apart. From observations made after the accident, it appeared that this stepladder would "creep." The evidence does not show that the defendant knew, or in any way had his attention called to the fact, that this ladder had a tendency to "creep." The defendant did not direct the use of this ladder on the porch, and was not present while it was being so used. Concerning these mate rial facts there is no substantial conflict in the evidence. [1] These facts do not show any negligence on the part of the defendant causing plaintiff's injury. A stepladder was a usual and proper support for the kind of scaffold plaintiff assisted in erecting. It is a simple appliance, understood, not only by painters, but by every person of ordinary experience. The condition of this particular ladder was apparent to the plaintiff. There was no concealed defect in its construction. That it was somewhat loose at the top was obvious. This looseness indicated as much to the plaintiff as it would to the defendant. It does not appear that the fact that this particular ladder had a tendency to "creep" was known to, or was ever in any way called to the attention of, the defendant. Nor does it ually brought the ladder placed by the plaintiff into an unstable position. The plaintiff, when he placed the ladder, opened it as wide as the attached rope would permit. Once while working on the scaffold he went down this ladder and up again. He did not look at the ladder, and did not see that the legs were moving together. He had knowledge of the exact condition of the ladder, a simple appliance, and had an opportunity to observe its action while being used on this floor. The accident resulting to the plaintiff, if not attributable to lack of ordinary care on the plaintiff's part, is due to a risk assumed by plaintiff in using a simple appliance in its then obvious condition. [3] These facts appearing without substantial conflict in the testimony, the defendant is entitled to judgment notwithstanding the verdict. The order of the trial court denying defendant's motion for judgment is reversed. Reversed. STATE ex rel. McDONALD v. RILEY, appear that the defendant was in any way (Supreme Court of Minnesota. Nov. 3, 1911.) use. CEDURE. (Syllabus by the Court.) corpus case, no assignments of error are reOn an appeal to this court in a habeas quired. The rules of this court as to service of briefs and assignments of error have no application to such cases. [Ed. Note. For other cases, see Habeas Corpus, Dec. Dig. § 113.*] 2. HABEAS COrpus (§ 4*)-Grounds-Suesti TUTE FOR APPEAL. negligent in not discovering it. Such tendency, under the evidence, is discoverable by 1. HABEAS CORPUS (§ 113*)-APPEAL-PROuse, and not by an inspection while out of The opportunity of the plaintiff, there fore, to discover and know the exact nature of the appliance he was using, was not only equal, but much superior, to the opportunity of the defendant. The plaintiff, not the defendant, selected this ladder for use on this particular floor in the manner in which it was being used. It is certain that a long Habeas corpus can never be used as a plank resting near its end on two stepladders substitute for an appeal or writ of error, for will, if continually springing up and down, it reaches only jurisdictional defects, which either slip on the ladders or cause the lad-render the proceedings under which the relator is held absolutely void. ders to move on the floor. If the roughness of this particular floor prevented the ladder from being re-extended by the weight upon it, the plaintiff, and not the defendant, had an opportunity to know and observe such fact. The defendant was not present while the ladder was being used. Neither under the rule applicable to simple appliances, nor under the general rule requiring reasonable inspection from time to time, would these facts show that plaintiff's injury resulted from a failure on the part of the defendant in any duty owing to the plaintiff. [Ed. Note.-For other cases, see Habeas Corpus, Cent. Dig. § 4; Dec. Dig. § 4.*] 3. HABEAS CORPUS (§ 30*)-Grounds-DeFECTIVE COMPLAINT. The court in which the relator was con victed had jurisdiction of him and the offense attempted to be charged, and the complaint, although defective, was sufficient to invoke such jurisdiction. [Ed. Note. For other cases, see Habeas Corpus, Cent. Dig. § 25; Dec. Dig. § 30.*] Appeal from District Court, Itasca County; C. W. Stanton, Judge. Petition by the State, on the relation of John D. McDonald, for writ of mandamus against T. T. Riley, Sheriff of Itasca County. From a decree granting the writ, defendant appeals. Reversed, and relator remanded. [2] On the contrary, it appears that the plaintiff, a painter experienced in the use of stepladders and scaffolds, selected this ladder for use in a scaffold, and placed it upon a cement floor with a long plank extending from it to the other supporting stepladder. The plaintiff and another worked from this plank. Their movements thereon caused the plank to bend and spring to a consider- START, C. J. The relator was tried, conable extent. This motion of the plank grad-victed, and sentenced to imprisonment in R. A. McOuat, County Atty., for appellant. Spear & Stone, for respondent. the county jail for 90 days, in justice court, sion that the relator was entitled to be disin the county of Itasca. The complaint charged on habeas corpus, which