Volume 1 — Pinney's Wisconsin Reports

<p>1. Writ ov Error. —A writ of error should, in the absence of any statu. tory provision to the contrary, be directed to the judge of the court below, and not to the clerk.</p> <p>2. RECOOUizAsrcB. — Where the statute provides that security by a recognizance shall be given before a supersedeas shall issue, security in the form of a bond is not a compliance with the statute.</p>

<p>ERROR to the District Court for Grant County. The case is stated in the opinion of the court.</p>

EEEOE to the District Court for Brown County. This action was commenced by an attachment issued out of the clerk’s office of the district court for the county of Brown, returnable at the May term, 1840, at the suit of said plaintiff against said defendant.

Action of assumpsit brought by Robert Wilson as administrator of the estate of Thomas Wilson, against Esau Johnson, to recover the amount of a draft or order for the sum of two hundred dollars, drawn by Johnson upon one Lee in favor of the plaintiff’s intestate, which was not paid on presentation by the drawee. The defendant pleaded the general issue with a notice of set-off.

Assumpsit brought by Murdoch against Arndt to recover against Mm as indorser of a promissory note for seven hundred dollars, made by Jones, Clark & Co. to Arndt or order on demand, and by him indorsed to S. W. Murdock, who indorsed the same to the plaintiff. The defendant pleaded the general issue.

EEEOE to the District Court for Iowa County. The plaintiff in error was indicted and tried for adultery. The prosecution, in order to prove the marriage of the accused, was allowed, against her objection, to prove by several witnesses that, on the occasion of the alleged marriage, there was a wedding supper, at which they were present; and, against the objection of the accused, her husband was allowed to be sworn and testify that they were lawfully married.

<p>ERROR to the District Court for Brown County.</p> <p>The case is stated in the opinion of the court.</p>

<p>1.Elector—detention. —A person who has resided sis months in this Territory, with the hona fide intention of becoming a citizen, although he may have a family residing elsewhere and keeping house, is a legal juror and an elector under the statute requiring sis months’ residence in the Territory with the hona fide intention of becoming a citizen. The intention of a person to become a citizen must be ascertained from all'his acts in connection with his residence.</p> <p>2.Title to oeeioe. — The validity of the title of the district attorney to his office cannot be brought in question and determined on a motion to quash an indictment. His right to such office can be determined only by quo warranto.</p> <p>3.Grand jury. — If any one of the grand jury, which passed upon an indictment, was not a legal grand juror, the accused has a right to have the indictment quashed.</p>

<p>1. Corporation — change in name op. — If the name of a corporation be changed, it must sue or be sued, in respect to its prior rights and liabilities, by its new name.</p> <p>2. Consolidation op. —The town of West Milwaukee was incorporated in 1837; in 1839 the towns of East Milwaukee and West Milwaukee were united under the name of the town of Milwaukee: Held, that the town of Milwaukee, thus created, succeeded to all the rights and liabilities of the former town of West Milwaukee.</p>

This was an action brought b y-Moses M. Strong, plaintiff below, against James D. Doty, impleaded with David Jones and Alexander Irwin, to recover certain damages alleged to have been sustained by said plaintiff by reason of the non-performance of a certain contract alleged to have been made with the said defendants, Doty, Jones and Irwin, as directors of the Pox River Transportation Company, to convey and transport in Durham boats certain goods and merchandise of the said…

<p>1. Adultery is the sin of incontinence between persons, one or both of whom are married.</p> <p>2. If both are married it is double adultery, or adultery on the part of both. If but one of them is married it is single adultery, and the •mwrried party alone is guilty of that offense; criminal intercourse between a married woman and an unmarried man is not adultery on the part of the man, but the woman is thereby guilty of that offense.</p>

<p>Supreme court — certiorari.— The act of the 8th December, 1836, concerning the supreme and district courts, and defining their juris diction and powers, did not confer jurisdiction. upon the supreme court to review proceedings of justices of the peace by certiorwri.</p>

