulic purposes on said pi*emises in the quiet and peaceable possession of said party of the second part, his heirs and assigns, he will forever warrant and defend.”</p> <p>Title to this lot and this 200' horse power of water, power came to defendant through warranty deeds, in each of which the thing granted was described as 200 horse power, but no words indicating whether the power granted was available or theoretical horse power.</p> <p>The circuit court made other findings of fact, a synopsis of which is here presented and grouped together because they relate to a separate conclusion of law to the effect that the parties to this action were, as to the said .Woodward grant of August 27, 1864, concluded by the judgment of this court and the judgment of the circuit court pursuant to the mandate of this court in a certain action entitled Valley Pulp & Paper Oo. v. West, reported in 58 Wis. on p. 599 (17 N. W. 554). Such findings are also relevant to a construction of the grant of April 27, 1864, treating such construction as an open question. That case was decided in this court on November 20, 1883, and the plaintiff claims under West, who was a party to that action, by its grant of the residue dated June 18, 1887. It also claims and holds under the grant of 3,000 square inches made April 5, 1870, by West to the Appleton Iron Company. As to this last, West had parted with his title long prior to the rendition of the judgment relied upon as an estoppel. The owner of that interest was not a party to the action in which such judgment was rendered, and the plaintiff is therefore in the possession of, holding, and owning its-residuary title through a conveyance from one of the parties to that action after judgment therein, and its title to 3,000 inches of water under and through another person not a party to said action nor estopped by said judgment. The defendant holds the Woodward grant under or through the Valley Pulp & Paper Company, plaintiff in the action mentioned,, and its other grants by mesne conveyances under West, who parted with his title thereunto prior to the judgment in question. The Woodward grant was of a tract of land on and including fifteen feet of' said bulkhead, together with “the privilege of drawing from said bulkhead so much water as said Woodward, his heirs or assigns, may need for whatever machinery may be erected on said premises.” Prior to 1880 no machinery had been erected on this Woodward lot and no water drawn under the grant last mentioned. In 1880 the Valley Pulp & Paper Company began to build a pulp and paper mill on said lot with machinery therein to be run by water drawn under said grant. To that end it placed in said fifteen feet of bulkhead a flume fourteen feet in the clear for drawing water through said bulkhead to run said machinery, and placed the bottom of said flume even with the ordinary bottom of the opening in the bulkhead. This mill was completed in 1881, and the machinery then in the mill required over 445 horse power theoretical for its operation. This suit of the Valley Pulp & Paper Go. v. West was brought in the circuit court for Outagamie county in 1880 to restrain West from diverting the water of the mill-pond from a point near this fifteen feet of bulkhead to a point below or down stream from the Woodward lot. The plaintiff claimed it had the right by said Woodward grant to draw through said flume all the water needed to run said machinery erected or in process of erection on said Woodward lot, and that the threatened diversion would impair that right. West claimed that' only such volume of water could be drawn through said flume as could have been drawn through the openings of about nine feet in said fifteen feet of bulkhead as these openings were at the time of the Woodward grant, and at a velocity of not more than two feet per second. After the decision in this court and on June 3, 1885, West conveyed to the defendant a strip of land lying along the north side of the Woodward lot six feet wide and another strip of land on the west side of said lot, and in this deed recited the decision of this court above referred to, “where tbe legitimate rights of the parties in suit are clearly defined.” Since the defendant received the last mentioned grant the flume has not been increased in width nor has its bottom been made lower. Its walls consist of three-inch plank fastened to uprights twelve inches square. The present opening for drawing water' is thirteen feet six inches wide, wholly within said fifteen feet of bulkhead. Part of the timbers supporting the walls of- the flume extend about sixteen inches outside of said fifteen feet. The defendant and its grantor have been since 1881 drawing through said flume water needed to run the machinery erected on said Woodward lot during such time in each year as the flow of the river appurtenant to the West power was sufficient to operate all the mills on this power, discontinuing such use when the water was not so sufficient. The machinery now erected on the Woodward lot requires 492 horse power theoretical to operate it efficiently at a head of 9.5 feet, and to produce said power requires the drawing through the said flume at said head of 29,412 cubic feet of water per minute. It was an undisputed fact in the action of the Valley Pulp & Paper Go. v. West that water was at'the time of the trial of said action being drawn through said flume to run the machinery on said Woodward lot at a velocity of four and two-thirds feet per second. The size of this Woodward lot by length of boundary lines was 150 feet, 128 feet, 150 feet, 136 feet. The court found as conclusions of law:</p> <p>“I. Whenever the flow of Fox river appurtenant to said West water power is insufficient to fill all said grants of said West prior to said grant of the remainder, to the extent that water is being drawn under and within them, the present owners of said grants are entitled to draw water to fill their grants, at said normal heads, while the works are of capacity to maintain said normal heads, in the order of their priority of date.</p> <p>“II. Defendant has right to draw under said Woodward grant, through its flume in said 15 feet of bulkhead conveyed by. said grant, as much water as it needs for the machinery on said Woodward lot, at 'all times when the flow of said river appurtenant to said West water power is sufficient to furnish such volume and 13,180 cubic feet of water per minute, or so much thereof as is being used, due said grants prior to the Woodward grant. Defendant has right to thus draw, at said head of 9.5 feet, while it is practicable to maintain such head, 29,412 cubic feet of water per minute, and may draw it at such velocity as is needed to run said machinery.</p> <p>' “III. Since to narrow said flume by the distance' that part of the timbers of its walls are outside of the 15 feet of bulkhead conveyed by said Woodward grant, would increase the velocity of the volume of water needed to run the machinery on said Woodward lot and so increase such volume, and in view of the long use of said flume at its present or a greater width, it need not be thus narrowed.</p> <p>“IV. Defendant’s rights under said Woodward grant as herein stated are determined, for the parties hereto, by said decision of the supreme court in said action of Valley Pulp & Paper Co. v. West and by the said final judgment in said action.</p> <p>“V. Defendant has a right to draw, at said head of 9.5 ' feet, to fill its said grants of 1,000 inches of water, 30 horse power and 75 horse power, respectively 8,850, 2,230 and 5,575 cubic feet of water per minute, to run machinery on the lots, respectively, conveyed with said respective grants, whenever the flow of said river appurtenant to said West water power unused under prior grants of said West is sufficient to furnish said volumes, while it is practicable to maintain said head.</p> <p>“VI. Defendant can only draw water as aforesaid under said Woodward grant and said grants of 1,000 inches of water, 30 horse power and 75 horse power, to run machinery on the respective lots conveyed by the deeds wherein said grants were respectively made; and it must be enjoined from otherwise drawing water under said grants.</p> <p>“VII. The owner of each of said grants of West of horse power or inches of water to be filled by water drawn from the pond of said West water power, which specifies no head and was made prior to said increase of head, in 1876, is entitled to use, at the increased head, the volume of water due such grant at the head before such increase.</p> <p>“VIII. Plaintiff has right to draw 31,702 cubic feet of water per minute or any part thereof under its said grant of 3,000 square inches of water to run its paper mill, whenever the flow of said river appurtenant to said West water power, and unused under prior grants by said West which require a volume of 60,567 cubic feet of water per minute to fill them at said normal heads, is sufficient to furnish said 31,702 cubic feet per minute or any part of it. Plaintiff must be enjoined from drawing water under said grant of 3,000 square inches of water, in excess of its said right.</p> <p>“IX. Defendant has right to draw at said head of 10.4 feet, while the works are of capacity to maintain such normal heads, 33,000 cubic feet of water per minute under its said grants of 250 and 400 horse power, theoretical,' and 5,077 cubic feet of water per minute under its said grant of 100 horse power, theoretical, to operate its said paper mill, whenever the flow of said river appurtenant to said West water power and unused under prior grants by said West is sufficient to furnish said volumes respectively. Said prior grants prior to said grants of 250 and 400 horse power require a volume of 96,541 cubic feet of water per minute at said normal heads, and those prior to said grant of 100 horse power exclusive of said grants of 250 and 400 horse power, require a volume of 99,320 cubic feet of water per minute at said normal heads, to fill them. Defendant must be enjoined from drawing water under its said grants of 250, 400, and 100 horse power in excess of its said rights.</p> <p>“X. Plaintiff has right to draw under its said grant of the remainder only the excess of the flow of said river appurtenant to said West water power over that used under and within all grants prior thereto by said West, which prior grants require to fill them a volume of 137,397 cubic feet of water per minute at said normal heads. Plaintiff must be enjoined from drawing water under said grant of the remainder in excess of its said right.</p> <p>“XI. Said present owners of right to draw water under grants from said West have right, according to the priority of their grants, to have the level of said pond kept substantially as high as the tops of said flashboards, to maintain said normal heads for their use, so far as the flow of said river appurtenant to said West water power is sufficient to keep it at such level. When said level falls below such height, said owners should suspend drawing water under their grants, in the inverse order of the dates of their grants, sufficiently to maintain said level and heads.”</p> <p>They argued, inter alia: (1) The former adjudication was not conclusive upon plaintiff. (2) The language of the grant under which defendant claims does not justify drawing with wasteful velocity. Appleton P. & P. Co. v. Kimberly & C. Co. 100 Wis. 195, 197, 75 N. W. 889; Schuylkill N. Co. v. Moore, 2 Whart. (Pa.) 477; Doan v. Metcalf, 46 Iowa, 120; Loverin v. Walker, 44 N. H. 489; Corel v. Hart, 56 Me. 518; Dexter S. P. & P. Co. v. F'rontenac P. Co. 20 Mise. 442, 46 N. Y. Supp. 363, 371; Furner v. Seabury, 135 N. Y. 50, 31 N. E. 1004; Oregon I. Co. v. Trullinger, 2 Oreg. 311; S. C. 3 Oreg. 1; Fogus v. Ward, 10 Nev. 269. (3) The statute of limitations does not apply to such a case as this. Cedar Lake H. Co. v. Cedar Creek II. Co. 79 Wis. 297, 48 N. W. 371; Bamsdale v. Foote, 55 Wis. 557, 13 N. W. 557; Oilman v. S. & F. du L. B. Co. 40 Wis. 653; McOowan v. M. P. B. Co. 23 Mo. App. 203; Colrick v. Swinburne, 105 N. Y. 503, 12 N. E. 427; Beed v: State, 108 N. Y. 407, 15 N. E. 735; Wright v. Syracuse B. Co. 49 Hun, 445, 3 N. Y. Supp. 480, affirmed 124 N. Y. 668, 27 N. E. 854; WilVmns v. Allison, 33 Iowa, 278; Beihl v. Likowski, 33 Kan. 515, 6 Pac. 886; Vail v. Mix, 74 Ill. 127; Coe v. Wolcottvi'lle Mfg. Co. 35 Conn. 175; Carlisle v. Cooper, 19 N. J. Eq. 256; Tootle v: Clifton, 22 Ohio St. 247. (4) The plea of adverse possession does not avail, since the use complained of is in excess of the grant; moreover, there has been no continuity of user; and the proofs show the use to have been permissive and not adverse. (5) Grants of water to run machinery on one lot do not authorize its use on another lot. Valley P. & P. Co. v. West, 58 Wis. 599, 612, 17 1ST. W. 551; Minn. M. Co. v-Hobart, 26 Minn. 37; Groat v. Moah, 94 1ST. Y. 115, 126; Washabaugh v. Oyster, 18 Pa. St. 497; Gould, Waters, •§§ 318a, 320; 3 Earnham, Waters, 2286.</p> <p>contended that the decision in Valley P. & P. Go. v. West, 58 Wis. 599, 17 1ST. W. 554, was conclusive on plaintiff; that every grant of a right ■or privilege carries with it, by necessary implication, everything necessary to its enjoyment which the grantor has it in his power to grant (Stanwood v. Kimball, 13 Met. 526; Benedict v. Barling, 79 Wis. 551, 48 1ST. W. 670; Galloway v. Bonesteel, 65 Wis. 79, 26 1ST. W. 262; Gray v. Saco W. P. Co. 85 Me. 526, 530, 27 Atl. 455; Cummings v. Parker, 61 1ST. H. 516) ; that defendant’s rights weré protected by the rule of stare decisis as effectively as by that of res adjudicaba (Van Valkenburgh v. Milwaukee, 43 Wis. 574; Pittelkow v. Milwaukee, 94 Wis. 651, 655, 69 1ST. W. 803; Cawley v. La Crosse City E. Co. 106,Wis. 239, 82 K W. 197; Bibb v. Bibb, 79 Ala. 437; Bright v. Esterley, 199 Pa. St. 88, 48 Atl. 810; Johnson’s Adm’r v. Citizens Bank, 83 Ya. 63, 1 S. E. 705; Minnesota Co. v. National Co. 3 Wall. 332; Shore v. Stevens, 61 Ind. 441) ; that neither a limitation of velocity to two feet per second, nor a limitation of the width of the flume to eight feet, can be added to the limitations of the West decision ; that plaintiff’s cause of action is barred by laches and by limitation; that so far as defendant’s use exceeded its grant, it could hold by prescription; that defendant’s grant of 200 horse power net was of 250 horse power theoretical (Harrington v. Smith, 138 Mass. 92; C., M. & St. P. E. Co. v. Wright L. Co. 123 Wis. 46, 100 1ST. W. 1034; Jacobs v. Spalding, 71 Wis. 177, 36 R. W. 608; 17 Am. & Eng. Ency. of Law, 2d ed. 7) ; that defendant is not confined to the use of water for machinery on the lot described in its grant (Appleton P. ■& P. Co. v. Kimberly & C. Co. 100 Wis. 195, 75 1ST. W. 889; Doan v. Metcalf, 46 Iowa, 120; Cromwell v. Selden, 3 1ST. Y. 253; Olmsted v. Loomis, 9 N. Y. 423; Hall v. Sterling I. & B. Co. 148 N. Y. 432, 42 N. E. 1056; Albee v. Huntley, 56 Yt. 454; Johnston v. Hyde, 33 N. J. Eq. 632; Fowler v. Kent, 71 N. II. 388, 52 Atl. 554; HaHford W. Co. v. Bugbee, 76 Yt. 61, 52 Atl. 554; Tallón v. Hoboken, 59 N. J. Law, 383, 36 Atl. 693; King v. Aclcroyd, 28 Colo. 488, 66 Pae. 906; Hague v. Nephi I. Co. 16 Utah, 421, 52 Pac. 765; Gould., Waters, § 320; Lorain v. Walker, 44 N. H. 201) ; and that plaintiff’s grant of 3,000 inches of water was of practical, not theoretical, inches (Jackson M. Co. v. Chandos, 82 Wis. 444, 52 N. W. 759; Janesville C. Mills v. Ford, 82 Wis. 416, 52 N. W. 764).</p>