can never charged that he did, at the time and place be used as a substitute for an appeal or stated, within the county, "willfully, unlaw-writ of error, but reaches only jurisdictionfully, and wrongfully use vile and obscene al defects, which render the proceedings language in the presence of women, against under which the relator is held absolutely the form of statute in such case made and void. provided, and against the peace and dignity of the state of Minnesota. *"" He was committed to jail pursuant to the sentence. Thereupon, on his petition, a writ of habeas corpus was issued by the district court of the county of Itasca. After a hearing thereon, the court made its order discharging the relator from the custody of the sheriff, from which he appealed to this court. [1] The relator here objects to the hearing of the appeal on its merits, and asks for an affirmance of the order, because of the failure of the appellant to assign any errors as provided by rule 9 (61 N. W. v) of this court. There is no merit in the objection. The statute (R. L. 1905, § 4602) provides that the appeal may be heard summarily whenever the court is in session, on notice of 5 days to the adverse party, and that it shall be tried in the same manner as if the writ originally issued out of this court. It is obvious from the statute that the rules as to the making and serving of briefs and appending thereto assignments of error have no application to an appeal in a habeas corpus case, for it would be impossible to comply with them and give effect to the statute. How could briefs be served 20 days before the first day of the term in cases which may be placed on the calendar and heard whenever the court is in session on 5 days' notice? Again, if the writ issues out of this court, there can be no basis for requiring assignment of errors. [2] It is further urged that the complaint does not charge any public offense, and therefore the justice had no jurisdiction, and the judgment is void, not simply voidable. It is apparent, from the complaint and the judgment, that the relator was ostensibly prosecuted and sentenced pursuant to Laws 1907, c. 96, which, so far as here material, provides that: "Any person who shall use in reference to and in the presence of another abusive or obscene language, naturally tending to provoke an assault or any breach of the peace, shall be guilty of a misdemeanor." It must be conceded that this complaint does not, as against a direct attack, state a public offense, in that it does not state the name (if known) of the person in reference to and in whose presence the language was used, or the language itself and its natural tendency; and, further, if this were an appeal from the judgment, it would have to be reversed. State v. Clarke, 31 Minn. 207, 17 N. W. 344. It does not, however, follow from this conces [3] The justice in this case had jurisdiction of the person of the defendant and of the offense attempted to be charged, and the complaint, although concededly defective, was sufficient to invoke its jurisdiction. State v. McMahon, 65 Minn. 453, 68 N. W. 77; State v. Matter, 78 Minn. 377, 81 N. W. 9; State v. McDonald, 112 Minn. 428, 128 N. W. 454. We hold, following the cases cited, that the relator is not entitled to be discharged on habeas corpus. It is therefore ordered that the order appealed from be and it is hereby reversed, and the relator remanded to the custody of the appellant, as sheriff. CONNELLY v. BARNETT & RECORD CO. (Supreme Court of Minnesota. Nov. 17, 1911.) (Syllabus by the Court.) MASTER AND SERVANT (§§ 286, 288, 289*)-INJURIES TO SERVANT-QUESTIONS FOR JURY. The plaintiff's intestate, while in the emof a derrick crew, was killed by the breaking ploy of the defendant as foreman or signalman of the boom stick by reason of the improper adjustment of the becket line. Held, that the questions of the negligence of the defendant, the contributory negligence of the intestate, and whether he assumed the risks, were each made by the evidence a question of fact, and, further, that the trial court committed no reversible error in its charge to the jury. [Ed. Note.-For other cases, see Master and Servant, Dec. Dig. §§ 286, 288, 289.*] Appeal from District Court, St. Louis County; J. D. Ensign, Judge. Action by Anna M. Connelly, administratrix, against the Barnett & Record Company. From an order denying defendant's motion for judgment notwithstanding a verdict for plaintiff, or for a new trial, defeudant appeals. Affirmed. Theo. Hollister and J. A. P. Neal, for ap- START, C. J. On January 1, 1910, the plaintiff's intestate was in the employ of the defendant as foreman or signalman of a derrick crew, who were then engaged in taking down, by the use of a large hoisting derrick, a part of an ore dock at Duluth. While so engaged, and at about 2:30 o'clock p. m. of that day, he was so injured by the breaking of the boom stick of the derrick that he died the next day, leaving him surviving a widow, the plaintiff herein, and a daughter 20 months old. This action was brought in the district court of the county of St. Louis to recover damages sustained by the widow and child by reason of his death, on the ground that it was caused by the negligence of the defendant. The complaint, with other allegations of negligence, charged, in effect, that the defendant was negligent, in that it failed to furnish a derrick that was in a safe and proper condition and that it negligently caused the becket line to be improperly attached to the boom, thereby rendering it dangerous to those working with or near it. The answer denied any negligence on the part of the defendant, and alleged that the deceased was guilty of contributory negligence and assumed the risks. The plaintiff had a verdict for $5,000, and the defendant appealed from an order denying its blended motion for judgment notwithstanding the verdict or for a new trial. 