<p>1. Attachment — Under the statute (Wis. Stat. 1839,165), “ if any creditor, his agent or attorney, mates oath, in writing, before any proper officer, that his debtor has absconded as he verily believes,” such creditor is thereupon entitled to a writ of attachment; the affidavit being made according to the statute, there is no discretion left to the officer, but the right of the creditor to the writ is absolute.</p> <p>2. Affidavit and indoesement—If the affidavit set forth either of the other causes mentioned in the statute for the writ, the person mating it must satisfy the officer before whom the oath is taken of the truth of the cause stated; and such officer must indorse upon such affidavit his satisfaction of the truth of the facts therein stated, before the writ can be issued.</p> <p>3. Same—The affidavit for a writ of attachment, under this statute, is not traversable (Dunn, C. J., dissenting)-, but the legal sufficiency of the steps taken to procure the writ is a matter for adjudication by the court.</p> <p>4. Same—Any officer authorized to administer oaths generally, is a proper officer within the meaning of the statute, before whom the affidavit may be made. Miller, J., dissenting.</p>

<p>ERROR to the District Court for Iowa County.</p> <p>The case is stated in the opinion of the court.</p>

<p>1. Arrest oe judgment. — The plaintiffs declaration will be held sufficient after verdict, if it is good in substance.</p> <p>2. Former recovery—parol evidence.—Parol evidence is admissible to show that items contained in the defendant’s notice of set-off, are the same contained in a bill of particulars filed by him as plaintiff in a former action between the same parties, and that the same were adjudicated in that action.</p>

<p>ERROR to the District Court for Grant County.</p> <p>The case is stated in the opinion of the court.</p>

Breese brought an action of assumpsit in the Milwaukee district court against Dunbar, upon a negotiable promissory note, executed by Dunbar to one James Sanderson, and indorsed by Sanderson to Breese.

This cause was originally, commenced by Brunett against Kensler, before a justice of the peace for Brown county, and was removed by a change of venue before another justice previous to the trial. Brunett obtained a judgment before the justice, from which Kensler appealed to the Brown county district court.

This was an action of assumpsit, commenced by summons, and brought by Anderson against Rountree, in the Dane county district court. Rountree was a member of the legislative council, and process was served upon him on the next day after the adjournment of the legislative assembly.

EEEOE to the District Court for Brown County. Held: then and there feloniously, willfully and of his malice aforethought, did discharge, and shoot off to, against and upon the said Pierre Paquette; and that the said Mauzau-mau-ne-Tcah, with the leaden bullet aforesaid, out of the rifle aforesaid, then and there, by force of his gunpowder aforesaid, by the said Mau-zau-mau-ne-Tcah…

Jones brought an action of assumpsit in the Iowa county district court, against John Catlin, John Milton, J. Chamberlin, Robert Bloomer, Edward Bloomer and Thomas Park, upon a negotiable promissory note, made by Catlin, and payable, to Milton, indorsed by Milton before due to Chamberlain and the Bloomers, as J. Chamberlin and Co., by them to Park, and by Park to the plaintiff.

Morrison commenced an action, by attachment, against Fake, in the Dane county district court. Upon the return of the writ, Fake, by his attorney, moved the court to quash the writ and dismiss the proceedings, upon the ground of the insufficiency of the affidavit upon which the writ was issued. The district court sustained the motion, and gave judgment for the defendant; to reverse which the plaintiff prosecuted a writ of error. The case is stated in the opinion of the court.

Ejectment for the recovery of certain real estate. Robert Grignon and Peter B. Grignon, two of the lessors of the plaintiff, claimed the land as sons and heirs at law of Pierre Grignon, deceased, to whom a tract of land, including the disputed premises, was confirmed by act of congress, and for which a patent issued several years after his death, and after the sale of the land by his administrator.

At the November term, 1841, ©f the district court for Dane county, Strong obtained judgment in an action of assumpsit against Doty, Jones and Irwin, to reverse which Doty alone prosecuted a writ of error and entered in a bond for a supersedeas in his own name, without joining his co-defendants in the original action.

EEEOE to tlie District Court for Jefferson County. Glasgow brought an action of replevin against Dawes in the Jefferson county district court, for the caption and detention of a horse. The writ was issued in the usual form prescribed by the statute for the caption and detention, and the declaration filed corresponded with the writ. It appeared that the affidavit upon which the writ issued was made before the plaintiff’s attorney as a supreme court commissioner.

