for the wrong, but is uncertain whether it was characterized by ordinary or by gross negligence,--he may seek to recover compensation on both aspects, stating each in a separate cause of action and insisting upon both up to such time as there cease to be reasonably conflicting inferences on the evidence as to which is the right one. Ibid. 6. In case of a situation such as mentioned in the last foregoing, upon it appearing clearly what cause of action the plaintiff has, in fact, if any, the court should take the other from the jury or dismiss the action in respect thereto. Ibid. 7. In case of there being the reasonably conflicting inferences mentioned in the last foregoing, on the whole evidence, the cause should be submitted to the jury with such definite instructions as to guard against a contradictory verdict being rendered. Ibid. 8. The dominant idea in subd. 1, sec. 2647, Stats. (1898), is to permit joinder of causes of action legal or equitable if there is some substantial point of unity between them. McArthur v. Moffet, 564 9. As used in said subdivision the terms "cause of action," "transaction," and "subject of action" mean different things. Ibid. 10. The term "cause of action" as there used includes the facts showing plaintiff's right and its violation by the defendant. Ibid. 11. The term "transaction" means whatever may be done by one person which affects another's rights and out of which a cause of action may arise. Ibid. 12. Cases in this court as to what constitutes "subject of action" cannot be harmonized, and the court does not now attempt to lay down any hard-and-fast definition which shall be applicable to all cases which may arise. Ibid. 13. The definition given in Telulah P. Co. v. Patten P. Co. 132 Wis. 425, 430, and approved in Brahm v. M. C. Gehl Co. 132 Wis. 674, 679, of the term "subject of the action" in sec. 2656, Stats. (1898), as being composed of the plaintiff's right and the defendant's invasion thereof, is withdrawn. Ibid. 14. The term "subject of action" must be deemed to mean the same thing wherever it is used in the Code. Ibid. 15. The clause in subd. 1, sec. 2647, Stats. (1898), in which the term "subject of action" is used will find its most frequent application in equitable actions, but is not to be limited to them. Ibid. 16. In possessory or proprietary actions, whether involving real or personal property, the "subject of action" is composed of the plaintiff's primary right together with the specific property itself. A statutory cause of action to quiet title to land and a cause of action for trespass on the same land arise, therefore, out of "transactions connected with the same subject of action," and may be joined. Ibid. 17. It seems that in all other actions the plaintiff's right which is alleged to have been invaded must be held to be an essential part, and perhaps in many cases the whole, of the "subject of the action," as those words are used in the Code. ADMINISTRATION. AND WARD. See EXECUTORS AND ADMINISTRATORS. ADMISSIONS. See RELEASE, 4. ADVANCEMENTS. See DESCENT AND DISTRIBUTION. Ibid. GUARDIAN ADVERSE POSSESSION. 1. Evidence offered to sustain a claim of adverse possession must be 363 3. It appearing that the evidence on the subject of adverse posses- ALIENS. See DEATH, 3. ALIMONY. See DIVORCE, 2-6. AMBIGUITIES. AMENDMENT. Of pleadings. See CONTRACTS, 1-15. SALES, 3. See NEGLIGENCE, 20, 21. Of statutes. See MUNICIPAL CORPORATIONS, 7. STATUTES, 1. ANSWER. See GUARANTY, 4. RELEASE, 1. ANTENUPTIAL CONTRACTS. See DIVORCE, 5, 6. ANTICIPATION. See WATERS AND WATERcourses, 3. APPEAL AND ERROR. Decisions reviewable: Appealable orders. See COURTS, 4. PROCESS, 3. Printed case. See COSTS, 3-5. Review: Questions considered. See Costs, 7. 1. A judgment declaring void certain proceedings could not be con. Same: Presumptions. See APPEAL, 9. Same: Stare decisis. 74 2. Where the supreme court has persistently declared approval of a 136 Same: Findings, when disturbed. See APPEAL, 7. CONTRACTS, 18. EQUITY, 3. EVIDENCE, 4. WILLS, 1. 3. Upon evidence fairly justifying either of two inferences, the decision of the trial court must control. Kola Lumber Co. v. Stoughton Wagon Co. 329 4. Decisions of trial courts on issues of fact will not be disturbed on appeal unless the record shows to a reasonable certainty that they are prejudicially wrong. Schwenn v. Schwenn, 399 5. A decision of the trial court changing a jury's finding upon a question of negligence is entitled to great weight and should not be disturbed on appeal unless clearly erroneous. Rogers v. Brown, 472 6. In an action for injuries sustained by a boy in a collision with an automobile which defendant was driving not faster than six miles per hour, the evidence, stated in the opinion, is held so strong and convincing, as against the boy's own testimony, that this court should not disturb the decision of the trial court setting aside a finding of the jury that defendant was negligent. Ibid. Same: Affirmance and reversal: Material and immaterial errors. See APPEAL, 3-6. CONTRACTS, 18. CORPORATIONS, 7. CRIMINAL LAW, 9. DIVORCE, 5. HIGHWAYS, 4. INSTRUCTIONS TO JURY, 4, 6. PLEADING, 5. RAILROADS, 3. RAPE, 2. RELEASE, 3-5. TRIAL, 3, 4, 9, 10. WILLS, 1. WITNESSES, 1. 