Volume 164 — Wisconsin Reports

<p>Petition for leave to bring an action in tbis court.</p> <p>[No brief on file.]</p>

W. BurNell, Judge. This is an action of quo warranto brought by plaintiff ■against the defendant to determine the right of defendant to Fold the office of county clerk of Milwaukee county, Wisconsin. The defendant was a candidate for re-election at the general November, 1914, election, held November 3, 1914, and the plaintiff and others were also candidates at said election for the same office.

Action by a taxpayer to enjoin a school district having an assessed valuation of $257,887 from making a loan of $12,000 pursuant to certain resolutions passed by the electors thereof. The statute under which the loan was sought to be made is sec. 475, Stats. 1915.

AgNEw, Judge. Partition of homestead. Plaintiff and defendant are two of the heirs of Joseph Pol-zen, who died testate January 30, 1911, and left surviving his wife, Hedwich Polzen, three sons, and two daughters hereinafter named.

Appeau from a judgment of tbe circuit court for Ozaukee county: MabtiN ,L. Lueoe, Circuit Judge. Action by the beneficiary in an accident insurance policy to recover thereon.

B. QuiNLAN, Circuit Judge. The action was for damages claimed to have been caused plaintiff by negligence of defendant in carrying her, while a passenger on one of its trains, beyond her destination.

<p>Appeal from a judgment of tbe circuit court for Oconto county: W. B. QulnxaN, Circuit Judge.</p> <p>This is an action to recover damages for slander.</p> <p>The plaintiff became the housekeeper for the defendant in October, 1911, and by arrangement brought her twelve-year-old son with her. She remained in this position about two and one-half years, at which time she informed defendant that she had decided to leave on account of the heavy burdens of caring for defendant’s imbecile son. Defendant wished plaintiff to remain in his employ and endeavored to induce her to do so. Plaintiff left defendant and went to work for defendant’s brother-in-law, who was a neighbor of the defendant. Defendant made unsuccessful efforts to have the plaintiff return and keep house for him. It is claimed that a short time after this, while defendant and one of his neighbors were discussing certain stories that were being circulated in the neighborhood charging defendant with libidinous and lewd conduct, the defendant then and there spoke of and concerning the plaintiff the following false and defamatory words: “M. [the plaintiff] isn’t as good as she pretends to be. I went to bed one night and M. came up to my room and jumped into bed with me. I said, Hold on, M., this will not do. We are supposed to be good, decent, respectable people, and what will the neighbors say when they find this out ? and she [plaintiff] said, That is all right, no one will know about this except you and I.” The person to whom these words were spokpn circulated them and they finally reached plaintiff. It appears that plaintiff had been suffering from a nervous breakdown, and after hearing this story from several of her friends has been unable to recover .from this ailment.</p> <p>The jury returned a verdict finding the defendant guilty of uttering the slander charged and assessed plaintiff’s damages in the sum of $500. Judgment was entered in favor of the plaintiff in the sum of $500, together with the costs and disbursements of the action. Erom such judgment this appeal is taken. ,</p>

<p>Appeal from a judgment of tbe circuit court for Kenosha county: E. B. BeldeN, Circuit Judge.</p> <p>This is an appeal from a judgment dismissing an appeal from an order of the county court granting letters of administration de bonis non.</p> <p>The facts are that Charles Durkee died testate in Utah in 1810. His will was probated in the county court of Kenosha county, Wisconsin, it being alleged in the petition for probate that Durkee was a resident of said county. There is no claim of any defect in these proceedings. Harvey Durkee and Eranklin H. Head were named as executors in the will, but Durkee resigned his trust and Head proceeded with the administration and reported the estate fully administered in 1882, at which time he was discharged from his trust. In 1896, upon petition of some twenty of the heirs at law of the deceased, representing that he was a resident of Utah at the time of his death and that he left personal estate to an unknown amount which was unadministered, one Kuykendahl was appointed by the probate court of that state administrator with the will annexed of the estate of the deceased and duly qualified.</p> <p>In September, 1911, two of the heirs at law of the deceased (hy their attorney in fact) petitioned the county court of Kenosha county to appoint Henry J. Hastings (public administrator of said county) as administrator de bonis non of the estate, representing that the deceased left both real and personal estate which was unadministered. Upon the hearing of this petition, after due notice given, Kuykendahl appeared and filed objections to the granting of such administration on the ground that he himself was the lawful administrator de bonis non. Some testimony was taken and Hastings was appointed administrator de bonis non and qualified. Thereupon Kuykendahl appealed to the circuit court. He died in September, 1913, and Norman W. Ilaire was appointed as his successor by the proper court of Utah and substituted as appellant by the circuit court for Kenosha county. Upon hearing of the appeal the court dismissed the same on the ground that Kuykendahl was not a person entitled to appeal under the terms of sec. 4031, Stats., which provides that, in all cases not otherwise provided for, “any executor, administrator, guardian, trustee or any person aggrieved by any order ... of the county court may appeal therefrom to the circuit court.” The court held that Havre was merely an ancillary administrator and that the words “executor, administrator,” etc., in this section do not refer to mere ancillary administrators appointed in other states, and that such an administrator could not be considered aggrieved by the appointment of an administrator de bonis non in this state.</p>

An equitable action to rescind the sale of 134 shares of the corporate stock of defendant company on the ground of fraud. The claim of plaintiff, was that he was induced to purchase stock of a corporation by false representations made in its behalf, particularly, by defendant Ernest H. Bmieding as manager, paying for such stock $10,000. Plaintiff sought to avoid the sale and to recover back the sum paid.

Halsey, Circuit Judge. This action was brought to recover damages resulting from personal injuries sustained by plaintiff’s intestate while in the employ of the defendant and for damages sustained by plaintiff because of the death of her husband which resulted from such injuries. The injuries causing death were oc•casioned by a hammer or maul head striking deceased while being used by another employee of defendant.

Appeals from judgments of the circuit court for Milwaukee county: E. B. BeldeN, Judge. Actions to recover damages for alleged fraudulent representations made in the sale to plaintiffs of a contract granting the right to sell certain washers and other domestic utilities. At the close of the testimony in the case of Winnelc the two actions were by order of court consolidated and Schweinler was permitted to introduce such additional evidence as he might desire.

Ebitz, Circuit Judge. Certiorari brought to review the action of the assessor of incomes for Milwaukee county in levying the tax in question, the assessment having been confirmed by the county board of review and by the Wisconsin state tax commission. Judgment was rendered in the circuit court affirming the assessment, and from the judgment this appeal is taken by the Wisconsin trustee, who claims that the fund was not assessable in the state of Wisconsin as income.

<p> Insurance: Proof of loss: Waiver: Denial of liability. </p> <p>An absolute denial of liability by an insurance company within the time limited for the furnishing of proof of loss renders that act unnecessary, even though the policy provides that failure to furnish such proof shall render the claim void.</p>

0. EschweileR, Circuit Judge. Tbe action was commenced in tbe civil court of Milwaukee county. It was to recover on contract for tbe sale price of a K7B UJ- HP. rotor sold defendant at $40.50, a K8A 5 HP. rotor sold defendant at $54, and $23.29 for repairing a K9 rotor. Tbe complaint was in tbe usual form.

J. Tuehee, Circuit Judge. This is a mandamus action to compel the city comptroller of the city of Milwaukee to countersign a warrant for the refund of an excessive personal property tax. A demurrer was interposed to the writ and an order was entered by the circuit court overruling the demurrer and refusing to quash the writ. The defendant took an appeal from this order to the supreme court, and upon hearing here tbe order was approved.

J. TubNER, Circuit Judge. This action was brought to abate a nuisance and restrain the continuance thereof. It is alleged in the complaint that a certain hotel in the city of Milwaukee, Wisconsin, was used for the purpose of lewdness, assignation, and prostitution.

J. Turner, Circuit Judge. Action for personal injury, begun in the civil court of Milwaukee county. On November 21, 1914, one Mike Gada-necz, while in the employ of the Milwaukee Western Fuel Company, was injured while riding in an empty coal wagon driven out of an alley on to Sycamore street in the defendant city. The defendant had laid a concrete sidewalk upon the north side of the street and had left a drop of about one foot on the south side of the sidewalk.

