Marquette University Law School

Hayes, W. A.

Marquette Law Review
Volume 1
Issue 1 Volume 1, Issue 1 (1916) Article 2
Editorial Board and Foreword
W. A. Hayes
Marquette University
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Available at: http://scholarship.law.marquette.edu/mulr/vol1/iss1/2
fMarqurttr 1[w1uirm
Published quarteily during the School Year by the
Marquette Law Students
Subscription Price, $1.00 per year 35 cents per number
EDITORIAL BOARD
JAMES D. MORAN, '17, Editor-in-Chief
RUSSELL M. FRAWLEY, 'i8, Business Manager
EDWARD H. CLEMENS, 'i, Secretary and Treasurer
WILLIAM C. McGEEVER, 'I6 GILES F. CLARK, '17
FRANCIS A. DARNIEDER, 'I7 GEORGE L. MOONEY, 'I7
EARL PLANTZ, '7 CHAS. A. THEKAN, 'I7
CHAS. A. HANSEN, '17 NELSON F. PETRIE, 'i8
ELSMERE J. KOELZER, 'I7 1OS. R. FITZSIMMONS, 'i9
JOHN BURKE, 'I7 JOHN W. KELLY, Jr., 'ig
CLIFTON WILLIAMS, Faculty Advisor
FOREWORD
By W. A. HAYES
Vice President Wisconsin State Bar Association
Vice President American Bar Association
In giving the "Marquette Law Review" to the bench and the
bar of Wisconsin, the students of the College of Law of Mar-
quette University have undertaken a most commendable work.
The institution, like the individual, grows through its ideals and
lives by its spirit. There can be no progress but through striving
to reach the ideal. There can be no life, except the life of the
spirit. But the institution which would expand and fulfil its
mission must make known its ideals and communicate its spirit.
The most effective way of doing both is by means of a suitable
magazine. The "Marquette Law Review," of which this is the
first number, is such. The students who have produced it have,
by so doing, taken a long forward step. They have thereby given
concrete expression to lofty ideals. And they have shown a spirit
of which older and more pretentious colleges might well be
proud. Their efforts deserve to be supported by every member
of the Wisconsin Bar, and it is earnestly hoped that support will
be extended promptly and in generous measure.
5


English

Editorial Board and Foreword

McGeever, W. C.