EEEOE to the District Court for Iowa County. ' This was an action of ejectment, brought by Bradken against Parkison, in the Iowa county district court, to recover a tract of eighty acres of land.

This was a motion for a mandamus. Both the relator and the respondent claim to be register of the board of commissioners of the Milwaukee and Rock River Canal Company, and the case was brought before this court to test the right to the office.

Norton brought an action of assumpsit against RooJcer, in the court below, upon a promissory note for $464, dated July 21,1838, payable one year after date in boots and shoes, to be delivered at Foxville, in Racine county. The declaration also contained the common money counts, accompanied with a copy of the note and a bill of particulars.

By an arrangement with the district attorney, he together with WMtaTcer, the other plaintiff in error, came into court and confessed judgment in favor of the county commissioners, in an action of assumpsit, for the amount of the fine and costs, upon which judgment execution was stayed for a specified time by agreement of the parties.

EEEOE to tlie District Court for Iowa County. Action of assumpsit, brought by McKim against ParTcison. The declaration contained the common counts, and a special count upon an indorsement of the following sealed note: “ On or before the first day of June next, I promise to pay D. M. Parkison, or order, the sum of two hundred dollars, for value received. Witness my hand and seal this 17th day of February, 1840.

Merrill sued out a writ of attachment against Low, upon his affidavit, stating, that Low was then “justly indebted to him in about the sum of $1,600, lawful money, over and above all legal off-sets, and that he has good reason to believe, and does believe, that said Low is about fraudulently to remove his property, convey or dispose of the same, so as to hinder and delay this deponent, and further saith not.” Upon, which affidavit was the following indorsement of…

Brown brought an action of assumpsit against Bicknell, upon the following promissory notes and drafts drawn in Providence, Rhode Island, viz. : One note dated 15th February, 1833, due at six months; One dated 21st March, 1833, dne at four months; One dated 18th May, 1833, due at four months; One dated 21st May, 1833, due at sixty days; One dated 22d June, 1833, due at sixty days; A draft accepted by defendant, dated 22d April, 1833, payable sixty days after date ; A draft…

Tolle commenced an action against Stone, before a justice of the peace, in Grant county. The cause , was removed, under the statute, to Cyrus K. Lord, another justice, who proceeded to try the case, and who rendered a judgment in favor of Tolle for $42.50. From this judgment Stone appealed to the district court.

Rowen sued out a writ of attachment against Taylor, for $100, or upwards. At the return term the first default was taken; and at the May term, 1842, the plaintiff filed two declarations; one in debt for $1,336.67, and one in case, claiming $2,000 damages, for a breach of simple contract; and at that term the second default was taken and a writ of inquiry awarded.

Lynn, the defendant in error, took out an attachment from a justice of the peace in Milwaukee county, against a scow-boat, under the act to provide for the collection of demands against boats and vessels, for the purpose of collecting a demand for work and labor done on the boat in building it. The boat was owned by JDousman & Brown, of Milwaukee.

Morrison sued out a writ of attachment against Ream, founded upon an affidavit, which is embodied in the opinion of the court.

On the 6th day of September, 1839, Gear and Bracken entered into a written agreement, under seal, to submit the matters in difference between them, to the arbitration and award of the committee of awards of the Galena Chamber of Commerce for that njpnth (naming the committee in the agreement), “according to the rules and regulations of the aforesaid chamber of commerce, as provided by the rules, by-laws, and regulations thereof and they executed each to the other a penal…

Gale filed a bill in equity against Cutler, in the Milwaukee county district court, setting forth: That on or about the 10th March, 1838, Cutler was in possession of the N. E. fractional quarter of sec. 3, T. 6, R. 19, in Milwaukee county, then the property of the United States, and in expectation that it would be shortly sold at public sale, agreed in writing with Gale.to convey to him by deed the said land whenever it could be purchased, upon the express understanding and…

Parish filed a bill in equity against Q-ear in the Iowa district court, alleging: That in April, 1886, Gear called on him for a settlement of his account,* and produced his books, which showed an indebtedness on the part of Parish of $3,700, and it was agreed that Parish should secure this sum by a mortgage on sundry tracts of land in Iowa county, payable in four months.

