Volume 163 — Wisconsin Reports

<p>Waters: River or arm of Zake~' TitZe to river bed: Platting aM conveyance: Regnisites of plat: AclGnowZe?lgment by agent: Ratift-cation: Eq2tity: Injvnction: Protecting abstract property rights as against enterprise of great pnbiic benejlt: Vacation of platted streets in ,S~nperior Bay: Election of remedies: Appeal: Direction of 5Mgment, to avoid fvrther Utigation.</p> <p>1. That body of water which lies along the northeast front of the city of Superior, though frequently called the Bay of Superior on maps and in p~iblic speech, is in fact a widening of the St. Louis river, not an arm of Lake Superior; its bed was the subject of private ownership and platting; and the riparian proprietors might by conveyances separate the ownership of the lands on the bank from the lands in the bed of the river.</p> <p>2. Secs. 1-5, ch. 41, R. S. 1849, required that a plat of lands should be certified by the surveyor and acknowledged by the proprietor and recorded. The proprietors of land in the present city of Superior caused a plat thereof to be made, acknowledged, and recorded by one B., a former owner. The surveyor's certificate recited that the plat was made and designed under the direction of one N. "as agent of the proprietors," and it was indorsed as approved by N. as such agent. Afterwards in a duly acknowledged and recorded power of attorney from the proprietors, running to N., the platted lands were described and it was stated that "the town of Superior has been laid out, surveyed and the plat thereof recorded . . . under our direction and authority." Seld, that this was a complete ratification of the acts of B. 'and N., and rendered the plat a valid one under said statute.</p> <p>3. An enterprise involving a great public benefit both to the municipality and to the people of an important city should not be halted and killed by the courts at the suit of an individual citizen whose abstract rights may be infringed upon, but whose injury, if any, will be inconsequential and conjectural.</p> <p>4. Thus, in an action by the owner of two small vacant lots on a sandbar in the Bay of Superior, to prevent the consummation of a ■compromise agreement between the city of Superior and two railway companies pursuant to which the city council had passed an invalid resolution vacating a number of the platted but unimproved streets (including one upon which said lots abutted) in a certain tract of land, partly filled and partly under water, lying for the most part between the original shore line of the bay and the established harbor line, — it appearing, among other things, that the railway companies had acquired by purchase all the submerged lots involved except those of plaintiff; that his lots were distant from the shore and inaccessible except by small boats; that no use had ever been made of them, and none apparently was contemplated; and that the carrying out of the agreement and vacation of the streets would increase rather than decrease the value of plaintiff’s lots and would result in a substantial benefit to the city and its people generally,' — it is held that no injunctive relief should be granted.</p> <p>5. Defendants in such action, by their answer, consented that all damages which plaintiff would sustain by reason of the carrying out of said agreement and vacation of said streets might be determined either by the court or a jury at plaintiff’s election, and offered to pay such damages when so determined. The trial court, although it determined the amount of such damages, held _ that plaintiff was entitled to an injunction and he accepted that relief. On appeal, it being held that plaintiff was not entitled to any equitable relief, it is further held that although he had made his election of remedies, which would ordinarily be final, yet, the offer of defendants never having been withdrawn, this court may, in order to avoid further litigation, direct a judgment that plaintiff recover the amount of damages so determined.</p>

<p> Master and servant: Injury: Unsafe working place: Contributory negligence: Questions for jury: Evidence: Absent witness: Testimony given at former trial. </p> <p>1. A finding by the jury to the effect that plaintiff, an employee in defendant’s lumber yard, was struck and injured by a crosspiece thrown from the top of a lumber pile by another employee, is held to be sustained by the evidence, although no one saw the crosspiece strike him.</p> <p>2. Further findings to the effect that the method of disposing of the crosspieces, as lumber was taken from the pile and loaded upon a wagon, was not reasonably adequate to render plaintiff’s place of employment as free from danger as the nature thereof would reasonably permit, and that he was not guilty of contributory negligence, are also held to be sustained by the evidence.</p> <p>3. A witness being absent from the state-at the time of the second trial of the action, his testimony given at the first trial was admissible under sec. 4Í41a, Stats., where the issues *of fact were the same at both trials, although the first trial went on the theory that the rights of the parties were governed by the common law and the second on the theory that such rights were governed by a statute (eh. 485, Laws 1911) which abrogated the common law.</p> <p>4. It was not error to permit the testimony of such witness to be read as it appeared in the bill of exceptions on appeal from the judgment rendered at the fii’st trial.</p>

<p>Appeal from a judgment of the circuit court for .Dane county: E. Ray Stevens, Circuit Judge.</p> <p>Proceedings under the Workmen’s Compensation Act by Martin Borsenih against the Wisconsin Chair Company. An award made by the Industrial Commission was reversed on appeal to the circuit court, and from the judgment of the circuit court the Industrial Commission and Borsenih bring this appeal.</p>

<p> Fraudulent conveyances: Husband and wife: Estates of decedents: Creditors’ action: Receivers: Rights of widow who colluded in fraud: Reimbursement for debts paid by her: Allowances: Parties: Administrator: Appeal: Dismissal. </p> <p>1. Where, a few days prior to his death, a husband, without consideration and with intent to defraud his creditors, transferred his real and personal property to his wife, Who knew his purpose and colluded with him to carry it out, and his estate was insufficient to pay his debts, judgment was properly entered pursuant to secs. 3835, 3836, Stats. 1915, declaring such transfer void as to creditors of the decedent and subjecting the property to the payment of his debts; and, the administration of the estate having been closed and the administrator discharged, a receiver of said property in the hands of the wife was properly appointed.</p> <p>2. Although in such case the widow paid some of the debts of the decedent out of her individual estate, her connection with the fraudulent transfer deprives her of all right to reimbursement out of the proceeds of a sale by the receiver of the property so transferred.</p> <p>3. Having elected not to claim her allowances when the husband’s estate was being administered, the widow is not, under the circumstances above stated, entitled to have such allowances-made to her out of the property involved in the fraudulent transfer.</p> <p>4. The administrator of the husband’s estate, having been duly discharged, was not a proper party to the creditor’s action, and an appeal by him from the judgment setting aside the fraudulent transfer and appointing a receiver is dismissed.</p>

<p> 'Workmen’s compensation: Conditions of liability: City employees:, Injury while going to work: What are “premises" of employer: Streets: Cause of action against third person: Assignment to employer. </p> <p>1-. Under sec. 2394 — 3, Stats. 1913, an employee going to or from Ms employment is not “performing service growing out of and incidental to Ms employment” except while lie is “on the premises of his employer.” The rule announced in Milwaukee v. Althoff, 156 Wis. 68, is limited accordingly.</p> <p>2. Where city streets are used hy an employee of the city solely for the purpose of going to and from an employment carried on at a definite place other than a street, they are not the “premises of his employer,” within the meaning of said statute.</p> <p>:3. A city fireman who was injured while using the streets solely for the purpose above stated had no lawful claim against the city under the Workmen’s Compensation Act, and no continued payment of salary during his disability could create a claim against the city or operate as an assignment to it, under sec. 2394 — 25, Stats. 1913, of any cause of action in tort which he might have against any other party for such injury.</p>

<p>Officers de facto: Judge of county court: Appointment under void statute and under other name: Color of title: Existence of de jure officer.</p> <p>1. The person appointed as judge of a superior court under a void act of the legislature (ch. 518, Laws 1915) which purported to create such superior court, to vest in it all the powers of a county court, and to abolish the latter court, having, under color of such appointment and the provisions of said act, ousted the de jure county judge, taken possession of the county court room, records, and papers, and thereafter exercised all the powers and functions of the county judge, became a de facto judge of the county court and his acts as such are valid as to third persons.</p> <p>2. Neither the fact that said appointee acted under the name of judge of the superior court in exercising the functions of the county court, nor the fact that there was in existence a de jure judge of the county court, affects the validity of the acts of such de facto judge.</p> <p>3. There can be no de facto officer of an office which does not exist de jure; but where there is a de jure office there may be a de facto officer thereof even though he was not appointed or elected thereto in the name of such office.</p> <p>4. Van Slyke v. Trempealeau Go. S’. M. F. Ins. Go. 39 Wis. 390, and Fenelon v. Btitts, 49 Wis. 342, distinguished. Kempster v. Milwaukee, 97 Wis. 343, explained and language therein qualified.</p>

<p>Appeal from an order of the circuit court for Milwaukee county: F. C. EsciiweileR, Circuit Judge.</p> <p>This is an appeal from an order sustaining a demurrer to the plaintiff's complaint. The action wás commenced in the civil court of Milwaukee county. The demurrer was overruled by said court and an appeal taken by defendant to the circuit court. In the circuit court the order of the civil court, was reversed and the defendant’s demurrer to the complaint sustained. From this order of the circuit court sustaining the demurrer the plaintiff appeals to this court.</p>

Halsey, Circuit Judge. This action was brought to foreclose subcontractors’ liens for materials furnished in the erection of a store building for defendant Rdw. Schuster & Co. upon land to which title was in defendant Schuster Realty Company, situate in the city of Milwaukee, and for recovery of personal judgment against the defendants J. W. Utley, principal contractor, and Illinois Surety Company, surety upon Utley’s bond.

0. Ludwig, Circuit Judge. On June 4, 1909, tbe plaintiff commenced an action for tbe foreclosure of a mortgage against tbe defendant Herman Hurtb. Tbe- property described in tbe mortgage was sold and a judgment for deficiency rendered against the defendant Herman Kurth on March 31, 1911. On June 23, 1909, the defendant Herman Kurth conveyed certain real and personal property to his sister, Paulina Kurth.

Feitz, Circuit Judge. This was a proceeding commenced by appellants by petition in the county court of Milwaukee county to determine whether certain property received by them was subject to the payment of inheritance taxes.

0. Ludwig, Circuit Judge. The action was brought for a specific performance of an alleged agreement of adoption of tbe plaintiff by Charles Cuppel, deceased, and to- enforce plaintiff’s rights in the estate of Charles Cuppel, deceased, under such agreement. . The plaintiff was born in 1860 near Tilton, New Hampshire. In July, 1866, his mother married Charles Cuppel, •deceased, and thereafter resided with him as his wife in the ■county of Milwaukee.

<p>Appeal from an order of the circuit court for Milwaukee county: W. J. TueNee, Circuit Judge. .</p> <p>The appeal is from an order sustaining- a general demurrer to plaintiff’s complaint.</p>

J. TueNER, Circuit Judge. Personal injuries. The following facts appeared on the trial: The defendant is a corporation maintaining a private sanitarium for the treatment of persons afflicted with nervous and mental diseases or drug habits in the village of East Milwaukee, the building being about three blocks from the house of the plaintiff.

<p> Railroads: Fences: Entry of adult upon right of way: Lack of fence at street crossing: Injury, when “occasioned" thereby: Liability: Statutes construed. </p> <p>1. A finding by the jury that the death of an adult who entered upon defendant’s right of way at a street crossing and while walking along the railroad was struck and fatally injured by a passenger train was occasioned in whole or in part by the want of a wing fence on the line of the street, is held to be sustained by evidence showing, among other things, that in going upon the right of way the deceased used a well-beaten footpath which crossed the line on which a wing fence was required by sec. 1810, Stats.; that such path had for many years been used daily by large numbers of pedestrians; that defendant’s agents and servants had full knowledge of such use and acquiesced therein; that no fence, guard, or other structure had been erected to divert this travel or give notice to the public to keep off the railroad; and that the deceased took the course which pedestrians usually followed in traveling along the tracks.</p> <p>2. Under the circumstances stated the deceased was not a trespasser nor was his conduct in going upon and walking along the railroad such a deliberate, wanton, and reckless action that his death is to be considered as the result of a wilful exposure to known danger for which no recovery can be had.</p> <p>3. Even if, in walking along the tracks, the deceased violated sec. 1811, Stats. 1911, that fact did not defeat the right to recover damages for his death, such right in cases within sec. 1810 being independent of the penal provision of sec. 1811.</p>

<p> Street railways: Injury to passenger alighting from car: "Negligence of conductor and motorman: Special verdict: Inconsistency: Excessive damages. </p> <p>1. In an action for injuries sustained in alighting from a street car, findings by the jury that the conductor and the motorman were each guilty of a want of ordinary care in-starting the car are not inconsistent, there being evidence that the motorman was negligent in suddenly starting the car and that the conductor was negligent in giving the signal to start before plaintiff had alighted.</p> <p>2. An award of $3,200 for serious injuries to a school teacher, caused by the sudden starting of a street car from which she was alighting, is held not so excessive as to show that the jury was actuated by passion or prejudice.</p>

<p>Appeal from an order of the circuit court for Milwaukee county: LawheNCE W. Halsey, Circuit Judge.</p> <p>Proceedings for condemnation under sec. 1852, Stats. 1915, brought by tbe owner to determine the damages he has sustained by reason of the taking of his land by the railway company in raising its tracks across Kinnickinnic avenue in Milwaukee. When the railway was built the avenue existed and the road crossed it at grade and nearly at right angles. In 1906 the railway company was compelled by the city of Milwaukee to elevate its tracks above the avenue and to lower the latter so that it became a subway under the track. In making the subway it became necessary to lower the established grade of the avenue, and the grade was lowered in front of plaintiff’s land which abutted on the avenue but did not touch the railroad right of way.</p> <p>The circuit court entered an order appointing commissioners to determine the damages sustained by the petitioner by reason of the taking of his land. Erom such an order' the railway company appealed.</p>

<p> Physicians and surgeons: Malpractice: Degree of care and shill required: Death of child from, diphtheria: Examination and treatment: Antitoxin: Proximate cause: Questions for jury. </p> <p>1. A physician is not required to exercise the highest degree of skill or the utmost care in diagnosis or treatment, but only such reasonable care and skill as is usually exercised by physicians in good standing, of the same school, in the locality in which he is practicing.</p> <p>2. Thus, a physician could not be held liable for the death of a child from diphtheria, on the ground of negligence or lack of skill in his diagnosis or treatment of the case, merely because he did not have a bacteriological or microscopical examination'of the contents of the throat made, where the evidence showed that it was not usual or customary for physicians to have such an examination made except in cases where a membrane was present and did not show that in this case there was at any time a membrane, and no physician who testified was able to say, upon the evidence as to the symptoms, that defendant should have suspected the presence of diphtheria.</p> <p>3. It being established by the evidence in such case, among other things, that, in the absence of a membrane or other symptoms pointing directly to the presence of diphtheria, antitoxin should not be administered; that such symptoms were not present; that the result where antitoxin is not administered in the early stages of diphtheria is uncertain, and that no one can say in a given case what the result would be if antitoxin were administered, a finding by the jury that the death of the child was caused by defendant’s failure to exercise ordinary care was based upon mere conjecture and cannot stand.</p>

C. Eschweileb, Circuit Judge. Action to recover one month’s salary and living expenses claimed to be due the plaintiff under a written contract.

J. TueNee, Circuit Judge. This is an appeal from an order overruling tbe defendant’s motion to quash an alternative writ of mandamus directing tbe city comptroller to countersign tbe city’s order in plaintiff’s favor for $8,739.32 as required by a resolution of tbe common council of tbe city. Tbe relation states tbe following facts: In June, 1913, tbe plaintiff furnished to tbe proper assessor a statement of its taxable property in tbe Second ward of tbe city.