<p>Appeal from an order of tbe circuit court for Dane county: E. Eat Stevehs, Circuit Judge.</p> <p>Tbe appeal is from an order overruling a demurrer to tbe complaint.</p>

<p>Appeal from au order of tbe circuit court for Dane county: E. Eay StevbNS, Circuit'Judge.</p> <p>Tbe appeal is from an order overruling a demurrer to tbe complaint.</p>

<p> Elections: Right of students to vote: Residence. </p> <p>A student who came to Madison splely to attend the state university, registering from a foreign state, where his parents reside and where he spends a part of his vacations, and whose expenses are partially paid by his father, is not a resident of Madison, within the meaning of sec. 6.51, Stats. 1915, and hence not entitled to vote there.</p>

Appeals from a judgment of tbe circuit court for Dane ‘County: E. Bay SteveNS, Circuit Judge. Tbis is an action to set aside an award of tbe Industrial Commission requiring tbe plaintiff and tbe Employers Mutual Liability Insurance Company to pay to applicant tbe ■sum of $1,931.10 on account of tbe death of ber brother, Oscar Eintala, caused by an accidental injury while in tbe employ of tbe plaintiff.

B. QuiNLAN, Circuit Judge. This action was brought by tbe plaintiff, a taxpayer of Oconto county, Wisconsin, to recover from tbe appellant, as chairman of tbe town of Chase in said county, money which appellant advanced to pay gopher and other bounties in 1910 and which had been repaid him by Oconto county.

B. BeldeN, Circuit Judge. The plaintiff came in the evening of November 7, 1915, to a highway crossing on defendant’s interurban line, prepared to pay his fare and to board one of its cars going to Kenosha. It was customary for. certain of its cars known as local to stop on signal at this crossing for passengers; the limited' cars or trains, however, went by without stopping, but in the' nighttime as they approached there was no way of distinguishing them from the local cars.

Eay SteveNS, Circuit Judge. Tbe plaintiff is a corporation authorized by ch. 640, Laws 1911, to maintain a system of water reservoirs on the headwaters of the Chippewa and Flambeau rivers. It acquired and owned a dam in the Manitowish river at the outlet of Eest lake, which had been built in 1888.

<p> Courts: Jurisdiction: Statute construed: Nuisances: Abatement: Place of trial: Prejudice of judge. </p> <p>1. Ch. 339, Laws 1915, conferring upon the county court of Iowa county the jurisdiction therein specified, did not give that court jurisdiction of an action under sec. 3180a, Stats., to abate a public nuisance. Winchell v. Waukesha, 110 Wis. 101, distinguished.</p> <p>2. The words “claims, demands and sums” in sec. 1, ch. 339, Laws-1915, relate to claims arising on contract.</p> <p>3. An order of a circuit court, based on an affidavit of prejudice of 'the judge, changing the place of trial of an action to a county court which had no jurisdiction thereof, was a nullity, and jurisdiction remained in the circuit court.</p>

<p>Appeal from an order of the county court of Iowa county: Aldbo Jenks, Judge.</p>

C. Eschweilee, Circuit Judge. This is an action to recover damages for injuries alleged to bave been caused by a defective highway in the defendant town.

<p>Appeal from an order of the circuit court for Milwaukee county; LaweeNce W. Halsey, Circuit Judge.</p> <p>This is an appeal from an order sustaining a general demurrer to the answer of the defendant Lewis F. Schoenwetter in an action upon a promissory note of $3,800 executed by the defendant Barney A. Schoenwetter and the appellant, Lewis F. -Schoenwetter, as joint and several makers and payable four years after date to the plaintiff, Edward A. Schoen-wetter„ “as trustee of the estate of Louise Schoenwetter, deceased.”</p> <p>It appeared by the complaint that the plaintiff had not been appointed trustee by any court, but that he-was made a trustee by an agreement, of the same date as the note, executed by all the children and heirs at law, ten in number, of one Louise Schoenwetter, deceased, the plaintiff and the defendant Barney being among said heirs but not the appellant, Ljewis. This agreement, after reciting the fact of the death of Louise and the desire of the parties to settle her estate without legal proceedings, states that the estate of the deceased consists of the sum of $3,800, represented by notes and mortgages of that amount “executed to and held by Barney A. Schoenwet-ter /’ that the balance of the estate, after payment of the funeral expenses, is $3,563.27; that the expenses of a headstone and an abstract, as well as the sum of $50 for a cemetery lot, are yet to be paid; that it is agreed that Edward be appointed trustee of the estate of Louise to collect the assets, to make the payments still to be made and divide the balance between the parties in equal shares, and that Barney execute and deliver to Edward as trustee his secured promissory note for the sum of $3,563.27 (being the balance of the estate after deducting the funeral expenses). The agreement closed with a power of attorney by all of the heirs empowering Edward to collect the note and make division of the money among the heirs. The note, as before stated, was executed on the samp day and was for the sum of $3,800, but was indorsed on that day with a payment of $236.73, leaving a balance of $3,563.27. Interest falling due April 15, 1911, is indorsed upon the note as paid.</p> <p>By the first defense in the answer the defendant Lewis alleged that he was in fact a surety and not a maker of the note, to the knowledge of the plaintiff, and received no consideration therefor, that the note was not paid'at its maturity, and that no demand of payment was made on him, nor did he receive timely notice of the nonpayment thereof. By the second defense it is alleged that neither Barney nor appellant received any consideration for the note nor was either of them indebted to the plaintiff. By the third defense it is alleged on information and belief that Louise died testate, having by will disposed of her property “in various amounts to various of her children/’ and that hence the liability of the defendant Barney to his mother is only due to the executor or lawful personal representative of the deceased Louise, and not to the plaintiff.</p>

<p> Trusts: Creation by will: Construction: Intention of creator: Investment of trust fund: “Hirst class interest-bearing real-estate mortgage securities:’’ Diversion of fund: Remedies: Election. </p> <p>1. A trust must be executed according to the plan of its creator, and the language thereof, if not perfectly plain, must be so construed, if practicable, as to carry out the creator’s intent as evidenced by all the circumstances characterizing the trust.</p> <p>2. Where a will created a trust fund and directed its investment in “first class interest-bearing real-estate mortgage securities,” the testator’s intention was to confine the investments to mortgages wholly owned by the trustees and held by them for the sole benefit of the trust fund; and it was a violation of the trust to'invest any part of the fund in mere participating certificates or bonds entitling the trustees to share with others in the mortgage security.</p> <p>3. For such a violation of the trust, claim may be made and a recovery had against the offending trustee for the amount wrongfully diverted from the trust fund, and the successor of such trustee may proceed upon the theory that the securities so wrongfully taken are the property of the trustee who took them but are subject to an equitable lien in favor of the trust fund to secure, so far as they will, his liability for the diversion. . Such proceeding does not involve inconsistent remedies between which an election need be made.</p>

<p>Appeal from a judgment of the circuit court for Milwaukee county: W. J. TuiiNER, Circuit Judge.</p> <p>This is an action to recover damages for personal injuries which plaintiff alleges he sustained while in defendant’s employ. He claims that the injuries were caused by defendant’s failure to furnish him a reasonably safe place to work.</p> <p>The statement of the facts of the case on the former appeal •as reported in 155 Wis. 70, 143 N. W. 1027, presents in clear and concise terms the relations of the parties, a description of defendant’s premises where the accident happened, a description of the appliances and machinery in the immediate vicinity of plaintiff’s working place, the location of the iron roller that fell on the plaintiff, the condition of the place where the roller stood and where plaintiff worked, and the nature and kind of sand foundation of the roller when it fell. In the light of that record it is not necessary to repeat the statement of the case here. The verdict on this trial is in substance and form the same as the verdict returned by the jury and incorporated in the report of the case on the former appeal. The jury on the second trial found in effect: (1) That the place where plaintiff was at work when injured was not reasonably safe considering the nature of his employment; (2) that the defendant knew in time to have prevented the injury to plaintiff that the place where he was at work was not reasonably safe; (3) that the defendant ought to have, known in time to have prevented the injury to plaintiff that the place where he was at work was not reasonably safe; (4) that such failure to provide a reasonably safe place for the plaintiff to work was the proximate cause of his injury; (5) that no want of ordinary care on the part of the plaintiff proximately contributed to produce his injury; (6) that the plaintiff in the exercise of ordinary care ought not to have known that the place in which he was working at the time of the injury was not reasonably safe; (7) that no negligence on the part of Emil Ranthum proximately produced plaintiff’s injuries; and (8) that the sum of $17,800 will reasonably compensate plaintiff for the injuries he sustained.</p> <p>The court overruled defendant’s motions to change certain answers of the verdict, for judgment, and for a new trial, and entered judgment for the plaintiff in the sum of $15,000 with costs. Erom such judgment this appeal is taken.</p>

Feitz, Circuit Judge. Tbis action was brought by plaintiff, a Pennsylvania corporation, against the defendant, a Wisconsin corporation, to recover dividends claimed to have been declared.