<p>. ERROR to the district court for Grant County.</p> <p>The case is stated in the opinion of the court.</p>

Salter was indicted by the grand jury of Iowa county for forgery, and upon the trial the district attorney offered certain evidence in support of the indictment which was rejected by the court, to which decision exceptions were taken. A verdict of acquittal was rendered, and the district attorney sued out this writ to correct the errors of the court below, in rejecting the evidence offered by the prosecution.

<p>ERROR to the District Court for Dane County.</p> <p>The case is stated in the opinion of the court.</p>

A writ of error was issued to review a final decree in an equity cause, and the defendant in error moved to quash the writ for the reason that a decree in equity could not be reviewed upon a writ of error.

Assumpsit, brought by Fake & Cotton against Bird, upon a bill of charges in favor of the plaintiffs as keepers of the American Hotel at Madison, against the defendant, a large portion of which was for liquors and hotel expenses. The last item of the account was dated August 30, 1839.

<p>ERROR to the district court for Dane County.</p> <p>The case is stated in the opinion of the court.</p>

Barber obtained a judgment against Bryant before a justice of the peace of Milwaukee county, from which. Bryant appealed on the 12th of February, 1842.

Hyde brought an action against Barker before a justice of the peace in Rock county, on an account for work and labor. The plaintiff filed a written declaration in assumpsit, containing three counts.

In April, 1842, Gox commenced a proceeding in forcible detainer against James GfrosTiong and others, before Samuel Tompkins, a justice of the peace in Grant county.

EEEOE to the District Court for Dane County. This was an action of assumpsit, commenced by Strong against the plaintiffs in error, in the Iowa county district court.

This was an action for slander commenced by Colton against Fowler in the Racine county district court.

This was an action of assumpsit, commenced by Merrill against Low, in the Dane county district court. The declaration contained two counts upon two several promissory notes; one for $1,215.68, dated April 7, 1842, and the other for $300, dated April 14,1838, payable ninety days after date. The defendant pleaded the general issue, but did not deny the execution of either of the notes under oath.

<p>Attachment—aeeidavit. An affidavit for an attachment which states the amount of the plaintiff's demand to be “ over and above the sum of $50,” does not state the amount of his demand with sufficient certainty to authorize the issuing of the writ. Latlvrop v. Snyder, 16 Wis. 293.</p>

Bevans sued out a writ of attachment against Slaughter in the Iowa county district court, on the 10th September, 1839. On the same day, on different affidavits, other writs were issued to the counties of Brown, Dane, Grant, Milwaukee, and Racine. There was no indorsement of satisfaction on the affidavit for the writ, by the officer before whom it was made.

The case is stated in the opinion of the court. contended that the affidavit upon which the attachment issued was not sufficient, that it stated neither facts nor circumstances, but mere belief. The decisions in New York say, that proof of facts and circumstances must be made, and that belief is not- sufficient Vosburgh r. Welch, 11 Johns. 175 ; Taiman v. Bigelow, 10 Wend. 412.

Coon brought an action of assumpsit against Stevens in the Jefferson county district court upon a written con tract, by which Stevens bound himself that a certain eighth of a section of land which Coon was about to enter, should sell by a given day for $200, or more, and Ooon agreed to give Stevens one-half of all the land should sell for, over $200.

Quo warranto.— On. the 1st July, 1843, Boyd, the relator, presented to the chief justice, in vacation, a relation and affidavit setting forth, that he, the relator, was duly elected to the office of judge of probate of Crawford county, at the election held on the first Monday in May, 1843, by a majority of the legal votes cast at the said election; that the certificate of election to the said office ought to have been given to the relator, but it was given to James Ii.

■ Bracken filed a complaint before William Henry, a justice of the peace in Iowa county, setting forth, that be was the owner in fee of the undivided one-third part of the east half of the north-east quarter of section 5, township 4 of range 3 east, and being in possession thereof, Sylvester B. Preston, William Kendall, William Nichols, and William T. Phillips, forcibly entered upon, and forcibly detained the same.

