INSURANCE.

Foreign accident companies: License fees.

1. The annual license fee of $300, required by sec. 1220, R. S. 1878, to be
paid by foreign accident insurance companies desiring to do busi-
ness in this state, is levied upon the business transacted, and not
upon the companies transacting the business. Ch. 105, Laws of
1880, was simply an amendment, which added to the fee previously
required a payment of two per cent. upon the gross income received
upon accident insurance business during the preceding year. Trav
elers' Ins. Co. v. Fricke, 94 Wis. 258, and 99 Wis. 367, followed. State
ex rel. Fidelity & Casualty Co. v. Fricke,
107

2. From 1880 to 1897 a foreign accident insurance company was licensed
to transact business in this state without paying the $300 license
fee required by sec. 1220, R. S. 1878. As a condition for renewing
its license for 1898, the insurance commissioner required it to pay
$300 for each year it had so transacted business, with interest from
the time it became due. Held, that since the company's right to
transact business in this state is a matter of privilege, and the leg-
islature has authorized the commissioner to revoke a license for
past violations, or withhold a license until the company has com-
plied with all legal requirements, a writ of mandamus to compel
the issuance of the license without the payment of said arrearages
was properly refused.
Ibid.
3. The fact that the statute of limitations may have run as to part of
said arrearages would not prevent the commissioner from requir-
ing payment of that part as a condition of the issuance of a new
license; nor would the fact that no demand for arrearages was
made until November, 1897, render the claim so stale that interest
should not be allowed.
Ibid.
[4. Whether a foreign corporation doing business in this state under
legislative authority may, in a proper case, take advantage of the
statute of limitations, not determined.]
Ibid.
5. The statute not being doubtful or ambiguous, the mere silence of the
state officials, or their neglect to enforce the plain requirements of
the law, is not sufficient to relieve the companies from their obli-
gations, on the ground of practical construction.
Ibid.

6. A company transacting only the business of insuring plate glass
against injury from causes other than fire or lightning is an acci-
dent insurance company, within the meaning of our statutes regu-
lating the business of insurance, and as such was required to pay,
for the privilege of doing business in this state, an annual license
fee of $300 under sec. 1220, R. S. 1878, as well as two per cent. on
its gross premiums received in this state, under ch. 105, Laws of
1880. State ex rel. Metropolitan P. G. Ins. Co. v. Fricke,

Life insurance: Permanent disability: "Due proof."

117

7. In an action on an insurance contract to recover for an incurable
disability permanently incapacitating the assured to perform man-
ual labor, where the complaint alleged paralysis as the cause of
such disability, it was proper to permit an amendment alleging
disease of the heart and nervous system as additional causes, al-
though the claim filed with the insurer had stated the cause of the
disability as paralysis only, and the contract barred all claims not
filed within six months of the maturity of the contract. Jarvis v.
N. W. Mut. Relief Asso.

546

8. "Due proof" of a claim, required by an insurance contract, means such a statement of facts, reasonably verified, as, if established in court, would prima facie require payment of the claim; and the statement of one adequate fact in the proofs will not exclude others omitted through mistake or ignorance.

Fire insurance.

Ibid.

9. Prior to the enactment of ch. 387, Laws of 1895, the issuance of an insurance policy by an agent with full knowledge of the existence of an incumbrance on the property was a waiver of a condition in the policy against incumbrances, even though the policy provided that such waivers must be in writing. Hobkirk v. Phoenix Ins. Co.

13 10. Where such a condition has been so waived a recovery may be had on the policy without its being reformed to express the consent of the company to the incumbrance. Ibid. 11. Under ch. 195, Laws of 1891, the insurance commissioner prescribed a form for fire insurance policies, to be known as the Wisconsin standard policy, in which was a clause requiring the insured, in case of loss, to furnish a certificate of the magistrate or notary public (not interested in the claim, etc.) living nearest the place of the fire. Ch. 124, Laws of 1893, provided that whenever a certificate of a magistrate or notary should be required under a policy it should be a sufficient compliance on the part of the assured to furnish a certificate of any magistrate or notary residing in the county, not interested, etc. Afterwards, the act of 1891 having been held invalid, the legislature by ch. 387, Laws of 1895, prescribed as the Wisconsin standard policy the form previously prescribed by the insurance commissioner. The act of 1895 repealed all acts conflicting therewith, but did not undertake to revise the law on the subject of insurance. Held, that the act of 1893 was not repealed or modified, and that, notwithstanding the standard policy required a certificate from the nearest magistrate or notary, a certificate from any magistrate or notary in the county was sufficient. Vor ous v. Phenix Ins. Co.