Marquette Law Review
Volume 1
Issue 1 Volume 1, Issue 1 (1916) Article 8
Tenancies at Will and Notice to Quit
W. C. McGeever
Marquette University
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W. C. McGeever, Tenancies at Will and Notice to Quit, 1 Marq. L. Rev. (1916).
Available at: http://scholarship.law.marquette.edu/mulr/vol1/iss1/8
TENANCIES AT WILL AND NOTICE TO QUIT
W. C. MCGEEVER, '16.
A Tenancy at Will arises "where land or tenements are let
by one man to another, to have and to hold to him at the will of
the lessor, by force of which lease the lessee is in possession. In
this case the lessee is called 'tenant at will' because he hath no
certain no sure estate, for the lessor may put him out at what
time it pleaseth him."'
An estate at will in land is that which a tenant has by an
entry made thereon under a demise to hold during the joint wills
of the parties to the estate.2
Our statutes do not define Tenancy at Will, so that it remains
the same as at common law, except where statutes governing
other estates have indirectly modified or affected it.3
The incidents of such a tenancy are rightful entry or posses-
sion, and a holding or holding over with the assent expressed
or implied, of the landlord.'
It is the holding lawfully, with the consent of the landlord,
which distinguishes this estate from an Estate by Sufferance.
In the latter the tenant holds over wrongfully without the
landlord's assent or dissent.!
The manner irn which a Tenancy at Will may arise, appar-
ently is not affected by any statute in our state. The tenancy
may be at will from its inception, e. g., by effect of an agreement,
express or implied, to hold at the will of the lessor; by permissive
'Black's Law Dictionary, p. 1142.
2 24 Cyc. i036.
' Sec. 2187, Stats. IgiS.
'46 W. 282.
a24 Cyc. I04T.
i MARQUETTE LAW REVIEW
holding with no time limit, and indefinite as to rent periods;" by
occupancy where it is agreed a lease is to be given, or where the
lease or sale is invalid for any reason.
Or the tenancy may grow out of, and follow, another tenancy,
i. e., it may be a holding over. This may be when the lease expires
by its own limitations,7 or is terminated by a breach of covenants,
and the subsequent holding is with the landlord's assent. The
holding over may be by a grantor or mortgagor after conveyance
or foreclosure or by a tenant after sale on execution, but in each
case the assent of the true landlord is essential to make such hold-
ing a Tenancy at Will.
Our statute provides that a tenant for a year or more who holds
over may at the election of his landlord, be considered a tenant
from year to year.' The earlier cases in our state refer to this
section as being in conformance with the common law.9
Aside from the effect of local statutes there seems to be a
diversity of opinion in this country as to the effect of holding
over. But Justice Timlin has said "the weight of judicial author-
ity seems to be that, independent of statute, when a tenant, after
the expiration of a term fixed at one year or less, continues to
occupy the leased premises without any new contract, this may,
at the election of the landlord, be considered a renewal of the
prior lease for a like period and upon like terms."
So it would seem that by statute in one case, and by judicial
decisions at least up to 191o in the other case, the holding over,
after a term whether the term be for a year, more, or less, may
by the landlord's election, be taken out of the class of Tenancies
at Will and placed in the class of Periodic Tenancies.
The effect of all this would seem to be a tendency to make all
such lawful holding over, either tenancies from year to year or
'62 W., 26-44 W. iii.
' Sec. 2187, Landlord may make it tenancy from year to year, instead of
one at will.
' Sec. 2187, Stats.
'6o W. I.
0 142 W. 97.
TENANCIES AT WILL AND NOTICE TO QUIT
some shorter period, according to the former lease, leaving as
Tenancies at Will only those which the parties have expressly
agreed shall be such.
The theory of "periodic tenancies" is followed out in the case
of Sutherland vs. Drolet,u decided in 1913. This was the case of
an oral lease, void under the Statute of Frauds and the Court here
says that "a tenant entering under such a lease and paying rent
regularly has a periodic tenancy, i. e., 'year to year' 'month to
month' or 'week to week,' according as the evidence shows that
the rent was paid." And here cases are cited to show that the
Court in each such case has determined the nature of such periodic
tenancy according to the intention of the parties. The Court in
this case says also that while we have no statute creating a tenancy
at will from a lease void under the Statute of Frauds, the effect
should be the same in absence of statute since the characteristics
of such tenancy, i. e., permissive taking and lack of understanding
as to duration, are present.
Combining the theory that under such void lease, an estate at
will arises even in absence of statutes, with the prior decisions
establishing "periodic tenancies" the Court says: "While the term
'periodic tenancies' has acquired an independent place in the text
books, it is in fact (in cases where it arises merely as an inference
from the conduct of the parties) nothing more than the name of a
modified form of an estate at will, namely, one which, either by
force or judicial decision, or statute, or both, cannot be terminated
by either party without the giving of a notice of a certain
duration. * * *
"We are fully satisfied, both, historically and logically that
the term 'tenancy at will' in this section12 incudes the so-called
'periodic tenancies,' except those tenancies from year to year
which have been put in a class by themselves by Sec. 2187
Stat." "3 This case sums up the situation in this state.
I54 W. 61g.
Section 2183, Stats.
'See Hunter v. Frost, 47 Minn. I, 49 N. W. 327, quoted from by the
Court.
i MARQUETTE LAW REVIEW
The case of Leshin vs. Routt,14 decided in 1916, was a case
where the lessee subleased, representing to the sublessee that he
had the lessor's consent as provided in the lease, and the lessor
on learning of the sublease notified the sublessee that he would
consider him his tenant at will. The case holds that the lessor by
such action, did not waive his right to forfeit the original lease
for breach of the covenant against subleasing.
The authorites seem to agree that in the absence of statutory
requirements a notice to quit is unnecessary in case of tenancy for
a term of years, but is necessary in case of a tenancy from year
to year, month to month, or other periodic tenancies.
The general rules as to the notice apply, with regard to suffi-
ciency, service, and proof. The notice must be given by the
lessor or his agent, in general for that purpose, and service on the
lessee binds an undertenant.
At common law a verbal notice was sufficient, though the rule
was generally adopted that where the lease was in writing, a
written notice was necessary.
And as in other cases requiring notice, either party may in the
usual manner waive necessity of notice-for example, a landlord
may, by accepting a surrender of the premises when the tenant
vacated, waive the giving of written notice by the tenant.' 5
Before statutes provided for the length of notice necessary
the rule was that a reasonable time was necessary. The common
law requirement for notice to terminate a tenancy from year to
year was six months and the early wording of our Statutes 6
which made a tenant holding over a tenant from year to year did
not alter this rule.1 7
14 157 N. W. 524.
i x6 W. 124.
2Sec. 2187, R. S. 1878.
"6o W. i.
TENANCIES AT WILL AND NOTICE TO QUIT
However the amendment, later added to that Section 8 fixed
the time in such a case at thirty days, and this notice, it was
held, can terminate the tenancy only at the end of some year after
the expiration of the term.19 The same rule is followed out in
the late case of Sutherland vs. Drolet, supra, where it was held
that the notice to terminate a month to month periodic tenancy
must fix the time for removal at the end of a rent-paying month.
Our statutes provide for a thirty-day notice to terminate such
tenancies.' Similar statutes have been construed to require such
designated notice only in case the tenancy is terminated by the
direct act of either party; and they do not alter the effects of
circumstances, which in themselves would end the estate at com-
mon law. Thus, the death of the landlord or tenant, the land-
lord's conveyance of the land, or his leasing it to another, termi-
nates the estate immediately, or the tenant's commission of waste
does so (at the landlord's option) even though the statute pre-
scribes notice of a month or more.21
The necessity of notice in tenancies at will, as in other ten-
ancies, applies of course only to rightful holding and once the
holding becomes wrongful the need of notice ceases. 2
Since our Court has held that "periodic" tenancies are forms
of tenancies at will, and included under the provisions of Section
2183, and since Section 2187 provides for year to year tenancies,
we have statutory provisions for notice in all tenancies up to the
year to year class.
The manner of service is also defined by statute' which also
provides for re-entry by the landlord, or action to regain possession
or to remove the tenant, after service of the notice.
And under this statute it has been held that if the notice be
given as many days before action brought as there are days in
"Laws of 1885, Chap. iog-99 W. 62.
"99 W. 62.
21 Sec. 2183.
'Vol. II, Reeves on Real Prop., pp. 938-9 and cases cited.
2 70 W. 345, 8i W. 182.
'Sec. 2184, Statsr.
i MARQUETTE LAW REVIEW
the calendar month in which it is given it is sufficient.24 And a
notice given a sufficient time in advance of the termination of a
year to year tenancy stating that after the term the tenant would
be considered a tenant from month to month, was held sufficient
to terminate the year to year tenancy.
25
The tenancy at will in its strict sense has practically disap-
peared, and our Supreme Court has saved the usefulness of
Section 2183 by doing what the Legislature evidently intended
they should do-including all periodic tenancies not otherwise
cared for, under that section.
26
" 83 W. 267.I'56 W. 615.
"154 W. 61g.


Tenancies at Will and Notice to Quit

Marquette University

Marquette Law Review
Volume 1
Issue 1 Volume 1, Issue 1 (1916) Article 1
Table of Contents
Marquette University
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Marquette University, Table of Contents, 1 Marq. L. Rev. (1916).
Available at: http://scholarship.law.marquette.edu/mulr/vol1/iss1/1
Marquette
law teview
VOLUME I.
1916-1917
MILWAUKEE, WISCONSIN
Published -by the Students of the Maquette College of Law.

INDEX
PAGE
Choice of Location and Establishment of a Law Practice... 159
Common Law of Wisconsin ............................. 20
Contribution Between Joint Tort Feasors ................. 141
Editorials .................................... 5, 51, III, 157
Fidelity and Surety Bonds ............................... 148
Frequent Recurrence to Fundamental Principles ........... i86
Governmental Functions in Wisconsin .................... i66
Judicial Notice ....................................... io6
Legislative Suggestions:
Actual vs. Mythical Notice in Real Estate Titles ...... 73
Amendment of Section 2863, R. S .................... 33
Amendment of Corporate Laws ..................... 88
Needed Property Legislation ........................ 28
Liability of Contractor, etc., to Third Persons Having No
Contractual Relations ............................. 93
Marquette Law Review vs. Marquette Alumni and Wis-
consin Lawyers .................................... 6
Physician as an Expert Witness ......................... I0O
Powers and Duties of Court Commissioners .............. 176
Property Rights of Married Women .................... 7, 53
'Psychology and Law ................................... 196
Right to Try Title of De Facto Officer by Injunction ....... 45
Spurious and Questioned Documents .................... 114
Tenancies at Will and Notice to Quit .................... 39
Testimony as to Transactions or Communications With De-
ceased Persons ................................... 65
Vernacular for Use of the Lawyer Who Practices in
Municipal and District Courts ....................' 53
Wisconsin Income Tax Act ............................. 191



Rix, Carl B.