<p> Bridges: Collision: Negligence: Liability for injury to bridge: Contributory negligence: Absence of lights prescribed by federal authorities: Questions for jury: Special verdict: Form, and sufficiency: Positive and negative testimony. </p> <p>1. If the failure to maintain upon a bridge over a navigable river the lights prescribed by the federal lighthouse board did not and could not contribute to cause a collision between a vessel and such bridge, such failure will not defeat a recovery of damages for the injury to the bridge.</p> <p>2. Even though it appeared that the prescribed lights were better than those maintained on the bridge, yet evidence tending to show that the steamboat ran into the bridge without giving any signal; that the captain had notice, in time to have avoided the collision, that the bridge was not open; and that in fact he had all the notice and knowledge that he would have'had if the lights required by the lighthouse hoard had been maintained, was sufficient to warrant the jury in finding that the absence of the prescribed lights did not and could not have contributed to the collision.</p> <p>3. A finding in the special verdict in such case that no want of ordinary care on the part of the plaintiffs (the cities maintaining the bridge) contributed proximately to the collision, is held sufficient, the jury having been instructed that they could not so find unless satisfied to a reasonable certainty from the evidence that the absence of the prescribed lights could not in any way have contributed to the injury and no objection having been made to the form of the verdict.</p> <p>4. Testimony of a bridge tender, who was on the bridge and whose duty it was to watch boats going up and down the river and to listen for the blowing of whistles, that he watched the steamboat in question coming in and listened for a signal from it; that his mind was on the whistle and he was waiting to hear it; but that no whistle was blown, was not merely negative testimony and was sufficient, as against, the testimony of a number of witnesses to the contrary, to raise a jury question as to whether or not the whistle was blown.</p>

<p> Master anti, servant: Death caused by unguarded shafting: Delegar tion of master’s duty: Responsibility of servant: Contributory negligence: Lubricating machinery in motion: Questions for jury: Special verdict: Sufficiency: Damages: Burial expenses. </p> <p>1. An employer upon whom the statute imposes the duty of securely guarding shafting which is so located as to be dangerous to employees cannot evade such duty, as to a subordinate employee, by a mere direction to him, given through a superintendent or foreman, to assist in erecting or assembling the machinery in question, in the erection or assembling of which other employees superior to him in authority are also engaged at the time.</p> <p>2. In an action for death of an engineer which resulted from his being caught on an unguarded shaft connected with a stationary engine, the evidence is held to sustain a finding by the jury that defendant did not intrust to the decedent the duty of getting the engine and its attachments in proper condition for use.</p> <p>3. The mere fact that an employee had an opportunity on his own initiative to devise and place a guard upon an exposed shaft is not sufficient to relieve the employer from liability for injury sustained by such employee as a consequence of the shaft being unguarded.</p> <p>4. A special verdict finding, among other things, that the unguarded shaft by which an employee of defendant was injured was so located as to be dangerous to defendant’s employees in the discharge of their duty while using ordinary care, and negativing contributory negligence, is held, sufficient, although there was no specific finding of defendant’s negligence or of proximate causation.</p> <p>6. Whether or not the plaintiff’s intestate, who was fatally injured as a result of being caught on a revolving shaft connected with a stationary engine which he was engaged in lubricating, was guilty of a want of ordinary care in failing to stop the engine before attempting to apply the lubricant, is held in this case to have been a question for the jury.</p> <p>6. Where defendant’s negligence is claimed to have caused fatal injury to plaintiff’s intestate and it is sought to recover both the damages accruing to the decedent and those accruing to his surviving parents, burial expenses may be recovered under either cause of action; but when the action is brought for death and for the benefit of relatives who have no duty of interment cast upon them by law, that item of damages should not be included in an award under the death statute.</p>

<p> Railroads: Grade crossings: Safeguards: Speed of trains: Statutes: Construction: “Gates:” “Electric hell:” Injury to person: Contributory negligence: “Gross negligence:” Proximate cause. </p> <p>1. The grade-crossing statute (sec. 1809, Stats.), though drastic in its provisions, is a statute in favorem vitw, and in construing it, if there he room for two meanings, the courts should give to it such meaning as will result in the accomplishment of the legislative purpose, rather than a meaning that will tend to defeat that purpose.</p> <p>2. The term “gates,” as used in that statute, means, not a single gate, hut gates upon both sides of the track, and to constitute a compliance with the act, where a railway company adopts gates as a safeguard, both must he maintained and operated.</p> <p>3. If a gate becomes temporarily out of commission and its repair requires the services of an expert workman not immediately at hand, the statute can be satisfied by the placing of a flagman at the crossing for the time being, or the speed of trains can he temporarily reduced to meet the new situation, and it is the duty of the railway company to adopt one or the other of these courses.</p> <p>4. The running of trains by a railway company at a speed exceeding twelve miles per hour over a grade street crossing in a city, at a time when the prescribed safeguards are not maintained, is a violation of the statute and an “omission” to comply with its requirements, and in an action for personal injuries caused thereby no want of care on the part of the person injured, less than gross negligence, will bar a recovery.</p> <p>5. The requirement in the statute of “an efficient electric alarm hell or signal properly installed and in good working order” refers clearly to the well-known appliance in common use at railroad crossings, namely, a hell or gong arranged with electric wires so as to ring automatically and continuously so long as a car or engine is on the crossing or within a given distance of it; and a tower bell rung by hand is not a compliance therewith.</p> <p>6. The term “gross negligence,” incorporated into said sec. 1809 by ch. 653, Laws of 1911, had, before that law was passed, received a very certain and definite meaning in the jurisprudence of this state, excluding mere inadvertence in any degree; and it must be conclusively presumed that the legislature knew of such meaning and used the words deliberately, intending to give them their established legal significance.</p> <p>7. As there used, gross negligence would cover not merely a suicidal act, but any entry by a person upon the crossing with a reckless disregard of the consequences, not caring what result might happen to him or to the occupants of the train.</p> <p>8. Plaintiff’s intestate, on his way to his work, approached a double-track crossing with which he was familiar and which had been for many years protected by gates, and found it occupied by an engine and cars engaged in switching, with the nearer gate down. Passing by the gate and around the rear of the switch engine which still obstructed the walk, he was seen to look up the track, but the jury found that his view was obstructed by smoke and steam from the engine. The gate on the opposite side was up and he proceeded to cross at an ordinary walk and was about over the last rail of the further track when struck by a passing train. Held, that he was not guilty of gross negligence as a matter of law.</p> <p>9. Evidence showing the facts above stated is held to sustain a finding by the jury that the speed of the train, exceeding twelve miles per hour, was the proximate cause of the death.</p> <p>Barnes and Marshall, JJ., dissent.</p>

<p> Money had and received: Carriers: Interstate shipment: Misrout-ing: Overcharge: Jurisdiction: Federal courts. </p> <p>1. A common-law action for money had and received is based upon the theory not only of loss to plaintiff but of the consequent enrichment of the defendant, or of someone for whom he may act, by reason of having received more money than he is entitled to.</p> <p>2. Where, by reason of misrouting by the initial carrier, the total freight charges paid by the consignee to the last carrier were in excess of the legal charges for transportation by the cheapest route, but none of the carriers received more than the lawful rate for carrying the goods over the route by which they were actually sent, an action by the consignee against the last carrier for money had and received will not lie.</p> <p>3. Under the Interstate Commerce Act the interstate commerce commission and the federal courts have exclusive jurisdiction of all claims for overcharges on interstate shipments, whether they grow out of an excessive rate or out of misrouting.</p>

Williams, Circuit Judge. This is an action to recover a balance of $600 alleged to be due upon a promissory note of $700, and the defense was that $230 had been paid thereon in cash and $450 in services performed by defendant at the request of the plaintiff.

Appeals from a judgment and an order of tbe circuit court for Milwaukee county: OrreN T. Williams, Circuit Judge. On the 17th of December, 1910, plaintiff obtained an iater-locutory decree of divorce against the defendant on the ground of cruel and inhuman treatment. The decree awarded plaintiff alimony in the sum of $50 per month payable on the first day thereof.

Taebawt, Circuit Judge. ' This is an action for the recovery of damages for the unlawful taking and converting by defendants to their own use of a roan mare alleged to be the property of the plaintiff and of the value of .$150.

Appeals from an order of the circuit court for Milwaukee county: E. C. Esohweilek, Circuit Judge. -, This action was brought to recover $2,416.71, alleged excessive freight charges charged plaintiff by defendant on shipments of ice from points in Wisconsin on the line of defendant’s railroad between August 20, 1906, and September 26, 1909. The complaint charges in effect that the respondent operated a line of its railroad from the following points in.