76

12. The knowledge or information on the part of the insurer, at the time of issuing a policy, which will operate as a waiver of a condition therein must be knowledge of an existing fact or condition of things, and not a mere statement by the insured of an intention to do some act in the future contrary to such condition of the policy. Thus, the fact that the agent of a township mutual fire insurance company, at the time he wrote a policy covering household goods, saw a portable engine near the house, and was informed by the insured that it was intended for use in the future where it stood, did not constitute a waiver of a provision in the policy against the insurance of property located within 200 feet of any steam power, at least unless the engine was apparently permanently located in its position and so attached or capable of attachment to machinery that it would be apparent to the agent that it was customarily used in that place. Worachek v. New Denmark M. H.

81

F. Ins. Co. 13. A policy of insurance on a building and contents, the premium being distributed part to each species of property, is a single, indivisible contract, and under a general forfeiture clause in the policy, if one part of the risk be affected, the entire risk is affected. What bars a remedy on the policy as to one part of the property, bars the remedy as to all. Worachek v. New Denmark M. H. F. Ins. Co. 88

14. If a policy of insurance cover a building and contents, and the entire property be destroyed by fire, and the policy contain a clause forfeiting all claims thereunder and barring all remedies thereon in case of any false swearing in regard to the loss, and there be such false swearing, which does, or is liable to, prejudice the insurance company as to any part of the property destroyed, the effect is to forfeit the entire loss. 1bid.

15. In an action upon a premium note given in consideration of a policy of insurance, the insured cannot defeat a recovery on the ground that conditions in the policy respecting the ownership of the premises and the use of benzine thereon had been broken, unless the breaches would have defeated a recovery on the policy in case of loss. Davis v. Pioneer Furniture Co. 394

16. A policy insuring buildings as a furniture factory, though containing a condition avoiding it in case benzine be kept, used, or allowed on the premises, is not vitiated by such keeping and use of benzine on the premises as is customary and necessary in manufacturing furniture. 1 bid. 17. The owner of an estate in fee upon condition subsequent was in possession with no condition broken, and there had also been deposited in escrow an absolute deed in fee simple to be delivered upon performance of the condition. Held, that he was the sole and unconditional owner of the property within the meaning of a condition in a policy of insurance avoiding it in case the insured was not the sole and unconditional owner. Ibid.

18. In an action on an insurance policy which the insurer claimed had been rendered void by the giving of a chattel mortgage on the property insured, the mortgagee's attorney testified that he asked the insured for a mortgage until he received notice of the entry of a judgment against her; and the insured testified that the attorney "asked if I was willing to have this mortgage executed for a few days, until the judgment was entered, when it should be null and void, and I told him I was." The mortgage was at once filed, but the note which it secured was never returned, although it was ascertained after a day or two that the judgment had been entered before the mortgage was given. Held, that the evidence would not sustain a finding that the mortgage was not to go into effect if the judgment had already been entered. Thorne v. Etna Ins. Co. 593 INTEREST. See BILLS AND NOTES, 7. INSURANCE, 2, 3.

INTERLINEATION in note. See BILLS AND NOTES, 1, 2.

JOINDER.

Of claims. See TAX TITLES, 5.

Of parties. See MORTGAGES, 1.

JOINT DEBTORS. See BILLS AND NOTES, 5.

JUDGMENT.

Without verdict or findings. See APPEAL, 8.

OFFICERS, 4.

1. Where one party to an action is, on the evidence, entitled to judg ment as a matter of law, the taking of a verdict in his favor is an immaterial formality; hence if, in such circumstances, the case be submitted to a jury who fail to agree, the court may then discharge them and order judgment in accordance with the facts. Calteaux v. Mueller,

525

When entered: Proceedings after filing of decision.

2. Upon the filing of a decision and order for judgment in an equity
case, in or out of term, judgment may be entered accordingly with-
out any further proceedings in the cause. Adams v. Rodman, 456
Effect as evidence: Mental condition.

3. An adjudication of mental unsoundness per se is evidence only of
the mental condition of the subject at the time of such adjudica-
tion, and thereafter upon the theory that a condition of mind once
shown to exist is presumed to continue. Small v. Champeny, 61

4. An instruction that an adjudication of mental unsoundness may re-
late back presumptively to a prior date, as evidence of the mental
condition at such date, held error.
Ibid.
5. When the condition of mind of a person is shown to have been the
same for a considerable period of time, an adjudication as to such
condition at one date during the period is competent evidence
when the act claimed to have been affected by such condition oc-
curred at a prior date, upon the theory that it is reasonable to say
that appearances determined at one time during the period to indi-
cate insanity or incompetency, indicate the same at other times dur-
ing such period, whether before or after the adjudication.
For deficiency: Parties. See MORTGAGES, 1.

