posed service had been obtained by publication, the denial of the
relief sought is held not to be such a clear abuse of discretion as
to warrant a reversal. Pfister v. Smith,

APPEARANCE. See WAIVER, 1.

ARREST. See CRIMINAL LAW, 2. MUNICIPAL CORPORATION, 2.

ASSAULT AND BATTERY.

51

1. In an action for assault and battery and false imprisonment, against
a game warden who arrested the plaintiff without a warrant,
charging him with a violation of the laws for the protection of
game, where the issue was whether the shooting of ducks was
done in the nighttime, the mere fact that the plaintiff was com-
mitting a purely technical trespass by floating in the early morn-
ing over the submerged lands of a third party cannot be deemed
a sufficient provocation to mitigate the damages for an assault
and battery by such warden in making the arrest, and therefore
evidence of possession of the premises by the owner, and of the
posting of notices warning against trespasses, is irrelevant and not
admissible. Lamb v. Stone,

254

2. In such an action, where there is some evidence of violence on the
part of the officer, a charge that punitive damages may be given
for an assault and battery made with circumstances of aggrava-
tion or cruelty, with vindictiveness or malice, is not erroneous.
Ibid.
ASSESSMENTS. See MILWAUKEE, CITY OF, 4.

ASSIGNMENT.

See GARNISHMENT, 2. INSURANCE, 1-3.

A cause of action for a personal injury through negligence is one
which, under ch. 280, Laws of 1887, amending sec. 4253, R. S., sur-
vives, being clearly within the meaning of the amendatory clause,
"of other damage to the person,” and it is therefore assignable
before judgment. The assignment, in this case, of a verdict for
such an injury by the plaintiff to his wife is sustained to the ex-
tent of his actual indebtedness to her. Lehmann v. Farwell, 185

ATTACHMENT.

In an attachment suit, evidence that the maker of the notes sued
on absconded two months after they were made, taking with him
a large amount of property and money, and, though having in his
possession property largely in excess of his debts, left too little to
satisfy all of his creditors, does not establish that he was insolvent
when he departed, and much less that he was so when he gave
the notes; nor that he then intended to abscond and not pay them.
Landauer v. Espenhain,
169

ATTORNEYS. See COUNTY.

BANK. See AGENCY. FRAUDULENT CONVEYANCE, 1.

BENEFIT SOCIETY.

See INSURANCE, 1–3.

1. A corporation, organized under sec. 1771, S. & B. Ann. Stats., for the
purpose, as expressed in its articles of incorporation, of "mutual

aid in case of sickness, accident, and death of its members, or their
families,
without capital stock, and organized solely for
benevolent and charitable purposes, and no dividend or pecuniary
profits shall ever be made or declared; " and by its constitution dec-
laring its object to be "to associate all male persons of good charac-
ter who are sociably acceptable, and to the best of its ability pro-
vide their relatives with material and moral aid; to establish a
relief fund for the benefit of its sick members; to establish a fund
out of which there shall be paid, upon sufficient proof of the death
of a member in good standing,
a sum of not exceeding
$2,000 to the heirs as directed by the member," has no authority,
either under the statute, or under its articles of incorporation or
its constitution, to issue a benefit certificate payable to a person
who is neither of kindred to nor a member of the family of the
member to whom it is issued. Groth v. Central Verein G. U.
G. Germania,
140

2. An attempt by a member of such a society, to whom a certificate
had been issued in favor of his parents, to substitute as benefici-
aries strangers to whom he was indebted for care in sickness, but
who were not of kindred to him or members of his family, being
contrary to the statute and to the articles of incorporation of such
society, was null and void, and constituted no consideration for
the surrender of such certificate, nor did the surrender and can-
cellation thereof relieve the society from liability to the parents.
Ibid.
3. A benefit society, by receiving into membership a person who had
previously been grossly intemperate and who had taken the Keeley
treatment for the cure of the liquor habit, with knowledge on the
part of the person who took his application at the time thereof
that he had taken such treatment, thereby waives the conditions
in the application in respect to the use of intoxicating liquors, so
far as such use was implied in the taking of such treatment; and
in this case evidence that such officer had knowledge of the facts
was properly admitted. De Witt v. Home Forum Benefit Soc. 305
4. Where an applicant for membership in a benefit society in terms
"covenants and warrants" that her answers to questions in her
application are full, complete, and true, and that the truth of
such application shall be the basis of her rights of membership,
and upon the certificate there is an indorsement that it is "issued
on the faith that the application made is complete and true and
contains all her answers and statements, otherwise this certificate
shall be void," the answers in such application are all warranties,
and a false affirmative answer to the question "Are you now in
sound health?" renders the certificate of insurance void, even
though the assured believed when she made it that it was true.
Boyle v. Northwestern Mut. R. Asso.
312

BONA FIDE PURCHASER. See NOTICE OF LIS PENDENS, 2.
CARRIER.

See RAILROADS.