<p>Appeal from a judgment of the circuit court for Milwaukee county: LawkeNce W. Halsey, Circuit Judge.</p> <p>Action to recover damages based upon fraudulent representations. The action was commenced and tried in the civil court of Milwaukee county, and the court found the facts in favor of the plaintiffs. Upon appeal to the circuit court the case was tried and the following findings of fact and conclusions of law made :</p> <p>The plaintiffs were copartners, as alleged in the complaint,- that on and prior to the 27th day of September, 1911, the defendant was in possession of the lower floor and basement of the building known and described as No. 331 Third street, in the city and county of Milwaukee, Wisconsin; that said defendant was in possession of said premises under and by virtue of a lease executed by the owner of said premises, one Jennie Blinkenstine, to the said defendant for a term of years beginning June 1, 1911, and ending May 15, 1914; that said lease between defendant and said Jennie Blinken-stine contained the following clause: “And the said lessee does covenant and agree not to assign or underlet the said premises, or any part thereof, or otherwise part with this indenture or the premises hereby leased, or any part thereof, to any person or persons whatever, without the consent thereto in writing of said lessor, her representatives or assigns, first had and obtained in writing thereto;” that on the 25th day of September, 1911, the defendant, Max Routt, falsely and fraudulently stated to the plaintiffs that he had the legal right and authority to lease the premises hereinbefore described to the plaintiffs herein, and that he had obtained the consent in writing of the owner of said premises, Jennie Blinkenstine, so to do; that the plaintiffs herein relied upon the false and fraudulent statement of the defendant that he had obtained the consent to lease said premises to the plaintiffs and that he had the right so to do, and entered into a lease of said premises from the 27th day of September, 1911, to the 15th day of May, 1914; that after the plaintiffs herein had entered into possession of said premises under their lease with the defendant, the owner of the building, Jennie Blink-enstine, notified these plaintiffs that the lease given to them by the defendant was without the consent of the owner of said premises, Jennie Blinkenstine, and that these plaintiffs occupied said premises at the will of said Jennie Blinkenstine; that because of the uncertainty of their tenure to said premises the plaintiffs herein were not justified in buying a stock of goods adequate for the size of said premises so leased; that because of the uncertainty of the tenure under which they occupied said premises and because they could not legally obtain a lease of said premises for a definite period, the plaintiffs herein suffered 'loss in the conduct of their business while they occupied the same; that it was necessary for the plaintiffs to occupy the premises for the.length of time they did to reduce the loss sustained by them to a minimum; that because of the false and fraudulent representations made by the defendant to induce the plaintiffs to make the lease herein-before referred to, the plaintiffs suffered loss during their occupation of said premises up to the commencement of this action in the sum of $1,000; that all the material allegatiohs in plaintiffs’ complaint as to fraud and deceit on the part of the defendant are proven and true.</p> <p>The court concluded that the plaintiffs were entitled to judgment against the defendant for the sum of $1,000, with interest from the commencement of this action, to wit, March 21, 1912, together with the costs of this action to be taxed. Judgment was entered accordingly, from which this appeal was taken.</p>

Reitz, Circuit Judge. Action to recover damages for the death of plaintiff’s husband, who at the time of his death was in the employ of the city of Milwaukee as a lineman, and who met his death, it is alleged, through the negligence of the defendant. The deceased was under the Workmen’s Compensation Act, and plaintiff received from the city the sum of $3,000, the amount due her under the act.

I. Tueneb, Circuit Judge. On.March 31, 1911, the plaintiff was employed by the defendant as a laborer in and about its coal docks and yards in the city of Milwaukee. The defendant maintained a sidetrack extending in an easterly and westerly direction adjacent to its coal shed, from which shed cars were loaded with coal by means of hoppers and spouts, and in the process of loading the cars it was necessary that they be moved along the track and spotted as desired.

Feitz, Circuit Judge. Action to recover for a personal injury on tbe ground of negligence. Defendant put in issue tbe claim of negligence and pleaded contributory negligence of plaintiff. It was undisputed that one of defendant’s street cars collided with an electric automobile, while being operated by plaintiff, whereby she was injured. That happened July 13, 1914, in tbe daytime. Plaintiff was alone in tbe automobile. She was perfectly familiar with tbe situation.

<p>Appeal from a judgment of the circuit court for Dane county: E. Ray Stevens, Circuit Judge.</p> <p>The appeal is from a judgment affirming an order of the Industrial Commission. The applicant, Charles Lesli, on March 22, 1913, sustained an injury to the left leg just above the ankle, which later developed into an ulcerous process.. Erom the date of the injury to May 5th following he had been on and off duty, being treated meanwhile by the physician of the Illinois Steel Company, his employer. On the last named date it was claimed by the employer that he had fully recovered from the disability which resulted proximately from the injury, the company claiming that the ulcerous condition was tubercular and not the direct result of the injury. On July 5, 1913, the matter was before the Industrial Commission for hearing, and without a formal order of the Commission the company consented to follow its directions and provided the necessary surgical and medical treatment and continued compensation until April 20, 1914, at which time the applicant returned to work as a watchman and continued to be so employed until November 20, 1914: On the last named date he was offered work of the kind he was doing when injured; but he refused to accept it and claims compensation since April 20,1914, and for permanent disability. The contested question in the case was whether’the disability from which the applicant was suffering at the time of the second hearing, March 3, 1915, was proximately caused by the accident or was the result of the applicant’s refusal to submit to proper medical treatment. Upon the hearing three physicians and surgeons were sworn, as well as the applicant. The Commission made and filed the following findings of fact and dismissed the application:</p> <p>“That on the 22d day of March, 1913, the applicant and the respondent were both subject to the provisions of ch. 50, Laws of Wisconsin for 1911; that on said date, while in the employ of the respondent company and while engaged in performing services growing out of and incidental to such employment, the applicant sustained an accident resulting in his personal injury; that such injury was proximately caused by the accident and was not the result of wilful misconduct; that as a result of such accident he was substantially totally disabled until April 20, 1914, and was paid full compensation for such disability; that such, if any, disability as he sustained after April 20, 1914, resulted directly from his own wilful refusal to submit himself to safe and simple medical treatment; that in so far as his accident is concerned he is able to do and perform the same work at which he was engaged at the time of the accident.”</p> <p>The applicant appealed to the circuit court for Dane county, which affirmed the award of the Commission, and applicant brings this appeal.</p>

<p> Workmen’s compensation: Relative injury clause: Construction: Partial loss of vision. </p> <p>Under that part of sub. (6), see. 2394 — 9, Stats., generally referred to as the relative injury clause, — providing for compensation which “shall bear such relation to the amount” stated in the schedule “as the disabilities bear to those produced by the injuries named in the schedule,” — an employee whose injuries resulted in the permanent loss of four fifths of the vision of one eye, but did not affect his earning capacity, was properly awarded indemnity to the amount of four fifths of the allowance provided in the schedule for “total blindness of one eye.” northwestern 3?. Co. v. Industrial Comm. 161 Wis. 450, distinguished.</p>

<p> Pleading: Cross-complaint: Facts, hoto stated: When pleadable: Parties: Joinder of causes of action: Issues: Separate trials by court and jury. </p> <p>1. A cross-complaint, like other pleadings under the Code, should state the material facts plainly and concisely in ordinary language, without unnecessary repetition. It should not follow the ancient forms which were superseded hy the Code.</p> <p>2. In an action to foreclose an assignment executed hy defendant H. H. of all her interest in her father’s estate as collateral security for the payment of notes aggregating $110,000 given by her to plaintiff M., the complaint alleged, among other things, that a part of said notes had been transferred to the other plaintiffs ; that payment of the notes was guaranteed hy the defendant E. H.; that $23,920.02 had been paid thereon; that a certain corporation in which defendants H. H. and E. H. were stockholders had been adjudged bankrupt; and that the trustee in bankruptcy claimed to be entitled to recover from plaintiff M. and said defendants said amount of $23,920.02 on tlie ground that it had been paid out of funds of the corporation unlawfully and in fraud of creditors. Defendant H. H. admitted that she executed the notes and assignment, hut alleged that she did so as surety for defendant E. H. and that they were given in part payment for stock in the corporation above mentioned and were procured through fraud on the part of the plaintiff M.; and by counterclaim she demanded their surrender and cancellation. The trustee in bankruptcy, having been made a party on the application of plaintiffs, interposed a cross-complaint demanding recovery from plaintiff M. and defendant H. H. of $15,127.85, alleged to be a debt of M., assumed by defendant H. H., to the bankrupt corporation, and also recovery from M., H. H., and E. H. of said $23,920.02 alleged to have been paid on the notes in fraud of the corporation’s creditors. On demurrer by defendant H. H. to the cross-complaint, it is held that the claims of the respective parties are so interrelated that a determination of the right to a recovery of the two sums last mentioned and the liability therefor must be had in order to settle the questions involved in the issues between plaintiffs and the defendants H. H. and E. H.; that the trustee in bankruptcy was properly made a party under secs. 2619, 2656a, Stats.; and that the cross-complaint states two causes of action which may be joined and are properly pleadable as cross-demands in the action.</p> <p>3. The practice permitting the bringing in of new parties and the pleading of cross-demands, under secs. 2610, 2656a, Stats. 1915, does not deprive parties of their rights to a jury trial, since under sec. 2844, Stats., where a jury issue is presented in connection with an equitable issue, the trial court may direct which shall be first tried, according to the rights of the parties under see. 2843.</p>

<p> Criminal law: Information not confined to offense charged in complaint: Prior conviction not element of offense: Separate counts: Verdict. </p> <p>1. Under see. 4653, Stats., the district attorney in filing an information is not strictly confined to the particular offense stated in the complaint before the examining magistrate, even when the accused waived examination and no testimony was taken.</p> <p>2. Under sec. 4736, Stats., the fact of a prior conviction and sentence of the accused must be stated in the information in order to warrant the punishment provided for in case of a second offense, but such fact is not an essential element of the substantive offense charged and does not alter theonature of that offense. Language in Pactz v. State, 129 Wis. 174, qualified.</p> <p>3. The statement of the fact of a prior conviction and sentence does not constitute a separate count in the information, and it is not essential that the jury should pass upon it separately and specifically.</p>

<p> Statutes: Amendment: Implied repeal: Appropriations: Legislative intention: How determined: Normal schools: Unexpended balances. </p> <p>1. The legislature can repeal a statute carrying an appropriation and thus put an end to the appropriation, so far as it is unexpended, at any time. If contracts are thereby breached the contractors must resort to other remedies; they cannot insist that the appropriation remains available simply because of an outstanding contract entered into on the faith of it.</p> <p>2. As a general rule, where a statute rewrites a former statute and states that it “is amended so as to read as follows,” all provisions in the original statute not found in the amending statute are repealed; but if it appear that the legislative intention was otherwise, such intention must prevail.</p> <p>3. The legislative intention in such a case is to be determined from the nature and language of the amendment, from other acts passed at or about the same time, and from all the circumstances of the case.</p> <p>4. The circumstances attending the enactment of ch. 633, Laws 1915, the fact that it expressly repeals certain other subsections of sec. 172 — 54, Stats. 1913, and the legislative history of the act show affirmatively that there was no intention, in amending sub. 30 of said section “so as to read,” to repeal the appropriations made in 1913 by said subsection for the normal school at Whitewater.</p>

<p> Workmen’s compensation: What minors are “employees:” Employment in violation of law: Injurf/: Liability of master: Misrepresentation as to age: Counterclaim: Estoppel: Settlement and release: Guardian and ward. </p> <p>1. A minor under sixteen years of age who, at the time of his employment and injury, had not obtained a written permit authorizing his employment as required by sub. 1, sec. 1728a, Stats., was not “legally permitted to work under the laws of the state” within the meaning of sub. (2), sec. 2394 — 7, Stats., and hence was not an “employee,” within the meaning of the latter section, whose rights in respect to such injury were governed by the Workmen’s Compensation Act. Fot-h v. Macomber é W. R. Go. 161 Wis. 549, distinguished and limited.</p> <p>2. One who, in violation of sub. 1, sec. 1728a, Stats., employs a minor . under the age of sixteen years without the written permit therein provided for, and is thus guilty of a misdemeanor under sec. 172871, is liable for injuries sustained by the minor as a result of such unlawful employment, and the facts that the minor and his father misrepresented his age in order to secure such employment and that the employer was justified, in the exercise of proper vigilance, in relying upon their representations that the boy was more than sixteen years of age, do not constitute a defense in the action by the minor to recover for such injuries.</p> <p>• 3. Nor do the facts above stated form a basis for a counterclaim by the employer against the minor for damages on account of such misrepresentation.</p> <p>4. The statute (sec. 1728a, Stats.) being declaratory of a public policy, and the act of the employer only, not that of the minor, being made unlawful, the fact that the minor misrepresented his age does not bar or estop him from recovering damages for his injury.</p> <p>5. A settlement agreed upon for injuries to a minor employee and a release signed by his guardian under the mistaken supposition that the claim was governed by the Workmen’s Compensation Act, did not settle the claim for damages for his injuries resulting from his employment in violation of sec. 1728a, Stats., there being manifestly no such intention; and in any event the release, not having been approved by the county judge as required by sec. 3982, Stats., is not binding upon the minor as to such claim for damages.</p>

<p>Appeal from an order of the circuit court for Milwaukee county: Oeben T. Williams, Circuit Judge.</p> <p>Action to restrain defendant Wellauer from erecting a stable within the business section of the city of Milwaukee. The facts are these: Plaintiff owns a lot upon which is situated a three-story brick building used as a hotel and restaurant. The defendant Wellauer owns the premises adjoining. In September, 1915, Hartman, a contractor under Wellauer, commenced excavating on Wellauer's premises preparatory to erecting a building thereon. The excavation resulted in disturbing tbe lateral support of plaintiffs premises. Plaintiff brought an action to restrain further excavation. Well-auer denied the claims of the plaintiff, and upon a hearing on an order requiring the defendants to show cause why a temporary injunction should not be continued the defendant Wellauer gave an indemnifying bond in the sum of $20,000 and the injunction was dissolved. The plaintiff thereafter and, as he claims, for the first time learned that the building was being erected as a stable under a building permit issued by the defendant Harper as inspector of buildings for the city of Milwaukee, and brought this action against Wellauer as owner, Iiartman as contractor, and Harper as inspector to compel the defendants Wellauer and Hartman to surrender the permit issued for the erection of the building and to compel Harper as building inspector to revoke the permit issued by him. Plaintiff moved for a temporary injunction, and from the order denying this motion he brings this appeal.</p>

Williams, Circuit Judge. Action for breach of contract. The plaintiff is the widow of the defendant’s crippled son, Ben Huebner. The defendant owned a building at 1532 Yliet street, Milwaukee, and ojoerated a saloon therein for some time prior to May 1, 1912, on which date he sold the business, stock, and fixtures to Ben for $2,260, of which $1,000 was paid down, Ben agreeing to pay $45 per month rent for the premises and to pay the balance of the purchase price as he could.

J. Tubkeb, Circuit Judge. Action for a divorce on the ground of cruel and inhuman treatment. Defendant answered, denying all allegations upon which the claim of cruel and inhuman treatment was based, and pleading misconduct of plaintiff, palliating, if not justifying, any improper treatment of lrer. As the trial court viewed the evidence it established the following situation: (1) The parties intermarried at the city of Milwaukee, Wisconsin, May 25, 1898.

Reitz, Circuit Judge. The action was brought for the recovery of the purchase price of goods, wares, and merchandise made and sold by the plaintiff to the defendant on defendant’s order. The defendant company'through its general manager gave an order in the month of April, 1913, for printed matter to be furnished and delivered by the plaintiff, which was to be used for the purpose of installing the Houghton Self-Proving Posting System for the defendant' company.