Validity: Jurisdiction: Status of nonresidents. See WILLS, 6.
Foreign judgment: Credit and effect to be given it.

Ibid.

6. An order or judgment of a Louisiana court appointing an adminis-
trator of the estate or succession of a deceased person, though based
on a petition alleging that the deceased died while a resident of that
state and that he left property within the jurisdiction of the court,
is not conclusive as to the domicile of the deceased and does not,
under sec. 1, art. IV, Const. of U. S. (requiring full faith and credit
to be given in each state to the judicial proceedings of every other
state), preclude a Wisconsin court from taking jurisdiction of a pro-
ceeding to probate a will of the deceased and administering so much
of his estate as was actually located in Wisconsin. Frame v. Thor-
653

mann,

Relief against judgment: Bill of review, etc.

7. The Code was intended to be a complete system in itself, and a com-
plete substitute for the old forms of action and methods of prac
tice. Under it the old bill of review does not exist, but relief
against a judgment obtained against a party through his mistake,
inadvertence, surprise, or excusable neglect may be granted on
motion within one year after notice, or a motion for a new trial
may be made on the ground of newly discovered evidence at any
time within one year after verdict or finding; but if the discovery
is not made within the year, there is no remedy unless the facts
discovered show fraud or collusion, in which case relief may be ob-
tained in a direct action. Crowns v. Forest Land Co.
97

8. No leave of court is necessary before commencing such an action.

See APPEAL, 1.

Ibid.

Setting aside and vacating. See SURETYSHIP.
Effect of writ of certiorari. See CERTIORARL
What judgments reviewable on writ of error.
From what appeal may be taken: “Amount involved." See APPEAL, 2.
Reversal on appeal. See APPEAL, Affirmance and reversal.
Modification and affirmance on appeal. See APPEAL, 22.

JUDICIAL SALES. See EXECUTIONS.

JURISDICTION. See APPEAL, 1-3. CRIMINAL LAW, 1. JUDGMENT, 6. NUISANCES. RECEIVERS, 2. TELEPHONE COMPANIES, 4.

JURORS.

The statute providing for the selection of names of jurors by jury commissioners is not invalid because it curtails the right which supervisors formerly had to furnish a jury list. Butler v. State, 364 JUSTICES' COURTS. See CRIMINAL LAW, 1.

LACHES. See EQUITY, 1, 8. HIGHWAYS, 2. OFFICERS, 3.

LAND CONTRACT. See EQUITY, 9, 10.

LEGITIMACY of children. See WILLS, 5, 6.

LICENSE: Foreign insurance companies. See INSURANCE, 1–6.
LICENSE to use track as footway. See RAILROADS, 15.

LIENS.

Of mechanics, etc., for labor and materials. See PARTNERSHIP, 7, 8. 1. A right to a mechanic's lien can be assigned only under the limitations and conditions prescribed in sec. 3316, Stats. 1898, and is waived by an assignment not complying with that section. Shearer v. Browne,

On logs and timber.

585

2. A claim for damages for breach of a contract of employment is not a lienable claim under sec. 3329, R. S. 1878. Kennedy v. South Shore L. Co.

Of vendor of land. See EQUITY, 7.

284

LIMITATION OF ACTIONS.

See CONSTITUTIONAL LAW, 2. INSURANCE, 3-5. TAX TITLES, 1. 1. A statutory condition in the nature of a limitation upon the enforcement of a common-law right, such as the right of recovery for injuries to an employee attributable to actionable negligence of the master, is a statute of limitations and does not apply to rights existing at the time of its passage, as to which a reasonable time is not left after such passage to comply with such condition. Relyea v. Tomahawk P. & P. Co. 301 2. A statute of limitations in existence at the time of the commencement of an action applies to it in the absence of anything in the act, or any other law, to the contrary. Ibid.

3. If a statute of limitations does not recognize existing rights and provide a reasonable time for their enforcement, it is void as to them under the inhibition of the national constitution as to laws impairing the obligations of contracts or taking property without due process of law. Ibid.

4. If, in a statute of limitations, a time be allowed for the enforcement of existing rights regardless of it, that time will be deemed conclusively reasonable unless the contrary appears beyond a reasonable doubt.

Ibid.

5. If, in a new statute of limitations, a time be not allowed for the enforcement of existing rights regardless of such statute, it will not