<p> Master and servant: Injury: Employers’ Liability Act: Railroads: Interstate commerce: When servant is employed therein: Shop and office employees: Contributory negligence: Simple tools: Constitutional law: Foreign laws: Evidence. </p> <p>1. As regards appliances and instrumentalities used by a common carrier in the business of transportation, it is the use to which it is put at the time, rather than the nature of the instrumentality itself, which determines whether or not it is employed in interstate commerce.</p> <p>2. Where such an instrumentality (in this case a boiler constituting part of the equipment of a wrecking train), at the time repairs are being made upon it, is not being used to facilitate interstate commerce, but is being repaired to make it ready for either interstate or intrastate use as occasion may require in the future, an employee engaged in making such repairs is not employed in interstate commerce within the meaning of the federal Employers’ Liability Act.</p> <p>3. The words “employed by such carrier in such commerce,” as used in said act, mean employed directly in transportation or in some act directly facilitating transportation.</p> <p>4. It is within the power of a state to regulate the relation of master and servant, where both are within the jurisdiction of the state and the contract of employment is made therein, and to fix (as is done by sec. 1816, Stats.) the liabilities as between them with respect to negligent injuries arising out of or incident to such contract of employment, whether occurring within or without the state, provided the employee so injured without the state is there on the business of the employer and pursuant to the contract made in this state.</p> <p>5. “Employees working in shops and offices,” to whom the provisions of sec. 1816, Stats., are declared not to be applicable, include all of the class employed for shop or office work, although outside of the shop or office at the time of the injury.</p> <p>6. When the decisions of another state are offered in evidence to prove the law of that state, the point decided is what is proven as law, and not the matters advanced by way of argument or illustration.</p> <p>7. Plaintiff, a boiler maker, and two other employees of defendant were engaged in repairing a boiler at night, and for the purr pose of cutting rivets were using a steel punch having a handle like a hammer, and a sledge of'ten or twelve pounds weight. Plaintiff first handled the sledge and then changed work with one of the others and held a light some two or three feet away. The head of the punch was somewhat battered, and in using it a burr flew off and struck plaintiff in the eye. The jury found that he did not know of the defects in the punch and that he was not guilty of contributory negligence. Held, that while the punch was simple in form, it was not simple with reference to its resisting qualities or with reference to the results of using it with the end battered or burred; and it could not, under the circumstances stated, be said to be a simple tool.</p>

Halsey, Circuit Judge. Action to recover damages for the death of Phillip Serdan, alleged to have been caused by the negligence of the defendant in retaining in its employ a servant, Matyilski, known by it to be incompetent, but of whose incompetency the deceased was not aware, and in failing to warn the deceased of such incompetency of Matyilski. The defendant was a manufacturer of heavy machinery and operated in its plant a foundry for large castings.

Eowlee, Judge. Personal injuries. The plaintiff, a Croatian, who could not speak English, was employed by the defendant company as a trammer in the fourteenth level of its mine at Ironwood, Michigan, and was seriously injured by the falling of ore from the roof of a drift, December 21, 1909, he being then about thirty-seven years of age. He was one of a shift of four metí., composed of two miners and two trammers.

0. Ludwig, Circuit Judge. Action to recover possession of an automobile. The cause was tried by the court. The evidence was to this effect: June 2, 1908, Byron R. Godfrey, then owner of the property in controversy, gave to one John Ure, Jr., a signed paper worded thus: “June 2, 1908, Received of John Ure the sum of $2 to apply on Marmon ear. Balance due, $1,748; the same to be paid on or before Monday, June 8, 1908.

C. Esoj-iweilee, Circuit Judge. Action to recover $10,440 past-due alimony.

Feitz, Circuit Judge. This is an appeal from an order sustaining a demurrer to tbe complaint. Tbe following is tbe complaint: “(Title.) “For a cause of action against tbe defendant, plaintiff alleges and shows unto tbe court as follows: ■ “First. That be now is and was at all tbe times herein mentioned a resident and inhabitant of tbe city and county of Milwaukee, state of Wisconsin, and is a married man about thirty-six years of age. “Second.

<p>EbboR to review a judgment of the circuit court for Milwaukee county: J. O. Ludwig, Circuit Judge.</p> <p>They cited, among other authorities, Wharton, Grim. PI. & Pr. (9th ed.) § 925a; In re Dolan, 101 Mass. 219; Miller v. Evans, 115 Iowa, 101, 88 N. W. 198, 56 L. R. A. 101, 103; Dimmick v. Tompkins, 194 U. S. 540, 24 Sup. Ct. 180; People v. Pálmele, 118 Cal. 332,. 50 Pac. 425; In re Goldins, 8 Cal. App. 367, 97 Pac. 188; Fuller v. State (Miss.) 57 South. 6; Ex parte Bell, 56 Miss. 282; Ex parte Bugg (Mo. App.) 145 S. W. 831; Neal v. State, 104 Ga. 509, 30 S. E. 858, 42 L. R. A. 190; O’Dwyer v. Kelly, 133 Ga. 824, 67 S. E. 106; Ex pcM-te Moore, 12 Cal. App. 161, 107 Pac. 129; State v. Gocherham, 24 N. C. 204; State v. Abbott (S. C.) 70 S. E. 6; Ex parte Eldridge, 3 Okla. Grim. 499, 106 Pac. 980; Ex parte Biggert (Okla.) 125 Pac. 485; Ex parte Branch, 37 Tex. Grim. 318, 39 S. W. 932; State ex rel. Buckley v. Drew, 75 N. H. 402, 74 Atl. 875; Ex parte Hinson, 156 N. C. 250, 72 S. E. 310; Daniel v. Persons, 137 Ga. 826, 74 S. E. 260; Ex parte Alexander, 5 Okla. Grim. 196, 113 Pac. 993; Slate v. Horne, 52 Fla. 125, 42 South. 388; Tanner v. Wiggins, 54 Fla. 203, 45 South. 459; Ragland v. State, 55 Fla. 157, 46 South. 724; Morris v. U. S. 185 Fed. 73; U. S. v. Pile, 130 U. S. 280, 29 Sup. Ct. 523.</p>

<p>Apfeax, from a judgment of the circuit court for Milwaukee county: J. 0. Ludwig, Circuit Judge.</p>

<p> Contracts for benefit of third persons: Enforcement: Corporations: Incurring liability before authorized to do business: Acceptance of assignment of lease: Liability of signers of articles. </p> <p>1. A valid contract made with, one person for the benefit of another may be at once enforced by that other, regardless of any formal assent thereto by him prior to the commencement of the action.</p> <p>2. Acceptance by a corporation of the assignment to it of a lease running to one of its members, and assumption of the obligations imposed by such lease on the tenant, constituted the “incurring of a debt or liability” to the lessors, within the meaning of sec. 1773, Stats.; and where, at the time of such acceptance, one half of the capital stock of the corporation had not been subscribed nor twenty per cent, thereof paid in, signers of its articles of incorporation who knew of and consented to the assignment and its acceptance became .personally liable to carry out the obligations of the lease.</p>

<p>Appeal from a judgment of the circuit court for Milwaukee county: Laweewcb W. Halsey, Circuit Judge.</p> <p>Action to recover compensation upon a contract of agency to find a purchaser for real estate.</p> <p>Tire issue tried was as to whether plaintiff acquired such exclusive authority as to disable the owner from selling his property without being liable to plaintiff for a commission. Plaintiff, as the result of some conversation with defendant’s agent, wrote defendant under date of January 8, 1909, soliciting the. agency to procure a purchaser for the latter’s real estate and suggesting preference .for an exclusive agency so as to be in full command of the situation, that it would be a mistake to have several real-estate men working on the proposition, and that he would take the agency on a two per cent, basis. That was replied to and resulted in a second meeting with an agent of defendant in respect to the matter January 17, 1909. Thereafter, under date of January 23, 1909, defendant wrote plaintiff:</p> <p>“Referring to our conversation in Milwaukee on the 17th inst., I want to say that you are authorized to negotiate for the sale of the plant owned by ns in Milwaukee, known as the plant of the Milwaukee Malt & Grain Oo.</p> <p>“Referring to your letter of the 8th inst., we agree with yon that it is better that the sale of the property shall be exclusively in the hands of one broker, and you are the only person who is authorized to handle this property.</p> <p>“In the event of sale by you we are willing to pay you a commission of two per cent, on the sale price.</p> <p>“In connection with the above authority, we hereby reserve the right to end this agency at any time upon giving you fifteen (15) days’ written notice, on the understanding, however, that the above mentioned commission shall be paid to you not only in the event of sale during the continuance of this agency, but also after its termination, provided the sale is the direct result of your efforts put forth prior to such termination.”</p> <p>That letter was transmitted with another expressing the idea that it was “exactly according to a previous verbal agreement” made between plaintiff and defendant’s agent. Plaintiff answered under date of January 29, 1909, accepting the proposition aforesaid.</p> <p>The court refused to permit the letter of January 8th to be received in evidence, or to permit evidence of what passed between plaintiff and the agent on the 17 th day of January, 1909.</p> <p>After the lapse of nearly a year, plaintiff having failed to find a purchaser for the property, defendant sold the same for $75,000, without aid on the part of plaintiff.</p> <p>At the close of the evidence the court directed a verdict in defendant’s favor.</p> <p>To the point that the plaintiff was given the exclusive agency and the owner was thereby precluded from selling during the agency, they cited Barrow v. Harlow, 21 Wis. 302; Hunter v. Wenatche L. Co. 50 Wash. 438, 97 Pac. 494; Metcalfe, v. Kent, T04 Iowa, 487, 73 N. W. 1037; Novakovich v. Union T. Go. 89 Ark. 412, 117 S. W. 246; Fairchild v. Rogers, 32 Minn. 269, 20 N. W. 191; Green v. Cole, 127 Mo. 587, 30 S. W. 135; Stringfellow v. Powers, 4 Tex. Oiv. App. 199, 23 S. W. 313; Blumenthal & Go. v. Bridges, 91 Ark. 212, 120 S. W. 974, 24 L. R. A. N. s. 279.</p> <p>as to plaintiff’s right to commission, cited, besides cases cited in tbe opinion, Bole v. Sherwood, 41 Minn. 535, 43 N. W. 569, 5 L. R. A. 720; Metzen v. Wyatt, 41 Ill. App. 487; Stewart v. Murray, 92 Ind. 543, 47 Am. Rep. 167; Weaver v. Snively, 73 Neb. 35, 102 N. W. 77; Ghitton v. Butler, 1 E. D. Smith (N. Y.) 150; McGla/ve v. Paine, 49 N. Y. 561, .10 Am. Rep. 431; Fttinghoff v. Iloroioitz, 115 App. Div. 571, 100 N. Y. Snpp. 1002; Mordecai v. Jacobi, 12 Rich. Law, 547; Ingold v. Sy-monds, 134 Iowa, 206, 111 N. iW. 802; Turner v. Baker, 225 Pa. St. 359, 74 Atl. 172; Gilbert v. Goons, 37 Ill. App. 448; Tracy v. Radeke, 141 Iowa, 167, 119 N. W. 525; War terman v. Boltinghouse, 82 Cal. 659, 23 Pac. 195; Schultz v. Griffin, 5 Mise. 499, 26 N. Y. Supp. 713; Levy v. Rothe, 17 Mise. 402, 39 N. Y. Snpp. 1057; Moses v. Bierling, 31 N. Y. 462; Metcalfe v. Kent, 104 Iowa, 487, 73 N. W. 1037; Wright v. Beach, 82 Mich. 469, 46 N. W. 673; Lapham v. Flint, 86 Minn. 376, 90 N. W. 780; Hoadley v. Savings Bank, 71 Conn. 599, 42 Atl. 667, 44 L. R. A. 321 and note.</p>

<p>Appeal from a judgment of tbe circuit court for Milwau-' kee county: W. J. TueNee, Circuit Judge.</p> <p>This is 'an appeal from a judgment of nonsuit. The action is upon a benefit certificate for $500 issued by the de-' fendant, a foreign fraternal beneficiary organization, May 30, 1908, on the life of one Richard Burke in favor of the plaintiff, who was his foster mother. The assessments were sixty-five cents per month, and were payable to the secretary of the local lodge at Milwaukee. Burke became a paid fireman in the service of the city of Milwaukee, November 1, 1909. This was a prohibited occupation under the terms of the certificate, and his entering into that occupation ipso facto made the certificate void. The plaintiff paid the dues to the secretary of the local lodge monthly as they fell dué. ' When sbe paid the monthly dues accruing next -after Burke became a- fireman, she asked 'the secretary of the local lodge whether-Burke was still a member, he having joined the fire department, and the secretary told her he would write to the supreme lodge and let her know. When the plaintiff came to pay the dues on the following month, the secretary told her he had not heard from the supreme lodge, but it was all right liecause he had not heard from them. Plaintiff also asked Mrs. Allen (the outgoing president of the local lodge) in January, 1910, if her son could still be a member, and Mrs. Allen promised to find out and let her know, but never did so. Burke was killed in performing his duty at a fire in Milwaukee, March 24, 1911. His assessments were fully paid at the time. The local lodge gave notice to the supreme lodge, and blank proofs were sent by the secretary of the supreme lodge to the plaintiff, which were executed at an expense of one dollar and forwarded to the supreme lodge. Payment was refused, and this action brought. It appeared also that some person acting on behalf of the defendant offered to return to the plaintiff the amount of the premiums paid while the deceased was a member of the fire department, but that she refused to receive the money.</p> <p>The certificate provided that the articles of incorporation and the by-laws of the defendant society should form a part of the contract of insurance. Among these by-laws were the following:</p> <p>“Section 135. No waiver of any by-laws. No officer of this society, either of the supreme or any subordinate lodge, shall have any power or authority, nor shall such officer be permitted to waive any of the provisions of the by-laws of this society which relate to the contract between the members and the society, whether the same be now in force or hereafter enacted.”</p> <p>“Section 171. Secretary — Agent of subordinate lodge. The secretary of the subordinate lodge is hereby made and declared to be the agent of such lodge, and not the agent of the supreme lodge, and no act or omission on his part shall impose any liability whatever on this society, nor shall such-act or omission have the effect of waiving any right or immunity belonging to this society.”</p> <p>“Section 150. All death and accident proofs before being acted upon shall be executed in the form prescribed by said, board, and furnished by the supreme secretary; but the furnishing'of such blanks or the execution thereof shall in no ease be construed as a waiver on the . part of the society of a forfeiture for any cause by the member or his beneficiary or beneficiaries of all benefits; nor shall it be construed as a waiver of the right to demand further proof. And in each and every case it shall be the duty of the claimant to furnish and file with the supreme secretary the proof of death or accidental injury as above and herein provided.”</p>