Marquette Law Review
Volume 1
Issue 1 Volume 1, Issue 1 (1916) Article 6
Legislative Suggestions: Needed Property
Legislation in Wisconsin
Carl B. Rix
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Carl B. Rix, Legislative Suggestions: Needed Property Legislation in Wisconsin, 1 Marq. L. Rev. (1916).
Available at: http://scholarship.law.marquette.edu/mulr/vol1/iss1/6
LEGISLATIVE SUGGESTIONS
NEEDED PROPERTY LEGISLATION IN
WISCONSIN
BY CARL B. Rix.
Our courts are continually calling the attention of the legal
profession to needed legislation and it is the purpose of this
article to suggest remedial legislation sorely needed in the State
of Wisconsin.
This is an age of accumulation of great wealth, principally
in the many forms of personal property. The growth of fortunes
during the decade, and particularly within the last two years,
expressed in figures would be interesting and illuminating, but
such figures are not necessary in this article. General knowledge
will prove sufficient for our purposes. Coupled with the growth
of fortunes goes the inevitable desire for the makers of such
fortunes to perpetuate them in their families. For centuries such
perpetuation has been held to be against public policy and the
result of that feeling has been expressed in probably the greatest
example of judicial legislation, known as the Rule Against Per-
petuities. Every student recalls the difference between the rule
of remoteness of vesting and suspension of alienation. That
expression of public policy was developed principally as applied
to real property because of the relatively greater importance of
real than personal property. Furthermore every state in this
country has expressed that public policy in its constitution or
statutes. The rule in regard to real property is found in Sections
2038 and 2o39 of the Revised Statutes of Wisconsin. Section
2038 is as follows: "Every future estate shall be void in its
creation which shall suspend the absolute power of alienation for
a longer period than is prescribed in this chapter; such power
of alienation is suspended when there are no persons in being
by whom absolute fee in possession can be conveyed." Section
2039 is as follows: "The absolute power of alienation shall not
be suspended by any limitation or condition whatever for a
longer period than during the continuance of two lives in being
at the creation of the estate, and twenty-one years thereafter,
except in the single case mentioned in the next section, and
except when real estate is given, granted or devised to a charitable
LEGISLATIVE SUGGESTIONS
use or to literary or charitable corporations, which shall have been
organized under the laws of this state for their sole use and
benefit, or to any cemetery corporation, society or association."
Fourteen years ago in Becker vs. Chester, 115 Wis. 9o, the
Supreme Court of Wisconsin held that there is no statutory or
common law rule against perpetuities of personal property in this
state, and that there is nothing to prevent a man from tying up
his personal property for all time to come. For our purpose it
is not necessary to enter into the famous controversy in which
Justice Cassoday so vigorously expressed his dissent. It is not
necessary either to discuss the merits of the majority decision or
to decide whether or not the decision of the court was clearly
obiter as contended by Justice Cassoday. As that decision has been
approved in other cases since Becker vs. Chester, this state is
definitely committed to the rule that there is no statute to prevent
a perpetuity in personal property in Wisconsin, and that the com-
mon law as to perpetuities respecting such property is not in
force in this state. With that situation before us it is necessary
that we heed the words of the dissenting justice when. he says:
"While I have no doubt that my brethren have made the ruling
here complained of in pursuance of a sense of duty, nevertheless
I have been constrained to write this separate opinion in which
I have attempted, in a respectful manner, to expose what I regard
as a legal monstrosity in the hope that the legislature may do
something to relieve the State of Wisconsin from being the only
state in the union where personal property may be given in trust
for private purposes and rendered unalienable for all time."
Will it take the will of one of our wealthy citizens, who ties
up his huge estate in personal property for an indefinite period
in the future to cause us to ask the legislature to correct this
apparent evil?
The statutes of Wisconsin in regard to to real property were
adopted from those of New York. The statutes of that state pro-
vide as follows:
i. The absolute ownership of personal property shall not
be suspended by any limitation or condition whatever for a
29
i MARQUETTE LAW REVIEW
longer period than during the continuance and until the termina-
tion of not more than two lives in being at the date of the instru-
ment containing such limitation or condition; or, if such instru-
ment be a will, for not more than two lives in being at the death
of the testator.
2. In all other respects limitation of future or contingent
interests in personal property shall be subject to the rules pre-
scribed in the first chapter of this act in relation to future estates
in lands.
It is clear that this situation should be promptly remedied
by the adoption of legislation substantially similar to that of
New York. A provision in the will to convert realty into
personalty can put all of a man's property into a perpetuity
and increases the danger many fold. Concerted action to remedy
this situation is absolutely imperative and the duty to act rests
upon the members of the bar through the proper associations.
The people of the state are entitled to look to the legal profession
for guidance in such matters as these and it will be pure luck,
after fourteen years of neglect, if remedial legislation is obtained
preventing any odius and harmful perpetuities.
It was Bacon who said "the law favors three things, life,
liberty and dower." It is remarkable that this provision for
the widow, known as dower, has come down through the years
practically unchanged except where other and more ample pro-
vision has been made as in the case of community property. The
courts have been zealous to protect and safeguard this right. The
marked freedom of change in the essentials and requirements of
dower is shown by the fact that one of the feudal rules of prop-
erty, the necessity of seizing of an estate, has come down with it,
and the husband today must be seized of an estate of inheritance
to entitle the wife to dower.
At the time of the passage of the Statutes of Uses in 1535
curtesy and dower could not be had of equitable estates. The
manifest advantages of that statute were so great in spite of its
perversion by the rules that a use could not be raised upon a use
and that the statute did not apply to active trusts, that the courts
of equity were quick to allay some of the feeling against equitable
LEGISLATIVE SUGGESTIONS
estates by permitting the equitable rights to be taken for debts
and by granting curtesy in such estates. But no change was
made in the rule as to dower in such estates. No doubt the
rights of mere woman were not then claiming the careful atten-
tion of courts and legislatures with the results so ably described
in another article of this issue. In due time this situation was
remedied in England and dower was granted in equitable estates.
For years it was taken for granted in Wisconsin that the right
of dower attached to all estates, legal or equitable.
In the case of Will of Prsser, 140 Wis. 92, the question
arose as to the right of a widow of a holder of a vested re-
mainder to dower in such remainder. The court gave the use of
the property to the wife for life and after her death the executors
were to hold the estate in trust for ten years with active trust
duties, and at the expiration of the ten years all of the property
was devised and bequeathed to all the children in equal parts.
The widow died and one of the sons died, leaving a widow and
one minor child. The court held that the remainders were vested
and then passed on to the consideration of the question of dower,
and the court says: "At common law there was no dower right
in a reversion or remainder after a freehold estate, unless the
freehold estate terminated during the life of the husband; but
there was dower in a reversion or remainder after an estate for
years. i Washb. R. P. 6th Ed. par. 365. At common law also
there was no dower in an equitable estate. The husband must
have had legal title. Id. par. 374. In England and in many of
the states in this country this latter rule has been changed by
statute, and dower given out of equitable estates. Id. par. 375.
Our statute, however, says nothing of equitable estates and
doubtless is to be regarded as simply giving dower out of legal
estates, as was the case at common law, Sec. 2159 Stats. 1898;
i Scribner, Dower, Ch. i9, par. 20 et seq. p. 4oo."
Plainly the estate during the ten year term was equitable
and the court proceeded to find a way out by applying Section
2087, R. S. of Wisconsin, which declares that the grantee
of an equitable estate shall have a legal estate in the lands as
against all persons, except the trustees and those lawfully claim-
ing under them.. The court says "Such was Theodore Prasser's
interest here. It was vested, subject only to the execution of
31
i MARQUETTE LAW REVIEW
the trust, and was a legal estate as against all persons except the
trustees whose term was for years only. Why should not his
widow have dower in this legal estate?"
It was only a short time before the bad penny returned. In
the case of Harley vs. Harley, reported in the same volume, 14o
Wis. p. 282, the question again arose as to the right of dower
in an equitable estate. The husband died, having fully completed
a contract of purchase of realty thereby acquiring the equitable
title, but the legal title had not been conveyed to him. The
court says at page 288: "The question of whether a widow is
entitled to dower in real estate of which her husband dies pos-
sessed of only a mere equitable title has been recently considered
and resolved in the negative by this court in Will of Prasser,
ante p. 92. It was there said that an estate of inheritance, as the
term is used in the statute, is just what such term signifies at
common law, consequently that the statute gives dower only out
of legal estates. But where the husband dies seized of the full
equitable title and the owner of the whole beneficial interest with
only the mere legal title outstanding, and the person having no
duty to perform in respect to the property, as in this case, but
to convey it to the equitable owner, the estate is to all intents
and purposes a legal estate,-an estate of inheritance within
the meaning of the statute, in which the wife is entitled to
dower. * * * It is in harmony with the doctrine of this court
that the dower right is to be favored in the law (Munger vs.
Perkins, 62 Wis. 499) and the better rule as we are constrained
to believe. If the statute will reasonably permit of a construction
which will save the dower right and also one which will defeat it,
and there is uncertainty as to what was in the mind of the law-
makers when it was adopted, the former should prevail. At
such time as now, such interest in real property as that of which
appellant's husband died possessed, was regarded as realty; an
estate of inheritance in the broad sense of the term, which passes
to the heirs and to which the homestead right attaches. We are
entirely satisfied with the decision recently rendered, treating a
full equitable title and ownership of the entire beneficial interest
in realty a right to be immediately clothed with the legal title,
as here, as substantially a legal estate and within the meaning of
the dower statute."


