Same: Hazards peculiar to the operation of railroads. 15. The phrase added to sec. 1816, Stats. 1898, by ch. 448, Laws of 1903, "provided that such injury shall arise from a risk or hazard peculiar to the operation of railroads," is hardly accurate, since injuries do not arise from hazards or risks, but from acts or events. Hardt v. Chicago, M. & St. P. R. Co. 512 16. The idea intended would seem to be more clearly expressed by describing the injury or the event causing it as within such peculiar risk or hazard. Ibid. 17. The transportation of men and materials over its tracks is part of the "operation of railroads," and none the less so because the vehicle is a handcar. Ibid. 18. Plaintiff, while engaged with another sectionman and the section foreman in removing a handcar from the track, received an injury caused by the section foreman raising the rear end of the car, thereby causing it to be precipitated upon and over the plaintiff down a steep embankment. Held that, while the ultimate purpose of plaintiff and his fellows was to repair the roadbed, they were, at the moment of the injury, engaged in the transportation of themselves, their handcar, tools, and materials from a station on the railway to the place of their proposed labor, and the fact that they had reached the end of their trip and were engaged in the act of alighting did not preclude the view that they were still in the course of such transportation, which could not be considered terminated until their destination was completely reached. Ibid. 19. In such case the risk of injury attending the hurried removal of the handcar at an inconvenient and dangerous place is held to be peculiar to railroad business. Ibid. 20. In such case the trial court was right in refusing to rule that plaintiff was outside the protection afforded employees of railroads by sec. 1816, Stats. 1898, as amended by ch. 448, Laws of 1903. Ibid. RATIFICATION. See CORPORATIONS, 9. INSURANCE, 4, 5. HUSBAND AND WIFE, 3, 5. BOUNDARIES. EJECTMENT. RE-ASSESSMENT. See MUNICIPAL CORPORATIONS, 2-7. RECITALS. See APPEAL, 5. EVIDENCE, 6, 7.. VENDOR AND PURCHASER, 2. WILLS, 3. RECORDS. See PLEADING, 2. RE-ENTRY. See EQUITY, 4. REFERENCE. See APPEAL, 1. REFORMATION OF INSTRUMENTS. 1. In an action to reform a deed the evidence, stated in the opinion, is held to justify a finding that a mutual mistake was made as to the identity of the tract of land described in the deed, and that the deed should be reformed so as to include that pointed out and supposed to be conveyed. Scheuer v. Chloupek, 72 2. In an action to reform a deed the fact that the land was a homestead occupied by the grantor and his wife was not pleaded. On the trial testimony tending to show such fact was received subject to objection as to its competency, relevancy, and admissibility under the pleadings. No application to amend the answer was made until after the evidence had been closed and the facts argued, and was first requested nearly three months thereafter in defendant's brief. Held, under the circumstances shown in the record, that there was no abuse of discretion in refusing leave to amend. Ibid. 3. In an action against the grantor and his wife to reform a deed the grantor died pending an appeal. After judgment and prior to his death the grantor conveyed all his title and interest in the land affected to his wife. It was contended, on appeal, that the wife had only signed the deed in that capacity, that she had received no consideration therefor, and that the law would not reform the deed so as to bar her dower in land which she had never conveyed nor agreed to convey, and for which she had received no part of the consideration. Held insufficient, since the record showed (1) there was neither pleading nor proof that the wife had received no part of the consideration; (2) that by accepting the deed of the fee the wife's inchoate estate in dower was merged in the fee. Ibid. RELIGIOUS SOCIETIES. 1. Neither seceding members, though a majority, nor any majority of a religious society, no matter how fully invested with all corporate powers, have a right to divert its property from the uses defined and limited by the grant of such property to it or the purposes of its organization as regards the particular religious faith it was organized to promote. Cape v. Plymouth Congregational Church, 174 2. A religious society holding property charged with a trust for certain purposes cannot, even by due corporate action, divert it to other and inconsistent uses; and when such use is for the promotion of the doctrine and discipline of some particular denomination, courts will prevent diversion to the support of a different and inconsistent one, if even a single individual legally interested objects. Ibid. 3. Where a deed of lands gave to trustees the right to appoint, not an individual corporation or society, but some religious denomination, to exercise ecclesiastical control over the premises, viz., the occupation for religious services on Sundays and Wednesday evenings, an appointment of a designated religious denomination necessarily implies a limitation of such use to the doctrines and purposes of that denomination. Ibid. 4. Under a deed to trustees authorizing the appointment of some religious society to exercise ecclesiastical possession over church premises, the trustees made appointment to the Primitive Methodist Society, which was a subordinate member of, and subject to the discipline and regulations of, a conference, a synodical religious organization. Held, that the use of the property in question was restricted to a society subject to the discipline and supporting the doctrine of the Primitive Methodist denomination. Ibid. 5. In such case, where the Primitive Methodist Society repudiated submission to the synodical head of the Primitive Methodist Church, and set itself up as the supreme authority over its own affairs and over its members in matters religious and secular, such action is held to be a departure from the use and purpose for which the possession of the property in question was originally conferred on the society and the use to which the property was