fice is broader than one to account for all moneys that may come into his hands by virtue of his office, not determined.]

Ibid. 4. Where a county judge who, under sec. 2454, Stats. (Supp. 1906: Laws of 1903, ch. 45), was authorized to present bills and receive pay from the county for certain extra services, presented illegal bills for services for which he was not entitled to compensation, and received money thereon from the county, such moneys were received by virtue of his office; and there was a breach of his official duty and of his bond. Ibid.

5. An action upon the official bond of a county judge is properly brought, under sec. 984, Stats. (1898), in the name of the county. The provision in that section making it a duty of the chairman of the county board to see that the action is prosecuted, does not mean that it must be done in his name, since the statute specifically provides otherwise. Ibid.

Amotion. See CORPORATIONS, 3, 4.

OPINION EVIDENCE. See EVIDENCE, 4-7. MUNICIPAL CORPORATIONS, 17. OPTIONS. See CONTRACTS, 1, 3-5.

ORAL CONTRACTS. See EXECUTORS AND ADMINISTRATORS, 1-4, 9. FRAUDS, STATUTE OF. MORTGAGES, 1, 2. PARTNERSHIP, 1.

ORDINANCES. See MUNICIPAL CORPORATIONS, 1-3, 10-13, 28. TELEGRAPHS AND TELEPHONES, 5-7.

PARENT AND CHILD.

See ABATEMENT AND REVIVAL, 5.

1. Evidence that a son who, after attaining majority, had worked for his father on the latter's farm at intervals for about fifteen years, said to his father that he had remained at home more than the other members of the family; that thereupon the father said he would give him $1,000 for the work he had done and $20 per month for future work; and that the son said "all right," and continued to work for the father until the death of the latter, is held to sustain a verdict to the effect that the agreement was that the son should remain and work for the father in consideration of the latter's promise to pay him for both past and future services. Olson v. Olson, 248

2. Such being the agreement, and the son having fully performed on his part, the entire contract as to payment for past services as well as for those to be rendered thereafter was based upon a valid consideration. Ibid.

PAROL EVIDENCE. See EVIDENCE, 3.

PARTIES. See PATENTS, 1.

PARTNERSHIP.

The relation: Executed oral agreement for dealings in lands. 1. Although an oral agreement to conduct partnership dealings in lands is void under the statute of frauds, yet where such contract has been fully executed by the parties, or fully executed as to certain separable and independent transactions, so that nothing remains to be done but to ascertain the money balance

due from one partner to the other, it is, as to such completed transactions, not within the statute, and equity will entertain an action between the partners for an accounting. Huntington v. Burdeau,

263

2. In such an action the court cannot appoint a receiver in respect to alleged assets of the partnership remaining unconverted, since to do so would be to execute a void contract. Ibid.

Notice to partners of firm transactions.

3. Notice to one partner concerning partnership transactions is notice to the copartners. Loosen v. Schissler,

449 4. Thus, where a firm of loan brokers lent money for a client, tak ing a mortgage to him as security, each partner had at least constructive notice of such mortgage, and it is prior as a lien to a mortgage afterwards taken by one of the partners in his own name on the same land and recorded before the mortgage to the client. Ibid. 5. The fact that the client's mortgage was prior to that of the partner did not make such partner in any way a debtor of the client so that the client's mortgage would be transferred or in any way affected by an instrument of settlement by the terms of which the client sold and transferred to such partner and another member of the firm all debis due or to become due to him from the firm or either of said partners, together with all accounts, notes, actions, claims, demands, etc., whatsoever against said partners or either of them. Ibid. PASSENGERS. See STREET RAILWAYS.

PATENTS.

Exclusive right to make patented article: Contracts: Improvements: Trade-names: Unfair competition: Injunction.