Legislative Suggestions: Needed Property Legislation in Wisconsin

Umbreit, A. C.

Marquette Law Review
Volume 1
Issue 1 Volume 1, Issue 1 (1916) Article 5
The Common Law of Wisconsin
A. C. Umbreit
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Repository Citation
A. C. Umbreit, The Common Law of Wisconsin, 1 Marq. L. Rev. (1916).
Available at: http://scholarship.law.marquette.edu/mulr/vol1/iss1/5
THE COMMON LAW of WISCONSIN
A. C. UMBREIT, A.M., LL.B.
It is to be noted in the first place that it is purposed to dis-
cuss the common law of Wisconsin and not the common law in
Wisconsin. It is generally asserted and theoretically, no doubt,
it is the fact, that Wisconsin is one of the legatees of the com-
mon law of England. To discuss a common law which is dis-
tinctively that of Wisconsin, not that of England, is the object
of this article.
Generally speaking, it is correct to class this state as a com-
mon law state. How much of the common law of England we
inherited is very doubtful. Thus, the Ordinance of 1787 provided
-- "The inhabitants of the said territory shall always be entitled
to the benefits * * * of judicial proceedings according to the
course of the common law." This appears to be the only provi-
sion in that Ordinance which refers at all to the common law and
it will be admitted that this is a very indefinite and uncertain
bequest.
The constitution of our state seems to have emphasized this
legacy by providing that-"Such parts of the common law as are
now in force in the territory of Wisconsin, not inconsistent with
this constitution, shall be and continue part of the law of this
state, until altered or suspended by the Legislature." (Sect. 13,
Art. XIV.)
In some states the English statutes enacted before the Declara-
tion of Independence are considered a part of the common law.
This is not true of Wisconsin, because when the state was a part
of Michigan that state passed a law abrogating all English
statutes and this abrogation of the English statutes was adopted
for the territory of Wisconsin by its organic act. It is, hence,
quite clear that all English statutes are abrogated in this state,
some decisions to the contrary notwithstanding. (66 Wis. 376,
377, note.)
To give a definition of the old English common law will not
be attempted. No successful attempt at such a definition has as
THE COMMON LAW OF WISCONSIN
yet been discovered. It is universally held that the common law
of England was an unwritten law and that the moment those
principles denominated as common law were enacted into definite
statutes, they ceased to be common law and became the written
law. Neither do the decisions of the courts of England contain
the common law since it has been decided that such decisions are
merely the exposition of the common law but not the common
law itself. From this it follows that what is generally known as
the common law is an intangible, elastic, elusive, comprehensive
and, sometimes, evasive system of principles, nowhere definitely
enunciated and never authoritatively compiled and catalogued.
Law is nothing more than enlightened public opinion crystal-
lized into a rule of conduct. A rule of conduct, to be of practical
value, should be definite and certain and while it is conceivable
that such rule may as well be unwritten as written, nevertheless
it is extremely doubtful whether any rule of conduct which is
not actually defined by legislative enactment is practical and
enforcible. In spite of this, it is here contended that there is an
unwritten code or rules of conduct, indigenous to this Common-
wealth, developed since its creation in 1848, quite well defined,
although not subject to an academic definition, as distinct from
the common law of England as are the habits and customs of the
people of this state distinct from the habits and customs of the
people of the British Islands. Merely a faint outline of the
common law of Wisconsin will be attempted.
It may be claimed that a distinctive common law of this state
is impossible since it seems to have become the Wisconsin idea
to make detailed legislative provisions for every kind of com-
munal conduct. Attention may be called to the many acts that
direct in detail the conduct of our people in their intercourse
with others, such as the Negotiable Instruments Act, the Ware-
house Receipts Act, Uniform Sales Act, Uniform Partnership
Act, the many police regulation acts and a large number of
public health laws. All of these acts, and many others exist,
would be of little practical value as rules of conduct were there
not a common law of Wisconsin that interprets and administers
these economic rules.
Attention has already been called to the Ordinance of 1787
and to the Constitution of the state. It is a significant fact that
21
I MARQUETTE LAW REVIEW
in these two great charters of our Commonwealth are found
many detailed provisions as to the ownership of land, property
rights and the rights of contract, but very little is found in them
that directly protects the social, economic and industrial rights
of the individual. When the Ordinance and the Constitution
were enacted, people were struggling for an existence and were
satisfied if a living could be made, shelter secured and protection
against the assaults of savages afforded. The questions that con-
front us now in our social, economic and industrial life are just
as important as those that confronted our fathers, -but to solve
these questions we are constrained to have recourse, to a great
extent, to the common law of our state.
What is the common law of Wisconsin? It cannot be bound
by the limitations of a definition. It is like human life, the life
of the individual. We know life exists in the case of every
person born, but what it is has defied definition. All that we
know about life is its manifestations and when life becomes ex-
tinct, these manifestations cease, but what is it that has disap-
peared, no one has as yet been able to tell us. This something in
our jurisprudence, resembling that which is called life in the indi-
vidual, is what is here meant by the common law of our state.
Perhaps it might be called the public policy of the state, or the
spirit in which our laws have been enacted and are being inter-
preted and administered. It is the spirit back of the mere letter
of the law that constitutes the jurisprudent life of our Common-
wealth. While indefinable, it surely exists. While not tangible
because not written, it nevertheless is as effective and efficient as
any written rule of conduct, constitutional or statutory. It per-
vades our whole system of jurisprudence and is sui generis.
A mere academic discussion is generally without any prac-
tical value. It is necessary to illustrate a principle to make the
principle itself understandable or intelligible. Hence to illustrate
what this common law of our state is, a few manifestations, taken
from the highest judicial tribunal of our Commonwealth, of this
all prevailing spirit of our laws will be given.
i.. Wisconsin Justice does not travel with leaden heel. A
defendant in a criminal case is not allowed to play his game with
loaded dice, cannot juggle with his constitutional rights and privi-
THE COMMON LAW OF WISCONSIN
leges, remain silent when he should speak, cannot secretly store
up some technical error not affecting the merits and when the
issue has gone against him claim the benefit of such error, and
when he "comes into court with his attorney, fully advised of all
his rights and furnished with every means of making his defense"
is held to waive every constitutional right or privilege for which
he does not ask, save only the right of trial by a jury of twelve
in a capital case, former decisions of the Court and decisions of
the Supreme Court of the U. S. to the contrary notwithstanding.
"Mentors (common law precedents) of my brighter days, fare-
well !"
2. A private attorney, compensated by private parties, can-
not assist the district attorney in the trial of a person charged
with the commission of a criminal offense. The Statutes make
ft the duty of the district attorney to prosecute all criminal actions
and consequently he is a quasi-judicial officer, entrusted with
broad official discretion, thus insuring justice, if the court cannot.
This public policy exists in face of the fact that at the time the
English common law was engrafted upon our judicial system, the
prosecution by private parties was the rule rather than the excep-
tion. This public policy is maintained in spite of the fact that
under the Statutes the Governor, the Sheriff, and cities may offer
rewards for the apprehension of persons charged with felonies
and these Statutes have been interpreted to include persons who
obtain possession of facts necessary to secure the arrest and con-
viction of an unknown perpetrator of crime and give them to
some person interested, although they do not themselves make
the arrest and although the offer called for "arrest and convic-
tion"; (118 Wis. 537) ; and even trial courts "on conviction of
any person in respect to bribery, forgery, counterfeiting, gam-
bling, houses of ill fame, obscene literature, game and fish, in
