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quately explained and defendant was entitled to a new trial;
and the plaintiff, by accepting and retaining, without objec-
tion, the costs imposed by the order opening the case, waived
his right of appeal. Feldmeier v. Springfield F. & M. Ins.
Co.
337

Alteration and review. See DIVORCE, 6-8.

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JUDGMENT NOTE. See BILLS AND NOTES, 1.
JUDICIAL DISCRETION. See DISCRETION.

JUDICIAL NOTICE. See EVIDENCE, 1.

JURISDICTION. See ACCOUNT. BANKS, 1.

GARNISHMENt, 2.

MARRIAGE, 1, 2. WORKMEN'S COMPENSATION, 2-4.

JUSTICES OF THE PEACE.

Review of judgment by circuit court.

1. Where plaintiff, on appeal to the circuit court from a judgment
of a justice of the peace, filed no affidavit for a trial de novo
under sec. 3768, Stats., the circuit court was required to give
judgment according to the weight of the evidence and the
justice of the case, without regard to the finding of the justice
and upon the return. James v. Woerpel,

164

2. Where it is evident from the decision of the trial court that
he indulged in the presumption that there was evidence other
than that appearing in the transcript, and that he felt bound
to affirm the judgment because he was not convinced it was
wrong, the appellant was not accorded the review to which
he was entitled under sec. 3769, Stats., and the judgment of
the circuit court is reversed.
Ibid.

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LABOR DISPUTES. See INJUNCTION.

LACK OF DILIGENCE. See CONTINUANCE, 3.

LAND CONTRACT. See VENDOR AND PURCHASER.

LANDLORD AND TENANT.

Covenant against assignment: Transfers in liquidation proceedings.
See BANKS, 3, 4.

1. The transfer of title from a trust company to the commissioner
of banking by devolution in liquidation proceedings under
sec. 2022, and any transfer that the commissioner might make
of the lease of the bank premises in course of liquidation, did
not constitute a breach of the covenant in the lease against
assignment. Liquidation of Citizens S. & T. Co.
601
Covenant to pay for permanent improvements: Removing weeds.
2. An occupant of a farm who, pursuant to sec. 1480, Stats., spent
some time in removing mustard weed cannot recover for such
work in the absence of any agreement between him and the
owner of the farm, the statutory duty to destroy the weed
being as absolute upon an occupant of lands as upon the
Owner. Tollefson v. Tollefson,

149

Same: Changes for convenience: Sowing clover.

3. The construction of a small chicken house outside of a barn
and certain changes in grain bins in the barn made by the
occupant of a farm, being repairs or changes for his con-
venience, are not within an agreement whereby the owner
was to pay for "permanent improvements" made by the ten-
ant; neither is the sowing of clover, if primarily for fertiliz-
ing purposes, in the nature of a permanent improvement.
Tollefson v. Tollefson,

LARCENY. See INFANTS, 2.

LEASE. See BANKS, 3, 4. LANDLORD AND TENANT.
LEGACIES. See APPEAL, 19. EXECUTORS. WILLS, 9–12.

LIBEL AND SLANDER.

Damages: Circulation of slander by plaintiff.

149

1. A storekeeper who, in the presence of others, accused plaintiff
of being a thief is liable for injury to plaintiff's feelings
and to her reputation caused by circulation of the charges
among her friends and neighbors, not including the damages
sustained by reason of plaintiff herself circulating the story.
Suick v. Krom,

254

2. An instruction which would permit the jury, in determining
plaintiff's damages, to consider the fact that the plaintiff her-
self told a number of her friends of the incident, is erroneous,
as the defendant is not responsible for the circulation of the
slander by the plaintiff.
Ibid.

Defenses: Privilege in defending property.

3. A slander is not privileged on the ground that the defamatory
words were spoken in defense of defendant's property, even
though he was under the impression that plaintiff was in fact
stealing his goods, as it was not necessary nor justifiable for
him to publicly accuse plaintiff of stealing. Suick v. Krom,
254

LICENSEE.