7. Although a judgment is prima facie erroneous because the trial court failed to make any finding as to an essential fact, it may be affirmed on appeal if it is clear that justice has been done. Hawkinson v. Oatway, 136 8. Such a judgment may be supported by an uncontradicted inference as to the essential fact, arising from evidentiary facts found. Ibid. 9. Prejudice to a complaining party on appeal is not presumed from mere occurrence of error. The error cannot be regarded as harmful, so as to require a reversal unless, within reasonable probabilities, had the error not occurred the result might have been materially more favorable to the one complaining of it. Oborn v. State, 249 10. In an action for malicious prosecution on the charge of selling mortgaged chattels, if it be shown that defendant, the mortgagee, consented to the sale, it is not error prejudicial to him to exclude a question, asked of the plaintiff, as to what she did with the chattels after such consent. Rogers v. Van Eps, 396 Same: Waiver of right of appeal. See EMINENT DOMAIN, 5. ADVERSE POSSESSION, 3, 4. PLEADING, 5. Appeal from justice's court. See Costs, 1, 6. See Appeal to state superintendent. See SCHOOLS AND SCHOOL DISTRICTS, 4-7. APPEALABLE ORDERS. See COURTS, 4. PROCESS, 3. ASSESSMENT. See CONSTITUTIONAL LAW, 3-6. STATUTES, 1. TAXATION, 12. ASSIGNMENTS. See SETOFF AND COUNTERCLAIM. An assignment of a claim, absolute in form, authorizes the assignee to sue thereon as the real party in interest, notwithstanding a collateral agreement whereby he undertakes to pay over to the assignor the amount collected less a proportionate share of the costs of collection. Hankwitz v. Barrett, AUTOMOBILES. See APPEAL, 6. BAD FAITH. See GUARANTY, 5. MALICIOUS PROSECUTION, 6. BANKRUPTCY. Exemptions: Life insurance policy. 639 1. A policy of insurance upon the life of the husband, from which the investment feature has been eliminated by the payment of the surplus to the insured at the end of the tontine period, and which remains strictly a paid-up policy of life insurance payable to the wife, is exempt from the claims of the creditors of the husband and does not pass to his trustee in bankruptcy; nor does the right or power to change the beneficiary, reserved by the terms of the policy to the insured, pass to such trustee. Allen v. Central Wisconsin Trust Co. 381 [2. Whether the wife, as beneficiary in such a policy, has the sole, absolute, and indefeasible title thereto, under sec. 2347, Stats. (1898), notwithstanding the reservation in the policy of the right of the insured to change the beneficiary, is not determined.] Ibid. 3. Assuming that in such a case the insured husband has the right to change the beneficiary, his exercise of that right after he has been adjudged a bankrupt would not convert the policy into property which would then pass to the trustee, it having been exempt at the time of such adjudication. Ibid. 4. The fact that such a paid-up policy shares in annual dividends, the amount of which is likely to vary from year to year, does not destroy its essential character as a purely life insurance contract, the dividend being a mere incident of the policy, the right to receive which is in the beneficiary. Ibid. BOARD OF REVIEW. See CONSTITUTIONAL Law, 5, 6. See WATERS AND WATERCourses. BROKERS. 1. One employed to find a purchaser for land under a written contract by which he is to receive a commission "for the sale of" the property, "provided a satisfactory deal can be made by" a certain date, is a mere middleman and is entitled to the commission if he produces a satisfactory purchaser, even though he is also agent for and receives pay from such purchaser. Kilpinski v. Bishop, 390 2. The fact that the middleman in such a case confirms representations made by the purchaser as to property exchanged in the deal is immaterial, especially where such representations are not shown to have been false. Ibid. CANCELLATION OF INSTRUMENTS. 1. Where, in an action to set aside a conveyance of lands on the ground of fraud, it appeared that one of the defendants had title to the lands when plaintiffs demanded a reconveyance, but before the action was commenced had, without plaintiffs' knowledge, conveyed to other persons, so that no cancellation and rescission could be awarded, it was proper for the court to retain the action and award damages for the fraud. Griffiths v. Cretney, 143 2. Evidence held to sustain findings that the plaintiffs relied upon false representations as to the value of wild lands taken by them in exchange for their farm and were induced thereby to make the exchange, and that they were incompetent to transact the business and did not fully comprehend it. Ibid. 3. The preponderance of evidence, including conflicting opinions of witnesses, as to the value of certain wild lands is held to show that at the time in question they were worth $12 per acre, instead of $6 and $8 as found by the trial court. Ibid. 4. It appearing that two of three defendants who had exchanged lands for plaintiffs' farm were partners dealing in real estate and had induced the third defendant to exchange his farm for an interest in that of the plaintiffs; that he put his farm into the exchange at a fair price and did not participate in or know of the false representations made by the other defendants as to wild lands which they put into the deal and in which he had no interest; and that he afterwards paid his codefendants full consideration for their interest in the plaintiffs' farm, it is held that such third defendant was not a joint wrongdoer with the others so as to be liable for the damages resulting from the fraud. Ibid. 5. In an action by one claiming as an heir of his father to set aside an instrument purporting to be a deed executed by the father in his lifetime conveying land "which was his homestead" to defendant (a daughter), a complaint which fails to state whether the father died testate or intestate or that he had an estate of inheritance in the land at the time of his death, and fails to describe the land definitely, but shows that defendant, not plaintiff, was in the possession thereof, is fatally defective. Thomas v. McKay, 524 6. An averment that the land in question was the father's homestead does not show that the father had an estate of inheritance therein. Ibid. 7. If, as alleged, defendant was in possession under a deed recorded, but never delivered, the action should be in ejectment. Ibid. 8. A deed is not rendered void by mere failure of the grantee to carry out certain promises named therein as consideration for the conveyance. Ibid. CERTAINTY. See INDICTMENT AND INFORMATION, 2. CERTIORARI. See SCHOOLS AND SCHOOL DISTRICTS, 6. CHAMPERTY. When it is suggested during the trial that an action is being prosecuted under a champertous agreement, the question is properly one for the court to determine and not one for the jury. Decker v. Becker, CHANGE OF VENUE. See VENUE. CHARITY. See WILLS, 6-15. 542: |