<p> Divorce: Alimony: Marriage: What constitutes: Validity. </p> <p>1. If tkere has been no marriage there can be no alimony.</p> <p>2. An oral contract of marriage made between competent parties per verl>a de prwsenti, although without witness or ceremony of any kind, If consummated by cohabitation and corroborated by holding themselves out to the public as husband and wife, is a valid and binding marriage.</p>

<p>Appeal from a judgment of the circuit court for Milwaukee county: Oscae, M. Fritz, Circuit Judge.</p> <p>Plaintiff brings this action to recover damages for personal injury alleged to have been sustained while alighting from one of defendant’s cars in the city of Milwaukee. The negligence claimed was that while she was in process of alighting the car suddenly started forward in such a manner as to cause her to be thrown to the pavement. The jury found negligence on the part of the defendant which was the proximate cause of the injury and no want of ordinary care on the part of the plaintiff. The defendant appeals from a judgment entered on the verdict.</p>

<p>Appeal from a judgment of the circuit court for Milwaukee county: Oscar M. Feitz, Circuit Judge.</p> <p>Action to foreclose tax certificates on defendants’ property issued for unpaid special assessments for sewer and water mains laid in Island avenue, a public street in Milwaukee. The property in question is 132 feet wide, east and west, and 629.34 feet north and south; is bounded on the north by Miller avenue, extended; on tbe south by Concordia avenue; on the east by the Uermania subdivision, and on the west by a certain ten-foot strip, which the defendants claim is no part of Island avenue, but which plaintiff maintains is a part thereof; the contention between the parties being whether defendants’ property abuts on Island avenue or on this ten-foot strip. In 1889 the property lying west of defendants’ land was platted, and Island avenue, thirty feet in width, was dedicated as a street between Concordia and Miller avenues. Lying immediately east of Island avenue as so dedicated was left a strip of land ten feet in width, between Concordia and Miller avenues, which remained the property of the owners of the plat until on or about October 31, 1900, when they conveyed it by warranty deed to one Walworth. In the same year condemnation proceedings were begun by the city of Mil-wauiee to open, widen, and extend Island avenue between Concordia and Miller avenues by adding to the thirty-foot street as dedicated the ten-foot strip mentioned and the western twenty feet of defendants’ land. On April 25, 1902, the • defendants herein commenced an action in the circuit court for Milwaukee county to vacate said condemnation proceedings and have the same declared null and void. By the judgment of the trial court in said action the condemnation proceedings were held null and void and were vacated because of 'the failure of the city to comply with sec. 3187a-, Stats. (1898), which requires the recording in the office of the register of deeds of the final resolution or order. Upon appeal to this court the judgment was affirmed in an opinion handed down January 11, 1910. See Roehl v. Milwaukee, 141 Wis. 341, 124 N. W. 400. Upon the condemnation proceedings $800 were awarded Walworth for the ten-foot strip, and on the 17th of April, 1902, he conveyed the same to the city for a consideration of $800 by a warranty deed containing no limitations or reservations whatever. The strip was thereafter noted to be a part of the street by the city engineer in the official atlas, and in each of tbe tax certificates herein defendants’ land is described as bounded on the west by Island avenue. In 1911 the city' again began condemnation proceedings to acquire the west twenty feet of defendants’ land for the purpose of widening Island avenue, and in this proceeding the ten-foot strip is treated as a part of said avenue in the resolution passed by the common council and in the map accompanying the same, and the defendants’ land is therein described as bounded on the west by Island avenue. The water main mentioned was laid, and all proceedings in regard thereto were taken, in the year 1906. The sewer referred to was constructed, and all proceedings in regard thereto were taken, in the years 1906-U Both the sewer and the water main were laid in the thirty-foot strip. In some places this ten-foot strip is lower, and in some places higher, than the thirty-foot street dedicated in the plat, and has been covered with grass and weeds, and the traveled track has always been on the thirty-foot street.</p> <p>The trial court found that Island avenue, at the time the water main and sewer were ordered laid and constructed, was only thirty feet wide as dedicated on the plat; that the ten-foot strip never became a part of the street; that it always intervened between defendants’ property and Island avenue, and that said property at no time fronted or abutted upon said Island avenue; and held that the special assessments against defendants’ property for water mains and sewer, in dispute in this case, were illegal, null, and void, and the certificates básed thereon were illegal and should be delivered up and canceled. Erom a judgment entered accordingly the plaintiff appealed.</p>

<p>Appeal from a judgment of tbe circuit court for Milwaukee county: Os cae M. Feitz, Circuit Judge.</p> <p>The plaintiffs brought this action to have a mortgage for $1,600 judicially declared to be paid and satisfied and to have their title adjudged to be free and clear of such mortgage. The defendants and appellants answered denying that the mortgage was paid, and interposed a cross-complaint for the foreclosure of the mortgage, alleging that'there was $700 due thereon. Prior to July 2, 1906, one Charles Trzebiatowski, who for the sake of brevity will hereafter be referred to as Charles, was engaged in the loan business, and on that day loaned to the plaintiffs $1,600 for a period of three years at five per cent, interest, taking the note and mortgage in the name of his brother Albert. The loan was evidenced by a note secured by the mortgage in suit. In August, 1906, Charles sold this note and mortgage to Nora O. Malloy, one of the defendants herein. Her codefendant, M. J. Malloy, acted as her agent in the transaction and the note and mortgage were delivered to Miss Malloy. The note was made payable at the office of Charles. The plaintiffs made the following payments of principal on the note to Charles: January 3, 1907, $250; July 3, 1907, $300; January 4, 1908, $150; None of these sums were turned over to Miss Malloy or her brother. Charles died in March, 1908. Shortly after his death his brother Albert Trzebiatoiuslci, who will hereafter be referred to as Albert, was appointed administrator of Charles’s estate, and continued the business individually and in partnership with one Joseph B'ejma. After the death of Charles, M. J. Malloy was called in to examine his books and accounts and then for the first time discovered that any part of the principal had been paid by the plaintiffs to Charles. The interest, however, had been collected semi-annually by Charles and the amount thereof paid by him to Miss Malloy. The court in its opinion says that M. J. Malloy immediately requested Albert to pay over the money, and there is evidence to this effect. After the death of Charles the plaintiffs continued to make payments t'o Albert on the principal as follows: July 1, 1908, $100 j January 2, 1909, $200; June 30, 1909, $200; January 3, 1910, $200'. On July 5, 1910, the sum of $100 was paid to J oseph, Bejma, and on J anuary 7, 1911, a payment of $100 was made to Malloy. Albert made the following payments to M. J. Malloy: July 19, 1909, $500; May 26, 1910, $200; July 11, 1910, $100. After the death of Charles, Albert continued to collect interest from the plaintiffs on the balance that would be due on the note if all payments made on account thereof had been indorsed thereon. Albert paid the semi-annual interest on the entire amount due on the note, making up the difference between the amount paid by the plaintiffs and the amount actually due to Miss Malloy. These interest payments were apparently accepted and received with knowledge on the part of M. J. Malloy that part of the interest was being paid by Albert. Before suit was commenced the defendant Nora C. Malloy assigned the note and mortgage in question to her codefendant, M. J. Mal-loy. The circuit court held that Malloy ratified the acts of Charles and became estopped from denying his authority to accept the payments. Erom a judgment entered in plaintiffs’ favor the defendants M* J. Malloy and Nora G. Malloy appeal.</p>

C. Ludwig, Circuit Judge. Action to charge R. C. Wirth as garnishee of W. P. Dickinson et al. The money, $1,665, involved, was paid into court by the garnishee and the contest was between plaintiff and the intervening defendant, Chicago Horse Sales Company, which claimed to be entitled thereto.

Equitable action to determine ownership of the proceeds of a $10,000 policy of insurance on the life of Charles A. Wright. Lillian E. Hester, sister, and Emily 8. Keller, mother of the deceased, claimed the fund as assignees of the policy, while the personal representatives claimed the same upon the ground that, assuming the deceased attempted to assign the policy, it was not effective for failure to part with dominion over the same.

<p>Appeal from a judgment of the circuit court for Calumet county: Geo. W. Burnexl, Circuit Judge.</p> <p>This action was brought to recover for personal injuries alleged to have been sustained by the plaintiff through the negligence of the defendant. At the close of the plaintiff’s evidence the court below granted the defendant’s motion for nonsuit. Judgment was entered accordingly, from which this appeal was taken.</p>

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

<p> Milwaukee civil court: Defective appeal to circuit court: Jurisdiction: General appearance: Appeal to supreme court: Reversal of judgment: Striking cause from calendar. </p> <p>1. An attempted appeal from the civil court of Milwaukee county is ineffective unless the notice of appeal and affidavit of good faith are served upon the civil judge; and a mere general appearance of the parties in the circuit court without a trial de • novo does not cure the defect. Manufacturers £ M. I. Bureau v. Everwear E. Co. 152 Wis. 73, distinguished.</p> <p>2. On appeal in such a case from a judgment of the circuit court affirming a judgment of the civil court, the supreme court acquires jurisdiction of the case sufficiently to reverse the judgment of the circuit court for lack of jurisdiction there.</p> <p>3. In such a case a motion to strike the cause from the calendar of the supreme court, made by the appellant in order to save himself from an affirmance of the judgment under the rule because of his default in serving his printed case and brief, will be denied. *</p>

<p>Appeal from a judgment of the circuit court for Milwaukee county: OeeeN T. Williams, Circuit Judge.</p> <p>This action was brought to set aside a conveyance of certain real estate in the city of Milwaukee on the ground that it was conveyed to defraud creditors. The complaint alleges the recovery of judgment against the defendant St. Josar phot’s Congregation; tbe return of execution tbereou; that the judgment remains unpaid; that before the rendition of such judgment against the defendant St. J osaphat’s Congregation the real estate in question was deeded to the defendant Franciscan Fathers Minors Conventuals of St. Josaphat’s Church; that the property so conveyed was all of the property of the defendant judgment debtor; that each of the defendants is a religious corporation, incorporated not for pecuniary profit, but for the carrying on of the religious and educational work of the Roman Catholic Church, and that the corporation named as grantee had no property or assets out of which it could pay any reasonable price for the land conveyed; that possession of the land was delivered over to the grantee defendant; that the effect of the conveyance was to hinder and delay the plaintiff in the collection of his debt. It is also alleged in the complaint that there was no actual intent to defraud the plaintiff in making the deed, but that the deed is. constructively fraudulent.</p> <p>Each of the defendants answered denying the allegations-respecting fraud. The court made the following findings:</p> <p>“1. That each defendant is a corporation organized under the laws of the state of Wisconsin.</p> <p>“2. That on the 10th day of July, 1905, the defendant St. J osaphat’s Congregation borrowed from the plaintiff the sum of $1,200 and gave the plaintiff its promissory note in writing for said sum.</p> <p>“3. That on the 29th day of July, 1910, judgment was. rendered on said note in favor of the plaintiff and against the defendant St. Josaphat’s Congregation in the sum of $1,122.55. -</p> <p>“4. That during the years 1908, 1909, and 1910 the defendant St. J osaphat’s Congregation was insolvent.</p> <p>. “5. That during the years 1908, 1909, and 1910 the defendant St. J osaphat’s Congregation made active and earnest attempts to dispose of its assets for the benefit of its creditors.</p> <p>“6. That the indebtedness of the defendant St. Josaphat’s Congregation on or about the 15th day of March; 1910, was. approximately $477,000, $200,000 of wbicb was secured by a mortgage on the real estate of said defendant.</p> <p>“7. That on the 15th day of March, 1910, the defendant St. Josaphat’s Congregation sold its property and assets to the defendant Franciscan Fathers Minors Conventuals of St. Josaphat’s Church, one of the defendants herein, for the sum of $400,000.</p> <p>“8. That $400,000 was the highest price which said defendant St. Josaphat’s Congregation was able to obtain after earnest and repeated efforts to sell said property.</p> <p>“9. That it was for the interest of the creditors of said defendant St. Josaphat’s Congregation that said sale be made.</p> <p>“10. That said sum of $400,000 was to be paid as follows: $200,000 by assuming the payment of the mortgage on the real estate transferred, and $200,000 to be paid pro rata to the unsecured creditors.</p> <p>“11. That the plaintiff herein was offered his pro rata share and refused the same.</p> <p>“12. That all of said purchase price has been paid or tendered to the creditors of said St. Josaphat’s Congregation.</p> <p>“13. That said conveyance on the 15th day of March, 1910, by the defendant St. Josaphat’s Congregation to the defendant Franciscan Fathers Minors Conventuals of St. Josaphat’s Church, was made for the benefit of the creditors of said St. Josaphat’s Congregation.</p> <p>“14. That said conveyance of March 15, 1910, was not made with the intent to hinder, delay, or defraud creditors of St. Josaphat’s Congregation.”</p> <p>The court concluded that the plaintiff was not entitled to the relief prayed for and that said complaint should be dismissed with costs. Judgment was rendered in favor of the defendants upon these findings dismissing the complaint with costs, from which judgment this appeal was taken.</p>

