Moehlenpah v. Mayhew, 138 Wis. 561. equitable title or lien. It is in every case coextensive and concurrent with the remedy in equity, and, being so, it would seem necessarily to follow that the judgment in an action at law would bar and estop the party subsequently resorting to his suit in equity upon the same subject or ground of action, and vice versa." Upon the premises assumed by the court the foregoing quoted paragraph would be a correct conclusion of law, otherwise not. Wis. F. & M. Ins. Co. Bank v. Mann, 100 Wis. 596, 76 N. W. 777. In Rowell v. Smith, 123 Wis. 510, 102 N. W. 1, where the subject received great consideration, it was decided that a judgment is conclusive between the parties thereto and their privies in a second action on the same claim or cause of action as to all questions that were or might have been litigated in the first action, and is likewise conclusive in a second action upon a different claim or cause of action as to every proposition within the issues in the first or former action which was presented for adjudication and decided. Another rule of law requires a party to bring forward in one suit all his grounds for rescission or cancellation and forbids the trial of such a right or claim by piecemeal. Stark v. Starr, 94 U. S. 477; Bendernagle v. Cocks, 19 Wend. 207, 32 Am. Dec. 448; 2 Black, Judgments, § 734; Caston v. Perry, 1 Bailey, 533, 21 Am. Dec. 482; Dodd v. Scott, 81 Iowa, 319, 46 N. W. 1057, 10 L. R. A. 360; Dowell v. Applegate, 152 U. S. 327, 14 Sup. Ct. 611; Thompson v. Myrick, 24 Minn. 4. With reference to the effect of the judgment appealed from in the instant case, we are convinced that its legal effect, if allowed to stand, is to adjudicate that, notwithstanding the mutual mistake presented by the fifth finding, the contract entered into under such mistake is valid and binding upon the parties, because it is not the findings but the judgment which constitutes the former adjudication. Denike v. Denike, 44 App. Div. 621, 60 N. Y. Supp. 110; Whitney v. Bayer, VOL. 13837 Moehlenpah v. Mayhew, 138 Wis. 561. 101 Mich. 151, 59 N. W. 414; Rauwolf v. Glass, 184 Pa. St. 237, 39 Atl. 79; 2 Black, Judgments, §§ 609, 621; Wolf River L. Co. v. Brown, 88 Wis. 638, 60 N. W. 996. Thus we would be called upon to pronounce a judgment upon certain facts which do not in the law warrant such a judgment. The case, however, has been fully tried upon the issues of fraud, incapacity, and undue influence. We therefore permit all the findings to stand as they now are. Braunsdorf v. Fellner, 76 Wis. 1, 45 N. W. 97. Mutual mistake of the kind and under the circumstances established here will avoid a contract, unless there has been negligence in making the contract by the party seeking relief or there has been acquiescence in the contract with knowledge of the mistake. What facts will be sufficient to warrant the inference of such negligence or such acquiescence in this class of cases may be found discussed in the adjudged cases. Our statute (sec. 2687, Stats. 1898) provides for supplemental pleadings by the parties, limiting them to facts occurring or discovered since the former pleading. This statute is adapted from the former equity practice, and a supplemental bill could be filed at any time during the progress of the cause, even after a hearing or decree. Baker v. Whiting, 1 Story, 218, 233, Fed. Cas. No. 786; Goodwin v. Goodwin, 3 Atk. 370; Dodge v. Dodge, 29 N. H. 177. But it was also settled that a court would under some circumstances ex mero motu direct a supplemental bill to be filed if the justice of the case in the opinion of the court required this to be done. Mutter v. Chauvel, 5 Russ. 42; Wood v. Mann, 2 Sumn. 316, Fed. Cas. No. 17,953; Veazie v. Williams, 3 Story, 54, 67, Fed. Cas. No. 16,906. Because we are unwilling to affirm the judgment in favor of the defendant or to order judgment in favor of the plaintiffs upon the facts found and presented to us by the court below and at the same time consider the facts so found to be supported by evidence, it seems best to reverse the judgment of the court below and to remand the cause for trial, upon State v. Sbragia, 138 Wis. 579. supplemental complaint and answer, of the questions relating to negligence, if any, of Andrew Roberts in entering into this contract, and the acquiescence, if any, of Andrew Roberts or the plaintiffs in the contract after discovery of the mutual mistake. By the Court.-The judgment is reversed, and the cause remanded for further proceedings in accordance with this opinion. A motion for a rehearing was denied March 30, 1909. STATE VS. SBRAGIA. January 9-March 30, 1909. Criminal law: Sale of cigarette paper: Coupon in sealed package of tobacco: Interstate commerce. 