J. TueNee, Circuit Judge. Action to recover the purchase price of $1,702.83 of certain crockery sold the defendant, together with: the cost of storage, insurance, and interest.

0. Ludwig, Circuit Judge. The case is this: A receiver appointed in supplementary proceedings brings the action to set aside, because fraudulent as to creditors, a transfer of a $5,000 legacy made by the judgment debtor to one of the defendants in consideration of a conveyance of certain real estate which .the debtor immediately made his homestead.

J. TubNER, Circuit Judge. This is an action to recover the sum of $5,693.53, the unpaid balance due on a promissory note dated June 3, 1907, given by Edward M. Maxwell to the defendant, which note the defendant, for value received, indorsed and delivered to James M. Pereles, waiving, in writing on the note, presentment and demand of payment and noticé of nonpayment. The plaintiff’s testator, James M. Pereles, commenced this action on April 12, 1910.

C. Baceus, Judge. Action to enforce a penalty for a violation of sec. 1428 of tbe Ordinances of tbe City of Milwaukee (Milwaukee Code of 1914), wbicb provides that “Any person, wbo, by bimself or by bis servant or agent, or as tbe servant or agent of another, shall use or retain in bis possession any false weight or measure or any weight or measure or weighing or measuring device to be used in tbe buying or selling of any commodity or thing which has not been sealed by the…

C. Ludwig, Acting Judge. Tbe appeal is from a judgment finding the defendant guilty of violating an ordinance of the city of Milwaukee prohibiting the employment of labor on public works contracts more than eight hours a day. The defendant was arrested upon a warrant issued from the district court of Milwaukee county upon a sworn complaint charging him with the violation of the ordinance in question.

J. TubNer, Circuit Judge. ' The appeal is from an order sustaining petitioner’s demurrer to defendant’s return to an alternative writ of prohibition. The defendant is a justice of the peace in West Allis, a city of the fourth class and one of several cities within Milwaukee county, in which county is also a city of the first class.

Eeitz, Circuit Judge. The appeal is from an order overruling demurrers to two separate causes of action in plaintiff’s amended complaint. The substance of the complaint is that the plaintiff corporation owned and desired to sell certain real estate in the city of Milwaukee. It placed the sale with certain real-estate dealers prior to December 1, 1911.

Geegoey, Circuit Judge. Action to foreclose a mechanic’s lien. The judgment was for $436.47, rendered February 10, 1916. Plaintiffs performed the work and furnished the material for which they claimed a lien, in part, under a written contract, and in part under a verbal request of the proprietor.

0. Eschweilee, Circuit Judge. The action is brought by plaintiff against defendant, as a consignee, for the recovery of demurrage charges on an intrastate shipment of cars pursuant to demurrage tariffs filed with the Wisconsin railroad commission. The plaintiff, as a common carrier, does an interstate and intrastate business. Its railroad connects with the Wisconsin Central Eailway Company at Neenah and Menasha, Wisconsin.

Halsey, Circuit Judge. Action of replevin begun in the civil court to recover possession of an electric car. At the time the repairs in question were made plaintiff held a duly filed purchase-money mortgage on the car on which there was due the sum of $50.

J. TueNee, Circuit Judge. The appeal is from an order sustaining a general demurrer to the complaint. They contended, inter alia, that the sale contemplated by the parties was by the acre and not in gross.

0. Ludwig, Circuit Judge. Tbe appeal is from a judgment of foreclosure of a mechanic’s lien in favor of plaintiff and against tbe defendants. Tbe plaintiff and respondent, a corporation engaged in business as lumber dealers in tbe city of Milwaukee, Wisconsin, delivered to tbe defendant Alfred Hoffmeister, a contractor, certain lumber of tbe value of $948.61.

C. Ludwig, Circuit Judge. This is an appeal from a judgment of tbe circuit court affirming a judgment of tbe civil court for tbe balance due upon two subscriptions to tbe capital stock of tbe plaintiff.

Eeeob to review a judgment of tbe municipal court of Waukesba county: Milo MucjclestoN, Judge. Tbe plaintiff in error, hereinafter called defendant, was convicted in tbe municipal court of Waukesba county of tbe offense of abandonment of bis minor children, aged six and four respectively, and was sentenced on tbe 10th day of March, 1916, to one year at'hard labor in tbe state prison at Waupun. Tbe ease is here for review.

Action to recover forfeiture for violations of sec. 1728 — 2, Stats., regulating hours of employment of women. The complaint sets forth thirty causes of action, in each of which continuous employment of a woman by the defendant in a pea-canning factory at a gainful occupation for a continuous period of from fourteen hours to seventeen and one-half hours, exclusive of meal periods, part of which working-period was before and part after 8 o’clock p. m., is charged.

B. QuiNlam, Circuit Judge. This is an action to recover upon a policy of insurance issued March 15, 1912, by the defendant to the Wisconsin Eruit Package Company to indemnify it from loss resulting from injuries to its employees.

J. TueNee, Circuit Judge. This is an action in ejectment. Tbe plaintiff is tbe bolder of tbe record or paper title to tbe property in dispute. Tbe defendants pleaded adverse possession under tbe ten- and twenty-year statutes.

0. Ludwig, Circuit Judge. Tbe appeal is from an order sustaining a demurrer to certain portions of tbe complaint.

<p> Principal and surety: Bonds: “Obligations:” “Indebtedness.” </p> <p>Promissory notes given by the buyer pursuant to a contract for the purchase of goods were “obligations” arising out of the contract, and the amount due on them was “indebtedness arising out of” the contract, within the meaning of a bond given to secure payment of such obligations and indebtedness.</p>

C. Eschwbiler, Circuit Judge. Action for construction of tbe will of Mary Elizabeth Owens, deceased. Tbe will was dated April 1, 1912. Tbe testatrix died a few months thereafter. The will was duly established in the probate court for Milwaukee county, December 31, 1912. All the children of the testatrix survived her.

Feitz, Circuit Judge. This action was brought against tbe defendant to recover tbe amount of two judgments recovered against tbe plaintiff for injuries received by one Michael Kowalski, a minor fifteen years of age, while in the employ of plaintiff, together with costs and attorneys’ fees. One of the judgments was recovered by the minor and the other by the minor’s father.

Geegory, Circuit Judge. Action, by guardian ad litem, to recover damages for personal injuries sustained on defendant’s car by plaintiff on September 5, 1912, while a foetus en ventre sa mere of tbe age of about five months and before she could have been born .viable. Plaintiff’s father and mother settled with tbe defendant for the damage sustained by them.

C. Ludwig, Circuit Judge. The appeal is from a judgment of the circuit court affirming a judgment of the civil court in favor of the respondents- Tbe plaintiffs bad shipped to them from a point in Iowa a carload of oats, the final carrier of which was the defendant railway company.

Geegoey, Circuit Judge. Action to recover damages for alleged breaches of a building contract made between plaintiff and defendant Utley, September 2, 1913, whereby the latter agreed to furnish all the material and labor and construct for the former a building, according to certain plans and specifications, for the sum of $23,000, the performance of which was guaranteed by the defendant surety company.

0. Ludwig, Circuit Judge. This action was brought in the civil court of Milwaukee county, where judgment was rendered for defendant on general verdict of a jury. On appeal to the circuit court the judgment was affirmed without new trial, from which judgment this appeal was taken.

C. Ludwig, Circuit Judge. Personal injuries. Plaintiff was operating a steam roller rolling asphalt pavement which was being laid between the defendant’s tracks on Grove street in Milwaukee, and was proceeding northward at a speed of about two miles an hour at the time of the accident. He had run the roller south just previously over the same strip and in so doing was facing souths He then turned and went northward.