1. In an action to establish an exclusive right to manufacture and sell certain saw swages patented by defendant, and to enjoin him from manufacturing and selling similar machines in violation of his contract under which plaintiff claims, the defendant's wife, who is the record owner of the patent, is a proper, if not a necessary, party. Phoenix Mfg. Co. v. White, 287 2. The inventor of a saw swage gave to a corporation, by contract, an exclusive right to manufacture and sell such swage, together with the inventions and improvements on the same which had been or might be invented. Afterwards the patent on the swage was formally transferred to the inventor's wife, but without consideration and without intention to make any practical difference in the ownership and control thereof by the husband. A new contract, signed by the wife and differing in some respects from the former one, was then made with the corporation, which in terms declared that it should supersede all other and former contracts respecting such swage. Thereafter the manufacture and sale went on as before, royalties being paid to the wife, with the husband's knowledge, and deposited to the credit of a bank account in her name, upon which, however, checks were drawn by husband and wife indiscriminately. Held, that the second contract was to all intents and purposes the contract of the inventor, so far as the corporation was concerned, and that it superseded the earlier contract. Ibid.

3. A new saw swage invented and patented by the same inventor, but designated in the specification of the patent as an improvement on the former machine and so treated by the parties for a number of years, was an "improvement" covered by the contracts giving the corporation exclusive rights of manufacture and sale. Ibid.

4. The inventor having invented a third saw swage of similar character but with some changes, and the corporation having, after some discussion and negotiation, agreed that he might manufacture and sell such new swage himself, and having allowed him thereafter to proceed to make patterns and models in its shop at a considerable cash outlay, paid to it by him, with full knowledge of his intention to use such patterns and models in a shop of his own in manufacturing the new swage, the corporation was estopped from claiming any right, by virtue of its contract, to manufacture and sell such third swage. Ibid.

name.

5. A man's name is his own property and he has the right to every honest and fair use of it in his business, but he cannot resort to artifice or use it in such manner as to mislead the public in respect to the identity of another business firm or establishment or the article produced by it, and thus cause injury to such other beyond that which results from the mere similarity of Ibid. 6. Thus, where a man named White invented a saw swage and granted to plaintiff the exclusive right to manufacture and sell the same and any improvements thereon, and plaintiff had, with his knowledge and consent, put such invention and an improved form thereof upon the market under the names of the "White Swage," "New White Swage," and "Improved White Swage," and had at great expense and by efforts extending over a number of years established a reputation and demand for the article, such inventor was properly enjoined, at the instance of the plaintiff and upon proof of actual injury to its trade by deception of customers, from advertising and selling another swage of his own later invention under such names or any combination thereof, including the name "New Improved White Swage." Fish Bros. W. Co. v. La Belle W. Works, 82 Wis. 546, explained and distinguished. Ibid.

PAYMENT.

Application of payments. See PLEDGES, 5, 6.

The rule governing the presumption of application of payments will not be applied to work injustice. Curry v. Wis. Nat. Bank, 413 PERSONAL INJURIES. See ABATEMENT AND REVIVAL. ACTION, 2. APPEAL, 29. AUTOMOBILES. BRIDGES. COMPROMISE AND SETTLEMENT, 2. DAMAGES, 2, 5, 7. EVIDENCE, 1, 2. HIGHWAYS. INSTRUCTIONS TO JURY, 3, 4, 9-11. MASTER AND SERVANT. MUNICI PAL CORPORATIONS, 23-29. NEGLIGENCE. RAILROADS. RELEASE. STATUTES, 2. STREET RAILWAYS, 1, 3. TRIAL, 1-3, 12-16. WIT

NESSES.

PHYSICIANS AND SURGEONS. See INSURANCE, 14. PRINCIPAL AND AGENT. WITNESSES.

VOL. 149-46

PLEADING.

General rules. See STATUTES, 1, 4, 7.

Complaint. See ABATEMENT and RevivaL, 2. APPEAL, 3, 4. BRIDGES. HUSBAND AND WIFE. MASTER AND SERVANT, 3.

Answer. See APPEAL, 3. EXECUTORS AND ADMINISTRATORS, 5. PLEADING, 2.

Counterclaim. See TAXATION, 12.

[1. Whether a defendant can plead a counterclaim, pay no further attention to it and ask no relief thereon from the court below, and then have relief on an appeal from the judgment because the court disregarded the counterclaim or refused relief upon it, not determined.] Radford v. Smith, 163

2. In an action to foreclose a mortgage, an answer alleging that plaintiff had agreed that he would not bring such an action without giving notice of his intention so to do, and "that the defendants' damages by reason of the failure to give them reasonable notice of intention to bring this action as plaintiff agreed to do is $200, and the same is pleaded as a counterclaim against the plaintiff's demand upon the note and mortgage in suit," does not properly plead a counterclaim. Ibid.