<p> Master and servant: Injury to third person: Unauthorized act of agent: Scope of employment: Railroads. </p> <p>1. When a servant is engaged in the performance of a duty delegated to him hy the master, his tortious acts within the scope of his employment, though' unlawful, unauthorized, or even forbidden, are binding upon the master.</p> <p>2. A switch through which, under a contract with defendant, the trains of another railway company entered upon the main line of defendant’s road was out of repair, and a section man in defendant’s employ had been left in charge of it with directions to wait for an expected train on defendant’s road. If a train of the other company came while he was there, he was to open the switch and let that train pass upon defendant’s track. He opened the switch to see if the connection rod was broken, and while it was so open a train on defendant’s road ran through it and upon the track of the other company, where it struck an engine of the other company and injured the engineer. Held, that such act of the section man was within the scope of his employment, and that defendant is liable for the injury.</p>

<p>Appeal from a judgment of the circuit court for Manito-woc county: Michael Kjbatan, Circuit Judge.</p>

<p>Appeal from an order of the circuit court for Sheboygan •county: Michael KjbwaN, Circuit Judge.</p>

' Plaintiff brought this action to recover damages for a personal injury. He is a Lithuanian by birth and a laborer by occupation. He Rad very little knowledge of Englisk, but could read and write in his native language. The defendant owned and operated a manufacturing plant in the city of She-boygan, which was equipped with power-driven machinery, and employed a large number of persons.

<p>Appeal from a judgment of tbe circuit court for Manito-woc county: Michael KibwaN, Circuit Judge.</p> <p>Tbe plaintiff sues for tbe death of ber husband, who was .killed while in tbe employ of tbe defendant, January 12, 1912, by being caught and whirled around one of tbe main line shafts in tbe defendant’s shop at Manitowoc. Tbe negligence charged is that the shaft bad no guard. Tbe deceased was a carpenter, thirty years of age, earning about $10 a month. Tbe accident happened in tbe afternoon in tbe punch room of tbe factory. This room is about fifteen feet five inches in height. Tbe line shaft on which the intestate was killed runs through the room from east to west, thirteen feet ten inches above the floor, and about two feet from the north side of the room. Upon this shaft is a wooden pulley twelve inches in diameter and ten inches wide, on which a four-inch belt runs south and slightly upward to a short countershaft, five feet three inches distant. Erom this countershaft a smaller belt runs eastward and slightly downward to a pulley wbicb operates a countersink machine. On the countershaft there is a loose pulley at the west end, and a tight pulley next to it eastward. When the countersink machine is not in use the belt from the main shaft runs on the loose pulley, but when it is desired to operate the countersink machine the belt is shifted to the tight pulley by means of a belt shifter. The belt shifter was a square wooden bar, two by two inches in size, running in wooden guides, and located horizontally about one foot and three inches north of the center of the counter-shaft, and operated from the floor below by a lever or handle projecting downward from the east end thereof. The belt shifter was four feet distant from the main shaft and parallel to it, but a few inches higher from the floor. There was a sort of a staging ten feet above the floor, consisting of two long, heavy planks, running substantially east and west, and •a shorter plank crossing them. This staging was between the countershaft and the main shaft, and, while not apparently of permanent construction, had remained there for some years, and was used by employees when necessary to repair or renew the belts or pulleys at this place. There was no guard on either the main shaft or the countershaft.</p> <p>On the day of the accident Nickels, the deceased, was sent by his foreman, Hendries, to place a new tight pulley on the countershaft in place of the old one. The main shaft was in motion as usual. Nickels was told to “put the pulley on the shaft so as to have it ready in case they wanted to use the machine, everything completed.” The belt was then lying on the loose pulley of the countershaft and on the main shaft west of the pulley. Nickels went upon the staging and attempted to do the work required, but found that he needed additional materials, and went down and reported to Hen-dries, who gave him a piece of rubber belting for use in fastening the pulley. Nickels then returned to the work and succeeded in fastening the pulley to the countershaft. No one saw the accident, but it appears that in some way Nickels’s jumper was caught and wound around tbe main shaft, and be was horribly mangled before the machinery could be stopped. The belt was found east of the pulley on the main shaft, and the nearest point of Nickels’s body was eighteen inches east of the same pulley.</p> <p>The jury returned the following special verdict:</p> <p>“(1) Was the unguarded shaft by which plaintiff’s intestate, Herman Nickels, deceased, was caught and killed, so located as to be dangerous to him in discharging the duty of his employment which he was performing at the time when he was killed? A. Yes.</p> <p>“(2) If your answer to the first question be 'Yes,’ then answer this: In leaving said shaft without a guard and without a fence, did defendant fail to exercise ordinary care? A. Yes.</p> <p>“(3) If the first question be answered ‘Yes,’ then answer this: Was defendant’s failure to guard or fence said shaft the proximate cause of the death of Herman Nickels ? A. Yes.</p> <p>“(4) Was there on the part of Herman Nickels any want of ordinary care which contributed to cause his death? A. No.</p> <p>“(5) If the court shall be of the opinion that plaintiff is entitled to judgment in her favor, what sum will fairly and reasonably compensate Mary Nickels, the widow of said deceased, for the pecuniary injury to her resulting from his death? A. Eive thousand eight hundred sixteen ($5,816) dollars.”</p> <p>From judgment for the plaintiff on this verdict the defendant appeals.</p> <p>They contended, inter alia, that there was in the case neither an element of reasonable anticipation of injury on the part of the employer nor sufficient evidence to remove the cause of the accident from the realm of conjecture, citing Kruclc v. Wilbur L. Go. 148 Wis. 16, 133 N. W. 1117; West v. Bayfield M. Go. 144 Wis. 106, 128 N. W. 992; Willette v. Rhine-lander P. Go. 145 Wis. 537, 130 N. W. 853; Bandekow v. U., B. <& Q. B. Go. 136 Wis. 341, 117 N. W. 812; Rallies v. J. Thompson & Sons Mfg. Go. 137 Wis. 506, 118 N. W. 350, 119 N. W. 289; Schmitt v. Seefeld, 139 Wis. 459, 121 N. W. 136; Glenesky v. Kimberly & G. Go. 140 Wis. 52, 121 N. W. 893; Schiefelbein v. Badger P. Go. 101 Wis. 402, 77 N. W. 742; Iiamann v. Milwaukee B. Go. 127 Wis. 550, 106 N. W. 1081; Hart v. Neillsville, 141 Wis. 3, 123 N. W. 125 ; Houg v. Girard L. Go. 144 Wis. 337, 129 N. W. 633; Schell v. G. & N. W. B. Go. 134 Wis. 142, 113 N. W. 657; Schultz v. G., M. é St. P. B. Go. 116 Wis. 31, 92 N. W. 377; Kout-sky v. Forster-Whitman L. Go. 146 Wis. 425, 131 N. W. 1001; Musbach v. Wis. G. Go. 108 Wis. 57, 84 N. W. 36; Law v. American B. Co. 147 Wis. 224, 132 N. W. 593; Sorenson v. Menasha P. ■& P. Go. 56 Wis. 338, 14 N. W. 446; Morrison v. Phillips <& G. G. Co. 44 Wis. 405 ; Beyers-dorf v. Gream City S. & D. Go. 109 Wis. 456, 84 N. W. 860; Ohybowski v. Bucyrus Go. 127 Wis. 332, 106 N. W. 833.</p> <p>They cited, among other authorities, Muenchoiu v. Thea. Zschetzsche & Son Go. 113 Wis. 8, 88 N. W. 909; Graves v. Bib Lake L. Co. 151 Wis. 99, 138 N. W. 86; Koch v. Wis. P. G. Co. 152 Wis. 488, 140 N. W. 37; Miller v. Kimberly & O. Go. 137 Wis. 138, 118 N. W. 536; Monahan v. Fairbanks-Morse Mfg. Go. 147 Wis. 104, 132 N. W. 983; Monaghan v. Northwestern F. Go. 140 Wis. 457, 122 N. W. 1066; McGinnis v. Northern P. Mills, 147 Wis. 185, 132 N. W. 897, 133 N. W. 22; Chopin v. Combined Locks P. Go. 134 Wis. 35, 114 N. W. 95.</p>

<p> Estoppel: Passing 0† title to land: Fraud 'by agent: Pointing out boundaries which include his own land: Statute of frauds: Equity: Retaining jurisdiction: Remedy at law. </p> <p>1. The familiar principle of estoppel in pais whereby the title to land of one who has fraudulently induced a person to buy it as the property of another is taken from him and vested in such purchaser, if otherwise, without want of due care on his part, the latter would be pecuniarily injured, applies to the case of an agent of a corporation who, while negotiating the sale of land of the corporation, points out boundaries which include land of his own.</p> <p>2. Estoppel by covenant and estoppel in pais are clearly distinguishable, but each, operating in its appropriate sphere, is as effectual as the other to pass the title to real estate.</p> <p>3. The doctrine of the transfer of the title to land by estoppel in pais does not violate the statute of frauds, which is the weapon of the written law to prevent fraud, not an instrumentality to enable the evil-disposed to perpetrate fraud.</p> <p>4. A court of equity has very broad power in respect to disposing of the entire controversy appearing from the pleadings and evidence, whether legal or equitable relief, or both, be required; and where an action in equity is brought in good faith, it should not be dismissed upon its appearing that there is no sound basis for other than legal relief, merely because the facts were known to the plaintiff in the beginning, especially where no objection was made by answer or demurrer to the court’s dealing with the matter.</p>