<p>Appeals from an order and a judgment, of tbe circuit court for Milwaukee county: Oscae M. Eeitz, Circuit Judge.</p> <p>Tbe plaintiff brought an action of replevin and seized certain property under tbe writ, viz. one electric piano and three music rolls sold to defendant Machajewslei by plaintiff-on tbe 16th day of September, 1912, for $700. The plaintiff took an old piano at the agreed price of $200 in part payment, leaving a balance due of $500, which amount was to be paid in monthly instalments and evidenced by twenty-five promissory notes, which notes were secured by chattel mortgage on the instrument sold to defendant Machajewski. Before delivery of the property to plaintiff the defendant Machajewski attempted to give a bond under sec. 2722, Stats., to secure possession thereof, with the respondent, Casualty Company of America of New York, as surety. The bond was as follows:</p> <p>“Know all men by these presents, that we, John Macha-jewski and the Casualty Company of America of New York, of the county of Milwaukee and state of Wisconsin, are held and firmly bound unto Lawrence McGreal, sheriff of the county of Milwaukee, in the sum of fourteen hundred and 00/100 dollars to be paid to the said Lawrence McGreal, his executors, administrators, and assigns, to which payment well and truly to be made we jointly and severally bind ourselves, our heirs, executors, and administrators firmly by these presents.</p> <p>“Sealed with our seals and dated this 22d day of January, 1913.</p> <p>“Whereas, an attachment issuing out of the circuit court in and for the county of Milwaukee, in favor of Hoeffler Manufacturing Company and against John F. Machajewski> has been directed and delivered to the said Lawrence Mc-Greal, sheriff of the county of Milwaukee, by virtue of which the sheriff, at the request of the Hoeffler Manufacturing Company, is about to seize and levy on certain personal property, about which there is reasonable doubt as to the ownership' or its liability to be taken on said execution, to wit: ‘Replevin of electric piano valued at seven hundred dollars, for nonpayment on account of misrepresentation by plaintiff</p> <p>“Now, therefore, the condition of this obligation is such, that if the said John F. Machajewski shall well and truly indemnify and save harmless the said Lawrence McGreal, sheriff as aforesaid, his deputies and persons acting under his or their authority, and each and every one of them, against all suits, judgments, executions, troubles, costs, charges, and expenses arising or which may be suffered or sustained by him or any of them by reason or consequence of such levy and seizure or of the subsequent proceedings thereon, without' limit to the amount of said costs, charges, and expenses, whatever they may be, then this obligation to be void, otherwise to be and remain in full force.</p> <p>(Signed) “JoiiN E. Machajewsex (Seal.)</p> <p>“Casualty Compaky op Amsbica,</p> <p>“By Jacob Kramer, its Attorney in Fact. (Seal.) “Signed, sealed, and delivered in presence of</p> <p>“Edgar Prokriefke,</p> <p>“Elenor Pederson.”</p> <p>On the execution and delivery of the foregoing bond the sheriff delivered the property to the defendant Machajewslci.</p> <p>The defendant Machajewslci appeared and answered but made no defense in the first trial, and judgment was rendered against him and the Casualty Company of America of New York on the 26th day of June, 1914, for the sum of $496.21, being amount due plaintiff from defendant on the notes and mortgage at that time, together with $49.11 costs. After-wards, upon application of the defendant Machajewslci, he was permitted to open the judgment and defend. The case was afterwards tried by the court and a jury, and the jury found that the plaintiff was entitled to possession of the property mentioned in the complaint, that the defendant unlawfully withheld the same, that damages for unlawful detention were six cents, that the value of the property was $700 and the amount due upon the notes and mortgage $546.84, and that the plaintiff was entitled to judgment for the possession of the property or to a judgment for the value thereof against the defendant Machajewslci.</p> <p>Judgment was rendered on the 26th day of May, 1915, against the defendant and the Casualty Company of America of New York for $546.84, together with $61.10 costs as taxed and allowed, making in all $607.96.</p> <p>The judgment also recites that the property was delivered to the-defendant Machajewslci pursuant to sec. 2722, Stats., and that the Casualty Company is the surety who signed and executed the written undertaking pursuant to said section; and further recites that the plaintiff elected to take judgment absolutely for the value of the property.</p> <p>On motion of the respondent Casualty Company an order was made by the court vacating and setting aside the judgment as to it, and the plaintiff appealed from said order.</p> <p>The defendant John F. Machajewski appealed from the whole judgment.</p>

0. Eschweileb, Circuit Judge. Action for tbe' purchase price of material sold and delivered to J. W. Utley, tbe principal contractor for tbe construction of a building owned by tbe Edward Schuster & Co. Inc. Tbe Illinois Surety Company is joined as a defendant because it indemnified tbe Edward Schuster & Co. Inc. by a bond against any failure of tbe contractor to duly perform bis contract, which bond contains this provision: “Tbe condition of this bond is such that if tbe…

<p>Appeal from a judgment of tfie circuit court for Milwaukee county: Lawrence W. Halsey, Circuit Judge.</p> <p>Action to enforce mecfianic’s lien. Plaintiff commenced tfiis action to enforce its claim for mecfianic’s lien against tfie property of tfie defendants McEvoy. Tfie defendant Hack-ett, Hoff & Thiermann, Inc., is a mortgagee, having a mortgage upon tfie same property upon which tfie lien is claimed, which mortgage is admittedly subsequent to the lien of plaintiff and other lien claimants.</p> <p>The trial court found for the lien claimants, gave judgment establishing their liens upon the property in question, and the mortgagee brings this appeal therefrom.</p>

<p> Highways: Bridges: Insufficiency: Injury to horse: Proximate cause: Questions for jury. </p> <p>1. In an action for injury to plaintiff’s horse alleged to have been caused by its catching the toe-calk on one of its shoes in a crack between the planks forming the roadway of a bridge, there being evidence that the planks were laid crosswise and that there were cracks from a quarter of an inch to more than an inch between them, the question whether such cracks constituted an insufficiency rendering the bridge not reasonably safe, and also the question whether plaintiff was guilty of a want of ordinary care in attempting to drive across it, were for the jury.</p> <p>2. A finding by the jury in such case that the injury to the horse, involving a fracture of the ilium and lameness, was proximately caused by the unsafe condition of the bridge is held to be sustained by the evidence.</p>

<p>Appeal from a judgment of the circuit court for Winnebago county: Geo. W. Bueiíell, Circuit Judge.</p> <p>Action to recover for a personal injury.</p> <p>The issues raised by tbe pleadings were as to whether defendant was actionably negligent; whether plaintiff failed to exercise ordinary care and thus contributed to produce the injury; the extent of the injury and proper measure of compensation in ease of defendant being liable.</p> <p>There was evidence showing or tending to show, this: The accident occurred May 12, 1913, at about 1:40 o’clock p. m. There was yet sufficient daylight to enable travelers on the street to plainly see each other when they were over 600 feet apart. Plaintiff, a boy about nineteen years of age, in company with three other boys of about the same age, while riding a bicycle on a public street in the city of Appleton, Wisconsin, collided with an automobile, being driven by defendant, and was severely injured. He was traveling on his right-hand side of the street but near the. center, approaching an automobile with headlights lit, going in the opposite direction, a little to the driver’s right of such center. The street was twenty-seven feet wide between the curbs. Por some little time before the accident, a person circumstanced as plaintiff was could readily have seen defendant driving his automobile and approaching the other from the rear. He was driving without the headlights being lit. As he overtook the machine in front of him, he swerved to the left and wholly to his left-hand side of the center of the street in order to pass such machine- and then the accident occurred. After defendant so swerved, there remained about seven feet between his machine and the curb line. For some distance before plaintiff reached the point of collision, he was so blinded by the headlights on the front automobile that he could not see it or defendant’s machine. His associates, or some of them, who were nearer their right-hand curb, could see such machine. Defendant did not give any signal of his approach as he swerved to pass the automobile in front of him. He was traveling at a speed of about fifteen, and plaintiff about ten, miles per hour. Just before reaching the vicinity of the automobile the boys had been racing.</p> <p>The court instructed, on the subject of defendant’s conduct, among other things, to the effect that, though he approached the point of collision on his left-hand side of the center of the traveled way when he knew, or in the exercise of ordinary care ought to have known, of the approach of plaintiff on his bicycle and that they would meet at about the place of the collision, and, with reasonable opportunity to do so, he did not seasonably drive his automobile to his right of the middle of the traveled part of the road, — it was for the jury to say, under all the circumstances, whether such failure was negligence on his part; and refused to give a requested instruction to the effect that such failure, under the circumstances suggested, would b.e negligence as a matter of law and that the jury should find such negligence in answering the question on the subject;</p> <p>The court was further requested to instruct the jury to the effect that, if defendant, while within 150 feet of, and about to pass, plaintiff was going at a greater speed than ten miles per hour, he was guilty of negligence and the jury shotüd so find. Such request was refused.</p> <p>The jury found, among other things, as follows: When the accident occurred, plaintiff was ten feet from the curb on his right. Then the space between the two automobiles was six feet. There was sufficient daylight to enable approaching travelers to plainly distinguish each other for a distance of G50 feet.- As the parties so approached, plaintiff was traveling ten, and defendant fifteen, miles per hour. Eor the last seventy-five feet plaintiff was blinded by the automobile headlight. By looking ahead before reaching the point where he was so blinded, he could have seen defendant approaching in the rear of the front automobile in time to have, by the exercise of ordinary care, avoided the collision. Defendant did not fail to exercise ordinary care by reason of his place in the street, nor by his automobile headlights not being lit; but did so fail by not signaling his approach and not seeing the travelers approaching in front of him. Want of ordinary care on plaintiff’s part contributed to his injury. Plaintiff was damaged to the extent of $5,000.</p> <p>On such findings judgment was rendered in favor of the defendant.</p>

The action is brought to determine the right to the proceeds of a benefit certificate'issued by the Modern Woodmen of America. In September, 1905, William J. Ormond joined the Modern Woodmen of America, a fraternal benefit society, and the society issued a certificate of insurance to him for $1,000. Ormond named his wife, Nellie, the defendant, now Mrs. McKinley, the beneficiary in this certificate.

<p> Religious societies; Interference with member’s rights: Personal wrong of trustees: Injunction: Parties: Jurisdiction of civil courts. </p> <p>1. In an action to restrain trustees of a religious society from interfering with the exercise by plaintiff of his rights as a member of the corporation, a complaint alleging that defendants acted unlawfully, beyond the scope of their authority as trustees, and contrary to the constitution, by-laws, and ordinances of the corporation, in causing plaintiff’s name to be stricken from the church roll and in denying to him his rights as a member of the corporation, to which he had always paid his dues and contributed large sums of money, and that their acts were neither authorized nor assented to by the corporation, shows that such acts were the personal tort of the defendants; and the corporation itself, though a proper party defendant, is not a necessary party.</p> <p>2. Upon the facts so alleged the action does not involve an interference with church faith, doctrine, or discipline, nor the review of any action of the corporation through its officers, but is based on an unlawful interference with civil rights secured to the plaintiff by the constitution- and by-laws of the corporation, which wrong the civil courts have jurisdiction to prevent or redress.</p>

<p>Appeal from an order of tbe circuit court for Grant county: Georue OlemeNtsoN, Circuit Judge.</p>

<p> Taxation of incomes: Lessee of mine paying royalty: Deduction for ore depletion. </p> <p>In making a return for income taxation the lessee of a mine on a royalty basis is not entitled to make any deduction for ore depletion in addition to the sum paid as royalty. Even if the lease or right to mine is perpetual it is not, for purposes of income taxation, equivalent to ownership.</p>

<p> Municipal corporations: Seioerage system: 'Nuisance: Fouling of watercourse: Rights of riparian owners. </p> <p>1. Legislative authority to install a sewerage system gives a city no right to create or maintain a nuisance, whether such nuisance results from negligence or from the.plan adopted.</p> <p>2. A city has no right to discharge sewage into a watercourse in such a way as to infringe upon the rights of riparian owners to the natural flow of water substantially unimpaired in volume and purity.</p> <p>3. Findings by the trial court in this case, to the effect that the defendant city properly treated and purified its sewage in septic tanks and that the effluent did not render the waters of the creek in question, which flowed over plaintiffs’ land, foul, contaminated, impure, or unfit to be drunk by domestic animals, and hence that there was no nuisance, are held to be contrary to the great preponderance of the evidence.</p>

<p>Appeal from a judgment of tbe circuit court for Grant county: Geoeg-e ClemeNtsoN, Circuit Judge.</p>

Appeal' from a judgment of tbe circuit court for Monroe county.: E. C. Higbee, Circuit Judge. This is an action in equity by the plaintiff to enjoin the defendant supervisors from entering on his farm and constructing a highway across it. The facts are that the defendant supervisors upon due petition met May 12, 1914, and decided to lay out the highway. They filed the formal order laying the highway and awarding damages May 18th.

C. Higbee, Circuit Judge. Action to recover for some cows, claimed to have been fatally poisoned by negligence of defendant. Tbe pleadings presented for trial tbe question of whether defendant was negligent to plaintiff’s damage, tbe amount of tbe damage, and whether he was guilty of contributory negligence in respect to the matter. Plaintiff was a farmer.

C. Higbee, Circuit Judge. The action is brought to recover damages for injury to the person and property of the plaintiff, resulting from a collision between one of defendant’s trains and plaintiff’s automobile. Caledonia street runs north and south through the city of La Crosse and is crossed by seven parallel railroad tracks of defendant.