CASES DISTINGUISHED, ETC.

1. Baumgart v. Modern Woodmen, 85 Wis. 546 (as to the difference be-
tween warranty and representation), explained. Boyle v. N. W. M.
R. Asso.
317

2. Beckman v. Beckman, 86 Wis. 655 (as to condition in deed), distin-
guished. Gilchrist v. Foxen,
438

3. Blumer v. Phoenix Ins. Co. 45 Wis. 622 (as to difference between war-
ranty and representation), explained. Boyle v. N. W. M. R. Asso.

317

4. Bogie v. Bogie, 41 Wis. 209 (as to condition in deed), distinguished.
Gilchrist v. Foxen,

438

5. Bresnahan v. Bresnahan, 46 Wis. 385 (as to condition in deed), dis-
tinguished. Gilchrist v. Foxen,
438
6. Chicago & N. W. R. Co. v. Ft. Howard, 21 Wis. 45 (as to the entirety
of railroad property), disapproved. Chicago & N. W. R. Co. v. For-
est County,
90

7. Clifford v. State, 58 Wis. 477 (as to law of murder), criticised and ex-
plained. Terrill v. State,

289
8. Combes v. Keyes, 89 Wis. 297 (as to surrender of franchise), distin-
guished and limited. Wright v. Milwaukee Electric R. & L. Co. 38

9. Common Council of Oshkosh v. State ex rel. Perkins, 59 Wis. 425 (as
to right conferred by license), distinguished. State ex rel. Getchel
v. Bradish,
209
10. Corcoran v. Milwaukee G. L. Co. 81 Wis. 191 (as to assumption of
risks), distinguished. Erdman v. Illinois Steel Co.
12

11. Donnelly v. Eastes, 94 Wis. 390 (as to condition in deed), distin-
guished. Gilchrist v. Foxen,
438

12. Fuhrman v. Jones, 68 Wis. 497 (as to title of assignee for creditors),
limited. Milwaukee Trust Co. v. Lancashire Ins. Co.
200

13. Grever v. Culver, 84 Wis. 295 (as to title of assignee for creditors).
limited. Milwaukee Trust Co. v. Lancashire Ins. Co.
200
14. Hill v. L. C. & M. R. Co. 11 Wis. 223 (as to entirety of railroad prop-
erty), disapproved. Chicago & N. W. R. Co. v. Forest County, 90
15. Hogan v. State, 36 Wis. 226 (as to law of murder), distinguished.
Terrill v. State,

289

191

16. Jones v. St. Onge, 67 Wis. 520 (as to garnishment), distinguished.
Lehmann v. Farwell,

17. Krouskop v. Shontz, 51 Wis. 204 (as to contract by married woman),
distinguished. Mueller v. Wiese,

18. Liebermann v. Milwaukee, 89 Wis. 336 (as to special assessments),
followed. Saunderson v. Herman,

382

50

19. Morgan v. Loomis, 78 Wis. 594 (as to condition in deed), distin-
guished. Gilchrist v. Foxen,
438
20. Schomer v. Hekla F. Ins. Co. 50 Wis. 575 (as to contract for insurance
by broker), distinguished. John R. Davis L. Co. v. Hartford F.
Ins. Co.
234
21. State ex rel. Starkweather v. Common Council of Superior, 90 Wis.
612 (as to, disqualification), distinguished. State ex rel. Getchel v.
Bradish,

211

22. Steinhofel v. C., M. & St. P. R. Co. 92 Wis. 123 (as to stay of proceed-
ings), disapproved. Milwaukee M. & B. Assò. v. Niezerowski, 139

23. Stephenson v. Duncan, 73 Wis. 404 (as to assumption of risk), dis-
tinguished. Erdman v. Illinois Steel Co.

12
24. Sweet v. Ohio C. Co. 78 Wis. 127 (as to assumption of risk), distin-
guished. Erdman v. Illinois Steel Co.
12

25. Wadleigh v. Merkle, 57 Wis. 517 (as to title of assignee for creditors),
limited. Milwaukee Trust Co. v. Lancashire Ins. Co.

200

VOL. 95-44

26. Wright v. Milwaukee Electric R. & L. Co. 95 Wis. 29 (as to lapse of
franchise), followed. Milwaukee Electric R. & L. Co. v. City of
Milwaukee,

CIRCUIT COURT. See GUARDIAN, 2.

CLOUD ON TITLE. See PARTIES, S.

COMPENSATION FOR LAND. See EMINENT DOMAIN.

41

CONDITIONS. See CONTRACT, 1. DEED, 1, 2. FORECLOSURE, 2, 3. IN-
SURANCE, 8.

CONSTITUTIONAL LAW.

See STATE BOARD OF HEALTH, 1, 2. TAXATION, 2.