J. TuiiNeb, Circuit Judge. Action to recover on six insurance policies issued to plaintiff by defendants, insuring tbe former against loss by fire on property consisting of implements, models, patterns, and other property for use, and in use, by plaintiff in its manufacturing business in Milwaukee, Wisconsin. Each of tbe defendants issued a policy to the plaintiff, permitting coinsurance.

<p> Statutes: Special law: Repeal by general act: Conflict: Viaducts: Duty of railway company to “maintain:” Rebuilding. </p> <p>1. Where there are two affirmative statutes on the same subject, one will not repeal the other if both can stand together.</p> <p>2. Ch. 51, Laws 1878, requiring the defendant railway company to erect and maintain a certain viaduct or bridge in Milwaukee county carrying a highway over its tracks, was not repealed by see. 1797 — 12e, Stats. (Laws 1909, ch. 540), relating to railroad highway crossings, nor by sec. 2 of said ch. 540, expressly repealing conflicting acts, — the act of 1878 not conflicting in any way with the act of 1909 or with the exclusive exercise of the jurisdiction conferred by the latter act upon the railroad commission.</p> <p>[3. Whether upon the passage of ch. 51, Laws 1878, a cause of action accrued in favor of Milwaukee county and every member of the public affected thereby against the defendant to compel the maintenance of the viaduct after its erection, which cause of action, since it existed prior to the passage of ch. 540, Laws 1909, could not be abrogated even if said ch. 540 operated to repeal the act of 1878, is not decided.]</p> <p>4. The defendant railway company being required by ch. 51, Laws 1878, to- “erect and maintain’’ the viaduct in question, the fact that it was wrongfully broken down by the negligence of a person who ran a steam shovel over it is immaterial so far as the duty of defendant to maintain it is concerned.</p> <p>5. The word “maintain,” with reference to a viaduct, includes keeping up, preserving, and rebuilding in case of destruction.</p>

<p> Married women: Separate estate: Divorce: Adultery of wife: Division of property derived, from her husband: Statutes: Construction. </p> <p>1. Under sec. 2342, Stats., a wife may take title to property from lier husband and bold it as her sole and separate estate; and under sec. 2372, no judgment of divorce can affect her right to such estate, nor can the court in such action divest her title thereto, except upon a division of property between the parties as provided in sec. 2364.</p> <p>2. Under sec. 2364, Stats., alimony cannot be allowed to a divorced. wife where the divorce is granted on the ground of adultery committed by her, but the division and distribution of property therein provided for may be made even though the divorce be-granted for said cause.</p> <p>3. In construing a statute the legislative purpose must prevail so far as it can be gathered from the language of the law by any reasonable construction.</p> <p>4. When the literal meaning of a statute, though apparently plain and unambiguous, is absurd or unreasonable, ambiguity arises,, the presumption being that such literal meaning does not correctly voice the legislative purpose.</p> <p>5. When ambiguity or obscurity exists in a statute, the court may look to its history, to all the circumstances intended to be dealt with, to the evils to be remedied, to its reason and spirit, to every part of the enactment, and may reject words, or read words in place which seem to be there by necessary or reasonable inference, and substitute the right word for one clearly wrong, and so find the real legislative intent, though it be out of harmony with or even contradict the letter of the enactment.</p> <p>6. A thing which is within the intention of the lawmakers and by rules of construction can be read out of it, is as much within the statute as if it were there within the letter.</p> <p>7. In construing a statute the revisers’ notes may properly be referred to in determining the legislative intent.</p> <p>8. In combining secs. 24 and 29, ch. Ill, R. S. 1858, in sec. 2364, R. S. 1878, there was no intention to lessen the powers of the court in respect to property matters, or to preclude a division and distribution of estate as therein provided even when the divorce was granted for adultery of the wife.</p> <p>9. In view of the history of the statute and the .unreasonableness or absurdity of a contrary construction, it is held that the words “excepting that of adultery committed by the wife” in sec. 2364, Stats., do not reach forward and condition the clause commencing “or the court may finally divide,” and that in said clause, between the words “the court” and the words “may finally divide,” the words “in any case where alimony is not adjudged” may be read as in place by reasonable inference.</p>

W. BubNell, Circuit Judge. The appeal is from a judgment dismissing plaintiff’s complaint and dissolving a temporary injunction. The plaintiff is in the business of selling tea, coffee, and other commodities and has its principal place of business in Chicago, Illinois, and a branch office in the city of Oshkosh, Wisconsin. After several years’ employment of tbe defendant by the plaintiff tbe two made a written contract on August 2, 1915, for tbe term of one year.

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

Action to recover for injuries to person and property, claimed to bave been caused by defendant’s negligence. Tbe defendant operated an interurban railway between Manitowoc and Two Rivers, Wisconsin. Tbe track was located in tbe highway, alongside of and a few feet away from a concrete traveled track.

This is an action to recover damages for the death of plaintiff’s son caused by his coming into contact with a high tension electric wire of the defendant' company.

Tbis is an appeal from a judgment adjudging that tbe defendant’s fences encroached upon a highway and ordering” their removal with costs. On September 9, 1914, tbe town board of plaintiff served upon tbe defendant a notice'of removal of fences under sec. 1330, Stats. Tbe defendant denied encroachment.

<p> Criminal law: Receiving stolen goods: Information: Sufficiency: Variance: Verdict finding concealment only: Value. </p> <p>1. An information charging a statutory offense need not use the precise language of the statute, if its substance is charged. Thus, an information charging that defendant did “feloniously receive, have, and aid in the concealment of” goods, knowing them to have been stolen, was sufficient under sec. 4417, Stats. 1915.</p> <p>2. Sec. 4417, Stats. 1915, includes two substantive offenses, that of knowingly receiving stolen goods and that of concealing goods known, at the time of concealment, to have been stolen. Such offenses, when committed by the same person at substantially the same time and relating to one continued transaction, may be coupled in one count as constituting but one offense; and a verdict finding defendant guilty of one of such offenses is a valid verdict.</p> <p>3. It having been stipulated at the trial that the value of the goods in question exceeded $20, the proof having shown that fact, and no request to charge on the subject of value having been made by defendant’s counsel, an objection that there was no finding that the value of the goods concealed exceeded $20 has no force.</p> <p>4. Where the information charged that on December 14th defendant received and aided in the concealment of stolen goods, and the proof showed that they were received on the 14th but the concealment with knowledge that they were stolen did not take place until the last of the month, there was no fatal variance, it being sufficient that the date proved corresponds substantially with the charge.</p>

• Appeal from a judgment of the circuit court for Mari-nette county: W. B. Quinlan, Circuit Judge. Action upon a promissory note executed and delivered to the plaintiff February 6, 1909, by one II. L. Roe. The complaint charges that in consideration of the transfer by said Roe of all his property to the defendant it agreed to pay all debts of Roe and that upon learning of said agreement plaintiff accepted the same.

B. QuiNLAN, Circuit Judge. This action was brought to recover damages to person and property, caused when an automobile driven by the plaintiff collided with a train of the defendant at Lena on February 21, 1915. Judgment was entered in favor of the plaintiff for $1,180.34, and the defendant appeals. The case was submitted to a jury on a special verdict. The jury found as follows: (1) Plaintiff received injuries to his person at the time and place alleged.

<p> Appealable orders: Striking out parts of pleading: Criminal law and practice: Former jeopardy: Physicians and surgeons: Revocation of license to practice. </p> <p>1. An order of the circuit court striking out portions of an answer is not appealable.</p> <p>2. The doctrine of former jeopardy applies only as to criminal proceedings.</p> <p>3. A judgment in a criminal proceeding is neither a har to a subsequent civil proceeding involving the same state of facts, nor is it proof of anything in the later proceeding except of-the fact of conviction.</p> <p>4. Thus, the acquittal of a physician, in a criminal action, of the charge of having performed an abortion is no har to a subsequent civil proceeding under secs. 1436e, 1436/, Stats., to revoke, on the same charge, his license to practice medicine. The fact that under sec. 1435i revocation of his license would have followed a conviction in the criminal action does not change from civil to criminal the nature of the proceeding under secs. 1436e, 1436/.</p>

Gkegoey, Circuit Judge. The appeal is from two orders of the circuit court, one striking out certain portions of defendant’s answer and the other sustaining a demurrer to a part of said answer.