<p> Guardian and ward: Claims, how tarred: Witnesses: Competency: Transactions with person since deceased: Waiver of objection. </p> <p>1. Sec. 39955, Stats., is the only statute providing for barring claims against persons under guardianship; and where that section was not complied with in that no petition was filed and no order of the county court fixed a time and place for the examination and adjustment of claims or fixed a time after which claims, if not presented, should be barred, claims were not barred otherwise than by the ordinary statutes of limitation.</p> <p>2. Permitting a claimant to testify as to personal services rendered by her to a decedent, upon which her claim against his estate is based, will not be held error where no proper objection was seasonably made.</p>

<p>Appeal from a judgment of tbe circuit court for Wood county: Byeoit B. Pase, Circuit Judge.</p> <p>Action by vendees to rescind contract for tbe purchase of certain real estate and personal property. Plaintiffs are Russian Jews, one being thirty and tbe other twenty-five years of age. They came to this country about four years ago, and on June 21, 1914, purchased certain lands and personal property of the defendants for $3,500, paid $800 down, and gave a chattel mortgage for $600 on the personal property and a mortgage for $2,100 on the real estate. Plaintiffs went into possession of the property, which they claimed was represented to them as worth $4,000, upon which there were certain stated amounts of crops growing, the soil being represented as fertile; that said representations were in fact untrue; that plaintiffs knew nothing about farming in this country, did not know how much land was included in an acre, and they supposed themselves to be represented by one ■Ginsberg as a friend and countryman, who was in fact the agent of the defendants and received a commission for making the sale to plaintiffs. The defendants denied the allegations of the complaint and alleged that the plaintiffs were estopped from claiming a rescission of the contract by reason of the fact that plaintiffs had disposed of some parts of the personal property and had not made a sufficient tender back ■of the property received by them to entitle them to rescission. The trial court found for the plaintiffs, who had judgment rescinding the contract and awarding them $800, the amount of money paid down by them. Erom such judgment defendants appeal.</p>

<p> novation; What constitutes: Assent of creditor, how proved: Evidence: Sufficiency. </p> <p>1. The essentials of a novation are a mutual agreement between a debtor, his creditor, and a third person by which such third person agrees to he substituted for such debtor and the creditor assents thereto, extinguishing the obligation of such debtor to such creditor and creating in place thereof an obligation of such third person to such creditor.</p> <p>2. The assent of the creditor to the substitution of a new debtor in place of the old one need not be given by any writing or by express words, but may be shown by circumstances and the conduct of the parties.</p> <p>3. In an action to recover the' amount due for merchandise sold to defendant, the evidence — showing, among other things, that plaintiff was fully informed that defendant had sold his business and stock in trade to third persons who agreed to pay the debt in suit and become substituted in his place as debtor; that thereafter plaintiff treated the account as an indebtedness of such third persons, extended the time for payment at their request, obtained notes from them for the amount, with material advantages over permitting it to stand on mere open account, and notified such person that the notes had been placed to their credit— is held to establish circumstantially plaintiff’s assent to the substitution of the third persons as debtors in place of. the defendant.</p>

<p> Vendor and purchaser of land: Fraud: Estoppel: Resale: Foreclosure of contract: Equity: Rights of original 'vendee: Liens: Parties. </p> <p>1. One G., who bad an interest in land, agreed to procure the title of the other owners and convey to plaintiff for $2,000. Plaintiff paid $50 down, also paid off a mortgage of $258 owing by G., and took possession. Afterwards defendant contracted to purchase the land from plaintiff for $2,500, paid $50 down, and agreed to pay $750 in one month and give a mortgage for the remainder. Plaintiff turned over the possession to defendant. Thereafter, by collusion with G., defendant purchased and got conveyances of the land from G. and the other owners for $2,100. Defendant having defaulted on his contract with plaintiff, the latter sued to foreclose that contract. Held that, by conveying to defendant, G. and the other owners had estopped themselves from claiming any purchase money from plaintiff under his contract with G., and that plaintiff, being relieved from that obligation, was not entitled to strict foreclosure or recovery of the full contract price against defendant, but was entitled to enforce against defendant and the land an equitable claim for the amounts ($308) paid out by him, and also the amount ($500) which defendant was to pay to plaintiff over and above what plaintiff was to pay to G., less the $50 which defendant had already paid to plaintiff.</p> <p>2. On reversal, in such case, of a judgment of foreclosure and for the full purchase price under the contract between plaintiff and defendant, plaintiff is allowed to bring in as parties any persons claiming liens on the land under the defendant, and also to bring in G. as being a joint wrongdoer with the defendant in an attempt to defraud the plaintiff.</p>

<p> Life insurance: Right to change beneficiary: Married women. </p> <p>Sec. 2347, Stats. 1913, relating to the rights of a married woman who is the beneficiary of a life insurance policy, permits the insured, where the right to change the beneficiary is reserved, to change the beneficiary, though a married woman, in conformity with the terms of the reservation. Hilliard v. Wis. L. Ins. Go. 137 Wis. 208, followed.</p>

<p>Appeals from a judgment of tbe circuit court for La Crosse county: E. C. TIigbee, Circuit Judge.</p> <p>All the parties appeal.</p>

<p> Taxation: Exemptions: Lands acquired "by the state: Prior tax liens: Enforcement: When taxes are ‘‘levied:’’ Assessment roll, when completed: Constitutional law: Political questions: Actions against state. </p> <p>1. Under sec. 1038, Stats., property owned exclusively by the state is exempt from taxation; but tax liens which have already accrued at the time the state becomes the owner do not thereupon cease to exist.</p> <p>2. In sec. 1034, Stats. — providing that “taxes shall be levied upon all property in this state except such as is exempted therefrom,”— the word “levy” is not used in its strict sense.</p> <p>3. Under our statutes the assessment roll is to be deemed completed, except for the correction of mistakes and clerical errors, on the first Monday in August when, under sec. 1064, it is to be delivered to the clerk for filing; and .the subsequent levy of taxes must be considered as relating back to said date.</p> <p>4. Lands deeded to the state prior to the first Monday in August in any year are exempt from taxation for that year, but lands of which the state becomes owner after that date are not exempt for that year.</p> <p>5. The question as to how, if at. all, valid tax liens upon lands to which the state has acquired- title shall be enforced as against the state is one which the legislature ought first to consider and pass upon, and it is therefore, in this case (involving lands purchased 'under the forest reserve legislation), left undecided until the legislature shall have had an opportunity to determine what the policy of the state should be.</p> <p>6. The state cannot be sued without its consent; and sec. 3200, Stats., does not apply to equitable claims, such as the- claim that the state should redeem lands acquired by it from sales thereof for taxes levied prior to such acquisition.</p>

<p>Appeal from a judgment of the circuit court for Oneida county: A. H. Reid, Circuit Judge.</p>

<p>EeRoe to review a judgment of tbe municipal court of Milwaukee county: A. C. Backus, Judge.</p> <p>The information in this case contained one count charging murder in the first degree, the verdict was guilty, and the plaintiff in error (hereinafter called the defendant) was sentenced to life imprisonment, and brings his writ of error to reverse the judgment. The evidence was purely circumstantial. Horan Jarakain, an Armenian doctor living in Milwaukee, was murdered during the night of March 16, 1914, and his body was found pierced with three bullet wounds at 2:30 p. m. on the following day in a narrow field between the electric railway track and the Chicago & Northwestern Railway track in the town of Lake, Milwaukee county, south of the village of St. Francis and about 600 feet south of an old flag station of the latter railroad. The defendant is a Greek who then conducted a boarding house at Cudahy. He was in Milwaukee on the 16th of March aforesaid, and was ' in the company of one Julius Otto, a relative by marriage. In the evening of that day defendant and Otto called on the deceased at his boarding house and stayed until about 11:30 o’clock, when the three went out and boarded an electric interurban car bound for South Milwaukee. The conductor of the car testified that the defendant got off the car at about 11:50 o’clock at a crossing about 500 feet north of the flag station and that the other two got off at the flag station, about three quarters of a mile from the Cudahy depot. The defendant contended that he got off the car at the Cudahy station and went immediately home. Defendant was arrested on the following day and was found to have in his room a number of Turkish gold pieces of the same denomination as certain gold pieces shown to have been in the possession of Jarakain, also a pistol. There was evidence tending to show that the pistol was of the same caliber as that with which the deceased was shot. Apparently Otto disappeared and was never arrested. The defendant after his arrest told four different stories, in the first of which he denied that he even knew Jarakain. The case was originally submitted to the jury on the issue whether or not the defendant was guilty of the crime of murder, nothing being said about any possible conviction as an accessory. The jury after being out several hours were brought into court at their own request and asked for instructions on accessory, whereupon the following proceedings were had:</p> <p>Court: “An accessory before the fact is one who procures, commands, or counsels the commission of a felony by another, but who is not present either actually or constructively when the felony is committed. To constitute one an accessory before the fact there must be a principal guilty of the felony and there must be some participation in the offense by the accessory by way of procurement, command, or counsel.”</p> <p>A Juror: “I do not understand that last word there, ‘counsel.’ Does that mean conversation to that effect ?”</p> <p>By the Court: “One who counsels with another.”</p> <p>Juror: “That means talking about it, consulting ?”</p> <p>Court: “I will give you the definition of the word ‘counsel.’ Counsel is defined as ‘an interchange of opinions, mutual advising.’ ”</p> <p>Juror: “What form of verdict are we to bring in if we find this man is an accessory ?”</p> <p>Court: “I will read you the statute. ‘Every person who shall be aiding in the commission of any offense which shall be a felony or who shall be accessory thereto before the fact by counseling, hiring or otherwise procuring such felony to be committed, shall be punished in the same manner as is, or shall be, prescribed by law for the punishment of the principal felon.’ Counsel for the defendant has requested the court, in addition to the definition of accessory, to state to the jury ’that before you can find the defendant guilty of being an accessory, you must be convinced beyond a reasonable doubt that the defendant commanded, counseled, or procured the commission of the felony by another.’ Does that cover your request,'Judge Neelen?”</p> <p>Mr. Neelen: “Yes, that covers it.”</p> <p>By the Court: “Gentlemen of the jury: Mere knowledge that an offense is to be committed or mere mental approval is not sufficient.”</p> <p>Exception was taken after verdict to the whole of the foregoing instructions on the subject of accessory.</p>

. Appeal from a judgment of the circuit court for Eau Claire county: James Wickham, Circuit Judge. This action was brought to recover under a railway construction contract for completing a certain part of a railroad. The dispute is as to the balance due the plaintiff and to enforce a lien against the property.

<p> Taxation of incomes: Profits on sale of stock: Capital or. “income”? When status is fixed. </p> <p>1. Income, as the term is used in sec. 1, art. VIII, Const., is the profit or gain derived from capital or labor or from both combined, and it must he money or something equivalent thereto.</p> <p>2. Where corporate stock purchased as an investment in 1907 for ?110,000 was on January 1, 1911, of the value of $214,000, and was sold in 1914 for $214,000, no part of the last-named amount was taxable as income. The status, as capital, of the entire value of the stock being fixed when the Income Tax Law was first passed, no part thereof could he made into income by legislative enactment.</p>

<p>Appeal from a judgment of the circuit court for Dane county: E. Ray Stevens, Circuit Judge.</p>

<p> Building contracts: Substantial performance: Allowances to owner for • defects: Interest on balance due: Garnishment: Oosts. </p> <p>1. Where a building contract has been substantially, though not exactly, performed, the deduction to be made from the contract price on account of any defect is the reasonable cost of remedying the defect if this can be done without reconstructing a substantial part of the building; otherwise, the diminished value of the building, on the basis of the contract price, by reason of the defect.</p> <p>2. Thus, where a composition roof had been put upon a building, and it appeared that to replace it with a gravel roof as called for in the contract would not involve any reconstruction of the building or great sacrifice of inwrought material, the owner should be allowed the cost of making such change; but where a concrete basement floor, though not according to contract, was serviceable and fit for the purposes intended, and to put in such a floor as the contract required would necessitate reconstruction of a substantial portion of the building and the sacrificing of much work and material already wrought into it, the allowance to be made for such defect should be the diminished value of the building — in this case the difference between the value of the floor which was put in and the cost of such a floor as the contract called for.</p> <p>3. In such a case, in an action by a subcontractor against the principal contractor, wherein the owner was garnishee, interest upon the amount found due to the principal contractor from the date when it became due was properly allowed against the garnishee.</p> <p>4. In a garnishment action, upon the trial of an issue between the plaintiff and the garnishee, the plaintiff is entitled, under sec. 2772, Stats. 1913, to costs against the garnishee if he recovers more than the garnishee admits in his answer.</p>

<p> -Evidence: Testimony of deceased or absent witness: Statute construed: Instructions to jury: Witnesses: Impeachment. </p> <p>1. The “retrial, other action, or proceeding” in which, under sec. 4141a, Stats., the testimony of a deceased witness or a witness who is absent from the state is, under certain conditions, admissible, is a retrial of the same action in which such testimony was originally taken, or other action or proceeding involving the same issues and between the same parties. /</p> <p>.2. Thus, where two persons were injured in a collision with an interurban car, the testimony of one of them, taken in his action against the corporation alleged to be responsible, is not admissible, by reason of his absence from the state, in an action to recover for the injury and death of the other person.</p> <p>3. A question in a special verdict being as to whether the headlight of an interurban car, in a collision with which plaintiff’s intestate was injured, was burning as the car approached the place of the accident, it was error, in instructing the jury, to say that the question was whether the headlight was such as to give efficient light and not a dim and flickering light almost out, — it appearing that it was an electric light and there being no evidence tending to show that it was or could have been burning dimly or flickering.</p> <p>4. In an action to recover for the death of a person it was error to permit plaintiff to prove that a witness for defendant had on a certain occasion made a remark indicating personal animosity against the deceased and his family, such testimony being admissible only for purposes of impeachment and after the proper foundation for it had been laid.</p>

<p>Appeal from a judgment of the circuit court for Portage county: Geo. W. Buenell, Judge.</p> <p>Action to recover damages for trespass upon lots 1, 2, and 3 of section 15, township 24 north, of range 7 east The jury awarded damages, $208, to about twenty-two acres, all of which, except one acre in lot 3, were in lots 1 and 2. In 1878 defendant’s predecessors in title obtained a deed from George Kickland, the then owner of lots 1 and 2, conveying land therein described as follows:</p> <p>“One rod wide along the meandered shore bordering on the Wisconsin river, including lake and bayous leading into the Wisconsin river, for the purpose of rafting and boomage, with all the necessary rights and privileges thereunto pertaining; being on lots one (1) and two (2), section fifteen (15), township twenty-four (24), range seven (7) east.”</p> <p>This deed was recorded and the grantee therein and subsequent grantees from 1878 to 1905 took logs out in the summer that had floated into the bayous on lots 1 and 2 during the driving stage of the river. If there were freshets sufficient to enable them to roll the logs in the bayous and pole them out into the river they would do so; if not, they would use teams in getting them to the river. In April, 1906, plaintiffs purchased lots 1 and 2, and they claim they owned the land upon which the logs lay in 1906 to 1910 inclusive, and that they have been damaged by reason of the removal of the logs in those years by means of teams; that the lying of the logs on the land and the work of their removal rendered the land unfit for pasture or the cutting of hay. The defendant claims the logs lay and were removed on its own land and that it committed no trespass on lots 1 and 2. The case was here on a former appeal (157 Wis. 377, 147 N. W. 703), in which the nature of defendant’s title to the lands conveyed was determined, and reference may be had to it for a fuller statement of facts.</p> <p>The trial court instructed the jury that the land conveyed included “one rod outside the meandered shore on the Wisconsin river, and also one rod from the edge of any bayous or lakes described in said deed at a normal stage of the water in said river.” Both parties agree that the phrase “meandered shore bordering on the Wisconsin river” means the natural shore of the river, but the defendant claims that the one rod in width on the bayous and on the river includes one rod beyond tbe ordinary driving stage of the river, and not one rod beyond the normal or usual stage of the river, and it appeals from the judgment entered upon the verdict.</p>

<p>Appeal from a judgment of the circuit court for Dane county: E. Ray SteveNS, Circuit Judge.</p> <p>Action under tbe Workmen’s Compensation Act to set aside an award of the Industrial Commission for $366.46 against Henry Kelley and Elmer Thronson rendered in favor of Elmer Ilayloch, an employee of Kelley. The circuit court set aside the award on the ground that none of the parties were under the Compensation Act, and from a judgment entered accordingly Elmer Ilayloch and the Industrial Commission appealed.</p>