On the 22d of September, 1834, Joseph Rolette, and Jane F., his wife, haviny been for some time living separately and apart from each other, entered into an indenture with Bernard W. Brisbois, a… Held: that the declarations and admissions of the wife in relation to the property, were admissible in evidence in favor of the husband, in an action against the trustees upon his covenant in the deed.

The defendants in error brought an action of trespass against Rolette, and the declaration was filed in the name of “The School Commissioners of Crawford county,” without naming the commissioners by their individual names and style of office. It charged Rolette with divers trespasses in cutting and carrying away Umber from section 16, town. 7, range 6 west, in Crawford county.

At the July term, 1843, upon the application of M. M. Jackson, attorney-general, a rule was entered against Lockwood to show cause at the present term why an information, in quo warranto, should not be filed against Mm, to inquire by what authority he exercised the office of judge of probate of Crawford county. A copy of the rule was made out and sealed by the clerk on the 4th day of January, 1844.

On the 7th of September, 1839, Ansley & Salter recovered judgment against Haney in the district court for Iowa county for $102.61 damages, besides costs. The first exection issued on the judgment was directed to the sheriff of Dane county, and was dated February 27,1843. This was returned, not satisfied.

<p>ERROR to the District Court for Iowa County.</p> <p>The case is stated in the opinion of the court.</p>

Donaldson sued Stone in an action of trespass, for breaking and entering Ms close by Ms cattle, etc., and destroying Ms corn there growing. Stone pleaded not guilty, accompanying the plea with a notice that he would show that the fence around the plaintiff’s close was not a lawful one, and was not four feet and a half Mgh. The plaintiff recovered judgment before the justice and the defendant appealed to the district court.

EEEOE to the District Court for Walworth County. The action was commenced in the district court for Iowa county in 1839. The declaration was in case and contained three counts.

Barker sued Baxter before a justice of the peace, and filed his bill of particulars claiming $99.04, and gave credits to .the defendant to the amount of $64.53, and claimed judgment for the balance. The case was tried before a jury and the plaintiff recovered $57.07. He remitted the excess over $50.

<p>The case is stated in the opinion of the court.</p>

<p>ERROR to the District Court for Dane County.</p> <p>The case is stated in the opinion of the court.</p>

Yliet brought an action against Rowe for slander, in charging that Yliet had sworn falsely as a witness on the trial of a cause before a justice of the peace. The case is fully stated in the opinion of the court. 1. Where the charge of perjury is general with an allusion to judicial proceedings, the words are slanderous, and it is not necessary for the plaintiff to prove the materiality of the testimony which it was charged was false.

This was an action of assumpsit brought by Bradford against Rogers, and the declaration contained the common counts, to which the defendant pleaded the general issue. At the trial the plaintiff gave in evidence the following receipt : “Received, Milwaukee, 15th August, 1836, of Worling Bradford, one thousand dollars cash, to invest for him in town lots or lands, according to the best of my judgment, and when invested I am to inform him of the same. $1,000.

<p>Indorsément— Pwrtn&rsMp.</p> <p>Where copartners are the payees of a promissory note, they may indorse the same to one of them, so as to enable that one to maintain an action thereon as such indorsee against the maker.</p>

This was a bill to foreclose a mortgage. The defendant filed a sworn petition for leave to file a supplemental answer to the bill of complaint, and tendered a sworn answer embracing the facts sought to be set up, the substance of which is stated in the opinion of the court together with a history of the steps which, up to that time, had been taken in the cause.

<p>1. Judicial rower or territory. By the organic law of the Territory the judicial power is vested in a supreme court, district courts, prohate courts and justices of the peace, and it is not competent for the legislative assembly to create any other judicial officers or tribunals.</p> <p>2. Ors-artc law. The organic act is to the Territory what a constitution is to a State, and the legislative assembly cannot pass an act in opposition to or in violation of it.</p> <p>3. Constitutional law. Before a court will declare an act of the legislature unconstitutional, a case must be presented in which there is no rational doubt of its invalidity.</p> <p>4. Supreme court commissioners. The allowance of a writ of omhtorcm (Wis. Stat. 340) is a ministerial and not a judicial act, and the legislative assembly has power under the organic law to create supreme court commissioners and confer on them power to allow writs of certiova/ri to justices of the peace.</p>

Drum sued Holton, in an action on the case for a false return charged to have been made by him as sheriff of Milwaukee county. The case is fully stated in the opinion of the court. Where a demurrer is to the whole declaration, and any one count is good, the demurrer must be overruled. The first and second counts are good; whether the sheriff’s return that he had given Drum peaceable restitution was false, was a matter of proof and not of pleading.