case the whole or any part of the sentence shall be a fine," may
award a part of such fine to the person or persons who informed
against and prosecuted any such offender to conviction. (Sec.
4632.) Offers of reward, and especially those in the form of a
part payment of the fine to informers, have frequently been con-
demned as inducements to perjury and it would seem that public
policy should "forbid that anything should be accomplished by
means of an offer of reward which cannot be accomplished by
means of a contract."
i MARQUETTE LAW REVIEW
3. While non-resident alien friends have the right to take,
hold, enjoy, and dispose of property, real and personal, and to
make contracts with residents and to invoke legal remedies to
maintain their rights, yet a non-resident alien creditor may not
seize and carry away property of his alien debtor within the
jurisdiction of Wisconsin courts when a resident creditor also
stands at the bar of the same court with a judgment and provi-
sional lien and thus force such resident creditor to go to a foreign
court to collect his debt; and it makes no difference that the
home creditor's claim may have accrued after that of the alien-
the question is not to be determined by priority in point of time,
but by the situation at the time the court is called upon finally
to decide which creditor shall receive its aid. By the rules of
comity, the courts of Wisconsin will enforce the laws of a friendly
state or nation, provided such enforcement will not violate the
public policy or laws of the state or injuriously affect the inter-
ests of its own citizens.
4. The right to take property by inheritance or by will is a
natural right, which cannot be wholly taken away or substantially
impaired by the legislature. This natural right is protected by
the first section of our Bill of Rights and in the words "pursuit
of happiness."
5. The right to make a will is more sacred than the right
to make a contract; the latter, as evidenced by the writing, may
be judicially reformed or set aside upon equitable grounds, the
former cannot and there is no judicial power even to correct a
will. There is further the inherent right to have a will, validly
executed, carried out according to the intent of the testator and
hence all the beneficiaries or persons beneficially interested can-
not by any agreement among themselves, even with the approval
of the court, in any wise vary the terms of a will from that
intended by the testator.
6. If a board of supervisors does not furnish suitable and
convenient quarters for a circuit court and threatens to compel
the removal of the court to unsuitable and inconvenient quarters,
the judge of such court may issue an ex parte injunctional order,
without formally instituting an action, restraining such removal
by the board, under the inherent power of a constitutional court
THE COMMON LAW OF WISCONSIN
of general jurisdiction to protect itself against any action that
would unreasonably curtail its powers or materially impair its
efficiency.
7. The common law of Wisconsin has clearly, tersely and
concisely defined proximate cause "as the efficient cause, that
which acts first and produces the injury as a natural or probable
result, under such circumstances that he who is responsible for
such cause, as a person of ordinary intelligence and prudence,
ought reasonably to forsee that a personal injury to another may
probably follow from such person's conduct. It is not necessarily
the immediate, near or nearest cause, but the one that acts first,
whether immediate to the injury or such injury be reached by
setting other causes in motion, each in order being started nat-
urally by the one that precedes it, and altogether constituting a
complete chain or succession of events so united to each other by
a close causal connection as to form a natural whole, reaching
from the first or producing cause to the final result."
8. The average high school graduate may need the efficacy
of a non-sectarian prayer at commencement and liberty of con-
science is not invaded by holding the graduating exercises in a
church, especially when such edifice is the most available and
convenient auditorium for such occasion. "It is what is done,
not the name of the place where it is done, that is significant."
THE COMMON LAW OF WISCONSIN IS SUBJECT TO
CHANGE AND MODIFICATION.
9. Since May 3, 1913, "the right to hold and enjoy a pub-
lic office is of pecuniary value and in a broad sense is a prop-
erty right," protected by Art. V of the Amendments to U. S.
Federal Constitution (uniformly and universally held to consti-
tute limitation upon Federal powers and not to affect State
powers) and Section i, Art. XIV of same Amendments (orig-
inally adopted to extend the privileges of citizenship to the negro
race and to protect that race in the enjoyment of these privileges,
now extended so as to protect the emoluments and pecuniary
value of a public office) ; that in exercising the power of removal
for cause, the Governor as an inferior quasi-judicial tribunal
whose acts are reviewable under the supervisory control power
25
i MARQUETTE LAW REVIEW
of the courts and even where there is no action at law pending
to try title to the office, injunction will lie in favor of the good-
faith possessor of the office and in such injunction suit the inci-
dental question as to whether such good faith possessor is entitled
to the office at all or may not be litigated to a finality. It is true
that previous to the date above mentioned it had been uniformly
held that the title to a public office could not be tried in an equity
action, that an office is not property, nor the right to hold office
a vested right, but merely an opportunity to serve the state, but
these precedents were all crucified within two years after their
last publication.
THE COMMON LAW OF WISCONSIN HAS ITS HU-
MOROUS AS WELL AS ITS SERIOUS SIDE.
io. Judicial hindsight is better than legislative prevision.
A legislature may mis-write its state of mind and the box of Mrs.
Pandora Epimotheus may contain the difficulties the court dis-
covers in sustaining a statute where the legislature so mis-wrote
its state of mind. These difficulties may be so insurmountable
that a court may forbid the attempt of parties to exercise the
rights and privileges supposedly granted by such mis-written
statutes, although such parties are not litigants before the court.
i i. It is the common law of Wisconsin, and has been for
over 32 years, that it is the inherent power of a court of last
resort to appoint the janitor charged with the care of its rooms
and that the power to remove such janitor is possessed by the
court and an order of the superintendent of public property pur-
porting to remove the janitor previously appointed by the court
is coram non judice, and should such janitor so non-judicially
removed be omitted from the pay roll so that his monthly stipend
was not paid as "heretofore," or should the legislature neglect
to make the requisite appropriations for the pay of such janitor,
"the latter will have his remedy by action against the state in the
manner prescribed by law." The reason for such inherent power,
among other things, "is the relation of trust and confidence exist-
ing between the members of the court and the person engaged in
the position of a janitor." A "garrulous, leaky or corrupt"
janitor would be an abomination.
THE COMMON LAW OF WISCONSIN
12. In Wisconsin a dog is no longer allowed "his first bite"
and his owner must respond in damages for such first, inter-
mediate or final, bite whether he knows that his dog was vicious
or mischievous or not and whether such dog was so afflicted
or not.
13. A "plebeian, having aspirations beyond his humble sta-
tion in life," may be guilty of a "somewhat morganatic mesal-
liance," by violating the provisions of Section 1482, even though
"Martha Pietertje Pauline" consent, and if concrete results fol-
low, the owner of Martha, etc., "having a pedigree as long and
at least as well authenticated as that of the ordinary scion of
effete European nobility who breaks into this land of democracy
and equality and offers his title to the highest bidder at the
matrimonial bargain counter," may recover damages from the
owner of him who was responsible for "the sinister birth" of the
hybrid which was thus disqualified from "becoming a candidate
for pink ribbons at county fairs."
Numerous other examples of the common law of Wisconsin
might be given but let these suffice. It is to be distinctly under-
stood, however, that in giving the above illustrations the writer
disclaims any intention to express personal commendation or
criticism. Lex sic scripta est.
Speaking by and large and in the words of our own Supreme
Court it is the spirit of our jurisprudence, the common law- of the
state, to disregard mere form and to look at the merits of every
controversy, to face new situations and solve them in the spirit of
justice and equity, disregarding, if necessary, precedents, "look-
ing to the evils intended to be remedied, the object intended to
be attained, the effects and consequences, the reason and spirit."
(143 Wis. 477).