<p> Appeal: Questions of fact: Harmless errors: Evidence: Temporary exclusion: Waiver of right to introduce: Witnesses: Refreshing memory : Conspiracy: Admissions: Weight: Instructions to jury: Fire insurance: Fraud: Removal of property: Destruction in new location. </p> <p>1. Findings by a jury, approved by tlie trial court, will not be set aside on appeal if supported by any believable evidence, — that is, unless the evidence is contrary to all reasonable probabilities; and so long as there is a state of evidence requiring conflicting probabilities to ■ be considered, a jury determination either way cannot be said to be against all reasonable probabilities.</p> <p>2. Where the court temporarily sustained an objection to a question because of want of sufficient foundation therefor, but indicated that the evidence might be admissible later, saying that the right to recall the witness might be reserved, and, although the basis for the question was thereafter much strengthened, the witness was not recalled, the right to have such question answered was waived.</p> <p>3. This court will not reverse a judgment because of the rejection of evidence, unless its materiality clearly appears and it likewise' appears that the exclusion might have affected the result unfavorably to the party complaining.</p> <p>4. In an action on a fire insurance policy, plaintiff having testified that a list of articles claimed to have been destroyed was correct when made by her and defendant’s agent shortly after the fire and that á paper she had was a correct copy thereof, and the absence of the original having been satisfactorily explained, it was proper to allow her to use such copy to refresh her memory or to read from it, or to allow it to be introduced as part of her evidence.</p> <p>5. Where a case is submitted for a special verdict, the court may properly refuse to give requested instructions which are worded as if the verdict was to be a general one.</p> <p>6. An instruction, in an action on a fire insurance policy, that “you will recall the evidence that a great many articles of personal property were totally destroyed and that some articles were not destroyed but were damaged,” is held to be in accord with the evidence and not to involve the suggestion that-none of the articles of personalty were saved.</p> <p>7. Where the nature of an alleged confession — in this case a confession by a husband to the fire marshal that he and his wife had set the fires which destroyed their insured property — was such as to arouse a suspicion that it was not made freely and intelligently, and the circumstances under which it was made were consistent with that view, there was no prejudicial error in instructing the jury that the alleged admissions were not entitled to weight unless the jury were satisfied that they were freely made and not under such compulsion, threats, intimidation, promises of immunity, or persuasion as to prevent him from being a free agent in the matter.</p> <p>8. The husband in such ease must have known that if the fact were established that he and his wife set the fires it would be fatal to the full accomplishment of any conspiracy by them to burn the property and collect the insurance; hence, on the theory that a confession by him would evidence an abandonment of the conspiracy, it was not error, in an action by the wife on the insur-anee policy, to instruct the jury that if such a conspiracy was formed, as claimed by the defendant, hut had been abandoned by the husband before the alleged confession was made, no weight should be given to the evidence of such confession.</p> <p>9. Where a fire insurance policy provided that property removed from its insured location on account of a fire should be deemed covered by the insurance in its new location for a period of five days, furniture and goods which were removed from a burning house (their insured location) and stored in a barn on the premises, and there destroyed by fire three days later, were within the recoverable loss.</p>

<p>Appeal'from an order of the circuit court for St. Croix county: G-eokge TiiompsoN, Circuit Judge.</p> <p>Tbe action is brought to recover an interest in property deeded to defendant by plaintiff while they were husband and wife. After such transfer the defendant secured a divorce from the plaintiff in the state of Montana. The Montana court made no express mention of a final division of the defendant’s property nor did it in any way mention the property rights of the parties arising out of their marital relations.</p> <p>The plaintiff and defendant were married in 1897 and resided in St. Croix county until the spring of 1912, when they moved to Montana. In 1901 the plaintiff purchased forty acres of land and in 1908 another eighty acres. He then transferred the title of the entire 120 acres by deed to the defendant, his wife. In March, 1912, the land was leased to one Olson by the defendant and the parties moved to Montana. In the year 1914 the defendant secured a divorce from the plaintiff in the state of Montana. The summons and complaint in the divorce action were personally served on the plaintiff within the state of Montana, where the parties then resided. At the time the papers were served on him the plaintiff consulted an attorney of Montana and was advised that any judgment rendered in the divorce action could not affect the plaintiff’s rights and property in Wisconsin. The plaintiff did not appear to defend the divorce action. The Montana court awarded the wife judgment of divorce on the-grounds of the failure to support, idleness, and dissipation of the husband and awarded the custody of the two minor children of the parties to the wife. The judgment, however, is silent in regard to alimony and division and distribution of the husband’s property.</p> <p>The circuit court for St. Croix county sustained a demurrer to the complaint on the ground that the complaint does not' state facts sufficient to constitute a cause of action. Erom. such order this appeal is taken. „</p>

<p>Appeals from a judgment of tbe circuit court for St. Croix county: Geoege Ti-iompsoN, Circuit Judge.</p> <p>This is ejectment to recover a strip of land about fourteen rods in width off the south side of the southeast quarter of the southeast quarter of section 11, township 31 north, range 16 west. Plaintiff owns the southeast quarter of the southeast ■quarter of section 11 and defendants own the northeast quarter of the northeast quarter of section 14 in township 31 north, range 16 west.</p> <p>The question involved is the original location of the southeast corner of section 11. The case has been tried three times. The first trial resulted in a verdict for the defendants. A second trial under the statute resulted in a verdict for plaintiff. A third trial was granted on motion of defendants on terms and resulted in a general verdict for the defendants on the location of the section line. A special question was also submitted to the jury and answered as follows: <eQ. How far is it between the west end of the defendants’ fence and the west end of the section line as claimed by the defendants ? A. Twelve and one-half feet.”</p> <p>There was a motion for new trial by plaintiff and also for judgment for the triangular strip above mentioned. These motions were denied, and the court rendered judgment in favor of the defendants dismissing the plaintiff’s complaint, with costs. Both parties appealed.</p>

Action on a $318 promissory note, made by defendants June 24, 1913, payable to plaintiff on or before one year. The complaint was in the usual form. Defendants answered that plaintiff was a Minnesota corporation; that it had never qualified to do business in this state; and that the note related to property within such state and affects plaintiff’s personal liability.

<p>Appeal from a judgment of the circuit court for St. Croix county: George Thompson, Circuit Judge.</p> <p>Action to recover on a $318 promissory note alleged to have been made by defendants January 24, 1913, payable to the order of Charles A. Stickney Company, a Minnesota corporation, on or before January 24, 1915, and before maturity, for value, assigned to plaintiff. The complaint was in the usual form. The note was given under the same circumstances as the one sued on in the case of Gharles A. Stichney Go. v. Lynch, ante, p. 353, 158 N. W. 85, and is the second note mentioned in the pleadings in such case. The defendants answered, putting in issue the alleged ownership of the note and otherwise substantially, as in the Stickney Case, and, in addition, alleging that the Stickney Company, after defendants returned the property represented by said note, and upon their demand, agreed to return the particular note; but later refused to do so, that the note is without consideration and should be delivered up to be canceled; and demanded judgment' dismissing the complaint with costs.</p> <p>The court found the facts as in the Stickney' Oase and, in addition, that plaintiff became owner of the note for value before due, as alleged in the complaint. Judgment was rendered accordingly.</p>

EbeoR to review a judgment of the circuit court for Wash-hum county: Byrow B. Park, Judge. The plaintiff in error (hereinafter called the defendant) was convicted in the Washburn county circuit court of an assault with intent to rape and was sentenced for a term of three years in the state prison. . .

<p> Intoxicating liquors: Unlawful sale: Public nuisance: Abatement by equitable action: Conviction not a condition precedent: Constitutional law: Right to jury trial. </p> <p>1. Under sec. 3180a, Stats. 1915, an equitable action may be maintained to enjoin or abate the public nuisance which, by see. 1563, is declared to exist when any place is used for the sale of intoxicating liquors in violation of law.</p> <p>2. Although under sec. 1563 a conviction of the keeper of such a place must be alleged and proved before the nuisance could be abated, there is no such condition precedent to an abatement under sec. 3180a,- and the legislature had full power to provide the cumulative remedy given by the latter section.</p> <p>3. Persons dealing in intoxicating liquors have no vested right to a jury trial upon the question whether or not their place of business is a public nuisance. B’or such purpose an equitable action constitutes due process of law.</p>

Ray Stevens, Circuit Judge. Application under Workmen’s Compensation Act by Lena Koltz for compensation for the death of her husband caused by the kick of a horse. Claimant was awarded $2,100 compensation, payable in weekly instalments. The employer, the Faust Lumber Company, appealed to the circuit court for Dane county, and upon a bearing bad tbe order of tbe Industrial Commission was affirmed. Tbe employer brings tbis appeal.

Tbe complaint contains two counts,' the first charging slander and the second libel. Upon the trial an objection to the reception of any evidence under the complaint was sustained, and the plaintiff appeals from a judgment of dismissal.

The purpose of the action was to secure an accounting with defendant as regards the proceeds of some collateral claimed to have been pledged by decedent to the former to secure .a particular… Held: claiming that, subsequent to the collateral having been pledged to secure payment of the particular note, it was re-' pledged to secure payment of all indebtedness of the decedent to it.

<p> Appeal: From what may he taken: Findings and conclusions: Partition. </p> <p>1. Mere findings of fact or conclusions of law cannot be appealed from.</p> <p>2. Findings of fact and conclusions of law in a partition action do not constitute, in substance or effect, an order or interlocutory judgment from which an appeal can be taken under sec. 3143, Stats.</p>

Tbe plaintiff sold real estate situate in Grant county, Wisconsin, to E. H. Hutter, brother of defendant, William H. Hutter. E. H. Hutter, in payment of part of tbe purchase price, made, executed, and delivered to tbe plaintiff a note for $1,280 and a mortgage upon the real estate sold to him by plaintiff to secure said note.

Ray Stevejsts, Circuit Judge. Action under sec. 1379 — 29, Stats., to compel payment of the amount of expense incurred in opening plaintiff’s right' of way for passage of dredge.

Spencer, Judge. Application was made to the common council of the city of Kaukauna, by one Otto Luedke, for a license to conduct a saloon for the sale of intoxicating liquors for the license year, commencing in June, 1915. A remonstrance against granting the application was duly filed January 21, 1915, under sub. 5, sec. 1548, Stats., and was sufficiently signed.

<p>Appeal from a judgment of the municipal court of Outa-gamie county: Albeet M. Spencbe, Judge.</p> <p>The action is' brought by the plaintiff to recover damages for personal injuries sustained as a result of an accident which occurred while driving a team of horses across a bridge in the city of Kaukauna.</p> <p>The plaintiff was driving a two-horse team at a walk, with a heavy wagon loaded with sand upon which he was sitting, across the bridge here in question. The bridge is over 600 feet in length and slopes downward to the south at about a five per cent, grade, the direction the plaintiff was driving. There is a draw about 1J0 feet long near the north end of the bridge for the passage of boats navigating the Fox river. The draw also slopes toward the south. At the connection of the draw with the approach from the south there was a crack or opening of about two inches, and there was a difference between the level of the draw and the approach of about one and three quarters inches. The plaintiff testified that on September 8, 1914, he was driving very slowly over this bridge; that he had a tight hold of each rein, one in each hand, because of the slope of the bridge; that when the team reached the end of the draw where it connects with the south approach, the left-hand horse got caught in the crack and stumbled in a falling manner; that the sudden jerk on the reins pulled him from his seat on the wagon, threw him under the wheels, and caused two breaks in his left arm and other bad bruises. Several teamsters testified to the effect that their horses were caught in this crack in a like manner and that they had notified the mayor and street commissioner of the city of Kauhauna of the condition of the bridge. The case was tried to a jury, who rendered a general verdict in plaintiff’s favor and assessed the damages.</p> <p>The court instructed the jury, “The law imposes upon every municipal corporation the duty of keeping its streets and bridges in a reasonably safe condition for public travel over them,” and “It is for you to determine from the evidence and all the circumstances whether there was a defect in the Lawe street bridge, at the time and place of the accident, which was dangerous to those who had occasion to use the bridge.” The court refused to give the following instruction asked for by the defendant: “The court instructs you that the fact that the defendant might have covered this crack with an apron is not established by the evidence in the case; there is no evidence as to the conditions where such other bridges and cracks had such protection, and you are not permitted to find the defendant to have been guilty of actionable negligence by reason of the absence of such a covering over the crack in question,” and “the court further instructs you that if you find that there was no more of an opening or crack at the place of the accident than was necessary for the operation of the drawbridge, then you will acquit the defendant of negligence in that regard.”</p> <p>A judgment was entered for the recovery of the amount of damages found by the jury, together with the costs of the action. From such judgment this appeal is taken.</p>

<p> Quieting title: Tax deeds: Fraud of tenant in common: Conveyances in fraud of creditors: Cancellation of instruments: Pleading: Amendment to conform to proof: Disclaimer: Dismissal: Judgment, upon whom binding: Parties: Rights of purchaser at execution sale: Appeal: Costs: Briefs: Unnecessary printing. </p> <p>1. Where a tenant in common whose duty it was, under an agreement with his eotenant, to pay the taxes failed to do so hut furnished money for a third person to purchase the tax certificates and then procured the assignment thereof to his mother-in-law, who took with notice of the facts and paid no consideration, tax deeds issued to the mother-in-law were properly set aside at the suit of the cotenant.</p> <p>2. So, also, a mortgage and deed executed hy said tenant in common to hinder and delay his creditors were properly set aside.</p> <p>3. In an action to quiet title, where the complaint asked for cancellation of only one tax deed, hut the proof showed also the invalidity of another tax deed to the same defendant covering a small part of the land, the court properly set aside the latter deed also, treating the complaint as amended to conform to the proof, there being no showing that the defendant was prejudiced by the failure to plead the second deed.</p> <p>4. In an action to quiet title, the grantee in tax deeds who pleaded a disclaimer but also defended on the merits and tendered no release as required by sec. 3186, Stats., was not entitled to a dismissal.</p> <p>5. Where the grantor in a deed was a party to an action to quiet title, but the grantee was not, a judgment vacating the deed is not binding on such grantee.</p> <p>6. In an action to quiet title, brought by the purchaser at an execution sale, the judgment debtor, who was the grantor in a mortgage and deed under which the defendant claims, but who does not himself claim any title, is not a necessary or proper party.</p> <p>7. The purchaser of land at an execution sale to whom a deed has been issued may maintain an action in equity to set aside conveyances in fraud of creditors made before the judgment was docketed.</p> <p>8. Costs of printing respondents’ brief, which violated Supreme Court Rule 11, are not allowed in this case although such violation was satisfactorily explained.</p>

<p> Judgments: Setoff: Attorneys’ liens: Priority. </p> <p>1. A motion to offset judgments is addressed to the sound discretion of the court and governed hy equitable principles, and when the judgments are in the same action, or actions growing out of the same subject matter, the right of setoff is generally deemed superior to the claim of the attorney in either action for services and disbursements therein.</p> <p>2. The lessor of a farm, claiming that the lease had been breached, commenced an action of replevin and took possession of the crops. In such action the court refused to receive evidence as to claims of the lessor against the lessee connected with the operation of the farm and provided for in the lease, or as to a counter charge of the lessee against the lessor, but suggested that those matters be tried in another action; and the lessee had judgment in the replevin action for the value of the property taken, over and above the rent due. Thereafter in a separate action upon said claims the lessor had judgment against the lessee. Held, that both judgments related to the same subject matter, and that the right of the lessor to have them offset was superior to the right of the lessee’s attorneys to a lien on the judgment in the replevin action.</p>

<p> Libel: Newspaper publication imputing business dishonesty: Instructions to jury: Punitory damages: Disallowance to correct error in instruction. </p> <p>1. A notice or warning published in a newspaper, charging buyers of live stock with fraudulently misrepresenting to farmers the condition of the market in order to induce them to sell their stock, imputed business dishonesty and was libelous per se.</p> <p>2. A statement in the charge that “damages are of two kinds — compensatory, or punitory, and exemplary,” could not have misled the jury where the judge proceeded thereafter to differentiate between compensatory and exemplary or punitory damages at considerable length.</p> <p>3. A statement in the charge that the jury “must not understand that the presence or absence of actual malice or ill will has any bearing on the question of punitory damages,” and that “plaintiffs are entitled to such damages if they have been libeled,” was prejudicially erroneous; but the punitory damages having been separately assessed, the error may be corrected by disallowing them.</p>