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

<p>Appeal from a judgment of tbe circuit court for Grant county: Geobge ClemeNtsoN, Circuit Judge.</p> <p>Tbis action was brought to recover from tbe defendant tbe amount of certain checks drawn to plaintiffs order, indorsed in its name by its agent, and tbe amount of a sight draft drawn by tbe agent of tbe plaintiff in its name, upon which checks and sight draft tbe defendant bank collected tbe money and paid it to tbe plaintiffs agent. Tbe complaint alleges tbat between January 28, 1909, and April 30', 1909, plaintiff was tbe owner of certain checks which were in tbe possession of one Robinson, its agent, at Cuba City, Wisconsin, where tbe defendant bank is located; tbat tbe said agent without authority indorsed tbe cheeks in tbe name of the plaintiff and obtained tbe money thereon from tbe defendant ; tbat on April 30, 1909, said Robinson without authority drew a draft for $200 upon a certain mining company, and without authority signed plaintiff’s name thereto and delivered the same to the defendant and obtained the amount thereof from said defendant; that said cheeks and draft amount to $1,910.40, of which sum plaintiff received only $1,210.40, leaving a balance of $700' due from defendant to plaintiff.</p> <p>The answer contains certain admissions and denials. At the close of the evidence, by consent of parties, the jury was discharged and the case submitted to the court. The court made the following findings:</p> <p>“1. That during the years 1908 and 1909 the plaintiff was a manufacturer of dynamite, with its principal office at Buffalo, New York.</p> <p>“2. That in the summer or early fall of 1908 the plaintiff appointed one R. M. Robinson its agent at Cuba City, Wisconsin, with authority to sell the product of plaintiff at Cuba City and vicinity, and collect payment therefor from the parties to. whom said product was sold.</p> <p>“3. That the checks described in the complaint were checks given to the said R. M. Robinson, as agent of the plaintiff, by customers of plaintiff, in payment of dynamite purchased of plaintiff through said agent, R. M. Robinson.</p> <p>“4. That the said R. M. Robinson, as agent of the plaintiff, had implied authority to indorse the name of the plaintiff upon and cash the said checks set forth in the complaint of plaintiff.</p> <p>“5. That the said R. M. Robinson, as agent of the plaintiff, had implied authority to draw the sight draft set forth in the complaint, and that the plaintiff, with knowledge of the act of its said agent in drawing said sight draft, received and accepted from him the proceeds thereof.</p> <p>“6. That the defendant acted in good faith in cashing said checks set forth in the complaint, without any knowledge or information that to do so was contrary to the wishes or authority of the plaintiff.”</p> <p>The court concluded that the defendant was entitled to judgment dismissing the plaintiff’s complaint with costs. Judgment was entered accordingly, from which this appeal was taken.</p> <p>cited, among other authorities, 2 Bolles, Banking, 730; Johnson v. First Nat. Bank, 6 Hun, 124, affirmed 68 N. Y. 616; Bobinson v. Chemical Nat. Bank, 86 N. Y. 404; Schmidt v. Garfield Nat. Bank, 138 N. Y. 631, 19 N. Y. Supp. 252; Millard v. Nar tional Bank, 3 MacArthur (D. C.) 54; 31 Oye. 1336, 1341, 1382, 1383; 1 Am. & Eng. Eney. of Law (2d ed.) 987, 1030; Cummins v. Beaumont, 68 Ala. 204; Sawyer v. C. & N. W. B. Co. 22 Wis. 403; Hurley v. Watson,■ 68 Mich. 531, 36 N. W. 726; Bohart v. Oberne, 36 Kan. 284, 13 Pac. 388; Tiedeman, Comm. Paper, § 77; Mechem, Agency, §§ 382, 398; 1 Clark & Skyles, Agency, 619, 652; Jackson P. M. Co. v. Commercial Nat. Bank, 198 Ill. 151, 65 N. E. 136; Hamilton Nat. Bank v. Nye, 37 Ind. App. 464, 77 N. E. 295; Wm. Beering & Co. v. Kelso, 74 Minn. 41, 76 N. W. 792; Graham v. U. S. Sav. Inst. 46 Mo. 186; Jackson v. Bank, 92 Tenn. 154, 20 S. W. 802; Goodell v. T. M. Sinclair & Co. 112 Ill. App. 594.</p>

<p>Husband and wife: Gifts inter vivos: Certificates of deposit payable to wife: Evidence.</p> <p>In an action between tbe personal representatives of a husband and wife, both deceased, involving tbe ownership of certificates of deposit payable to the wife, the evidence (stated in the opinion), tending to show that she had possession of such certificates and that the money represented' thereby might have been given to her by the husband, is held to sustain the finding of the trial court that the certificates were her separate property and belong to her estate.</p>

<p> "Wills: 'Probate: Date of execution: Mental capacity: Place of signing: Revocation: Double signature: Obliteration of one. </p> <p>1. In a proceeding for probate of a will, tlie evidence is held to sustain a finding by the trial court that a subsequent will (which was lost) was not executed by the testator until after June 25, 1903, at which time, by reason of injuries, he became mentally incompetent.</p> <p>.2. The fact that the testator’s signature follows instead of precedes the attestation clause does not invalidate a will.</p> <p>3. Where a will was regularly signed and sealed by the testator at the end of the attestation clause, and such signature was duly witnessed, the fact that a signature above the attestation clause was at some time wholly or partially obliterated does not prove a revocation.</p>

<p> Negligence: Evidence: Verdict based on conjecture: Railroads: Running over child on traclo: Break in fence. </p> <p>1. Where there is no direct evidence of how an accident occurred, and the circumstances are as clearly consistent with the theory of a nonactionahle cause as a cause that is actionable, no foundation exists for a finding of negligence.</p> <p>2. In an action against a railway company for the death of a six-year-old child run over by a gravel train, where there was some evidence of a board being broken from a gate leading onto defendant’s right of way near where the accident occurred, but none that the deceased entered through such break, and a conjecture that he did so enter had no greater probability to sustain it than that he entered through, under, or over the fence at some other point, a finding by the jury that the child got upon the track by reason of the broken board in the gate was unwarranted.</p> <p>3. It appeared in such case that the train consisting of seventeen loaded cars was running slightly down grade at a speed of twenty miles an hour; that the' trainmen saw the deceased’ lying upon the track after rounding a curve about 500 feet distant, but were unable to distinguish his body as that of a. human being until half that distance was passed, when every effort was made to stop the train without avail; and that one of the brakemen climbed downwind attempted to shove him off the track but was too late. The evidence further tended to show that the engine and brakes had been recently inspected and were in good condition; that the deceased lay upon the track without movement, paying no attention to shouts or to the bell and whistle; and that his face was white like the face of the dead. Held, that there was no support for a finding that the defendant’s servants in charge of the train were wanting in ordinary care in the operation and management of the same.</p>

C. Higbee, Circuit Judge. This is an action for tbe conversion of a weekly newspaper printing plant at Osseo, Wisconsin, consisting of type, presses, a typesetting machine, etc., alleged to be worth $3,000.

<p> Attorneys at law: Qualifications: Person improvidently admitted: Striking name from roll: Powers of court: Upon whose motion court may act: Statute construed: Practice in another state: Appeal, hy whom taken: Bar association. </p> <p>1. An attorney at law is an officer of the court; and the court has ample power to protect itself, the bar, and the public against the danger of any one holding such office who is not legally as well as morally qualified therefor.</p> <p>2. In determining whether the name of a member of its bar should be stricken from the roll, the court may act upon its own motion or upon application of any member of such bar (and especially of the bar acting collectively) or even of a private person. The technical status of an amicus curice has nothing to do with the matter.</p> <p>3. The mere lapse of the term at which a person was admitted to the bar does not disable the court from revoking his license to practice on the ground that he was not legally entitled to be so admitted.</p> <p>4. Where the legislature has prescribed conditions of eligibility to admission to practice law, which are reasonable, it is the duty of the court to enforce compliance therewith.</p> <p>5. Under a statute (sec. 1, ch. 19, Laws of 1903) providing that residents of this state who “have been admitted to practice in the supreme court of any other state or territory” and who have actually practiced “in such other state or territory” for at least two years may be admitted to practice in this state, a person who after being admitted to practice in the supreme court of one state did not practice in that state but did practice for two years in another state by virtue of admission in a lower court in the latter state, was not entitled, when he became a resident of this state, to be admitted to practice here.</p> <p>'S. In admitting a person to practice upon proofs which show that he has not complied with the statutory conditions, the court commits a jurisdictional error which may be corrected at any time by expunging his name from the roll of attorneys.</p> <p>7. A bar association which petitioned the circuit court to revoke an attorney’s license, to practice, being competent to be heard on such petition, is entitled to appeal to the supreme court from an order denying it.</p>

Pauic, Circuit Judge. The plaintiff brings this action to recover damages for injuries he received while in the defendant’s employ doing work as an attendant about the defendant’s threshing machine. At the time of the injury the plaintiff was twenty-two years of age. He had lived and worked on the farm from youth and had worked about threshing-machine outfits as a common laborer.

<p>Trial: Special verdict: Answers, when changed or disregarded: Sales: Corporate stock: False representations: Right to rely thereon: Rescission: Placing vendor in statu quo: Waiver: Judgment: Res judicata: Costs: Action on contract: Equitable counterclaim.</p> <p>1. Tie trial court may properly change or disregard answers in a special verdict which, by the other answers and the evidence, are shown to he erroneous as a matter of law.</p> <p>2. Representations made by the vendor of stock in a creamery company, to induce its purchase, as to the amount of business done at the creamery, the competition in that locality, and the price received for manufacturing butter, do not relate to matters obvious upon inspection or equally open to both parties, but are such as a purchaser, although he may have visited and inspected the plant pending the negotiations, has a right to rely upon.</p> <p>3. The purchaser of stock in a creamery company having made timely demand for rescission on the ground of fraud, the fact that the creamery was afterwards burned and that the wagons and milk cans were then sold does not defeat his right to enforce rescission in equity, on the ground that he cannot tender back all that he received or place his vendor in statu quo, where the money received for said equipment and the insurance money are held for such vendor either in the treasury of the company or by the clerk of the court.</p> <p>4. A payment made by a purchaser of property upon the purchase price, before he has full information respecting the falsity of representations upon which he relied in making the purchase, will not constitute a waiver of his right to rescind.</p> <p>5. If in two actions between the same parties the issues involved are the same, a determination of such issues in one action will be res judicata in the other.</p> <p>6. Where the complaint states a cause of action at law upon contract the costs, exclusive of disbursements, are limited by sec. 2921, Stats., to $25, although the answer interposes an equitable counterclaim which becomes the principal subject of litigation.</p>

<p> Deeds: Delivery: Parent and child: Acceptance, when presumed: Conveyance to take effect after grantor’s death: Will or grant? Revocation: Parol evidence of intention. </p> <p>1. When a father executes and causes to he recorded a deed of his land to his infant child and brings this to the knowledge of the child, and the grant is beneficial to the infant, and the latter thereafter makes claim to the land under the deed, its acceptance is presumed and the delivery is complete.</p> <p>2. Such a deed in the ordinary form of a warranty deed, except that after the description of the property was inserted: “This deed is given upon the express condition that the title and possession of the property conveyed is not to pass during the life of the party of the first part, hut is to he absolute at his death,” is construed to be, not a testamentary disposition, hut a grant of the land in fee simple to the grantee, to commence in possession and enjoyment after the death of the grantor, and hence not subject to revocation.</p> <p>3. Such being the legal effect of the instrument, oral testimony of the grantor to the effect that he intended a testamentary disposition was incompetent and unavailing.</p> <p>4. A conveyance of land in fee to take effect at a future time is valid in this state.</p>

<p> Foreign corporations: Disability to take title to land: Interest of grantee of such corporation: Adverse possession: Tacking: Privity: Statute removing disability: Construction: Validation by grantor of prior conveyance: Mortgages: Foreclosure. </p> <p>1.. Although a conveyance of land in this state to a foreign corporation which had not complied with sec. 17706, Stats., was void, yet a grantee of such corporation who went into possession of the land under his deed had an interest therein which he could convey or mortgage, to wit, possession under claim and color of title.</p> <p>2. One to whom such grantee of the foreign corporation sold and conveyed the land could tack his possession to that of said grantee to make up the ten-year period in which title could he acquired by adverse possession; and so also could purchasers at a mechanic’s lien sale who succeeded to his rights.</p> <p>3. Sufficient privity exists where one claims succession in right by an involuntary conveyance or by operation of law to permit a tacking of possessions so as to secure the benefit of a statute of limitation.</p> <p>4. Where the original grantee of the foreign corporation mortgaged the land and afterwards sold and conveyed it subject to the mortgage, the right of the mortgagee was superior to that of the purchaser, and the interest acquired by the latter and those claiming under him, including the right of possession and the inchoate right to obtain title by adverse occupancy, might be foreclosed and sold under the mortgage.</p> <p>5. Ch. 142, Laws of 1911 (sec. 1770j, Stats.), which attempted to cure the. defect in the title of foreign corporations to lands conveyed to them before compliance with sec. 17706, Stats., where they had afterwards complied therewith, did not have the effect to vest the title in such a corporation immediately, but was in the nature of a statute of limitation and allowed the party dealing with the corporation a year in which to disaffirm his contract, and if he did not do so the conveyance in effect became validated.</p> <p>6. Land in this state had been conveyed to a foreign corporation coming within the terms of ch. 142, Laws of 1911. Such corporation conveyed to one Clare, who took possession and thereafter mortgaged the land to a bank, and then sold and conveyed it, subject to the mortgage, to one Morse. Through foreclosure of a mechanic’s lien and subsequent conveyances the interest of Morse became vested in Murphy. After the enactment of the law of 1911 the original grantor of the foreign corporation quitclaimed to the mortgagee bank, and the bank thereafter quitclaimed the land and assigned the mortgage to plaintiff. In an action against Murphy and others to foreclose the mortgage, plaintiff having elected to take the position that defendants had an equity of redemption in the premises, it is held that the purpose of said original grantor in quitclaim-ing to the bank was to validate his conveyance to the foreign corporation and thereby to place all parties in the same position they would have occupied had the corporation been competent to receive and to transfer title in the first instance; hence that the mortgage is the prior and paramount lien and should be foreclosed accordingly.</p>