The Common Law of Wisconsin

Winslow, John B.

The Property Rights of Married Women Under Modern Laws (Part I)

Marquette Law Review
Volume 1
Issue 1 Volume 1, Issue 1 (1916) Article 3
Marquette Law Review vs. Marquette Alumni and
Wisconsin Lawyers
Marquette University
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Marquette University, Marquette Law Review vs. Marquette Alumni and Wisconsin Lawyers, 1 Marq. L. Rev. (1916).
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i MARQUETTE LAW REVIEW
MARQUETTE LAW REVIEW vs. MARQUETTE
ALUMNI AND WISCONSIN LAWYERS
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commonly termed a cause. The accomplishment of the cause,
purpose or intention of the actor is called the result or effect.
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exception to the rule but is the result or, strictly speaking, first
step in carrying into execution a purpose of the Marquette Law
students. Our primary intention is to furnish an attractive bond
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that the Cream City is the locus in quo of the most progressive
law school in the middle west. Furthermore, we purpose to
devote the REVIEW exclusively to a resum6 of Wisconsin law
and to a discussion and exposition of matters which we may
deem of special, practical value to the Wisconsin bar.
In addition to the regular legal discussions we direct your
attention to a permanent feature of this work which is the section
devoted to Legislative Suggestions. We invite the Wisconsin
attorneys to make use of this section to voice remedial measures.
Do you Milwaukee attorneys know our Doctor Clear? He
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Marquette Law Review vs. Marquette Alumni and Wisconsin Lawyers

Moran, James D.