<p>Appeal from an order of tbe circuit court for Milwaukee county: J. C. Ludwig, Circuit Judge.</p> <p>This is an action to recover tbe balance of bank deposits from tbe defendant, wbicb it is alleged was assigned to plaintiffs by tbe execution of tbe following written instrument, executed by one Matbilde Pietscb on tbe 31st day of July, 1915:</p> <p>“Whereas, Matbilde Pietscb, of sound mind and memory, is' aged and is desirous of keeping ber property intact until Her death, and wishes to be relieved from the cares and responsibilities connected therewith, and also is desirous of making disposal thereof upon her death. Eor the purpose of carrying out her intentions, said Mathilde Pietseh hereby sells, assigns, sets over, grants and conveys to her daughter Doretia Pietseh, and to her son Ferdinand Pietseh, and to the survivor of them, all her property, real and personal, in trust, nevertheless, upon the express trusts follotving, and hereby revoking all former disposals of a testamentary chai'-acter, or otherwise; and the said Doretia Pietseh and Ferdinand Pietseh hereby accept such property upon the trusts as herein expressed:</p> <p>“1. Power and authority is hereby given to the trustees, or to the survivor of them, to gather in, collect, sue for, all rents, insurance, mortgages, interest and other property of every hind and nature, of the said Mathilde Pietseh, and convert all into money and to invest cúnd reinvest same in securities as said trustees shall deem meet and proper.</p> <p>“2. Por and during her natural life, said Mathilde Pietseh is to receive the use and income of said property, the net income of which is to be paid over to said Mathilde Pietseh upon her request, and at such times as she may desire.</p> <p>“3. On the first day of January and July of each year, trustees shall render an accounting of their stewardship to said Mathilde Pietseh.</p> <p>“4. There A also assigried to said trustees upon the trusts herein expressed, life insurance policy No. 73430, dated July 22, 1867, in the Connecticut Mutual Life Insurance Company of Hartford, Connecticut, for twenty-two hundred dollars ($2,200), subject to a nqte against it, held by said company, and -there is also assigned to said tnistees all moneys which said Mathilde Pietseh may have in banhs.</p> <p>“5. Said Mathilde Pietseh has this day also delivered in escrow, to be held by Frederick M. Wilmanns until her death, and then to be delivered to her trustees, a deed of all her real estate . . . [description of real estate omitted], subject to the lawful incumbrance thereon, and in which said deed the trustees are the grantees, and which said real estate the trustees, after the death of said Mathilde Pietseh, are to sell and dispose of at such price and upon such terms and conditions as they may deem just and proper, and distribute the proceeds according to the trust herein provided for.</p> <p>“6. Out of tbe personal property or tbe proceeds thereof coming to tbe bands of said trustees, and all other personal property which said Mathilde Pietsch may have an interest in at the time of her death, said trustees are ordered and directed to pay as soon as maybe convenient, after payment of said Mathilde Pietsch’s just debts and funeral expenses, as follows: . . . [small gifts omitted — (a) to (e).]</p> <p>“7. All the rest, residue and remainder of my estate, I order and direct my said trustees, or the survivor of them, tO' distribute same in equal shares among my six children, Do-retta Pieisch, Ferdinand Pietsch, Mathilde Mayer, nee-Pietsch, Lena Plats, née Pietsch, Albert Pietsch and Hugo. Pietsch, or their heirs. Eor the purpose of converting my property into money and to make distribution as aforesai d, I authorize and empower my trustees to take whatever steps they may deem necessary to accomplish the purpose. It being distinctly understood that no distribution is to be made until after my death. Should any question arise in the execution of the trust, power and discretion is given to my trustees, and to the survivor of them, to act as they think best, confident that my trustees will act for the best interest of all concerned.</p> <p>■ “In witness whereof, the said Mathilde Pietsch has hereunto set her hand and seal this 31st day of July, 1915, and the said Doretta Pietsch and Ferdinand Pietsch have also hereunto set their hands and seals on the same day, and accept the trusts as created and declared herein.</p> <p>“Mathilde Pietsch. (Seal.)</p> <p>[Attestation clause] “Doretta Pietsch. (Seal.)</p> <p>“FERDINAND PlETSCH. (Seal.)</p> <p>The foregoing instrument was witnessed and also acknowledged by Mathilde Pietsch, Doretta Pietsch, and Ferdinand Pieisch before a notary. An addendum to the trust instrument was executed by Mathilde Pietsch on the same day wherein she enumerated a few more small gifts. This addendum was also signed by Doretta Pietsch and Ferdinand Pieisch.</p> <p>Mathilde Pietsch died on March 1, 1916. At the time she executed the foregoing instrument she had a savings account with the defendant, and after crediting the interest up to -January 1, 1916, the account shows a balance of $2,432.53, .and on the cheeking account a balance of $16,17. The plaintiffs have repeatedly demanded payment of these sums from the defendant, but defendant has and still does refuse to pay the same to the plaintiffs. It was stipulated in open court that plaintiffs gave defendant proper notice of the as.-.signment of the bank accounts under this writing before the •commencement of this action.</p> <p>The defendant demurred to the complaint and the circuit ■court sustained such demurrer. This is an appeal from the -order sustaining the demurrer.</p>

<p>Appeal from a judgment of tbe circuit court for Milwaukee county: W. J. TurNer, Circuit Judge.</p> <p>Personal injuries. The action was brought in the civil court of Milwaukee county. The plaintiff was struck by a switch engine operated by the defendant while he was crossing its tracks at their intersection with Yliet street in the city of Milwaukee. Yliet street runs east and west, and the defendant maintains three tracks which cross the street in a northeasterly and southwesterly direction. The easterly track is a sidetrack, and box freight cars stood upon it close to tbe walk on the north side of Yliet street. The other two tracks are main tracks, the center track being nsed for northbound traffic and the westerly track for south-bound traffic. The plaintiff, an adult, approached the tracks from the east at about 1 o’clock a. m. on the north side of Vliet street. He was accompanied by two adult companions with whom he was talking. The distance from the westerly rail of the sidetrack to the westerly rail of the westerly track is about forty-four feet. Gates are maintained at this crossing, but they were not in operation on the night in question because the gateman (who regularly operated the gates by means of an air pump from a small tower) was ill, and a flagman with a lantern was sent to the crossing to warn passengers of approaching trains. The night was very dark. As the plaintiff approached the crossing the gates were up with lighted lamps hanging upon them. Plaintiff testified that as he passed the box cars he noticed that the gates were up and that the lamps were lighted; that he saw no flagman, heard no signals; that he looked north just as he passed the box cars and then looked south and saw nothing coming, and did not look again; that he heard no engine approaching, but just as they were crossing the last or westerly track one of his companions shouted and the engine approaching from the north was upon them and they all jumped, and the coal box of the tender struck the plaintiff in the back. The plaintiff’s companions testified that they noticed the gates were up, that they looked to north and south after passing the box cars and saw no train, and that they heard no warning until j.ust as the engine was upon them. One testified that he saw the flagman walking over toward a saloon, but the other testified that he saw no flagman. There was evidence on the part of the plaintiff that there were no lights on the engine and that no bell or whistle was sounded as the engine approached the crossing. On the part of the defendant there was testimony that after passing the box cars the engine could be seen about 900 feet to the north; that the engine was running backwards, and that as it approached the crossing its bell was ringing, and that it bad on the back of the tender a regular headlight with two red lights lighted; that the whistle was blown about 300 feet from the crossing. The flagman testified that he holléred to the men as they were crossing the easterly main track and again just before they were struck. The jury returned the following special verdict:</p> <p>“(1) Was the plaintiff injured by being struck by defendant’s switch engine at the time and place alleged in the complaint? A. (by the court, by consent of counsel). Yes.</p> <p>“(2) At what rate of speed was the engine going at the time it struck the plaintiff ? A. Twenty miles.</p> <p>“(3) If in answering question 2 you find the speed to have been greater than thirty miles per hour, then answer this question: Was such speed the proximate cause of plaintiff’s injury? A. -.</p> <p>“(4) Was the plaintiff guilty of gross negligence in attempting to cross said tracks under -the circumstances? A. No.</p> <p>“(5) Did the man actiiig as flagman give reasonable warning to the plaintiff of the approaching train ? A. No.</p> <p>“(6) If you answer question 5 ‘No,’ then answer this question: Was such failure to give reasonable warning the proximate cause of plaintiff’s injury ? A. Yes.</p> <p>“(7) Ought the plaintiff to have either seen or heard the engine in time to have avoided coming in contact with it? A. No.</p> <p>“(8) Was the plaintiff guilty of any want of ordinary care which proximately contributed to his injury? A. No.</p> <p>“(9) If the court should be of the opinion that plaintiff is entitled to recover, at what sum do you assess his damages? A. $1,000.”</p> <p>The civil judge changed'the answers to questions 7 and 8 from “No” to “Yes” and entered judgment for the defendant. Upon appeal the circuit court restored the verdict as returned by the jury, reversed the judgment, and entered judgment for the plaintiff upon the verdict, from which judgment this appeal is taken.</p>