1. The first contention of the defendant | is that the evidence shows no negligence on the part of the defendant. The evidence is practically conclusive that the derrick was constructed in the usual way, and consisted of one upright timber 32 feet long, called the "mast," the foot of which rested upon two long sills; that the boom stick was 14 inches deep and 12 inches wide, and 62 feet 10 inches long, and was made of sound timber, well seasoned, and the best obtainable; that the mast turned on the big socket on the bottom casting, and the lower end of the boom stick was fastened at the end of the mast into a casting, and turned with the mast; that the boom stick was so fixed that it could be raised and lowered to the desired angle by "boom falls," which consisted of a set of blocks with a wire cable reeved through them, and the whole derrick mechanism was operated through systems of blocks, operated by a stationary steam engine; and, further, that the "becket line," or the end of the "fall line," by which the boom was raised and lowered, was attached to the boom stick about 36 feet from the bottom of the boom, and immediately below this point on the boom stick were two pieces of 2x4's nailed on each side thereof to keep the boom from sliding down. There was also evidence tending to show that the derrick was brought upon the ore dock by the defendant, dismantled, and the derrick crew were directed to set it up and use it; that the boom and becket line had been previously used by the defendant, and the marks of the becket line were plainly visible just above the 2x4's, indicating plainly the place where the becket line had been used by the defendant on former occasions; that the location and adjustment of the lower end of the becket line on the boom stick was a matter of importance, as one of its functions, when properly adjusted, was to coun thereby equalizing the strain on the boom stick and keeping it straight; that if the line was improperly adjusted the tendency would be to cause the boom stick to bend, rendering it unsafe; that the becket line, when the derrick was set up at the ore dock, was fastened to the boom stick at the precise point indicated by the marks thereon just above the 2x4's, but this was the wrong point on the boom stick to fasten the line, and it caused the boom stick to bend upward; that the defendant's superintendent in charge of the work frequently observed that the boom bent upward when a heavy load was being lifted; and, further, that the improper adjustment of the becket line caused the boom stick to break, whereby the deceased was killed. We have not attempted to indicate all of the evidence bearing upon the question of the defendant's alleged negligence, but to indicate the important evidentiary facts relevant to the question which the evidence, taking the most favorable view of it for the plaintiff, tends to establish. We are of the opinion that such evidentiary facts were sufficient to justify the jury in inferring therefrom the ultimate facts that the proper adjustment of the becket line was not a simple matter of detail, which could be done by any ordinary employé without skill or experience in adjusting such lines, but, on the contrary, that it was a matter directly affecting the safe operation of the derrick; that the defendant was chargeable with the duty of securing the proper adjustment of the line, so that the derrick, when set up and put in operation by its employés, would be safe, so far as such result could be secured by the exercise of due care on its part in adjusting the line; and that the defendant was guilty of negligence in the premises, which was the proximate cause of the death of the deceased. We hold, upon a consideration of the evidence, that the special facts of this case do not, as a matter of law, bring it within the rule that the duty of the master to furnish reasonably safe instrumentalities for his employés does not extend to such parts thereof which necessarily have to be adjusted in the course of the use of the implement (Gittens v. William Porten Co., 90 Minn. 512, 97 N. W. 378), but that they are sufficient to bring this case within the rule of Hamlin v. Lanquist Co., 111 Minn. 491, 127 N. W. 490, 20 Am. & Eng. Ann. Cas. 893, and, further, that the question of the defendant's negligence was one of fact for the jury. 2. The other reasons urged by the defendant in support of its claim for judgment in its favor notwithstanding the verdict are that the evidence shows as a matter of law that the deceased was guilty of contributory negligence and assumed the risks. The evidence as to each of these grounds is prac together. The clear preponderance of the (Syllabus by the Court.) MONEY RECEIVED (§§ 18, 19*) — EVIDENCE Defendant was the publisher of a newspaper, and in order to increase its circulation for the largest number of subscriptions. Durconducted a prize