1. The sale, by a retail merchant in this state, of a sealed package of tobacco, purchased from a wholesaler in the regular course of business, containing a coupon stating that a certain foreign corporation would send a specified quantity of cigarette paper to any one transmitting to it by mail three of such coupons, is a violation by such retailer of sec. 1, ch. 82, Laws of 1905, which prohibits any person "by himself, his servant or agent, or as the servant or agent of any other person, directly or indirectly, or upon any pretense, or by any device," from selling, giving away, or otherwise disposing of any cigarette paper. 2. The retailer in such a case is the principal in the sense that a sale of the package includes the sale of a coupon, and an agent in the sense that he acts for the foreign dealer in the latter's effort to supply customers in this state with cigarette paper. 3. Such a sale does not involve any question of interstate commerce. DODGE, J., dissents. REPORTED from the municipal court of Milwaukee county: A. C. BRAZEE, Judge. Question answered in the affirmative. Action reported from the municipal court of Milwaukee county under sec. 4721, Stats. (1898). State v. Sbragia, 138 Wis. 579. The question involved in the action was whether the defendant was guilty of having violated ch. 82, Laws of 1905. The cause was duly submitted on the charge made in due form and a plea of not guilty and a stipulation of facts. The facts agreed upon were, in substance, as follows: The defendant on June 16, 1908, in Milwaukee county, Wisconsin, sold and delivered to Samuel Burden a sealed package of smoking tobacco, labeled as "Duke's Mixture Smoking Tobacco." Upon opening the package it was found to contain a coupon, so called, to the effect that upon receipt of three of such coupons through the mails by "Duke's Mixture Department 8, 111 5th Ave., New York City, The American Tobacco Co. Mfgr., Factory No. 42, 4th Dist. N. C.," would send to the one transmitting them a specified amount of Duke's Mixture cigarette paper. The Duke's Mixture Department named in the coupon is a department of the tobacco. company mentioned, which is a foreign corporation. The defendant is a retail merchant in the city of Milwaukee, dealing, among other things, in tobacco at retail. He purchased the package sold as aforesaid in the open market in the regular course of business from a wholesale dealer for the purpose of supplying his retail trade. The defendant was duly adjudged guilty of having unlawfully offered for sale cigarette wrappers and cigarette paper for the purpose of being filled with tobacco for smoking, contrary to ch. 82, Laws of 1905. Thereupon further proceedings in the cause were stayed pending a result of a report of the same to this court, as to the question of law involved. The trial court being of the opinion that the facts stipulated as aforesaid presented a question of law of such importance and doubtful character as to require final solution by this court, certified the case for such solution pursuant to sec. 4721, Stats. (1898), the defendant consenting thereto. The Attorney General, for the plaintiff. [No brief on file.] State v. Sbragia, 138 Wis. 579. The cause was submitted for the defendant on the brief of Winkler, Flanders, Bottum & Fawsett. The following opinion was filed January 26, 1909: MARSHALL, J. The question presented for solution is this: Is a sale or gift of an order or paper, characterized as a coupon in this action, by a person in this state to another therein. as part of an entire transaction including the sale of a package of tobacco, entitling the recipient, in case of his obtaining two other like papers and sending all by mail to a designated dealer in tobacco products and cigarette paper outside the state, to receive therefrom a specified quantity of cigarette paper, a violation by such person of sec. 1, ch. 82, Laws of 1905, prohibiting "any person" "by himself, his servant or agent, or as the servant or agent of any other person, directly or indirectly, or upon any pretense, or by any device," from selling, offering for sale, keeping for sale, giving away, or otherwise disposing of "any such cigarettes, cigarette paper," etc.? That a transaction of the nature stated falls within the spirit of the statute seems beyond reasonable controversy, and that it falls within its letter seems hardly less plain. It appears that the scheme is but a bald subterfuge to cloak the real purpose to sell or give away cigarette paper to persons in this state in circumvention of the law, the local dealer being the principal in the sense that a sale of a package includes the sale of a coupon, and an agent in the sense that he acts for the foreign dealer in the latter's efforts to supply customers in this state with cigarette paper. Counsel for the defendant do not seem to seriously contend to the contrary of the foregoing, and the learned attorney general appears to unite with them in presenting the matter from a common viewpoint, exempting the defendant from liability upon the ground hereafter stated. We have the anomalous situation of counsel for defendant |