<p>Bringing-in new parties: Discretion: Personal injuries: Joint wrongdoers: Execution: Issues between defendants: Contribution: Res judicata: Pleading: Evidence: Remarks of counsel: Harmless errors.</p> <p>1. The application of a defendant to have a third person, who would he liable over to the applicant, made a party defendant under sec. 2610, Stats., is addressed to the sound discretion of the court; and in this action, wherein the applicant (a corporation) was sought to he held liable for negligence of its servant, refusal to make the servant a party was not an abuse of such discretion.</p> <p>2. Where a recovery is had against two defendants for injuries found to have been caused by negligence of both, the plaintiff may satisfy his claim out of either.</p> <p>3. Where plaintiff was injured in a collision between a street car operated by^ the defendant electric company and a wagon driven by an employee of the defendant fuel company, and the jury found that the negligence of both defendants proximately caused the injury, the court properly denied the motion of the defendant fuel company to have the judgment direct the execution to be first satisfied out of the property of the defendant electric company.</p> <p>4. The question whether either of said defendants would he entitled to contribution from the other being a matter with which they only are concerned, it was not involved in this case, and the trial court properly refused to allow the fuel company to amend its answer so as to allege that the question of the negligence of its driver was res judicata, or to put in evidence the verdict and judgment in an action by its driver against tbe electric company for injuries sustained in tbe collision, wherein it was determined that tbe driver was not guilty of any want of ordinary care that contributed to bis injuries.</p> <p>•5. It was error to refuse to permit tbe driver to answer a question, asked by counsel for the fuel company, as to whether, when he approached the tracks to drive across, he saw the car and thought that he could cross in safety; but such error does not constitute ground for reversal, the testimony of the driver, taken as a whole, clearly indicating that he claimed he did see the car and thought he could pass the tracks in safety.</p> <p>6. The fact that in the taking of certain affidavits the defendant fuel company was represented by an insurance company having been called out in connection with the introduction of the affidavits by the fuel company, the error in permitting counsel for the defendant electric company to comment upon the fact that an insurance company was interested in the defense was not a material one, prejudicial to the fuel company, where the trial court admonished and instructed the jury so that they clearly understood that such remarks of counsel were to be disregarded.</p>

<p> Limitation of actions: Pleading: Appeal: Review: Questions considered: Wills: Legacies, when payable: Interest: Delay in probating toiTl. </p> <p>1. In order that advantage may he taken of the har of the statute of limitations it must he specially pleaded.</p> <p>2. Questions not raised in the trial court will not ordinarily be considered on appeal to the supreme court/</p> <p>3. Where, in place of a provision in a will giving testator’s married daughter an equal share with his other daughters in the homestead, a codicil substituted a legacy of $200, to be paid to her by the other heirs “after my death,” such legacy was intended to become due and payable one year after testator’s death, that being the time generally limited for the payment of debts and legacies.</p> <p>4. .Where, in such case, the other daughters had come into the use and possession of the homestead immediately after testator-’s death, the married daughter was entitled to interest on her legacy from the time it became due, although by agreement among the heirs the will was not probated until many years after.</p> <p>5. A will may be admitted to probate at any time after the death of the testator.</p>

C. Higbee, Circuit Judge. Action in equity to restrain tbe defendant, as sheriff, from selling a balf acre of land (of wbicb tbe plaintiff bas tbe record title) upon an execution against one Erank Delle, plaintiff’s deceased husband, based upon a judgment against said Erank rendered and docketed December 27, 1904. Plaintiff acquired title October 5, 1911, by deed from one Erank Alvin Delle, to whom tbe plaintiff and her husband bad conveyed in January, 1909.

C. Higbee, Circuit Judge. This is an action in ejectment brought by the plaintiff to oust the defendant from possession of certain farm lands. The plaintiff owns a farm in' Vernon county. On January 5, 1915, he entered into a partnership agreement in writing with the defendant by the terms of which the defendant was to occupy the farm and operate it to conduct the partnership business pursuant to this agreement.

C. Higbee, Circuit Judge. This action was brought to recover wages claimed to be due plaintiff upon a six-months term of employment. Before the expiration of the six months plaintiff was discharged and she’ claims that such discharge was wrongful and that she is entitled to recover $398, balance due for said term, less the amount which she was able to earn.

<p> Highways and bridges: Maintenance: Division of town-line highway: Replacement of destroyed bridge. </p> <p>In an order made under see. 1273, Stats., by the supervisors of adjoining towns, dividing a town-line highway and assigning certain parts thereof to he maintained by each town, no mention having been made of a small bridge in one of the parts so assigned and no provision made for its joint maintenance, the town to which said part was assigned and which had maintained the bridge for sixteen years at its own expense was bound to replace the bridge after an unusual flood had destroyed it and widened the bed of the stream which it spanned.</p>

Paee, Oircuit Judge. Tbe appeal is from a judgment in favor of tbe plaintiff and .against tbe garnisbee defendant.

Pare, Circuit Judge. Action for damages for breach of a written contract to supply the plaintiff with proprietary- remedies, toilet preparations, etc., known as the “Bexall” products.

Paes, Circuit Judge. This action is brought to set aside, as null and void, certain conveyances of lands in Wisconsin, made to tbe defendants Allyne V. Scheerer and Hugo Scheerer, as fraudulent, and to require tbe defendant Willard E. Carpenter to convey said lands to tbe plaintiff in conformity to tbe directions contained in a certain judgment of a divorce action tried in tbe superior court of Cook county, Illinois.

Action to compel tbe conveyance of certain real estate to plaintiff. Tbe complaint alleges in substance that plaintiff is tbe daughter of H. C. Blanchard, deceased; that E. B. Blanchard, her brother, is tbe executor of tbe last will of tbe deceased, and that they constitute tbe sole heirs at law of H. 0. Blanchard. Elizabeth Blanchard is tbe wife of E. B. Blanchard.

Croix county: Geoege ThompsoN, Circuit Judge. Plaintiff is a professional boxer and sues tbe defendant to recover twenty-two and one-balf per cent, of tbe gross receipts of a boxing contest beld under tbe management of tbe club December 4, 1914, at Hudson, Wisconsin.

Equitable action to recover tbe value of property, which, plaintiff claims sbe became entitled to, under a contract whereby she was placed by her father with John Gilbert and his wife to be dealt with as their child.

Croix •county: George Thompson, Circuit Judge. Tbis is an action to recover $500 with interest at seven per cent, on a promissory note given by the defendant'and made payable to tbe People’s State Bank, dated February 16, 1906. On October 4, 1908, after tbe note was due, tbe bank transferred it to tbe plaintiff.

Croix county: James Wickham, Judge. Tbis is an appeal from a judgment in favor of the defendants dismissing the action. A writ of certiorari was issued out of tbe circuit court on the relation of the appellants, residents and taxpayers of several of the assessment districts of St. Croix county, against the tax commission of the state of Wisconsin and the county clerk of St. Croix county.

Croix county: G-eoeg-e ThompsoN, Circuit Judge. Tbis is an action for tbe abatement of a dam owned and operated by tbe defendant company and to recover tbe damages to plaintiff’s premises and to bis crops tbereon caused by tbe overflow from sucb dam. Tbe defendant has been and now is a corporation existing under tbe laws of the state of Wisconsin.

Plaintiff brought this action to remove a cloud upon his title. The facts are these: On December 15, 1887, plaintiff was the owner of forty acres of land in Sauk county, and on that date he gave a mortgage upon said land to secure the payment of $250. The mortgage was thereafter assigned to the defendant Collins, who foreclosed the mortgage, and judgment of foreclosure was rendered on September 15, 1890.