Demurrer. See APPEAL, 3, 4, 33. BRIDGES.

Amendment.

3. An amendment which does not state facts showing an actionable tort does not change a complaint from one on contract to one in tort. Francois v. Cady Land Co.

PLEDGES.

115

1. In an action by the true owner to recover negotiable bonds pledged to a bank by one whose title was defective, the burden of proof is upon the defendant to show that it acquired the title in due course, which includes proof that it paid out the money agreed to be paid therefor or parted irrevocably with a valuable consideration. Curry v. Wisconsin Nat. Bank, 413 2. As between the true owner of the negotiable paper in such a case and the pledgee, the right of the latter to enforce the security is governed by the same rules of law as the right of a purchaser or indorsee of like paper; but the titles acquired are different, since where the innocent purchaser obtains an absolute title the innocent pledgee, up to the time of sale of the pledge, acquires only a lien. Ibid. 3. A reserve bank which credited its correspondent bank with the proceeds of a personal note given by an officer of the latter and secured by bonds of a customer which he had wrongfully taken, had in addition to the security of such bonds a bankers' lien enforceable by setoff against the credit balance of said correspondent bank for the sum so wrongfully credited. Ibid.

4. The pledgee bank did not in such case become a holder of the bonds in due course by the mere crediting of the proceeds of the note, nor by subsequent payment of drafts of the correspondent bank to an aggregate amount exceeding the entire credit balance at the time of the pledge, where such balance was

augmented from time to time by additional deposits so that it never fell below the amount of such wrongful or mistaken credit. Ibid.

5. The subsequent sending to and acceptance by the correspondent bank of a "reconcilement sheet" showing the debit and credit items appearing upon the books of the reserve bank, including the erroneous credit and the then existing credit balance, did not change the situation nor amount to an irrevocable application of the debit items to the payment of the credits thereon appearing. Ibid. 6. Where, in the case stated, the pledgee bank, when it received notice of the defect in the pledgor's title to the bonds, had and at all times had had in its possession a credit balance due the correspondent bank in excess of the credit given on account of the wrongful pledge, it had the right, and it was a duty which it owed the true owner of the bonds, to revoke such credit and enforce its right of offset by cross-entry or otherwise. Ibid. POLICE POWER. See MUNICIPAL CORPORATIONS, 10-12. TELEGRAPHS

AND TELEPHONES, 7.

POURPRESTURES. See WATERS AND WATERCOURSES, 1-4.

POWER OF SALE. See MORTGAGES, 6, 7.

PREJUDICE OF JUDGE. See CRIMINAL LAW, 8.

PRELIMINARY INJUNCTION. See INJUNCTION.

PRESUMPTIONS. See APPEAL, 15-17, 35. BILLS AND NOTES. MASTER AND SERVANT, 11. PAYMENT. TRIAL, 17.

PRINCIPAL AND AGENT.

WILLS, 1.

See ARSON, 3. BROKERS. CONTRACTS, 1, 3-5.

A minor son has no implied authority to employ physicians, at the expense of his father, to attend a person run over and injured by the son while using the father's automobile for his own pleasure or convenience, especially where the injury was purely accidental and without fault on the part of the son. Habhegger v. King,

PRINCIPAL AND SURETY. See OFFICERS.

PRIVATE STATUTE. See JUDGES, 5.

PROMISSORY NOTES.

PROSTITUTION. See

PROXIMATE CAUSE.

See BILLS AND NOTES. BROKERS, 1.

MUNICIPAL CORPORATIONS, 1.

1

See AUTOMOBILES, 3. RAILROADS, 4, 6. TRIAL, 16.
See MUNICIPAL CORPORATIONS, 4-17.

PUBLIC IMPROVEMENTS.

PUBLIC UTILITIES.

See TELEGRAPHS AND TELEPHONES, 6, 7.

Discriminatory contracts: Validity.

1. In an action by a village to recover sums agreed to be paid by a power company under a contract, stated in the opinion, the evidence is held to sustain a finding by the trial court that the contract was in fact one for the furnishing of free power to the village, the provisions by which the village agreed to pay for the power and the company agreed to pay certain sums to the