contest, and offered prizes ing plaintiff's absence from the city of Duluth, his 14 year old daughter was left in charge of his store, and during that time became a connumber of votes, she practiced certain fraudutestant for a prize. In order to increase the lent schemes by sending in fictitious names and increasing the length of time of subscriptions, and to secure the money for that purpose she tiff's store and paid it over to the defendant. appropriated cash from the safe of the plainIn an action brought by the father to recover from the defendant the money thus paid, held, the evidence was sufficient to prove that plaintiff's money had been wrongfully taken by the daughter and paid over to the defendant, and the evidence was sufficient to make a case for the jury upon the question of its good faith in receiving the money. ceived, Dec. Dig. §§ 18, 19.*] Appeal from District Court, St. Louis County; J. D. Ensign, Judge. Action by Ralph Marotta against the Duluth News Tribune Company. From an order granting a new trial after dismissing the action at the close of plaintiff's case, defendant appeals. Affirmed. evidence shows that the deceased was the MAROTTA v. DULUTH NEWS TRIBUNE foreman of the derrick crew, but one witCO. ness testified to the effect that he was sim- (Supreme Court of Minnesota. Nov. 10, 1911.) ply a signalman; but it may be conceded for the purposes of this appeal that he was a foreman as well as a signalman. It does not, however, follow from this concession as a matter of law that he either assumed the risks or was guilty of contributory neg ligence. There was evidence tending to show that the defendant's superintendent, Cruikshank, was present at least a part of the time when the derrick was being set up, and the deceased was subject to his orders; that two of the crew, other than the deceased, attached the becket line to the boom stick, and placed it at the point where it had been previously attached, as indicated by the line marks thereon. The boom stick bent when the derrick was put in operation, and the deceased had an opportunity to observe it; but whether he appreciated the risks of the situation is left by the record an open question. He was, however, on the morning of the accident, at about 9 o'clock, told by the engineer that he thought the deceased had better move the becket line, as he (the engineer) was afraid it was going to break. The deceased replied that he would have to see the superintendent about it, and did go and see him; and subsequent to this conversation the superintendent and the deceased were seen in front of the derrick, looking at it. The superintendent testified that he told the deceased that he could make the change in the line; but there was other evidence tending to show that he told the deceased that the line was all right where it was, and, further, that after the accident, and as the deceased was being carried into the office, the superintendent asked where the boom broke, and, upon being answered, "At the becket," he said it was too bad, and that the deceased spoke to him that morning about moving the line, and he told him he thought that he (the deceased) better not, as there was more spring below the becket than there was above it. Upon the whole evidence, and especially in view of the short time, some six hours, at most, intervening between the information as to the safety of the derrick, received by the deceased to deliver to the defendant the subscribed from the engineer, and the happening of the accident, the prompt report to the superintendent, and the advice received from him, we are of the opinion, and so hold, that the question of the deceased's contributory negligence and whether he assumed the risks were each a question of fact, to be decided by the jury and not by the trial judge. 3. Errors are assigned with reference to the instructions to the jury. We find no reversible error in any of them. Order affirmed. Wil Fryberger & Fulton, for appellant. liam Marx (Benj. M. Goldberg, of counsel), for respondent. LEWIS, J. From the 2d day of August to the 2d day of October, 1909, defendant conducted a prize contest, whereby it offered certain prizes to those persons who would secure the largest number of subscriptions for its paper; the object being to increase and extend its subscription list. Any person wishing to enter the contest was required to cut from defendant's paper a blank nomination slip, cause same to be filled out, and have some third person sign his name thereto, thus nominating the party desiring to engage in the contest. The contestant was furnished with a receipt book, and was requir er's name, together with the cash for the subscription, and the contestant was credited with a certain number of votes in the contest. A three-months' subscription was entitled to 500 votes, a subscription for one year to 4,000 votes, and for five years to 30,000 votes. During the period mentioned the plaintiff was engaged in conducting a grocery business in the city of Duluth, and a few days prior to the 2d of August he had started on a trip to Europe, leaving the store in charge of his wife, who was assisted by his daughter Theresa, a girl 14 years of age. | mother the fact that she had taken the monPlaintiff did not return from Europe until ey from the safe for that purpose, and thereafter the contest had closed. He aims to upon, in order not to lose the money