<p>Appeal from a judgment of tbe circuit court fox Polk ■county: MaetiN L. LuecK, Judge.</p> <p>Action for specific performance of a land contract.</p> <p>Tbe following is, in substance, tbe findings of fact made by tbe trial court, and indicates tbe nature of tbe evidence and ■of tbe issues raised by tbe pleading:</p> <p>1st. On October 11, 1912, defendants L. F. Church and wife contracted in writing to sell plaintiff, for $4,200, and convey to bim by March 1, 1913, tbe south half of tbe northeast quarter of section 31, town 32, range 15, west, in Polk county, Wisconsin.</p> <p>2d. About tbe contract date, plaintiff paid on tbe agreement $674. January 22, 1913, be paid, at said defendants’ request, $21.16 taxes on tbe southwest quarter of tbe northeast quarter of said land, and, at defendant Bay Church's request, $12.71 taxes on tbe other forty.</p> <p>3d. At tbe date of tbe contract, plaintiff knew said Bay Church owned the first mentioned forty and that in November, 1912, defendants L. F. Church and bis wife executed a deed of both forties to plaintiff and left it with said Bay Church, expecting it would be executed by bim and delivered to plaintiff by March, 1913, upon tbe balance back on tbe contract being paid, but it was not acknowledged by L. F. Church and wife nor signed by Bay Church, as plaintiff well knew.</p> <p>4th. After tbe deed was signed by L. F. Church, he removed to Minnesota and plaintiff caused some plowing to be done on tbe land without tbe knowledge or consent of Bay Church.</p> <p>5th. In December, 1912, plaintiff, at Bay Church’s request, paid off a mortgage on tbe latter’s land at an expense of $523.75, expecting be, in due time, would convey tbe land under tbe contract. February 22, 1913, plaintiff, at L. F. Church’s request, paid off a mortgage on tbe latter’s land at an expense of $320, expecting that be intended to convey said land as he had agreed, and paid $4 to bring the abstract down to date.</p> <p>6th. Defendant Bay Church, until March 6, 1913, induced plaintiff to believe that the aforesaid deed would be executed and delivered in consummation of the land contract, and, so, neglected to make due tender of the balance due thereon and demand such delivery.</p> <p>7 th. February 18, 1913, plaintiff contracted in writing to sell the land to defendant Curby for $5,200, of which $100 was paid down.</p> <p>8th. About March 25, 1913, when Curby expected to pay up on his contract and go into possession of the land, he was informed by plaintiff that he was unable to get title thereto from the Churches and, April 6th, thereafter, said Curby surrendered his contract and received back the down payment, advising plaintiff that he had acquired title to the land from the Churches, as the fact was, he having purchased of them at $4,900.</p> <p>9th. Curby did not intend to wrong plaintiff. He made his purchase believing that plaintiff’s contract- with the Churches had expired; but he. had knowledge of facts requisite to charge him with such information as plaintiff could have given him upon inquiry in respect to the matter.</p> <p>10th. About March 6, 1913, L. F. Church obtained the aforesaid deed he had signed for plaintiff, and then Bay Church informed plaintiff that he had lost all rights under his contract by reason of delay.</p> <p>11th. Shortly after April 1, 1913, plaintiff duly tendered to Curby $2,683.19 and demanded a conveyance of the premises, presenting an instrument for execution to that end, which, tender and demand were refused. Said Curby was then in possession of the premises under his deed from the Churches which had been duly recorded.</p> <p>12th. When the deed was made to Curby he mortgaged the premises to L. F. Church for $3,000 of the purchase money which he owes.</p> <p>13th. The annual rental value of the premises is $250.</p> <p>Upon such facts the court held this: Plaintiff is not entitled to specific performance of his contract. He is entitled, as to Bay Church, to have the mortgage, which he paid off at said Church’s request, revived. He is entitled to judgment .against L. F. Church for $1,555.87 paid out on account of his contract, with interest on the sums composing the aggregate from the time he paid the same, and to have the judgment made a lien upon the premises in question prior to the $3,000 mortgage given by Curby for purchase money. ■Curby, as to the Churches, is entitled to pay off said judgfoent for $1,555.87 and interest and to be credited therewith on .his mortgage indebtedness and to have the mortgage securities deposited with defendants’ attorneys subject to the direction ■of the court for his protection. Payment of the $1,555.87 and interest as aforesaid shall relieve the premises of any ■claim of plaintiff.</p> <p>Judgment was rendered accordingly with provision as to ■costs, except the aggregate of the personal judgment was fixed at $1,801.49 and was made a lien superior to the $3,000 mortgage upon one forty-acre tract, the title to which was in L. F. ■Church at t'Ee time he contracted with plaintiff.</p> <p>Plaintiff appealed, claiming that he should have specific performance as prayed for, or be made as good as he would have been had he been permitted to carry out his contract to .sell the premises to Curby.</p>

<p>Appeal from a judgment of the circuit court for Polk county: MartiN L. Lurch, Judge.</p> <p>This action was brought to reform a written contract for the purchase of land, for specific performance of the contract as reformed, to remove a cloud from the title, and for general relief.</p> <p>On the 5th day of August, 1907, one Wm. Cross and wife made a contract to sell lot 11 and the south half of lots 9 and 10, block 20, in the village of Clear Lake, Wisconsin, to Fred Turretin and Marian Turretin, for the sum of $800, $20 being paid down and seventy-eight notes of $10 each given for the balance, signed by Marian Turretin and Fred Turretin, her husband.</p> <p>It is alleged, in the complaint that by mutual mistake of the parties to the contract in drafting the same the name of defendant Marian Turretin was omitted as one of the vendees in the contract; that after Ered Turretin had paid some of said notes he died, and after his death his widow, Marian Turretin, continued in possession and paid some of said notes, and thereafter and on March 5, 1912, sold and assigned the contract to the plaintiff, who paid the balance of said notes.</p> <p>The defendant McLennan took a conveyance of the fee from Cross, and the defendant Nash on February 3, 1914, bought at guardian’s sale the interest of the minor children of Ered Turretin, deceased. The defendant Nash put in issue the allegations of the complaint and the case was tried on the issues thus raised.</p> <p>The court below found that Wm. Cross was the owner of the real estate in question, and that he' and his wife entered into a contract to sell the property for $800, and that Ered Turretin executed and delivered to said Cross seventy-eight notes of $10 each, which were signed by defendant Marian Turretin and Ered Turretin; that the notes and contract were part of the same contract to purchase, and that it was the intention of the parties to insert the name of said defendant Marian Turretin in the contract after the words “Ered Turre-tin and” and before the word “parties,” but through the omission and neglect of the scrivener who drew the contract the name of Marian Turretin was omitted therefrom as one of the vendees; that on March o, 1912, the defendant Marian Turretin assigned the contract to the plaintiff, and at that time plaintiff paid her for said assignment $441.66 and went into possession and continued in possession and paid the remainder of the seventy-eight notes as they became due, being twenty-eight in all; that Ered Turretin died prior to March 5, 1912, and paid in his lifetime forty-five of said notes, and Marian Turretin after his death and before said assignment paid five of said notes; that Ered Turretin died intestate and left him surviving Ms widow, Marian Turretin, and four children, only heirs at law; that defendant McLennan became the owner of the fee of said .lots May 8, 1913; that Eebru-ary 3, 1914, defendant Marian Turretin as special guardian of said children deeded said lots to defendant Nash, describing the interest conveyed as an equity of redemption and describing said infants as the infant heirs of Ered Turretin, deceased; that defendant Nash had knowledge of sufficient facts to put him on inquiry, and that said inquiry, if prosecuted with reasonable diligence, would have led him to a knowledge' of the situation as it actually existed between the plaintiff and defendant Marian Turretin and the true nature of her rights and title under the contract.</p> <p>The court concluded that the defendant Marian Turretin was on March 5, 1912, by right of survivorship, the owner of the contract in question, and by her assignment the plaintiff became the owner of the property, subject only to the unpaid balance on the contract, and upon payment of said balance plaintiff became entitled to a deed from defendant McLen-nan; and that the deed to Nash dated February 3, 1914, is a cloud upon plaintiff’s title which he,is entitled to have removed.</p> <p>Judgment was entered accordingly, from which the defendant Nash appealed.</p>

<p>Negligence: Injury from, nails in shoes: Liability of manufacturer.</p> <p>A manufacturer of shoes who fastened the soles with nails in such a way as to give them the appearance of "being sewed is not lia-. ble to one who was induced by such deception to purchase the shoes from a retailer and was injured by nails penetrating his foot and causing infection, — the nailed sole not being inherently dangerous, and the deceptive or negligent manner of constructing the shoe not rendering it so imminently dangerous to the life, limb, and health of the wearer that the manufacturer ought to have anticipated that it naturally and probably would produce, such an injury.</p>

<p> Life insurance: Married woman as beneficiary: Tested interest: Change of beneficiary, how made: Divorced wife. </p> <p>1. Under sec. 2347, Stats. 1915, a married woman who is made the beneficiary in a life insurance policy takes a vested interest therein subject to be divested in the manner reserved in the policy contract and not otherwise.</p> <p>2. Thus, where the right reserved in the policy to change the beneficiary could be exercised only by giving written notice to the company during the continuance of the policy, the insured could not without having given such notice dispose of the policy by will. 3. The vested right acquired by a wife when she is made the beneficiary in a life insurance policy is not divested by a subsequent divorce from the insured.</p>

<p> Affirmed as to one respondent; reversed as to the other. </p> <p>Action in equity to enjoin tbe defendants from occupying a part of plaintiff’s real estate witb tbeir railway embankment. Tbe plaintiff owns a parcel of land of about twenty-four acres in tbe city of Janesville, lying east of tbe Beloit and Janesville road (now called Beloit avenue) and north of Eastern avenue. Its location will more readily be understood by reference to tbe plat bere inserted:</p> <p> </p> <p>The defendant traction company, a domestic corporation, •constructed its street railway upon said Beloit avenue a number of years ago under a franchise from tbe city. Tbe other •defendant, the Rochford & Interurban Railway Company, is an Illinois corporation which operates interurban cars over the same tracks, also having a.franchise from the city so to do. The plaintiff has duly released all damages resulting from the operation of interurban cars on the street. About the year 1912 the street railway tracks were moved further east than they had previously existed, especially at and about the •corner southwest of Spring Brook bridge. In their new location the east rail of the track for a number of rods comes within a few feet of the fence (marked on the plat “old ■fence”) and the embankment sustaining the track completely ■covers the fence and extends several feet eastward, filling up a ditch east of the fence. This is the supposed encroachment •of which the plaintiff complains. He claims that the fence is the true line, while the defendants claim that the road is four rods in width and that the true line is a considerable distance east of the fence along the broken line indicated in the jplat.</p> <p>The court found in accordance with the defendants’ contention and dismissed the complaint, and the plaintiff appeals.</p>

<p> Workmen’s compensation: Who are “employees:" “Policemen:" Village marshal: Enforcing state law. </p> <p>The night marshal of a village, having the powers and duties of a village peace officer, is a “policeman" and therefore an “employee” of the village within the meaning of sec. 2394 — 7, Stats.; and the village is liable to make compensation for an injury accidentally sustained by him in performing a duty incident to his office, whether in the enforcement of a village ordinance or of a state law.</p>

<p>Mandamus to the circuit court for Milwaukee county and the judge thereof.</p>

<p> Street railways: Negligence: Collision with vehicle: Special verdict: Sufficiency: Instructions to jury: Positive and negative testimony: Contributory negligence: Questions for jury: Witnesses: Competency: Physicians and surgeons: Appeal: Harmless error. </p> <p>1. Plaintiff drove out of an alley and started to cross a street from east to west in the middle of a block hut, seeing one of defendant’s street ears coming south on the west track, stopped his team so that the horses stood partly over the east track. The car stopped about forty feet north of him and he started his horses again, but the car also started and struck his wagon and injured him. The jury found that the motorman was not guilty of gross negligence in the operation of his car; that he could by the exercise of ordinary care have seen the plaintiff in time to have avoided the collision; and that such want of ordinary care was the proximate cause of plaintiff’s injuries. Held, that negligence of the defendant was sufficiently found.</p> <p>2. Several witnesses having testified that they saw plaintiff stop, others that they did not observe him stop, an instruction as to the relative weight of positive and negative testimony was properly given.</p> <p>3. The stopping of the car as stated might well be taken by plaintiff as an invitation to cross first even though the car had the right of way, and it cannot be said as matter of law that he was guilty of contributory negligence in attempting to cross ahead of the car.</p> <p>4. Plaintiff having testified that he told the physician whom he consulted that he was unable to retain his urine, it was error to exclude testimony of the physician that plaintiff did not tell him so; but the error should not in this case work a reversal, there being other evidence which quite satisfactorily showed severe injury.</p>

0. Ludwig, Circuit Judge. Edward P. Allis died a resident of the city of Milwaukee, Milwaukee county, Wisconsin, on the 1st day of April, 1889. Deceased left his holographic will dated March 30, 1888.

0. Ludwig, Circuit Judge. Proceedings to probate a will. Ellen Lynch died in Milwaukee March 15, 1913, at the age of eighty-four, leaving a. will executed June 26, 1912, in which her daughter, Julia Shelton, was named as executrix. The will left $1,000 to William Lynch, a son; $500 in trust to Julia Shelton for John Lynch, another son; $1,000 to Julia Shelton, who was. also made residuary legatee.