Action of replevin commenced in the district court for Brown county, by Sill against Bloomer, October 12,1840, for 33Ó, 000 feet of pine lumber and.900 bushels of potatoes. At the May term, 1841, under the law attaching Portage county to Dane county for. judicial purposes, the cause was removed to the district court for Dane county.

Assumpsit brought by Hyde against Dewey, before a justice of the peace, in which, February 10, 1843, he declared against Dewey on an account, for $44 and interest. Plea of general issue and judgment for the plaintiff for $44, and costs, from which Dewey appealed to the district court, where the cause was tried at the June term, 1844, when the plaintiff had a verdict for $56 damages, and for costs. A motion for a new trial was made and overruled.

<p>1. Limitation—pleading. Where in an action upon a promissory note, the defendant pleaded non-assumpsit within six yea/rs, and the plaintiff failed to pnt in a sufficient replication to the plea, a judgment for the plaintiff will be erroneous.</p> <p>2. Same. Where to an action brought upon a promissory note, which became due more than six years before suit, the defendant pleads nonassumpsit within six yem’s, and the plaintiff seeks to avoid the statute bar by showing the note was subscribed by an attesting witness, he must set out such fact specially in his replication to the plea.</p> <p>3. Signature—parol evidence. It seems that where the name of a party appears upon an instrument in the usual and proper place for the signature of a party who is the maker or is to be bound thereby, and the name of another person appears upon it in the usual and proper place for the name of a subscribing witness, but without any attestation clause to show in what capacity he signed it, parol evidence is admissible to show that he signed it as a subscribing witness.</p>

Hurd sued out a writ of attachment against Jarvis, upon the following affidavit and indorsement of allowances thereof: “ Elliot Hurd, the above-named plaintiff, being duly sworn, doth depose and say, that Harris Jarvis is justly indebted to Mm, arising out of a contract under seal, in the sum of $700, and that the said Jarvis is about fraudulently to remove, convey or dispose of his property, so as to hinder him, the said affiant, the creditor of said Jarvis, from collecting…

Action of trespass commenced by Warren against John Aller and Jesse Aller and eleven others, for breaking and entering his close and taking and carrying away his wheat and other crops. The defendant pleaded not guilty and gave notice of special matter in justification. The facts proved at the trial are substantially stated in the opinion of the court.

<p>Certiorari. Section 1 of article 12 (Stat. of Wis. 340), respecting tlie writ of certiorari, in cases in wliicli tlie recovery does not exceed $15, remained in force, and was not repealed by tlie act of January 30,1844, “ concerning justices of tbe peace and for other purposes,” and the writ, if sued out more than twenty days after tbe rendition of judgment, will be dismissed.</p>

The case is stated in the opinion of the court. After the defendant had proved that the consideration for which his note was given was the granting of a grocery license, it then became the duty of the plaintiffs to prove that they had done all that the law required on their part to perform the contract. 1 Cow. & Hill’s notes, Phil. Ev. 475. They should have shown that they had passed and published an ordinance on the subject, and had authority to grant a license.

Assumpsit brought by Morrison against Oorwith as indorser of the note mentioned in the opinion of the court. It appeared that Corwith transferred the note after maturity. Upon the trial no proof was given to show demand of payment of the maker or notice of non-payment to Oorwith.

The case is fully stated in the opinion of the court. The clerk had no authority to draw the order; and it does not bind the town, but is binding on the drawer individually. 13 Johns. 310 ; 1 Cowen, 536. Me Williams 'merely attested the order in his official capacity as clerk, as it was his duty to do. In such case the officer is not liable personally, unless he expressly binds himself. 1 Cranch, 345; 2 Kent’s Com. 632.