See NEGLIGENCE, 3.

LIENS. See MECHANICS' LIENS.

LIMITATION OF ACTIONS.

See ADVERSE POSSESSION. WORKMEN'S COMPENSATION, 1, 2.
Accrual of action: Existence of cause of action not known.
1. Where sisters were induced by brothers to convey to them their
interests in the realty of their deceased father for an amount
less than the actual value of such interests, the sisters' cause
of action for damages accrued at the time of such conveyance
and was barred where not brought within six years there-
after, under sub. (3), sec. 4222, Stats., notwithstanding the
sisters did not discover that they had not received full value
for their interests until within six years before the commence-
ment of the action, such action not being an equitable action
for relief from fraud within sub. (7) of said section.
Darling v. Nelson,
337

Lack of opportunity to plead statute of limitations.

2. Where the court denied cancellation of deeds and rendered
judgment awarding money damages, the supreme court on
appeal will reverse the judgment on the ground that the
action was not brought within six years from its accrual,
notwithstanding defendants did not plead the statute of limita-
tions, plaintiffs not having asked for money damages and
defendants therefore having had no opportunity to plead
such statute. Darling v. Nelson,

LIQUIDATION.
ANT, 1.
LOSS OF PROFITS.
MALPRACTICE.

337

See CORPORATIONS, 6-10. LANDLORD AND TEN-

See CORPORATIONS, 8. DAMAGES, 1.
See PHYSICIANS AND SURGeons, 2-4.

MANDAMUS.

See MUNICIPAL CORPORATIONS, 8.

Nature and grounds: Necessity of refusal to perform legal duty.
1. Where a bridge company's refusal to repair a roadway was
based on a void contract imposing such duty on the city, and
it did not appear that the bridge company would refuse to
keep the roadway in repair if not relieved of such duty by the
contract, there was no such refusal to perform its legal obli-
gations as entitled the city to compel performance by man-
damus. State ex rel. Superior v. Duluth & S. B. Co.

283
2. Mandamus will not lie to compel the bridge company to pave
and maintain the roadway in accordance with the city's de-
mands, as the company might adopt a sufficient and appro-
priate manner of maintaining the roadway wholly different
from that sought by the city.

Same: Writ refused if ineffective.

Ibid.

3. A writ of mandamus to compel a school board to provide trans-
portation for relator's children to and from school, under
sec. 40.16, Stats., providing that where schools are suspended
in a school district the school board shall provide transporta-
tion for children of a certain age living more than one mile
from the nearest school, for a period of at least six months
during the school year, was properly denied, where the final
hearing in the proceedings was not concluded until the
eleventh month of the school year and such writ could afford
relator no relief. State ex rel. Schertz v. Spiegel,

Same: Form of action: Joinder of parties.

260

4. Mandamus is essentially a civil action so far as the rules and
practice as to pleadings are concerned; and a county has such
a joint or common interest with that of one seeking by
mandamus to compel the sheriff to reinstate him in the ser-
vice as a deputy and place his name on the pavroll that it is
properly joined as a relator, in view of sec. 2602, Stats., the
object of which is to determine in one suit the rights of all
parties in the subject matter of the litigation. State ex rel.
Milwaukee County v. Buech,

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474

MARRIAGE.

Annulment: Void or voidable marriage: Powers of court.
1. Under secs. 2351 et seq., Stats. 1919, an action for the annul-
ment of a marriage, jurisdiction of which is by sec. 2348
given the circuit court, is the proper remedy for setting aside
either a void or a voidable marriage. Lyannes v. Lyannes,
381

2. Jurisdiction and power to annul a marriage, like that to divorce
the parties, is exclusively of statutory creation, and cannot
be extended under the general equitable powers of the court.
Ibid.