already have then discovered that the wife and misappropriated, the mother took $500 more, daughter had delivered to the defendant from and the daughter paid it over to the defendtime to time the sum of $550 of his mon- ant, and delivered the requisite amount of ey, no part of which was obtained by her raised subscriptions. It appears, further, from subscribers to the paper, and that plain- from the record, that at the time Theresa entiff's wife had appropriated $500 of his mon- tered the contest she went to the office of the ey, which had not been secured upon sub- defendant and delivered to them the nominascriptions, and had paid it over to the de- tion blank which she had cut out of the pafendant, and that they had also secured $120 per, and, when asked if her father had writfrom an uncle and paid that over to defend- ten his name thereon, she stated that he had ant company. The answer admitted receiv- not, whereupon the man in charge tore up ing certain sums of money from the daugh- the blank and said that he would nominate ter, who was a contestant in the contest, but her himself as a candidate. It also appears alleged that the defendant had conducted its that from time to time during the contest a business with her in good faith, believing representative from defendant's office visited that the names of the subscribers she fur- the store and encouraged her in every way nished to the paper were secured in good to continue the contest, and held out flatterfaith, and that the money she paid in was ing inducements that she would be successful money furnished by such subscribers. in winning the first prize. Defendant invokes the rule of law that, "when money transferred to an honest taker has been obtained through a felony by the one transferring it, the honest taker, who re The trial court dismissed the action at the close of plaintiff's case, upon the ground that the evidence was not sufficient to establish knowledge on the part of the defendant that the money had been misappropriated. After-ceives it without knowledge of the felony and wards, upon plaintiff's motion, the court granted a new trial, and defendant appealed from the order, and takes the position here that the evidence was not sufficient to make a case for the jury upon the question of defendant's bad faith in receiving the money from the daughter. The method followed by the daughter in conducting the contest was to engage her friends and acquaintances in securing subscriptions, and these with the money so received she delivered to the defendant at its office. On one occasion she returned three or four fictitious names, and took plaintiff's money from the safe, and represented it to be the amount paid in by subscribers. She was detected in this by the defendant, was admonished, and was not given credit for any votes for those subscriptions. She then resorted to the following method: Having secured subscriptions for three months or a year, as the case might be, she raised the amount from three months to a year, and from one year to five years, and then appropriated plaintiff's money, and delivered it to the defendant under the misrepresentation that it represented the amount paid in by the subscribers. In this way, from time to time, she took $550 of her father's money out of the safe in the storeroom to which she had access. The first prize offered by the defendant in this contest was a house and lot, advertised to be worth $3,000, the second prize was an automobile, third prize a piano, etc. Theresa started out to obtain votes enough to secure the house and lot, and resorted to the method stated for the purpose of swelling the votes. According to the testimony of herself and her mother, during the latter in due course of business, acquires a good title as against the one from whom it was stolen," citing Brimington v. Gilbert, 123 La. 846, 49 South. 593, 25 L. R. A. (N. S.) 631, 131 Am. St. Rep. 382; Spooner v. Holmes, 102 Mass. 503, 3 Am. Rep. 491; Merchants' L. T. Co. v. Lamson, 90 Ill. App. 18; Murray v. Lardner, 67 U. S. 110, 17 L. Ed. 857; Hamilton v. Vought, 34 N. J. Law, 187. The evidence tended to prove the following facts: Theresa was a child only 14 years of age, and in connection with her mother was in charge of her father's store. Defendant's representatives knew that the father was absent; that she had become greatly excited over the contest, and had resorted to a deception for the purpose of securing votes by sending in fictitious names; and that she secured the money from some source. Defendant could easily have ascertained whether the large number of subscriptions for one and five years, as returned by her, were genuine. The position of the defendant in conducting a contest of this character, which must necessarily appeal to the cupidity of the young, is quite different from the position of a business house in the commercial world with respect to commercial paper. In this state the rule is that, when a promissory note is shown to be fraudulent, the burden is upon the holder to prove that he is a bona fide holder without notice. Mendenhall v. Ulrich, 94 Minn. 100, 101 N. W. 1057; Drew v. Wheelihan, 75 Minn. 68, 77 N. W. 558. Plaintiff's case is much stronger. A prima facie case was proven that the money belonging to him had been appropriated without authority by the daughter and paid to the defendant for fictitious subscriptions. The cir |