Marquette Law Review
Volume 1
Issue 1 Volume 1, Issue 1 (1916) Article 7
Legislative Suggestions: Amendment of Section
2863, R.S.
James D. Moran
Marquette University
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Marquette Law Review by an authorized administrator of Marquette Law Scholarly Commons. For more information, please contact
megan.obrien@marquette.edu.
Repository Citation
James D. Moran, Legislative Suggestions: Amendment of Section 2863, R.S., 1 Marq. L. Rev. (1916).
Available at: http://scholarship.law.marquette.edu/mulr/vol1/iss1/7
LEGISLATIVE SUGGESTIONS
But suppose that the title is not a full equitable title, but
that only ninety-five per cent of the payments on a land contract
have been paid at the time of the death of the grantee, or seventy-
five per cent thereof, or fifty per cent thereof. The equitable title
is present but even under the extremely liberal doctrine of our
court which it admits is "probably out of harmony with some
decisions elsewhere under statutes similar to ours," can it be
said that the grantee had a legal estate which would entitle the
widow to dower? The practice of purchasing valuable property
on land contract is increasing and large tracts of land are now
held in that way upon which substantial payments are made.
It is obvious that an easy way exists to defeat the right of dower
through such contracts and by means of other equitable estates.
The statute granting dower should be amended to grant dower in
all equitable estates in real property. Perhaps the aid of the
various organizations of women in this state should be enlisted to
secure this change, but in any event the legislation is needed to
supplement and complete the conclusions of the learned article
on the rights of women in Wisconsin by Chief Justice Winslow,
which appears in this issue.
It has not been the purpose of this article to discuss the
merits of the cases to which attention has been directed, for the
law is settled on these points. The situation created by these
decisions should be remedied at the coming meeting of the legis-
lature of this state.
AMENDMENT OF SECTION 2863.
JAmES D. MORAN, '17.
To the Legislature of the State of Wisconsin, we respectfully
submit
A BILL
to amend Section 2863, of the Statutes relating to trial courts
decision on facts.
The people of the State of Wisconsin represented in Senate
and Assembly do enact as follows :--Section 2863 of the Statutes
i MARQUETTE LAW REVIEW
is amended to read,-Section 2863.-Upon a trial of a question
of fact by the court, its decision shall be given in writing and
filed with the clerk within twenty days after the court at which
the trial took place. Judgment upon the decision shall be entered
accordingly, as of the term at which the cause was tried, and the
judge shall state in his decision separately;
i. The facts found by him; and
2. His conclusions of law thereon.
3. No judge shall sign findings prepared by counsel, but
this shall not be construed to prevent Counsel from filing pro-
posed findings and conclusions of law, and the judge shall have
the power to permit or order an argument of Counsel in open
Court upon proposed findings and conclusions in order to assist
in drafting the proper ones. The judge may also submit tentative
findings and conclusions and order an argument on them in order
to assist him in drafting the final ones.
The present statute concise and plain as words could make it
would from a layman's viewpoint seem easily enforceable but the
legal interpretation given it has made it one of the stumbling
blocks of the profession.
The judiciary and the practicing attorneys are jointly to
blame for the condition in which we find this statute. The ju-
diciary under the impression that this section infringed upon
their constitutional power of review, early indicated that it was
to be construed as directory rather than obligatory.' By so
doing it opened the door to much abuse as to time, manner and
sufficiency of findings. The lawyers are at fault for allowing
the practice to develop to the extent of their drawing their own
findings and merely presenting them to the judge for his signa-
ture. Nobody would think of allowing a boxer to referee the
contest in which he was a contestant but the practice in law at
present appears to be different. There, the winner of the pre-
liminary contest is given every possible chance to attain victory
in the decisive battle and the result is an abuse which is becoming
unbearable.
'Sayre v. Langton, 7 Wis. 214.
LEGISLATIVE SUGGESTIONS
To remedy this evil, the Law Review takes this means of
suggesting the foregoing amendment. In framing the same we
have taken into consideration the present condition of the practice
by making it discretionary with the trial judge to draw his own
findings or to allow them to be drawn by one of the attorneys.
If the latter method is pursued, a hearing must be had at which
all parties are afforded an opportunity to voice their objections
prior to judge's signing or in lieu of such procedure, a stipulation
that the findings so drawn are satisfactory is sufficient.
The attention of the legislators, for whom this article is
primarily intended and who might consider this suggestion a
mere theoretical whim of the Law Review, is respectfully directed
to the recent utterances of almost every Wisconsin Supreme
Court Justice now on the bench, bearing upon this particular
question.
Judge Marshall in Neacy vs. Board of Supervisors, I44 Wis.
210, states that "there is no statute respecting the practice, strict
compliance with which would be more conducive to good, speedy
and certain administration of justice, yet no statute so frequently
violated in letter or spirit, or both. The most frequent violations
are by general findings not responsive at all to the command of
the law that the judge shall state separately the facts found by
him. That species of findings has been said not to arise to the
dignity of an attempt to comply with the statute and to not be
entitled to consideration within the rule that findings of fact
will not be disturbed on appeal unless against the clear prepon-
derance of the evidence. The abuse in that field has been so
persistent notwithstanding frequent suggestions that the making
of such findings constitute error which should not be indulged in
merely because the rule applicable to the generality of cases that
it may be deemed fatally harmful, that it has seemed necessary
to indicate-Damman vs. Damman post-that such abuse may
be fatal to the result."
EFFECT OR WEIGHT GIVEN FINDINGS.
Findings of fact by the trial court will not be disturbed
unless contrary to a clear preponderance of the evidence.!
'Daubner v. McFarlmn, 136 Wis. 515.
In re Kringel's estate, 156 Wis. 94.