<p>Appeal from an order of the circuit court for Dane county: E. Eat SteveNS, Circuit Judge.</p> <p>This is an appeal from an order of the circuit court reversing an order of a court commissioner requiring the respondent, as administrator of tbe estate of James P. Corry, to pay to the appellant, James L. Clarice, out of funds of the estate in his hands the amount of a deficiency judgment in a foreclosure action. The facts appearing in the record are briefly as follows: One Soelch held a mortgage of $2,500 given by Bascom B. Clarke covering certain real estate in Madison. Clarke made a valid written agreement with one James P. Corry to exchange said land for certain other lands owned by Corry, each party to assume a mortgage covering the land transferred to him. Deeds were prepared to carry out this agreement, but before their delivery Corry died and a special administrator was appointed who was authorized by the county court to carry out the contract with Clarke, and in pursuance of that authority the deeds were exchanged. Later the defendant Johnson was appointed general administrator of Oorry’s estate and received the assets thereof from the special administrator. Afterwards this action was brought by Soelch to foreclose said mortgage, the defendants being Bascom B. Clarke and wife, the widow and heir at law of Corry, and the respondent Johnson in his capacity as administrator. Bascom B. Clarke and wife answered, and by way ■of cross-complaint set up the facts as to the exchange of lands .and claimed that as between themselves and the Corry estate the estate is primarily liable for the indebtedness secured by the mortgage. The allegations of the cross-complaint were not denied and judgment of foreclosure and sale was entered August 4, 1914. In this judgment it was found among other things that on January 3, 1913, the administrator of Corry’s estate, under the authority of the county court, received a warranty deed from Clarke of the mortgaged lands wherein and whereby the administrator, “on behalf of said estate,” assumed and agreed to pay said mortgage and interest, and that thereby said estate, through the defendant Johnson, administrator thereof, “became personally liable” for the mortgage debt, and that there is a contingent liability against said estate to pay the deficiency that may arise on the sale thereof. In this judgment it was, among other things, adjudged that “the defendant Bascom B. Clarke, and Thomas B. Johnson in his capacity as administrator of the estate of James P. Corry, deceased, or his successor in office, are liable to the plaintiff” for the payment of the mortgage debt; also, that if the proceeds of the sale of the premises are not sufficient to pay the mortgage debt judgment for such deficiency “be separately rendered against Bascom B. Clarke and Thomas B. Johnson, administrator of the estate of James P. Corry, deceased, or his successor in office, who are personally liable therefor,” . . . “to be docketed and enforced as in other cases;” also that “as between the defendants Bascom B. Clarke and Thomas B. Johnson, in his capacity as administrator of the estate of James P. Corry, deceased, or his successor in office, the administrator is primarily liable to said Clarke for such deficiency, and that the same be certified to the county court of Dane county, Wisconsin, for enforcement.”</p> <p>The premises were sold at foreclosure sale October 23, 1915, to Bascom B. Clarke for $2,350, leaving a deficiency of $'743.78, and a deficiency judgment rendered November 6, 1915, by which it was adjudged that Soelch “recover of the defendants Bascom B. Clarke and Thomas B. Johnson in his capacity as administrator of the estate of James P. Corry, deceased, the sum of $743.78, with interest thereon from October 23, 1915,” being the deficiency aforesaid. On the same day Soelch assigned the deficiency judgment to "James L. Olarke, trustee,” and his executors, administrators, and assigns, and execution Avas issued thereon in the usual form, with an indorsement by the attorney of James L. Clarice directing the sheriff to levy on the property of Thomas B. Johnson in his capacity as administrator of the estate of Corry. The execution was returned unsatisfied, whereupon supplementary proceedings were commenced and the administrator on his examination before the commissioner disclosed the fact that he had in his possession as administrator real and personal property aggregating nearly $15,000 (of which over $1,700 was cash in banks), and that the claims allowed against the estate amounted to $43,102.90, beside about $45,000 of claims still pending or contingent. On this showing the commissioner ordered the administrator to pay over to the attorney for James L. Glarhe, assignee, the deficiency judgment with the costs of the supplementary proceedings. This order was reversed by the circuit court, and from the order of reversal this appeal is taken.</p>

Adolph Lambrecht bought a horse of defendant, paying therefor $97.50. Thereafter he, so far as competent to dcso, rescinded the transaction upon the ground of fraud and of his being a minor. He then, by his next friend, commenced this action in justice’s court to recover the money he paid. At the trial, he renewed his offer to return the horse, but defendant would not receive it. He recovered judgment and the case was appealed to the circuit court.

CeRtioeaki to the commissioners of the public lands. On the 19th day of January, 1916, the state superintendent of public instruction made an order transferring 120 acres of land owned by the relator, James E. Conway, from school district No. 1 of the town of Fountain Prairie and the village of Fall River, and attaching the same to district No. 3 of the town of Calamus, Dodge county,- and of the town of Eountain Prairie, Columbia county.

Eowler, Circuit Judge. Tbe action is one to foreclose a trust mortgage, executed by tbe defendant Kaukauna Gas, Electric Light & Power Company (hereinafter designated tbe Kaukauna Company) and tbe defendant Citizens Savings & Trust Company (hereinafter called tbe Trust Company). Tbe facts in this case are practically undisputed, and are briefly and succinctly stated in tbe findings of tbe circuit court as follows: “1.

0. Eschweilee, Circuit Judge. The action was to enforce a mechanic’s lien on property in the city of Milwaukee, Wisconsin. . Plaintiff and defendants Hopp and Green were contractors and materialmen. The proprietor was defendant Goulden. Defendant Samuel Borun had a $25,000 mortgage on the property claimed to represent purchase money.

<p>Appeal from a judgment, of the circuit court for Milwaukee county: Laweehoe W. Halsey, Circuit Judge.</p> <p>Plaintiff secured a verdict of $308 in tbe civil court, which was trebled under sec. 3367, Stats., and the amount of defendant’s counterclaim, $75 for rent, deducted therefrom and judgment entered for the balance and costs. On appeal the circuit court disallowed treble damages and entered judgment for $286.69.</p> <p>The plaintiff moved in the circuit court to have the appeal dismissed for the reason that it was not properly taken. The motion was denied, and plaintiff on proper proceedings under the statute, sec. 3049a, asks this court to review that ruling.</p>

<p> Master and servant: Injury: Negligence of fellow-servants: Evidence: Weight and sufficiency. </p> <p>1. In an action for personal injuries alleged to have been caused by negligence of fellow-servants in throwing or dropping one end of a heavy timber which plaintiff and three others were moving across a railroad track, it is held that no negligence was shown, all the evidence being consistent with the theory that the timber fell by accident.</p> <p>2. Plaintiff’s testimony in such case that the timber was thrown is not entitled to weight, he having admitted that he did not see it thrown, and that he was not looking, so that all he knew was that it dropped or fell from the hands of the men at the opposite end.</p>

B. QuiNLAN, Judge. Action to recover for tbe death of plaintiff’s son, claimed to bave been caused by negligence of defendant.

Halsey, Circuit Judge. Tbis action is brought by the plaintiff to recover damages for personal injuries sustained by him because of a collision with defendant’s automobile. The Sixth-street viaduct in the city of Milwaukee runs north and south over the Menomonee river. The draw over the river consists of a north and south lift. Two sets of street-car tracks, used by the Chicago & Milwaukee Electric Railroad, run across this viaduct.

C. Eschweilee, Circuit Judge. Action to recover damages for tbe death of Louis R, Schultz, aged twenty-four, who was killed August 8, 1910, in a collision between defendant’s patrol wagon and the motorcycle of the deceased on Eleventh street in the city of Milwaukee.