<p>'Appeal from a judgment of the circuit court for Milwaukee county; W. J. TueNee, Circuit Judge.</p> <p>Action to recover on seven promissory notes, aggregating-$6,000, and interest. The complaint contained appropriate-allegations to charge defendants Commercial Securities Company and C. B. Gether as indorsers. The notes were dated May 1, 1913, payable four months after date, signed by the defendant Heller Piano Company, payable to the order of the defendant Securities Company at the plaintiff bank, indorsed by sucb company and defendant Gether, and, for value, delivered to sucb bank. They were alike in form, and contained a provision for pledging collateral security for tbeir payment in tbis form: “Having deposited with said bank as collateral security, for payment of tbis or any other direct or indirect liability or liabilities of us to said bank, due or to become due, or that may be hereafter contracted or existing, howsoever acquired by said bank, the following property,” describing conditional sale contracts covering pianos, and followed by appropriate provisions for realizing on the collateral as necessary and application of the proceeds.</p> <p>Defendants Gether and the Securities Company answered, separately, admitting the making and delivery of the notes as stated in the complaint, that they bad not paid them, that the notes were possessed by plaintiff, and that they, in writing, waived protest for nonpayment and notice of protest, and pleading as defenses, that the notes were delivered to the plaintiff upon conditions which were not performed, and that the maker delivered to it collateral security for payment of the notes, and that it had, in due time, in its hands and under its control the means of complete or partial satisfaction of the indebtedness of the piano company upon the notes; but applied the same to other purposes than such payment.</p> <p>The court permitted evidence claimed by plaintiff to show, or tend to show, that the loans evidenced by the notes were made to Gether and the Securities Company, and that they were primarily liable therefor; also that Gether, for himself and such company, when the waiver of protest was made, promised to pay the notes. There was also evidence to this effect: In September, 1913, the piano company was indebted to the bank to the amount of $20,000, and interest, in addition to the indebtedness on the notes in suit, and had collateral security therefor which was, secondarily, security for payment of the latter, and that the former indebtedness, with the collateral thereto, was taken out of the bank by H. P. Nelson, he giving his check to the bank for $20,240.90. The check was made payable to the piano company. It was duly indorsed to the bank and thereupon the piano company notes, aggregating the amount of the check, and the collateral to such notes, were produced and turned over to Nelson. The check was paid. Nelson was interested in protecting the credit of the piano company and keeping it in business. There was a dispute in the evidence as to whether the transaction involved a purchase of the notes with the collateral or a payment of the notes. There was evidence tending to prove that Qether, on behalf of himself and the Securities Company, participated in such transaction and consented thereto, promising, during the negotiations, that they would take care of the notes in suit. There was further evidence to the effect that, as part of the transaction aforesaid, plaintiff agreed to discount or place notes of H. P. Nelson and companies controlled by him to the amount of $60,000, but upon condition that the matter should be approved by the board of directors of the bank after investigation as to the truth of representations made by him which were material to the value of the proposed paper; that upon such investigation being made, the representations were found to be materially untrue and so the bank declined to take or handle such paper; that the taking of such paper was so far independent of the delivery of the notes and collateral for the Nelson check of $20,240.90, and that the latter part was fully closed up without waiting for action as to the former and was not thereafter rescinded.</p> <p>There was further evidence to the effect that the day after the notes in suit matured there was a credit, on the books of the bank, to the piano company, at the close of business for the day, of $1,313.71. At the opening of business the credit was $826.75. That was added to during the day by items aggregating over $6,000 and debited so as to leave the balance stated. There were debit and credit charges each business •day thereafter up to the close of the account, October 4, 1913, leaving, generally, a small balance in credit at the end of each day. There was a dispute as to whether the credit to the piano company, indicated by this account, was available for payment of the notes in suit. It was claimed by plaintiff that it was created by drafts which were credited up subj ect to be charged back if not paid and that they were dishonored; that such condition existed right along; drafts being taken by the bank, credited up, and the proceeds immediately checked out, which drafts were dishonored to such extent that there really was, counting out such drafts, an overdraft account all the time.</p> <p>There was evidence that September 20, 1913, the plaintiff held certain real estate which had been transferred to it by Hugo Heller, that he, on that day, authorized plaintiff to sell the same for $3,000, and apply the money in payment of certain indebtedness of the Heller Piano Company other than that on the notes in question, and that such sale and application were made.</p> <p>There was further evidence bearing on the subjects covered by the special verdict other than those heretofore referred to.</p> <p>The jury found, in brief, as follows:</p> <p>1st. Before the execution, indorsement, and delivery of the notes to plaintiff, it was agreed, between Gether, on behalf of himself and the Securities Company, and plaintiff, that the latter should make the loan to Gether and the Securities Company.</p> <p>2d. The notes in suit were given and indorsed to carry out said agreement.</p> <p>3d. When the waiver of protest was made, Gether, for himself and the Securities Company, agreed to pay the notes.</p> <p>4th. Gether, knowing of the disposition of the securities held by the bank for the indebtedness of the piano company, and, after the maturity of the notes in suit, for himself and the Securities Company, promised to pay the same.</p> <p>5th. Gether, knowing that the collateral parted with by the plaintiff in the transaction with Nelson was also collateral to • the indebtedness in suit, advised and aided in such transaction.</p> <p>6th. The value of the collateral so parted with did not exceed $15,000.</p> <p>7th. The plaintiff, in September, 1913, did not apply to other purposes collateral security applicable to the .notes in suit.</p> <p>8th. The notes in suit were not delivered to Hugo Heller with knowledge of plaintiff’s cashier that they were .not to be delivered to the bank until after the collateral therewith had been approved by H. P. Nelson.</p> <p>9th. The market value of the collateral to the notes in suit was $9,063 when deposited with plaintiff.</p> <p>10th. The agreement to pay the $20,240.90 which was paid to plaintiff was in consideration of an agreement by plaintiff to discount notes of H. P. Nelson and the companies controlled by him, aggregating $60,000.</p> <p>11th. It was understood that the loan of $60,000 was not to be made until approved by the board of directors of the plaintiff.</p> <p>The defendants, Gether and the Securities Company, requested the court to submit to the jury, among others, questions as to -whether, at the time the notes in suit became due, plaintiff had in its hands the means of complete or partial satisfaction of such notes which it applied to other purposes. Such questions were not submitted except so far as covered by the finding numbered 7. Appropriate motions were made on behalf of said defendants to save for review the matters presented on this appeal, which motions were denied and judgment was rendered in favor of plaintiff for the amount claimed in the complaint, with costs.</p>

<p> ■Constitutional law: Supreme court: Original jurisdiction: Actions against the state: Equal protection of the laws: Taxation of life insurance companies: License fees: Classification: Interstate commerce: Investment business of insurance company: Burdening by state law: Statute construed: Interest receipts from policy loans are not “premiums:” Liability to policyholders not an “unconditional debt:” Arbitrary discrimination. </p> <p>1. Under sec. 3, art. VII, Const., providing that “the supreme court, except in cases otherwise provided in this constitution, shall have appellate jurisdiction only,” and sec. 27, art. IV, Const., , providing that “the legislature shall direct by law in what manner and in what courts suits may be brought against the state,” the legislature had power — by sec. 3200, Stats. — to designate the supreme court as the court in which such suits might be brought. Dickson v. State, 1 Wis. 122, followed.</p> <p>2. A corporation, is a person within the meaning of the Fourteenth amendment to the federal constitution, and under that amendment a state cannot discriminate against its own citizens and in favor of citizens of other states any more than it can do the reverse.</p> <p>3. The Fourteenth amendment does not prevent a state from changing its system of taxation in all proper and reasonable ways, nor from allowing exemptions, nor from imposing specific taxes upon different trades or professions, nor from classifying property for taxation so long as the classification does not invade rights secured by the federal constitution.</p> <p>4. It is within the power of the state to impose upon life insurance companies occupation taxes in the shape of license fees in lieu of other taxes.</p> <p>5. The license fees imposed upon life insurance companies by sec. 1220, Stats. 1911 (sec. 51.32, Stats. 1913), are privilege or occupation taxes; and while not subject to the provision in sec. 1, art. VIII, Const., that “the rule of taxation shall be uniform,” they are subject to the general equality clauses of the state constitution and to the clause in the Fourteenth amendment Const, of U. S. guaranteeing “equal protection of the laws.”</p> <p>6. A classification of life insurance companies according to which license fees of different amounts are exacted must be founded upon real differences of situation and condition affording rational grounds for the difference in treatment.</p> <p>7. A classification pursuant to which, in lieu of all other state taxes except taxes on real estate, domestic level-premium life insurance companies are required to pay much larger license fees than are exacted from foreign level-premium companies, is justified by the location for taxing purposes of their vast reserves — those of the domestic companies being taxable in this state while those of the foreign companies are, practically, not so taxable and are presumably subjected to just and adequate taxation in their respective domiciles.</p> <p>8. So, also, a classification under which license fees are exacted from level-premium life insurance companies but not from fraternal benefit associations having lodge organizations is justified by • real and substantial differences.</p> <p>9. The reasons which justify a classification under which domestic level-premium companies pay higher license fees than foreign level-premium companies apply with greater force and justify a similar discrimination between domestic level-premium companies and foreign assessment or stipulated premium companies.</p> <p>10. The business of insurance, i. e. issuing policies, collecting premiums, and paying losses, is not interstate commerce; but whether that branch of the business of a life insurance company which consists in loaning money upon real estate or other security to citizens of other states is to be deemed a mere incident of the insurance business or should be considered as a separate business and as a form of interstate commerce, is not decided.</p> <p>11. Assuming that the foreign investment business done by a domestic life insurance company constitutes interstate commerce, no burden is placed upon such commerce by the state law (sec. 1220, Stats. 1911: sec. 51.32, Stats. 1913*) requiring the company to pay as a license fee a certain percentage of its gross income (excepting therefrom rentals of real estate on which the taxes have been paid, and premiums collected outside the state on policies held by nonresidents) for transacting the business of life insurance in this state. The tax in such case is not levied upon the foreign investment business nor on the receipts therefrom, but on the business of life insurance, and said receipts are simply used in measuring in part the amount of the tax.</p> <p>12. When the state exercises its legitimate and rightful power of taxation of an occupation or privilege, it may rightfully measure that taxation either by property or the receipts from property neither of which are in themselves taxable.</p> <p>13. Although a claim presented to the legislature for recovery of. license fees paid, by a life insurance company was based chiefly on the contention that the whole tax was invalid because of the uncon'stitutionality of the law under which it was exacted, yet the further distinct assertion therein that, even if the law were to be held constitutional, portions of the amount collected were illegal and should be refunded, was sufficient under sec. 3200, Stats., to give this court jurisdiction of that part of the claim.-</p> <p>14. Receipts of interest on premium notes and on policy loans or liens constitute a part of the gross income of a domestic level-premium life insurance company, upon which, under sec. 1220, Stats. 1911 (sec. 51.32, Stats. 1913), the three per cent, license fee is. to be calculated. The interest on policy loans made to nonresident policyholders, although it may possess some characteristics of premiums, is not a part of the “premiums” collected outside of the state on policies held by nonresidents, within the meaning of said section.</p> <p>15. A life insurance company’s liability to policyholders, i. e. the present value of its outstanding policies valued as required by law, is not an “unconditional debt” within the meaning of our former statutes exempting from taxation so much of the securities and credits of a taxpayer as should “equal the amount of bona fide and unconditional debts by him owing.”</p> <p>16. The disparity between the tax burden of the plaintiff insurance company under the license system and that which it would bear if taxed under the income taxation system or the former personal property taxation system is not shown by the complaint in this case to be s,o great that the statute imposing license fees should be condemned as arbitrarily discriminatory.</p> <p>Timlin, J., dissents.</p>

<p> Wills: Construction: Intention: Division of residue: Appeal: Bill of exceptions, when unnecessary. </p> <p>1. Rules of construction are not to be applied to ascertain the meaning of a will if it can be ascertained from the will itself and the surrounding circumstances.</p> <p>2. Where, after bequeathing certain specific sums, a testatrix directed that the residue of her estate be divided into five equal parts and bequeathed one of those parts to each of five legatees or groups of legatees, it is held that, irrespective of whether or not such residuary legatees constitute a class, it was the intention to confine the distribution of the residue to them; and therefore, where one of such residuary legatees predeceased the testatrix, the share of such deceased legatee is not to be disposed of as intestate property, but the entire residue is to-be divided among the survivors. Keewin and Vinje, JJ., dissent.</p> <p>3. Upon appeal from a judgment construing a will, where the only disputed question is fairly presented by the findings of the court below, no bill of exceptions is necessary.</p>

<p>Appeal from a judgment of tbe circuit court for Rock county: Geobg-e Gkimm, Circuit Judge.</p> <p>Action for damages for breach of contract. Plaintiff is a corporation engaged principally in the business of buying and selling cheese and other edible products, with its principal office at Philadelphia. The defendant is a maker and dealer in cheese, doing business as Jacob Marty & Company at Brod-head, Wisconsin. On July 14, 1914, plaintiff wrote the defendant a trade letter, which, among other things, contained the following statements:</p> <p>“We wish to advise you that Mr. O. G. Ineliger, formerly of New York, has taken charge of our cheese department which we are just opening up and write to ask you whether you cannot work with us in Philadelphia on a consignment basis, letting us have shipment of cheese, we to carry same and sell to our buyers as they may desire. . . . And also let us know just what commission you can allow us for handling these goods and what arrangements you desire to make.”</p> <p>On July 16, 1914, the defendant replied, acknowledging receipt of the letter of the 14th, stating that he knew Mr. Loe-liger, and continuing as follows:</p> <p>“We do not wish to make any shipments on consignment, as we always have more or less trouble with this kind of business. We would be glad to send you quotations from week to week, and if you can dispose of any of our goods at the prices we make you, we will be glad to fill any orders you may send us. Of course we would be glad to have you send us orders direct from Pennsylvania, Maryland and New Jersey, and we would fill same direct to the trade at ¿c. commission.” Defendant then quoted prices and description of goods and closed with the following statement: “These above mentioned prices are all f. o. b. here, and we hope to receive some nice orders.”</p> <p>On August 3d plaintiff sent to the defendant an order for two tubs of Bound Swiss No. 1, to be shipped to a specified customer in Philadelphia. On August 5th the defendant declined to accept the order on the ground that the party named was not a good credit risk. August 4th the plaintiff telegraphed the defendant as follows: “Can handle twenty-five tubs fancy open ripe Swiss sixteen wire.” Later in the day of August 4th plaintiff telegraphed defendant: “Wire lowest price twenty-five tubs Bound Swiss Number One ripe.” On August 4th, in reply to plaintiffs telegram, defendant telegraphed plaintiff: “Sixteen one-half for twenty-five fancy open Swiss. Wire acceptance.” On the same day the plaintiff wired defendant as follows: “Accept twenty-five tubs fancy qpen ripe Swiss sixteen one-half. Ship immediately.” On August 5th plaintiff wrote defendant confirming telegraphic order as follows: “We wired you last evening as per inclosed copy, accepting 25 tubs of fancy open ripe Swiss at 16^-c. for immediate shipment and trust you will get these off to us as promptly as possible and of your usual good quality.” On the same date defendant wrote plaintiff confirming transaction had by telegraph as follows: “We have your wire stating that you accept the twenty-five tubs at 16-2-c. for immediate shipment and we will do our best to get this order off as soon as possible. You may have to wait perhaps a week before we ship same, as we are just getting in the June Swiss, a few tubs from different factories, but as stated before we will send them along as soon as possible.”</p> <p>On August 5th plaintiff telegraphed defendant as follows: “Increase our order to minimum car as your yesterday’s message.” In response to which message defendant telegraphed as follows: “Sold out at present with fancy Swiss. Offer you good sound number two at thirteen to make minimum ear.” Replying to this plaintiff telegraphed defendant on the same date: “Complete minimum car with twos per your wire. Rush.” On August 6th plaintiff wrote defendant as follows: “We confirm our telegram to you as per inclosed copy and regret that you could not furnish further quantities of fancy goods from you, hut to complete car with twenty-five tubs we have already ordered from you, we would ash you to ship the number twos at 13c. to make minimum car.” On August 7 th defendant wrote plaintiff as follows: “We have your wire of the 6th inst., which reads as follows: ‘Complete minimum car with twos per your wire. Rush.’ In regard to this wire, will say that we will hook you for enough No. -2 Swiss to make out a minimum car.” On the same date plaintiff wrote defendant: “We acknowledgé receipt of your favor of August 5th, and would ask you to kindly rush shipment of cheese as we are in need of same,” and giving other directions not material here.</p> <p>On August 17, 1914, plaintiff telegraphed defendant: “Have you shipped car, if not ship immediately, buyers anxious.” They followed this telegram with a letter on August 17 th: “We have wired you today as per inclosed copy inasmuch as we have had no invoice or bill of lading from you on cheese purchased. Our buyers are getting very anxious for same, and if you have not already shipped kindly give this your immediate attention and get same off at once.”</p> <p>On August 17th, and apparently in response to the telegram of that date from the plaintiff, defendant wrote plaintiff as follows:</p> <p>“In regard to order for Swiss cheese which you sent us, will say that we will be unable to take care of this order, as it is impossible for us to get the goods. When you sent this order in we bought the goods from the company factories in this vicinity, but when the time came to deliver the cheese they would not send it in and are holding all of the Swiss for a higher price. All of the dealers are canceling orders on this account.</p> <p>“We regret very much in having to cancel this order, but as mentioned above we cannot make shipment when we cannot buy the cheese.”</p> <p>The defendant’s letter of August 17th was received by plaintiff on August 19th. Upon receipt thereof plaintiff telegraphed defendant as follows:</p> <p>“Letter received. Will not accept your cancellation. Have sold cheese our buyers’ strength your confirmation buyers insisting deliveries we must insist upon you shipping car immediately in order save expensive claims against you for nondelivery we advise you work quick make immediate shipment answer when will car go forward.”</p> <p>On the same date plaintiff wrote defendant to substantially the same effect. On August 26th and 27th plaintiff wrote and telegraphed defendant insisting upon delivery. To these letters and telegrams the plaintiff received no reply until September 8th, when defendant wrote plaintiff as follows:</p> <p>“In answer to your telegram and several letters, wish to advise that we have finally made settlement with the farmers with whom we had bargained for about three hundred tubs of June Swiss about the time the war in Europe broke out. At the time the war started dealers from the East and from Hew York came through this section and paid as high as 18c. and 20c. This caused the farmers with whom we had dealings to back out on us. How we have several factories ourselves which are paid on a company basis, and therefore at the time it was impossible for us to deliver the goods to you.”</p> <p>This letter contained some other suggestions and statements in regard to the controversy between the parties, which are not material here.</p> <p>By letter dated September 11, 1914, plaintiff made demand upon the defendant for settlement under the contract in accordance with the following statement:</p> <p>1 carload Swiss clieese, 60 tubs.</p> <p>No. 1 25 tubs at 650 lbs. each. 16,250 3%c. $568 75</p> <p>No. 2 35 tubs at 650 lbs. each. 22,750 4c. 910 00</p> <p>As we’bought only 10 tubs at 20c. we have to buy 15 tubs more at 23c.</p> <p>15 tubs at 650 lbs. 9,750 3c. 292 50</p> <p>$1,771 25</p> <p>Defendant declined to make an adjustment, with the result that plaintiff brought this action to enforce its claim for damages. The case was tried before the court without a jury. The trial court held that the correspondence constituted an. unqualified contract of purchase and sale, by which the plaintiff purchased of the defendant twenty-five tubs of No. 1 cheese at 16-|- cents a pound, and a sufficient amount of No. 2 at 13 cents to make a minimum carload; that a minimum east-bound car contains 20,000 pounds; that the average weight of a tub of Swiss cheese in August is approximately 775 pounds, and that the contract therefore called for 19,375 pounds of No. 1 and 625 pounds of No. 2; that at Brodhead and in southern Wisconsin generally the market price on August 17 was 17-J cents to 18 cents for No. 1 and 15-J cents for No. .2; that at the time plaintiff received defendant’s letter canceling the contract the price had advanced to 20 cents for No. 1 and 16-£ cents for No. 2; and plaintiff had judgment accordingly for $700. Erom such judgment defendant appeals.</p>