35
i MARQUETTE LAW REVIEW
In a recent case there arose a conflict as to whether the
transaction amounted to a gift or a bailment, and evidence was
admitted supporting both views. The trial court found against
such gift and the Supreme Court in affirming the trial court's
decision adhered to the rule that where there is competent evi-
dence sufficient to support a finding, that court will presume, in
the absence of an affirmative showing to the contrary, that the
finding rests upon the competent evidence solely.3
NECESSITY FOR AND RESULTS OF FAILURE TO FILE
SPECIFIC FINDINGS.
In the case of Damman vs. Damman, 144 Wis. 122, the trial
court failed to make such findings as are required by Section 2863.
Judge Barnes, in commenting thereon, states that such failure
constitutes error but does not necessarily lead to reversal. But
"in case of such general findings the court is left in a predica-
ment where it may pursue one of three courses (i) to affirm
the judgment if clearly supported by a preponderance of the evi-
dence, (2) to reverse if not so supported ordering judgment in
accordance with what appears to this court to be the preponder-
ance; or (3) if that course seems to present peril of injustice to
remand for further trial and findings. If this court undertakes
to determine which way the evidence preponderates, it must take
the evidence as it finds it in the printed record and very often
this cannot be done with safety." Case reversed and cause
remanded with directions to trial court to take further evidence
in the case and to make findings of fact and conclusions of law
upon the evidence before it in accordance with the requirements
of Section 2863.
Where, in an action for breach of contract the court found
for plaintiff, it was held error for the trial court to fail to file a
finding on an issue of accord and satisfaction, and it appeared
that the preponderance of the evidence on such issue was clearly
in favor of the defendant, the Supreme Court on reversal,
directed judgment dismissing the complaint instead of ordering a
new trial.4
'Hilton v. Rahr, I55 Wis. ii6.
'Kelin v. Woodbury, 150 Wig. 499.
LEGISLATIVE SUGGESTIONS
OPINIONS BY CIRCUIT JUDGES-FINDINGS
BY ATTORNEYS.
In a recent case' there was a lengthy opinion submitted
by the trial court covering all evidence and issues on the trial
and embodying his conclusions of law thereon. The opinion
ended with the instruction "findings and judgment may be drawn
in accordance with the foregoing conclusions." One of the plain-
tiff's attorneys then drew the so-called findings, using ten (io)
printed papers for same in accordance with the direction in the
opinion. Chief Justice Winslow reprimanded the trial court for
this mode of procedure and wrote a lengthy criticism thereon
because as he states "a number of cases have been presented to
us recently where the findings have consisted of many pages of
mere evidentiary facts, sometimes leaving grave doubt as to what
ultimate facts the court really determined thus entailing upon
us much tedious and unnecessary labor." He further requests
the trial judges, whether they personally draw the findings or
not, to see to it in every case that said findings be confined to
the ultimate facts as defined in his opinion.
A previous judicial condemnation of this procedure was
administered by Judge Marshall in Neacy vs. Board of Super-
visors, supra. In this case the findings were composed of some
over 5,000 words and was the work of one of the attorneys. He
points out to the circuit judges how a strict compliance with the
statutory requirements will lessen, rather than increase the labor
performed by many overworked circuit judges, and how much
expense, delay and uncertainty in the administration of justice
may be saved. In the same case the trial court wrote an opinion
which the law does not require expending in preparation thereof
several times the work needed to draw findings which the law
does require and then was compelled to study somewhat partisan
findings drafted by judicial request, composed of thousands of
words, devoting work thereto, in order to intelligently sign them,
largely in excess of that needed to draft concise findings, com-
posed of the few hundred needed words.
'Cointe v. Congregation of St. John the Baptist, I4 Wis. 405.
37
i MARQUETTE LAW REVIEW
UNCERTAINTY AND ABSURDITY OF PARTISAN
FINDINGS.
The most recent and striking example of this practice is
shown in the case of In re Lynchs Will.' The only issue was
that of undue influence and probate was refused on that ground.
The trial closed on June 29 th, 1915, and on October 28th, 1915
(a period of four months), forty-one findings of fact were filed
including a finding that the testatrix had not the mental capacity
to execute a will. There was no evidence to sustain such a find-
ing, on the contrary, all the evidence shows the testatrix was of
sound mind. Judge Vinje in his opinion states "a finding cover-
ing that issue * * * undue influence * * * is all that the statute
and good practice requires. Instead of that, we have forty-one
findings consisting in the main of a synopsis of the evidence
favorable to the contestant. Such practice deserves condemna-
tion. The situation would lend color to the surmise that the
findings were drawn by contestant's attorneys and not closely
enough scanned by the judge at time of signing for we cannot
believe that he intended to find lack of testamentary capacity, yet
the assertion of that fact is included in both the findings of fact
and conclusions of law. "
In order to further impress upon you gentlemen the urgent
necessity for the remedial measure we are soliciting, we respect-
fully direct your attention to the following summary of the points
brought out in the foregoing, to-wit:-
(i) Findings of fact will not be disturbed unless contrary
to a clear preponderance of the evidence. Note that the rule
would be unchanged even though the findings were drawn by the
successful attorney.
(2) The present system is working much delay, expense
and uncertainty in the administration of justice.
(3) The change we advocate will tend to lessen rather than
increase the labor of the circuit court judges.
(4) The Justices of the Supreme Court, individually and
collectively, demand a change in the procedure.
(5) JUSTICE demands the change.
6 166 Wis. 466.


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Tenancies at Will and Notice to Quit

Table of Contents

Legislative Suggestions: Needed Property Legislation in Wisconsin

The Common Law of Wisconsin

The Property Rights of Married Women Under Modern Laws (Part I)

Marquette Law Review vs. Marquette Alumni and Wisconsin Lawyers

Legislative Suggestions: Amendment of Section 2863, R.S.

6,824

7,078