<p>Appeal from a judgment of tbe circuit court for Waupaca county: Byro-N B. Pare, Circuit Judge.</p> <p>Tbe defendant is a fraternal benefit association organized and doing business under and by virtue of tbe laws of Iowa, and as sucb organization is lawfully admitted to transact business in this state. On September 14, 1908, it issued to William Krogh, tbe husband of tbe plaintiff herein, a certificate of insurance upon bis life which entitles tbe beneficiary, Ida Krogh, bis wife, to participate in the mortuary fund to tbe amount of one full assessment on all members in good standing in tbe fraternity, not to exceed $1,000. Tbe certificate also provided that if tbe bolder thereof should die by bis own bands, whether sane or insane, then it should be null and void and of no effect, and that all moneys paid or rights accrued thereunder should be absolutely forfeited. William Krogh died on June 6, 1911. Proofs of death were furnished defendant, and upon its failure to pay the insurance within the time specified in the certificate - an action at law was brought thereon. The defendant set up the defense that William Krogh died by an intentional act of his own hand. The jury found (1) that the death of William Krogh was not caused by suicide, and (2) that he was sane at the time of his death. Judgment for the full amount of $1,000 was entered in favor of the plaintiff, from which the defendant appealed.</p>

Pabk, Circuit Judge. Tbe plaintiff was tbe general state agent of tbe Casualty Insurance Company of North America, and tbe defendants were tbe local agents of tbe plaintiff for tbe placing of insurance in that company at Grand Eapids and surrounding territory.

PaeK, Circuit Judge. Action for a personal injury. Plaintiff, when injured, was about twenty-one years of age. He bad a fair education for a country boy accustomed to much manual'labor. He bad lived most of tbe time on bis father’s farm near Stevens Point, but worked in tbe woods in various kinds of operations, including that of attending a somewhat similar machine to tbe one by which be was injured.

<p> Sale of horses: Fraud: Intoxication: What horses included: Evidence: Value; New trial: Newly discovered evidence: Special verdict: Form. </p> <p>1. Findings by the jury that a sale of nine horses by defendant to plaintiff did not include the three horses for nondelivery of which the action is brought; that when he signed a note for the price’ and a chattel mortgage of the horses purchased, plaintiff was not so intoxicated as to be incapable of understanding the transaction; and that he knew, at the time, what horses were described in the mortgage, are held to be sustained by the evidence.</p> <p>2. Where the parties to a sale of horses differed in their testimony as to what horses were included therein, evidence as to the value of the horses was admissible.</p> <p>3. A motion for new trial on the ground of newly discovered evidence is properly denied where the alleged new evidence is merely cumulative and furnishes no substantial ground for believing that, had it been presented to the jury at the trial, a different result would have been reached.</p> <p>4. The form of a special verdict is largely in the discretion of the trial court, and it is sufficient if it covers the material issues in such a way as to resolve all disputes in respect to them.</p>

<p> Railroads: Injury to trespasser on bridge: Gross negligence of engineer: Evidence: Instructions to jury: Special verdict: Form: Inspection of defendant’s books, etc. </p> <p>1. In an action for personal injuries sustained by plaintiff, who was struck by an engine while crossing a river on a railway trestle, the evidence is held to sustain a finding by the jury that after the time he discovered plaintiff on the trestle the engineer was not guilty of gross negligence in respect to stopping the train so as to avoid the accident.</p> <p>2. In view of the issue raised as to gross negligence, there was no error in charging the jury that plaintiff was a trespasser on the trestle and that such an act is made punishable by the laws of this state.</p> <p>3. Referring to the testimony of a witness for plaintiff that the train could have been stopped before reaching the bridge, the court charged that the jury should carefully weigh the testimony of such witness, should consider first his competency and the experience he had had in stopping trains and making tests, and should give his evidence such weight as they thought it deserved. The court also referred to the testimony of witnesses for defendant as to actual tests, and stated that the defense claimed that such tests were made under conditions similar to those existing at the time of the accident and were more accurate and satisfactory as to the distance within which the train could have been stopped than the testimony of plaintiffs witness based upon his experience and calculations; and directed the jury to consider all the evidence. It appeared that plaintiff’s witness had left the service of defendant about thirty days before the accident on account of a disagreement, and came into the case as a witness Under peculiar circumstances, and had never stopped a train under the conditions in question. Held, that there was no error in the charge.</p> <p>4. Nor was there error in a charge to the effect that if, after the engineer discovered plaintiff on the bridge, he could not by the use of reasonable and due care have stopped the train before plaintiff was struck, then the jury should not find the engineer guilty of gross negligence, but if he could have stopped the train by the use of due care in time to have prevented the accident the jury should give that fact its proper weight in determining whether he recklessly and wantonly ran the plaintiff down.</p> <p>5. Questions proposed for special verdict which cover no issuable fact, or which relate to matters otherwise properly submitted, are properly refused.</p> <p>6. A question proposed for special verdict as to “what amount of punitory damages will compensate the plaintiff,” was properly refused.</p> <p>7. A witness who was subpoenaed to appear before a court commissioner and produce the engineer’s report of the accident and the books of defendant showing what kind of air-brake apparatus was used on the train in question, testified that he knew nothing about the air-brakes, had no access to any books pertaining to them, did not know whether the company had records showing what kind of air-brake apparatus was in use on the day of the accident, and knew nothing about the report of the accident or whether defendant had such report. Held, that there was no error in denying a motion that the witness be required to produce such books and report for plaintiff’s inspection.</p>

Ray SteveNS, Circuit Judge. to tbe point tbat tbe instrument set forth in tbe complaint is not an “instrument for tbe payment of money only,” cited, among other cases, Hankmson v. Page, 31 Eed. 184, 19 Abb. N. 0. 274, 278; Kratzenstein v. Lehman, 19 App.

<p>Appeal from a judgment of the circuit court for Sauk county: E. Ray Stevens, Circuit Judge.</p> <p>Eor fourteen years plaintiff was in tbe business of buying and leasing slot machines. During that time he owned four or five hundred machines and sold a few, not to exceed twenty. His usual custom was to lease the machines to saloon and hotel keepers on an agreement that he was to receive as pay for their use one half the profits derived therefrom. The plaintiff looked after and cared for the machines so leased. He said: “When I know a machine is going to take a vacation pending an election or a wave of reform, I put it in & dry place.”</p> <p>On August 3, 1910, plaintiff boxed up 'and shipped a slot machine from La Yalle to Necedah over the defendant’s line of road. The machine was consigned to one Lecy, a saloon-keeper at Necedah, and was shipped for the purpose of being set up and used as a gambling device in Lecy’s saloon, with the usual understanding as to compensation for its use. The machine was an eight-play quarter machine. The smallest coin that could be used therein was a quarter, and it advertised to pay as high as $20. The plaintiff testified that the chances on the machine were ten per cent, against the player. Gambling slot machines were under the ban of the municipal authorities at Necedah when the shipment was made. The machine was broken in transit to such an extent that plaintiff claimed it was worthless, and this action was brought to recover damages resulting from the injury to the machine. When new the machines cost about $140. The one in question was second-hand, having been used for some time. There was no testimony to show the value of the machine for any other purpose except for use as a gambling device, or in fact that it had any value for any other purpose. The jury awarded the plaintiff $75 damages. The trial judge was of the opinion that plaintiff was entitled to recover the value of the article for the purposes of gambling and gave judgment on the verdict. Defendant appeals.</p> <p>They cited, among other cases, Gulf, G. & S. F. B. Go. v. Johnson (Tex.) 25 S. W. 1015; Sutton v. Wauwatosa, 29 Wis.' 21; Gerretson v. Rambler G. Go. 149 Wis. 528, 136 N. W. 186; McArthur v. Green Bay & M. 0. Go. 34 Wis. 139; Steele v. BwTehardt, 104 Mass. 59; Gabbert v. Uackett, 135 Wis. 86, 115 N. W. 345; Delaware, L. & W. B. Go. v. Trautwein, 52 N. J. Law, 169, 19 Atl. 178; Comply v. O. H. Starke D. & D. Go. 129 Wis. 622, 109 N. W. 650; Judge v. N. P. B. Go. 189 Fed.' 1014.</p>

Ray Stevens, Circuit Judge. The following statement of facts from appellant’s brief seems correct and is not attacked by respondent’s counsel: “This is an action at law commenced by Albin Gross as administrator of the estate of Peter Gross, deceased, against Anton Arians to recover the sum of $11,000 and interest.

Ray SteveNs, Circuit Judge. contended, inter alia, that the subject matter of the action pertains to the internal management of the affairs of a foreign corporation, over which the courts of this state have no jurisdiction.

Ray Stevens, Circuit Judge. Tbis is an appeal from an order dismissing an appeal taken' by tbe American Cement Machine Company from tbe disal-lowance by tbe common council of the city of Madison of a claim bled by tbe plaintiff with tbe city clerk of tbe city. Tbe appeal from tbe disallowance by tbe city council was taken, by tbe service of a proper notice, to tbe circuit court for Dane county, and a bond was filed with tbe city clerk to cover tbe costs of tbe action.

<p> Municipal corporations: Injury from defective sidewalk: Notice of general had condition: Contributory negligence: Questions for jury: Husband as witness for wife: Agency: Excessive damages. </p> <p>1. Where a sidewalk is so decayed that a plank is liable to break at any time and that condition is observable by reasonable inspection, a city cannot, when a plank does break, escape liability for an injury caused thereby by saying that it had no notice of that particular defect. Actionable negligence is sufficiently shown in such a case if the jury can say under the evidence the break was due to the general bad condition of the walk.</p> <p>2. Plaintiff, who was injured by stepping into a hole in a sidewalk, having testified that her attention was diverted at the time by a passing team of horses, the question of contributory negligence was one for the jury.</p> <p>3. Where a married woman, injured by reason of a defect in a sidewalk, had requested her husband to investigate the condition of the walk and file a claim for her against the city, he was so far her agent as to be a competent witness in her behalf on those points.</p> <p>4. Where a woman three months advanced in pregnancy fell upon a defective sidewalk and a miscarriage and other ill effects resulted, and there was evidence that she had suffered permanent injury, an award of $2,500 was not excessive.</p>

Action to recover damages for a personal injury sustained, by reason of an alleged defective sidewalk on one of the principal streets in the city of Antigo. The walk was made of hemlock planks two inches thick and six inches wide, laid crosswise upon three stringers. Between 8 and 9 o’clock on the evening of May 20, 1911, the plaintiff, in company with one Mrs. Bomke, started up town to do some shopping.

This is an action to recover the'purchase price of a quantity of rubbers. Tbe defendant by answer admitted tbe sale and delivery of the rubbers at the prices claimed, but alleged by way of defense and counterclaim that the plaintiff warranted the rubbers to be of first quality and that the boxes contained the sizes marked thereon, but that said warranties were both breached and the rubbers worthless, and damages were demanded for breach of the warranties.

H. Reib, Circuit Judge. The accused were informed against as having, on the 6th day of July, 1911, at Yilas county, Wisconsin, killed John Radcliffe, pursuant to a premeditated design to effect his death. In due course, they were tried, resulting December 23, 1911, in a verdict of guilty of the full offense charged and judgment accordingly was rendered, which is now sought to be reviewed.

Parish, Circuit Judge. This is an action to recover damages for personal injuries suffered by the plaintiff while crossing the defendant’s railway tracks on a highway in the unincorporated village of Iron River in Bayfield county. On March 2, 1911, the plaintiff started work for the Iron River Lumber Company, hauling wood with a team and dump-cart from the mill of the company to the wood-yard.