<p>Appeal from a judgment of the circuit court for Dane county: A. H. Reid, Judge.</p> <p>The action is brought by the plaintiff as county treasurer of Dane county against the defendants upon the bond of the city treasurer furnished to the county treasurer and conditioned for the payment of the county and state taxes.</p> <p>The plaintiff is and was county treasurer and the defendant Carl Moe is and was city treasurer and the other individual defendants are the bondsmen of the city treasurer. The city of Madison is a municipal corporation having no prospective state highways within its corporate limits. At the annual meeting of the county hoard of Dane county in November, 1915, a tax of eight tenths of a mill was levied upon all the taxable property in Dane county for the county highway fund, which tax amounted to $129,658.15. .Of this amount there was apportioned and certified by the county clerk to the city of Madison the sum of $47,110.58, which was required to be raised by the city of Madison for county highway improvements. This sum was levied by the city of Madison and the city treasurer collected and now has such sum in his possession. He was directed by the common council not to pay it to the county treasurer. Of the $129,658.15 levied by the county board of Dane county as aforesaid the sum of $16,000 was levied for county bridge aid, petitions for which were properly filed and the proper proceedings taken under sec. 1319, Stats. The sum of $47,110.58 apportioned to the city of Madison for the county highway improvement includes $5,813.51 of this tax for building bridges. After deducting this sum there remains a balance of $41,297.07 as the proper amount apportionable to the city of Madison under the state aid highway law.</p> <p>The circuit court held that the county board had no right to levy the tax of $5,813.51 on the' city of Madison for the purpose of building county bridges, and that the tax of $41,297.07 was properly levied as the city’s portion of the county highway fund pursuant to the state aid highway law, and judgment was entered in favor of the plaintiff in the sum of $41,297.07 with interest at the rate of ten per cent, per annum and a penalty of five per cent, for withholding payment of this tax after it was demanded. From such judgment this appeal is taken.</p>

<p>Appeal from a judgment of the circuit court for Dane county: E. Rat Stevens, Circuit Judge.</p> <p>Action to recover damages for fraud in the sale of cattle. About March 2, 1914, plaintiff, a resident of Grafton, North Dakota, purchased fifty-six head of cattle of the defendant, a resident of Hebron, Illinois. Plaintiff’s claims are, in substance, that defendant represented the cattle to be healthy and that he would furnish plaintiff with a certificate of examination by veterinarians authorized by the state of Wisconsin to administer the tuberculosis test showing that the cattle purchased had been tested in conformity with the laws and regulations of the state of Wisconsin within thirty days prior to date of shipment; that the plaintiff relied upon such representations in purchasing the cattle; that such representations were false to the knowledge of defendant; that certificates of inspection bearing false dates showing inspection within thirty days of shipment were furnished, when in fact most of the cattle had not been inspected within thirty days, and that shortly after the cattle arrived at Grafton eleven of them were condemned by the state live stock sanitary board of North Dakota by reason of their being infected with tuberculosis, and that thirty-two head were shipped to South St. Paul for slaughter because believed to be infected,, all to the plaintiff’s damage in the sum of $2,054.60. -</p> <p>The jury found (1) that the defendant represented to the plaintiff before the purchase of the cattle that they were free from any infection of bovine tuberculosis; (2) that the defendant represented to the plaintiff before the purchase of the cattle that they had been tested with the Wisconsin tubercular test within thirty days prior to their shipment to North Dakota; (3) that both such representations were false; (4) that the defendant knew they were false at the time he made them; (5) that he ought to have known they were false at the time he made them; (6) that he made such representations recklessly and with no knowledge on the subject; (7) that he made them for the purpose of inducing plaintiff to purchase the cattle; (8) that plaintiff believed such representations to be true when he purchased the cattle, and that he was induced to purchase the cattle by his belief in and reliance upon such representations; (9) that plaintiff ought not to have discovered the falsity of such representations by the exercise of ordinary care and prudence under all the circumstances known to him; (10) that the defendant represented to. the plaintiff, before the purchase of the cattle, that he would furnish certificates of health showing that the cattle had been tested with the Wisconsin tubercular test within thirty days prior to their shipment to North Dakota; (11) that plaintiff relied upon such representation and was induced thereby to purchase the cattle; (12) that in the exercise of ordinary care and prudence the plaintiff ought to have relied upon the representation that the defendant would furnish such certificates; (13) that the defendant knowingly and with intent to cheat and defraud the plaintiff caused to be famished false certificates of health to accompany the shipment of cattle, for the purpose of misleading the plaintiff as to the actual dates u.pon which the cattle were in fact tested; (14) that the defendant caused such certificates to be furnished for the purpose of inducing the plaintiff to purchase the cattle; (15) that the plaintiff was misled by the dates appearing upon said certificates and thereby induced to purchase or retain the cattle; (16) that plaintiff in the exercise of ordinary care.and prudence ought to have relied upon the statements made- in the certificates furnished that the cattle were tested upon the dates therein given, or upon any particular dates; and (17) damages in the sum of $1,851.</p> <p>The court entered judgment upon the verdict in favor of the plaintiff, and the defendant appealed.</p>

<p> Reformation of instruments: Mutual mistake: Deed creating charitable trust: Delay: Parlies. </p> <p>1. A deed establishing a charitable trust, which by mutual mistake does not express the real meaning of the parties, may be reformed in a proper case if the necessary parties are before the court.</p> <p>2. Even the lapse of years should not preclude the correction of such a mistake, where the delay is satisfactorily explained and no rights of third persons have intervened.</p> <p>3. Thus, where the owner of land conveyed it to the trustees of the Wisconsin Consistory (a Masonic body) for the purpose of laying a foundation for a Masonic home for all needy Master Masons and their families, and that was the understanding of the Consistory and its officers, hut hy mistake the deed, which was drawn by one of said trustees and executed and recorded without careful examination then or for eight years thereafter by either party, contained conditions inconsistent with their intention and understanding, such mistake is corrected, in a suit by the grantor, by reforming the deed so as to make it express the original understanding — the delay being sufficiently explained, no rights of third persons having intervened, and the necessary parties (including the original grantees, the corporation at present holding the title, the present trustees of the Consistory, a sufficient representation, under sec. 2604, Stats., of the 2,700 members of the Consistory, and all the present beneficiaries of the charity) being before the court.</p>

<p> Railroads: Fences: Death “occasioned" by want of fence. </p> <p>1. Where a hoy sixteen years old', having entered upon a railroad right of way at a place where it should have been hut was not fenced, hoarded a moving freight train and after traveling several miles was killed in attempting to jump from the train while it was in motion, his death was not, within the meaning of sec. 1810, Stats. 1915, “occasioned ... in whole or in part” hy the want of a fence, there being no causal relation between them.</p> <p>2. The. word “occasioned” in said sec. 1810 means caused incidentally or indirect!y.</p>

N. Risjoed, Circuit Judge. Tbis action was brought to recover on a promissory note. Tbe defense was that plaintiff was a foreign corporation not licensed to do business in tbis state and that tbe transaction 1 was not interstate commerce, bence there could be no recovery. The court so held and dismissed tbe action, from which this appeal was taken. No bill of exceptions was settled.

N. Risjokd, Circuit Judge. Action to enjoin tbe collection of a special assessment.

N. Risjobd, Circuit Judge. This action was brought to recover damages for personal injuries sustained by plaintiff while riding a bicycle, the injuries resulting from a collision between plaintiff’s bicycle and defendant’s automobile, alleged to have been due to defendant’s negligence. The jury returned the following verdict : “(1) At what point did the collision between the plaintiff’s bicycle and the defendant’s automobile occur ?

N. Risjorb, Circuit Judge. Action to set aside a quitclaim deed executed in settlement of a debt of $1,409, and to recover judgment for tbe amount of said debt and interest. Tbe following facts appeared from tbe complaint: In 1901 tbe A. IT. Stange Company was the owner of a certain forty-acre tract of land in Price county.

Appead from a judgment of the circuit court for Lincoln county: A. II. Reid, Circuit Judge. Action on contract. This action was brought by the plaintiff to recover a balance due for work and labor performed in grading and grubbing certain parts of a railroad right of way for the defendant, who was a principal contractor, and for board for defendant’s employees and teams, and for labor and merchandise furnished at the defendant’s request.

Eowlee, Judge. Certiorari to set aside an ordinance passed by tbe County Board of Supervisors of Vilas County May 13, 1914, creating tbe town of Lincoln in Yilas county and determining tbe proportion of tbe indebtedness of tbe town of Eagle River chargeable thereto.

Action to recover for tbe death of plaintiff’s intestate who was killed February 15, 1915, while performing his duties as an employee of defendant.

Eowlee, Circuit Judge. Tbis is an action to recover tbe balance due on certain notes given for tbe purchase price of a traction engine. Tbe defendant is not tbe maker of tbe notes, but it is alleged tbafc be promised in writing to pay them. Tbe defendant’s son purchased á traction engine from tbe plaintiff for tbe sum of $2,190 in September, 1912. He turned in an old engine and made some payments in cash, in all amounting to tbe sum of $595.

H. Reid, Judge. Action to set aside conveyances from husband to wife as fraudulent. This case was here on a former appeal and is reported in 157 Wis. 466, 145 N. W. 1096, to which reference is made for a complete statement of facts.

Appeals from a judgment and order of tbe circuit court for • Dane county: E. Ray SteveNS, Circuit Judge. Action to set aside an award of tbe Industrial Commission, made in due course, on account of tbe injury and death of John Gr. Peterson.

Eeeoe to review a judgment of tbe municipal court of Milwaukee county: A. 0. Bacicus, Judge. The plaintiff in error (Hereinafter called the defendant) was convicted in the municipal court of Milwaukee county of practicing medicine without a license.

<p>Criminal law: Sodomy: Evidence: Competency: Other offenses: Reputation: Corroboration: Instructions to jury: Alibi: Unfair trial: Reversal of conviction.</p> <p>1. Upon a trial for sodomy, it was error to permit tbe defendant to be asked on cross-examination whether lie did not have improper relations with a certain person, naming him, other than the complaining witness.</p> <p>2. The state in making its case proved that the alleged offense was committed on March 13th and upon no other day. The main defense was an alibi, and there was strong evidence thereof. On rebuttal the state undertook to show that the complaining witness might have been mistaken as to the day and that the crime might have been committed on some other day. The court charged the jury that the vital question for them to determine was whether defendant committed the crime upon any day in March. Held, that even if there was no affirmative error in such charge (a point not decided) the jury should have been further instructed that if the testimony of the complaining witness was correct as to the date and if the evidence of an alibi was sufficient to prove the defendant's absence from the city on that date, or raised a reasonable doubt as to his presence, he was entitled to be acquitted.</p> <p>3. It was error in this case to refuse a requested instruction to the effect that the.jury should use great caution in weighing the testimony of the complaining witness, that it is ordinarily unsafe to convict upon the uncorroborated testimony of an accomplice, and that upon the actual commission of the crime charged the complaining witness was not corroborated by any other witness.</p> <p>4. Testimony that the reputation of the defendant was bad was incompetent, where the witness based his opinion of such reputation upon stories and talk which he had heard after the prosecution had been commenced.</p> <p>5. Where, upon the whole record, the supreme court is convinced that the defendant did not have a fair trial, and is unable to say that justice has been done, a new trial should be ordered.</p>

OeigiNal action brought iu this court to restrain the state board of education from contracting for the erection of a physical education building at tbe La Orosse normal school to cost $80,000 for the alleged reason that there is only $71,360.98 in the building fund now available for such purpose.

EeeoR to review an order of tbe municipal court of Dane county: Joi-iN C. EbhxaNdt, Judge. The state brings this writ of error to reverse an order quashing an indictment for violation of the so-called “Corrupt Practices Act,” being ch. 650 of the Laws of 1911 (now ch. 12, Stats. 1915). This law is intended to prevent the profuse and corrupt expenditure of money during political campaigns as well as at elections or primaries.

<p>MaNDAmus to the Secretary of State.</p>

C. Higbee, Circuit Judge. The Trustees of The La Grosse Public Library petitioned the circuit court for a peremptory writ of mandamus to compel the defendants to pay over to the petitioners the sum of $6,000 which had been levied and collected as a special library tax and by resolution of the common council of the city appropriated to the petitioners as trustees of the library.

Eowler, Circuit Judge. Action prosecuted by tbe district attorney to recover the penalty on a liquor license bond for breach thereof in selling intoxicating drinks to persons who were intoxicated or bordering thereon.

<p>Appeal from an order of tbe circuit court for Milwaukee county: E. C. Eschweilee, Circuit Judge.</p> <p>Tbe respondent moved to dismiss tbe appeal.</p>

Appeals from a judgment of tbe circuit court for Outa-gamie county: Chesteb A. Fowlek, Judge.

This action was brought by plaintiff to recover damages on account of tbe death of her husband, Frank J. O’Connor, who was killed in an accident while in the employ of the defendant on the 26th day of July, 1913. At the time of the accident the defendant was engaged in interstate commerce. The plaintiff in her complaint claimed the right to recover $40,000 damages which she sustained on account of the death of her husband through the negligence of the defendant.

<p>Appeal from a judgment of the circuit court for Iron county: G-. N. Risjord, Circuit Judge.</p> <p>The briefs in the case of Gertz v. Vaughn, ante, p. 557, were by stipulation used in this case, and there were additional hriefs on the question of estoppel:</p>