<p>Appeal from a judgment of tbe circuit court for Milwaukee county: W. J. TuRNEE, Circuit Judge.</p> <p>Tbe action is for damages on account of tbe death of tbe plaintiff’s daughter and intestate aged about two years and three months, resulting, as alleged, from the negligence of the defendant. The facts were that in 1912 the plaintiff with his family occupied the second floor of a double house in Milwaukee, and one Jahnke with his family the first floor. The upper floor had no front entrance, and the rear entrance, which opened into a small hall on the first floor, was used hy both families. There was a small platform about three feet square in the hall. The defendant dealt in coffee, groceries, and other merchandise in Milwaukee and Mrs. Jahnke had been its customer. On the afternoon of the 24th day of July, 1912, the defendant delivered and left in said rear hall some merchandise consisting of coffee, soap, and matches, each article done up in a separate package, on said platform for Mrs. Jahnke, she not being at home. The defendant claims the goods were ordered by Mrs. Jahnke, but she denies the fact. The plaintiff claims that the goods were so left in the presence of his two children (the deceased and another girl about four years of age), who were playing in the hall. The defendánt, however, claims that no one was in the hall or about the premises. "While the packages were in the hall the children got hold of them and the intestate opened the package containing matches and ate off the yellow phosphorus heads of nine or ten matches, from the effects of which she died about a week later. There were six boxes of matches in the package and there was no poison label on the package or on the boxes themselves. The plaintiff claimed a common-law liability on the ground of negligence, as well as a statutory liability because of the failure to comply with the requirements of sec. 1419, Stats. 1913, regulating the sale of poisonous drugs and chemicals and requiring that the package containing them be labeled “poison.”</p> <p>The jury found by special verdict (1) that the defendant in the exercise of ordinary care ought not to have anticipated injury to another by reason of the delivery of the matches in the manner in which they were delivered; (2) that such delivery was made in the manner customary in Milwaukee under similar circumstances; (3) that the defendant did not exercise ordinary care in making the delivery as it did; (4) that such failure to exercise ordinary care was the proximate cause of the death of the intestate; (5) that the merchandise was not delivered pursuant to an order by Mrs. Jahnke; (6) that no failure to exercise ordinary care on the part of the mother of the deceased proximately contributed to the death of the intestate; (7) that the damages for loss, of services amounted to $850, and (8) for the pain and suffering of the deceased amounted to $650. The court on motion changed the answer of the third question of the verdict so that it became a finding that the defendant exercised ordinary care in making the delivery, struck out the answer to the fourth question, and entered judgment for the defendant as so amended. From this judgment the plaintiff appeals.</p>

J. Tubnee, Circuit Judge. Action for personal injury. Held: set aside the verdict and granted a new trial upon the ground, as we understand, that he was not satisfied that justice had been done.

Mandamus brought by the relator in this court upon leave granted, the attorney general having declined to prosecute the action in his own name. It appears from the petition that ch. 414, Laws 1909, provided for an additional judge for the Second circuit (Milwaukee county), his term to begin May 1, 1910, and to expire on the day preceding the first Monday in January, 1917, and an incumbent was elected in April, 1910.

Rat Stevews, Circuit Judge. The appeal is from a judgment in favor of defendants dismissing plaintiff’s complaint. The plaintiff is a dealer in cheese in Richland Center, and on September 1, 1913, paid the defendants A. L. Kepler, A. H. Ray, G. H. Babb, L. Q. Brown, James Draper, Fred McMillan, F. F. Kepler, 8. Roudebush, William Wanless, and J. F. Davis $690.27 for eighty-three boxes of cheese at the then market price.

Eowlee, Circuit Judge. Tbe attorney general petitioned tbe circuit court for Columbia county to issue a writ of mandamus to command tbe county clerk and tbe members of tbe county board of Columbia county to call a special meeting of sucb board pursuant to law to proceed to appropriate tbe amount of $12,000 in part payment of a bridge to be constructed across tbe Wisconsin river, to be raised by appropriation, by tax, or by bond as provided by statute.

Eat SteveNS, Circuit Judge. Action to enjoin tbe defendant from taking control of tbe plaintiff association pursuant to tbe authority granted by sec. 2014 — 14, Stats. 1915, providing that “Should the commissioner of banking find any such association conducting its business contrary to law he shall notify its board of directors in writing of the fact, and if, after thirty days, such illegal practice continues he may take possession of said association and liquidate the same…

<p>Appeal from a judgment of the circuit court for Dane county: James Wioeham, Judge.</p> <p>The action is brought to recover upon two bonds given pursuant to sec. 3327a, Stats., to the board of regents of the University of Wisconsin by the firm of W. H. Grady & Company as principals and tbe National Surety Company as surety to insure tbe carrying out of two contracts by said firm to erect two buildings for tbe University. Tbe bonds were each conditioned for tbe payment by tbe contractor of “all of tbe claims for work or labor performed and materials furnished in and about tbe erection or construction of sucb building to eacb and every person entitled thereto.” Tbe firm of Grady & Company defaulted on their contract and went into bankruptcy and tbe regents took possession of tbe material and machinery on tbe ground and completed tbe building. Grady & Company were largely indebted to subcontractors and materialmen, and the Wisconsin Brick Company brought this action on tbe bond against tbe surety company alone to recover for brick furnished to Grady and Company for tbe buildings. Upon petition, all laborers and materialmen having unpaid claims against Grady & Company for work or material on tbe two buildings were joined as parties defendant and directed to file their claims. Trial by jury was waived and tbe issues arising on tbe various claims were tried by tbe court. Tbe appellant, Chicago, Milwaulcee & St. Paul Railway Company, filed its claim by way of cross-complaint against tbe surety company to recover tbe sum of $838.35 for freight charges on materials transported by it over its railroad, which materials were admittedly used in tbe construction of the buildings. Tbe materials aforesaid consisted principally of sand and gravel and were delivered to Grady & Company upon the premises at the immediate point where they were required for use, upon a temporary sidetrack which the railway company had constructed for tbe purpose. Tbe facts were undisputed, but the trial court concluded that no part of the claim was “for work or labor performed or materials furnished in or about the erection or construction” of either of the buildings, and dismissed tbe claim. From this judgment the railway company appeals.</p>

Appeai, from a judgment of tbe circuit court for Dane county: E. Rat SteveNS, Circuit Judge. Tbe appeal is from a judgment in favor of Ed. Simonson as claimant against tbe estate of said deceased. In 1903 tbe deceased, Martha Simonson, then tbe widow of Peter Olson, wbo died intestate, with ber children occupied a farm of about 200 acres in Columbia county theretofore owned by said Olson. About forty acres were under cultivation and twenty-five acres in bay and pasture.

Ray Stevens, Circuit Judge. The appeal is from a judgment decreeing the reformation of a certain contract between the parties and that the plaintiff Ficks recover of the defendant the sum of $1,000.

Action to enforce a lien on real estate. Tbe issues were decided as tbe following abridgment of tbe findings indicates : (1) April 19, 1897, G-ottfried Scbiefelbein owned tbe southeast quarter of the southeast quarter of section!, town 12, range 3 east, in Sauk county, Wisconsin.

Webster, Circuit Judge. This action is brought by the plaintiff to enjoin the defendant from continuing his practice of veterinary medicine and surgery in the city of Appleton and vicinity and for the recovery of $1,000 as damages. Both plaintiff and defendant are licensed practitioners of veterinary medicine and surgery.

SpeNCER, Judge. Action to recover on two fire insurance policies. Tbe defendant denied liability. After tbe evidence was all in tbe defendant moved for a directed verdict. Tbe following verdict was returned: “(1) Were tbe policies in suit issued to tbe plaintiff by the defendant company and tbe premiums paid thereon? A. (by the court). Yes. “(2) Was tbe plaintiff Jacob J. StocJcer tbe owner of the property described in tbe policies of insurance at tbe time of the fire?

<p>Appeal from a judgment of the municipal court of Outagamie county: Albert M. Spencer, Judge.</p>

WeeNee, Circuit Judge. Action upon a joint and several promissory note executed by the defendant and one J. J. Rettler. The defense pleaded was a dismissal as to defendant of an action upon tbe same note previously brought in the municipal court.

W. Hogan, Judge. Action to quiet title. Validity of tax deed.

Spewcee, Judge. Action to recover damages for personal injuries resulting from the collision of two automobiles on the highway June 11,1915. The facts were that at about 10:30 o’clock p. m. of that day the plaintiff at Appleton, with two male companions, hired from one Steidel a taxicab and driver to take them to llenasha, a few miles away, where a street carnival was then in progress. The highway between 'the two cities is much used.

Weewbe, Circuit Judge. , Action to test defendant’s title to tbe office of town treasurer-of tbe town of Freedom in Outagamie county.

N. Risjorb, Judge. Action to establish boundaries and to quiet title to certain lands abutting on the St. Louis river and that part thereof commonly known as the Bay of Superior. The facts material on this appeal are as follows: On June 13, 1882, Hiram Robbins owned certain lands in the northeast quarter of the southeast quarter of section 14, and Vincent Roy and Lisette Roy owned certain lands in lot 2 of section 13, all in township 49 north, of range 14 west.