1. The restriction of subd. 6, sec. 31, art. IV. Const., against the enact-
ment of special legislation "for the assessment and collection of
taxes or for extending the time for the collection thereof" embraced
all the proceedings for raising money by the exercise of the tax-
ing power from the inception of the proceeding to its conclusion.
and took from the legislature all power, past, present, and future,
of special legislation on the subject. Laws, therefore, limiting the
amount which it shall be lawful for a certain county and the sev-
eral towns therein to raise and expend for the various purposes
for which taxes may be levied, are unconstitutional and void.
[Whether such laws are in violation of sec. 23, art. IV, Const., pro-
viding for a uniform system of town and county government, not
determined.] Chicago & N. W. R. Co. v. Forest County,

66

80

2. Chapter 203 of the Laws of 1895, providing that habitual drunkards
who are pecuniarily unable to procure and pay for treatment
for such disease" may, by order of the county court or of the judge
thereof, be sent for treatment to some institution in the state for
the cure of such disease at the expense of the county in which
they reside, is not a legitimate exercise of the police powers of the
state. It also involves the imposition upon the county, without
its consent, of a tax for the benefit of private institutions and in-
dividuals, not the legitimate objects of public charity. It is there-
fore unconstitutional and void, and an institution to which a
drunkard has been so sent for treatment cannot recover from the
county therefor. Wisconsin Keeley Institute Co. v. Milwaukee
County,
153

3. The provision of ch. 278, Laws of 1883, requiring as a condition for
the maintenance of an action by the former owner to recover land
conveyed by a county holding a tax title thereon to the state, and
subsequently sold by the state, that the plaintiff shall pay into the
county treasury the amount of taxes paid since the sale, with costs
and expenses, is not in conflict with sec. 9, art. I of the state con-
stitution, securing to every one a certain remedy in the law for
all wrongs, etc., without purchase, etc., since such payment is not
absolute, but is a deposit pending the suit, and the money is to be
returned to the plaintiff in case he fails to recover the land. Lom-
bard v. McMillan,

627

4. The state having conveyed the lands is under some obligation to
make the title good to its grantee, and the provision of ch. 301, Laws
of 1885, allowing the state to be made a party defendant to pend-
ing actions to recover such lands in order to protect its own in-
terest, does not contravene any constitutional right of the plaint-
iff therein.
Ibid.

CONTRACT.

See INSURANCE, 6, 9-11. MARRIED WOMEN, 1, 2. RECEIPT. SPECIFIC PERFORMANCE, 1. STREET RAILWAYS, 2. VENDOR AND PURCHASER, 1.

1. A contract by which plaintiff's intestate was "to do all the excavating which defendants "desired to have done," to be "fully completed on or before September 1, 1892," was satisfied by the doing of so much of the grading as the defendants desired to have done before said date. so that no recovery could be had by them under a provision for the payment of $10 per day liquidated damages for each day the work remained uncompleted after September 1. Boden v. Maher,

65

2. A combination by an association of masons and building contractors, embracing more than four fifths of those classes in a city, to suppress fair and free competition in bidding for contracts, evidenced by private by-laws requiring every member to submit all bids proposed to be made by him to such association, and if found to be the lowest bidder and entitled to the contract, to add to such bid, before submitting it to the owner or architect of the proposed building, six per cent. of the contract price, which he is to pay to the association, and give it his note therefor, and in that manner to exact from owners six per cent. in excess of a fair price, is contrary to public policy, unlawful, and void. Milwaukee Masons & Builders' Asso. v. Niezerowski,

129

3. A note given to such association by a member thereof for the percentage required by such a by-law to be paid on a contract taken is founded upon an unlawful consideration, and is therefore void and will not be enforced. Ibid.

4. If a written contract for the performance of services fixes no time for payment therefor, it is due on demand; and if there is nothing on the face of the contract to indicate that it does not embody the entire agreement between the parties, parol evidence is not admissible on the part of the defendant in an action on the contract to prove a contemporaneous agreement postponing payment. Cliver v. Heil, 364

5. The plaintiff sent a written proposition to the defendants in which they said, "We herewith give you estimate and specifications for heating your new house; we will furnish and set up one No. 290 furnace complete and ready for use. ... We guarantee capacity of this furnace, under proper management, to heat all rooms with registers connected with furnace" to a specified temperature, "provided that in the event of failure, we are immediately notified of such failure of said furnace so to heat said rooms. In case of said failure and notice of the same, we shall have the option of making said apparatus heat said rooms as agreed, or to remove the same, we refunding the money paid thereon.' The defendant accepted the proposition. Held, that it constituted a contract on the part of the plaintiff to furnish a furnace or apparatus suitable for heating defendant's house to the prescribed temperature by a volume of hot air, and its representations constituted an express warranty that it should be suitable and sufficient for that purpose; and that a furnace which was so defective as, when properly used, to send forth noxious coal gas to such an extent as to render the rooms unwholesome and unsuitable for occupancy, is not a suitable one for heating a house, though it may be able to furnish the required degree of heat; and such defect is a