Presumption of validity of marriage.
3. The presumption in favor of the validity of a marriage over-
rides the presumption of evidence that the laws of a sister
state are the same as those of the forum, and in the absence
of any allegation in the complaint to the contrary it will be
deemed, on the consideration of a demurrer, that the parties
to the marriage were not disabled or prohibited from marry-
ing at the place where the ceremony was performed. Lyannes
v. Lyannes,
381
Extraterritorial effect of marriage license law or eugenic marriage
law.

4. Neither the marriage license law (secs. 2339n-1 to 2339n-27,
Stats.) applicable to marriages solemnized in Wisconsin, nor
sec. 2339m, providing for an ante-nuptial physical examina-
tion of those who are applicants for a license to marry within
the state, has extraterritorial effect. Lyannes v. Lyannes,
381

5. Sec. 2330m, Stats., so far as it relates to marriage in another
state of residents of this state, renders null and void such
marriage only where the parties are disabled or prohibited.
under the laws of this state, from marrying under any cir-
cumstances; that is, such a marriage as is prohibited by sec.
2330.
Ibid.

Fraud: Nature warranting annulment.

6. Neither representation by the man that he is two years older
than he is in fact, nor inducing a marriage in evasion of the
state law, in another state, nor both, is or are of such sub-
stantial nature as to warrant annulment of a marriage for
fraud. Lyannes v. Lyannes,
381

7. The marriage of plaintiff to defendant, induced by the repre-
sentation of defendant that her pregnancy was due to inter-
course with him, will be annulled when the pregnancy was
in fact due to intercourse with another man. Winner v.
Winner,
413

Cohabitation: Consummation of marriage.

8. An allegation of a complaint that plaintiff left defendant on
the day after their marriage "and has never since cohabited

with him," in effect admits cohabitation prior to leaving and
constitutes a consummation of the marriage within sub. (4),
sec. 2351, Stats. Lyannes v. Lyannes,

MASTER AND SERVANT.

381

See CONSTITUTIONAL LAW, 2. FEDERAL EMPLOYERS' LIABILITY ACT.
INJUNCTION. Negligence, 6. PHYSICIANS AND SURGEONS; 1.
WORKMEN'S COMPENSATION.

Wrongful discharge: Tender of resignation: Effect.

1. Where a salesman, before the expiration of his contract, re-
quested by letter that his resignation be accepted, such tender
of resignation was not a breach of contract; and the em-
ployer's reply that the salesman had breached his contract by
writing the letter of resignation was a wrongful discharge
justifying recovery of salary, commission, and expenses up
to the time the resignation was to take effect. Pringle v.
Jackson Fence Co.
634

Gross negligence of servant: Liability of master.
2. To render an employer liable for the gross negligence of a
servant in the course of his employment, it is not essential
that there should be a ratification of such negligence on the
part of the employer. Haswell v. Reuter,

228

Failure to warn servant: Contributory negligence. See NEGLI-
GENCE, 3.

3. Where the defendants undertook to repair steam coils in the
plant of a manufacturing company, and their employee in
charge of the work called for one of the employees of the
manufacturing company as a helper, and the helper was in-
formed of his duties and the danger incident to the moving
of the coils was obvious, it is held that the death of the helper
by the tipping of one of the coils was not proximately caused
by the failure of the defendants to warn and instruct him as
to the dangers incident to the work. Zurich Gen. Acc. &
L. Ins. Co. v. Bowers,
116

4. Where the employee of the defendants was engaged in moving
the coil by the application of a pinchbar and the deceased was
holding it steady, the fall of the coil does not, under the
rule of res ipsa loquitur, establish that the operator of the
pinchbar was negligent, as the fall of the coil may have been
purely accidental or caused by the failure of the deceased to
hold it in an upright position.
Ibid.

MATERIALMEN. See MECHANICS' LIENS.
TIONS, 17, 18.

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MUNICIPAL CORPORA-

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