Luece, Judge. Tbis action was brought to recover for personal injury sustained in September, 1909, by plaintiff while engaged in defendant’s planing mill, which injury resulted in the loss of plaintiffs right arm and other injuries.

Appeals from a judgment of the circuit court for Mil* waukee county: E. 0. Eschweilee, Circuit- Judge. Action to recover for a personal injury.

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

Appeals from a judgment of tlie circuit court for Milwaukee county: James Wickham, Judge.

J. TueNee, Circuit Judge. Action for .personal injuries. The defendant was engaged in building an addition to the plant of the Power & Mining Machinery Company, at the village of Cudahy, under an independent contract. The plaintiff, a man forty-four years of age, who had worked at the carpenter trade for twenty-eight years, was employed by defendant as sucb carpenter and joiner.

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

<p>Appeal from a judgment of tbe circuit court for Dane county: E. Rat Steveus, Circuit Judge.</p> <p>Action involving tbe question of whether railway employees, outside of those “working in shops or offices,” are within the protection of ch. 50, Laws of 1911, commonly called the Workmen’s Compensation Act, now secs. 2394 — 1 to 2394 — 31, inclusive, of the Statutes.</p> <p>Torger Torvalson, an employee of the plaintiff and not working in a shop or office, while in the line of his duty, July 24, 1912, was accidentally killed. Prior thereto and in due course, the defendant elected to accept the provisions of ch. 50 aforesaid by filing with the Industrial Commission its election in this form:</p> <p>“Take notice that the undersigned employer of labor in Wisconsin accepts the provisions of chapter 50, Laws of 1911, Wisconsin Statutes.</p> <p>“Number of employees 1250 — Number varies somewhat from time to time.</p> <p>“Location of place of employment — Milwaukee, Eond du Lac, Stevens Point and other places.</p> <p>“Nature of employment — Miscellaneous office work, shop work, repairing cars, etc.</p> <p>“Dated at Milwaukee this 31st day of May, 1912.”</p> <p>The defendant, in addition to filing the election as stated, complied with all the conditions of the law essential to bring itself therein so far as it was competent to do so.</p> <p>.In due course, after the accident, Ella Torvalsoni widow of the deceased and mother of three children by him, aged six, four, and two years, respectively, duly made claim for such compensation as she and her family were entitled to under the law. Thereupon, the question was raised as to whether the Compensation Act extended to railway employees, other than those “working in shops or offices.” The decision was in the affirmative. Thereupon the railway company commenced this action in the circuit court for Dane county to review the question so decided, resulting in tbe conclusion of tbe Commission being affirmed. Tbis appeal is from tbe judgment.</p>

<p> Assault with intent to commit rape: Evidence: Intoxication rendering female incapable of consenting: Knowledge of such condition: Giving of liquor to produce it: Intent: Instructions to jury: Absence of outcry: Circumstantial evidence. </p> <p>k Evidence held sufficient to sustain a conviction of assault with, intent to commit rape upon a female who was so intoxicated as to he insensible and incapable of consenting.</p> <p>2. In such a case the act must be treated as being against her will.</p> <p>3. The crime charged against defendant was an assault with intent to commit rape and the court instructed the jury that they should find him guilty if convinced beyond a reasonable doubt that he actually had sexual intercourse with the female at the time and place alleged and that she was at such time so intoxicated as to be incapable of either resisting or consenting to such act, or if they were so convinced that at the time in Question the female was so intoxicated as to be incapable of either resistance or consent and the defendant, with knowledge of that fact, laid hands upon her with the intent then and there to have sexual intercourse with her. Held that, the attention of the jury being specifically directed to the necessity of finding that defendant had knowledge of her condition, there was no prejudicial error in failing to bring that to their attention in the first part of the instruction; especially as the evidence showed that in fact he must have known of the actual condition as to her intoxication brought about through his own acts.</p> <p>4. The giving of intoxicating liquor to a female constitutes an assault with intent to commit rape if given with the intent to destroy her power of resistance hy reducing her to insensibility, and with the present intent to have sexual intercourse with her when in that condition.</p> <p>5. Where it was shown that at the time of the assault the female was insensible and in a stupor, there was no error in refusing a requested instruction as to the effect of the absence of any outcry on her part.</p> <p>6. Refusal to give requested instructions as to circumstantial evidence was not prejudicial error where the evidence in the case was largely direct and positive and there was no need for the jury to resolve any issue upon circumstantial evidence alone.</p>

C. Ludwig, Circuit Judge. In March, 1909, the plaintiff was the owner of a piece of property on Humboldt avenue in the city of Milwaukee on which there was a mortgage of $750. She called on her grocer and advised him that she would like to sell, as she was not getting sufficient income from the property. He in turn called on a real-estate dealer named Leinss in reference to selling the property.

<p> Public utilities: Street railways: Regulating rates of fare: Legislative power: Delegation to municipalities: Statutes and ordinances construed: Constitutional law: Impairing obligation of contracts: Reserved power to amend franchises: Taking of property without compensation. </p> <p>1. Authority given 'ey a revised statute (sec. 1862, Stats.) to a municipal corporation to grant to a street railway corporation the use of streets “upon such terms” as the proper authorities shall determine, does not differ from the authority, given by such statute in its original form, to make such grant “upon such .terms and conditions" as the common council might impose.</p> <p>2. A municipal ordinance providing that the rate of fare upon a street railway “shall be not to exceed five cents” did not make a fixed rate, as distinguished from a limitation upon the rate, and was not in that respect substantially different from a prior ordinance providing that the rate of fare “shall not exceed five cents.”</p> <p>3. The power to fix rates and tolls to be charged by public utilities is one of the attributes of sovereignty, and with us is vested in the legislature.</p> <p>4. No presumption can be indulged that the legislature has parted with such power, nor will doubtful words be construed as having that effect.</p> <p>[5. Whether the legislature could by express language authorize municipal authorities to make contracts with public utilities fixing rates which should exist for definite periods in the future and be beyond legislative control during those periods, is not determined.]</p> <p>6. Sec. 1862, Stats. — which provides that any municipal corporation may grant to a street railway company the use, “upon such terms as the proper authorities shall determine,” of streets, bridges and parkways for the purpose of laying tracks and running cars thereon, to be propelled by animals or such other power as shall be agreed on, and that every such road shall be constructed upon the most approved plan and be subject to such reasonable rules and regulations and the payment of such license fees as the municipal authorities may from time to time prescribe, — does not empower municipal authorities to make any contract with a street railway company fixing rates of fare so that they may not be changed ,by the legislature or through a legislative agency (such as the Railroad Commission) in the manner provided by law.</p> <p>[7. Whether municipal ordinances relating to rates of fare upon a street railway and claimed to be in the nature of contracts are subject to alteration or repeal under sec. 1, art. XI, Const., not determined.]</p> <p>Marshall and Vinje, JJ., dissent</p>

<p> Railroads: Injury to employee in yards: Negligence of engineer: Violation of orders: Scope of employment: Contributory negligence: Questions for jury: Federal Employers’ Liability Act: Injury to employee when not employed in interstate commerce: Evidence: Judicial notice: Offer of proof: Appeal: Error not presumed: Damages: Tuberculosis induced by injuries: Medical testimony. </p> <p>1. Plaintiff, who was employed in defendant’s yards as engine “dispatcher” or “hostler,” was walking in a beaten path at the side of the track northward from a cinder pit into which another employee was throwing water from a hose, causing a cloud of steam to rise and spread over the track in the direction plaintiff was going. Wishing to cross the- track, he stopped and listened and, hearing no sound hut a hissing noise which he thought was produced by the throwing of water on the hot cinders, stepped on the track without looking toward the south and was struck by a “drifting” engine coming from that direction. Held that, in view of the facts that there was a yard regulation requiring the stopping of all engines south of the cinder pit, which the engineer failed to observe, and that the duties of yardmen necessarily take them frequently upon and about the tracks, it cannot be said as a matter of law that plaintiff, was guilty of contributory negligence, although upon the same evidence the jury would have been warranted in finding that to be the fact.</p> <p>2. Under the circumstances stated, plaintiff's testimony that he listened but could not hear the natural and necessary noises of the engine as it approached, was not incredible.</p> <p>3. Although the engineer of the engine which struct plaintiff violated the orders of his employer in running past the cinder pit instead of delivering his engine to the engine dispatcher south of the pit, he was nevertheless within the scope of his employment so far as third persons were concerned.</p> <p>4. That the great railroad systems of the state are continuously engaged in both interstate and intrastate commerce is matter of common knowledge.</p> <p>5. To bring a case within the federal Employers’ Liability Act it is necessary not only that the employer be engaged in interstate commerce but that the injured employee shall suffer his injury while he is employed therein.</p> <p>6. An employee whose' duty it is to care for and dispatch engines used in both interstate and intrastate commerce cannot be said to be employed in interstate commerce during the entire day; especially not during the periods of leisure or rest, while merely waiting for the arrival of an engine.</p> <p>7. To warrant a reversal for the exclusion of evidence offered for the purpose of showing the case to be within the federal act, where plaintiff’s injury occurred during a period of leisure or rest, the offer should be so definite and certain as to apprise the trial court of the fact that the proof so offered would tend to establish that plaintiff’s entire work was connected with interstate commerce.</p> <p>8. Medical testimony, in a personal injury case, to the effect that an injury such as plaintiff received is likely to induce or incite tuberculosis by reducing the natural resistance of the patient, does not suffice to establish a causal relation between the physical injury and tuberculosis shown to have existed more than a year later.</p> <p>9. But when to this testimony is added the positive opinion of plaintiff’s family physician, who was in a position to judge of the actual as well as probable effects of the injury upon plaintiff, to the effect that the tubercular condition is the result of the injury, it cannot be said that a finding of the existence of such causal relation is purely conjectural.</p>

Mandamus proceeding to compel defendant to “immediately operate a sufficient number of cars, with, reasonably efficient operators, and in such manner, over all its lines within the city of Superior as will give the public adequate streetcar service equal to that given immediately prior to September 12, 1912, and that it operate its cars with such employees and in such manner as to avoid inciting the public to acts of violence,” or show cause to the contrary.

<p> Highways: Town-line roads: Apportionment for repair: Division of toion: Reapportionment: Proceedings: Oral agreement, how far binding: Bridge built by one town: Liability of other town to contribute. </p> <p>1. An order apportioning a town-line highway between two adjoining towns for maintenance is abrogated by a division of one of such towns and the creation of a new town out of that part thereof which lies adjacent to the highway.</p> <p>2. In such a case, sec. 1273, Stats., provides for a new-apportionment of liabilities in respect to the highway by agreement of a majority of the supervisors of each town, or, failing that, by a different method, the whole scheme indicating a purpose to avoid a divided responsibility respecting maintenance thereof.</p> <p>3. To make a valid reapportionment of the highway, no hoard action of the respective towns is required, nor need the meeting of the supervisors be upon notice specifying its particular purpose. The meeting • contemplated by the statute is neither a general nor a special one of the respective town hoards, hut is a joint meeting of at least a majority of the supervisors of each town, with authority, if they agree, to hind both towns by their order.</p> <p>4. In making such new apportionment the supervisors have nothing to do with the original order, which is vacated by force of the statute, and no notice is required of a purpose to change it.</p> <p>5. Whether or not an oral agreement between the supervisors, not formulated in an order, would be binding on the towns if objected to before expenditure of money thereunder, it seems that to the extent of its mutual observance it would be binding.</p> <p>6. Where, pursuant to such an oral agreement, one town for several years maintained a certain portion of the highway and then undertook to rebuild a bridge therein, the fact that the chairman of the adjoining town, as a member of the county board, was instrumental in securing county aid toward the construction of such bridge, did not tend to establish the liability of his town to contribute to the expense, but rather the reverse.</p> <p>7. Even if there were a joint duty on the p'art of two adjoining towns to repair or rebuild a bridge upon a town-line road, the. mere fact that one has voluntarily solely performed such duty does not render the other liable to repay any part of the expense. Such liability arises only where there has been a previous refusal to join in the burden.</p> <p>8. Mere use by the public of a town-line bridge so built at the expense of one town is not such an appropriation and beneficial use of it by the adjoining town as would render it liable to pay any part of the cost.</p>