limited. Ibid. 6. To constitute one a member of a church, or an individual society a member of a general synodical organization, at least two things are essential: a profession of the accepted faith and a submission to its government. Ibid. 7. In view of the remoteness of the transactions, stated in the opinion, and the absence of any prescribed form by which trustees were to make appointment, a showing of long occupation, reputation, and apparent approval were sufficient, and, in the absence of anything in conflict, established a legal and proper appointment. Ibid. 8. A resolution of the general conference of the Primitive Methodist Church, stated in the opinion, is held not to have become a part of the discipline of the church, or open to construction as a consent, approval, or authorization of any withdrawal whatever from the general conference. Ibid. 9. Under a deed to trustees with power to appoint some religious denomination to exercise the ecclesiastical possession over the granted premises and with power to make another appointment should the appointee "withdraw its services," a second appointment vests in the appointee the right to the possession and use of the premises until it in turn withdraws its services. Ibid. 10. Where a religious society was entitled to the use of certain church property until it withdrew its services, and, having been supplanted by another society, was strenuous in its efforts to regain possession for the purpose of conducting its services, failure to maintain religious services in the church is held not to be a withdrawal of such services. Ibid. 11. Where a religious society, only entitled to a limited use and possession of a church edifice, recovers judgment establishing its right to possession, the judgment should only establish its right to such limited possession and use. Ibid. REMAINDERS. 1. Under ch. 300, Laws of 1899, authorizing a sale of future contingent interests in land in all cases wherein the court may find a sale to be substantially promotive of the interests of the parties, it was not intended to confer upon courts powers addi. tional to those theretofore exercised for the sale of interests in lands, but to prescribe a procedure to effect such sales; and hence interests in remainder belonging to the children of a devisee for life, or, should he die without issue, to testator's children or their issue, cannot be ordered sold in such a way as will result in a complete separation of such remainder from the life estate. In re Kingston's Estate, 560 2. In such case, if some disposition of an interest in the estate must be made for the purpose of obtaining funds to discharge liens and claims created against it by the testator, and for its preser vation, it is proper to raise the necessary sums by mortgage or by a sale of part or all of the estate, and to appropriate so much of the proceeds as may be required to free it from such liens or claims to that purpose, the remainder to be kept in lieu of the real estate and held for the use and benefit of the parties as intended by the testator in his devise of the real estate. Ibid. REPRESENTATIONS. RES ADJUDICATA. See INSURANCE, 2. See APPEAL, 23. RESCISSION. See CORPORATIONS, 10. SALES, 2-7, 11-13, 20-22. TRIAL, 3, 4, 21. RESULTING TRUSTS. See TRUSTS AND TRUSTEES, 4. RETURN. See SALES, 2, 6, 14. REVOCATION of license. See INTOXICATING LIQUORS, 1, 2, 5, 6. RIVERS. See INJUNCTION. NAVIGABLE WATERS. ROBBERY. See INSURANCE, 16. 1. In a criminal prosecution for an assault with intent to rob, the evidence, stated in the opinion, is held to sustain a verdict of guilty. Lipscomb v. State, 233 2. The elements of the crime at which sec. 4375, Stats. 1898, is directed are: (1) assault; (2) actual robbery; (3) being armed with a dangerous weapon; and (4) intent, if resisted, to kill or maim, or, in lieu of this intent, actual wounding or striking. Hence an information charging that the defendant feloniously assaulted the complaining witness and put him in fear and actually robbed him, specifying an amount, the defendant being armed with a dangerous weapon, to wit, a revolver, wholly omits the fourth element and does not charge the crime defined by that section. Ibid. 3. Such information does, however, charge the crime defined by sec. 4376, Stats. 1898. Ibid. 4. Although such information charged actual robbery instead of intent and was followed by a verdict of guilty, there is no preju dicial variance between the statute, the information, and the verdict, since, while the information charged more than the statute required, it in legal effect charged also all that the statute and verdict covered. Ibid. 5. In a criminal prosecution for assault with intent to rob being armed with a dangerous weapon, the court stated in its charge that no one had given any testimony upon the question whether the defendant was armed at a specified time and place. Held, that testimony of the defendant that he had no revolver on the night in question did not render such statement erroneous, since the jury must have understood the charge as referring to absence of specific testimony, and not that defendant's testimony was untrue or not to be considered. Ibid. 6. In a criminal prosecution for an assault with intent to rob being armed with a dangerous weapon, there was no direct proof that the revolver was loaded, and instructions to the jury, stated in RULES OF COURT. See APPEAL, 7. TRIAL, 9. A rule of court in order to be valid must be reasonable.. Odegard Circuit Court Rule XI, sec. 1 (Motions), 437. Circuit Court Rule XXII, sec. 3 (Argument), 187. SALARIES. See CORPORATIONS, 8-10, 20, 21. 659 SALES. Requisites and validity in general. See CORPORATIONS, 15-19. Same: Parties in interest. 1. In an action to recover the price of an engine upon a rescission (1) When the order was accepted the contract between plaint- (2) The contract was with defendant and not with W. & T. Rescission by seller: Failure to return: Damages. 2. A buyer, having received goods ordered accompanied by an in- (1) The return of the check was a sufficient consideration (2) The inconsistent conduct of the buyer in retaining and |