The case is fully stated in the opinion of the court, and was argued at the July term, 1844, when the chief justice was absent, and the court being unable to agree upon a decision, a re-argument was ordered, and the cause was again argued in 1845, all the judges being present. 1. The defendant Jones was a gratuitous bailee, without reward, and was liable only for gross neglect equivalent to fraud. 1 Bac. Abr. 559 ; 1 Davis Abr. 704-712 ; 2 Kent, 559 ; 2 Black.

The facts in this case are sufficiently stated in the opimon of the court. 1.

Thompson brought an action of replevin against Runey for the unlawful detention of a wagon and four oxen. The defendant pleaded non detinet, and also property in one Rezin Runey; and issue was taken on both pleas. The case was tried, and the jury returned a verdict in favor of the plaintiff, and assessed his damages at $61.33 upon which judgment was rendered.

<p>ERROR to the District Court for Jefferson County.</p> <p>The case is stated in the opinion of the court.</p>

EEEOE to the District Court for Boole County. Folmer commenced an action of trespass against Wood, Stone, Trasle, William P. Hammond, and Theodore Hammond, for taking and carrying away a raft of timber. The defendants pleaded jointly not guilty. The jury found all the defendants guilty except William, P. Hammond, who they found not guilty. The motions made during the trial are stated in the opinion of the court.

The case is stated in the opinion of the court: contended that the judgment of the justice as to the $5.00 should have been reversed, and affirmed as to the costs, by the district court, according to the statute, which authorized the district court to render judgment according to the right of the case. Terr. Stat. 390, § 9.

EBBOB to the District Court for Rock County. Tait brought an action of assumpsit against Foster, and his declaration contained the common counts only, to which Foster pleaded non-assumpsit. There was no copy of a note or bill of particulars filed by the plaintiff. At the trial the plaintiff offered in evidence under the common counts contained in his declaration, a promissory note made by the defendant to the plaintiff for $355, dated July 17, 1837, payable January 1, 1838.

Tliis was an action of assumpsit, brought by Iowa county against Green county, and the declaration averred the corporate existence of both counties, and that on the 15th of January, 1838, Gh'een county was attached to Iowa county for certain purposes, among which was the purpose of paying the debts due by Iowa county; that the amount of debts of Iowa county previous to that day and up to December 1, 1837, was $7,979.79, which was due and unpaid January 15, 1838; that on that…

EEEOE to the District Court for Racine County. The case is stated in the opinion of the court. 1. The arbitrator exceeded the authority conferred by the submission. The submission was merely of the question of Slocum’s liability, and the arbitrator had no authority to determine the amount of damages. Gear v. Bracken, ante; Bacon v. Wilber, 1 Cow. 117; McBride v. Hag cm, 1 Wend. 326. 2.

Irvin brought, an action of assumpsit against McG-oon to recover for supporting, educating and instructing the infant children of the defendant, and for necessaries, etc., furnished the said infants. The defendant pleaded nonassumpsit. At the trial, the plaintiff proved by one Deering, that at the request of the defendant, he went to the plaintiff to inform him where and upon what terms the children might be educated.

<p>ERROR to the District Court for Dane County</p> <p>The case is stated in the opinion of the court.</p>

<p>AGREED CASE from the District Court of Iowa County.</p> <p>The facts are fully stated in the opinion of the court.</p>

The case is fully stated in the opinion of the court. David Hoggle, for plaintiff in error, contended that the complaint was good and relied upon 22 Pick. 312 as being a case under a statute similar to the one in question. contended that the statute in question was not applicable to the case stated, and that the remedy of the plaintiff was by a common law action.

Warren commenced an action of replevin against FitzPatrick, before a justice of the peace, for the unjust detention of one box and two barrels of merchandise. The property was replevied and appraised at $50. The transcript of the justice shows that the defendant pleaded pleas insisting upon a claim of title in himself to the goods in question. The justice found the property to be in defendant, -and assessed its value at $49.99, and one cent damages.

EBBOB to the District Court for Iowa County. After this case was before the court, ante, 471, a sufficient replication to the plea of the statute of limitations was put in, to the effect that the note upon which suit was brought was signed and witnessed by a subscribing witness, and issue was taken upon this replication. The facts which were brought forward on the trial of this issue and the rulings thereon are stated in the opinion of the court.

Croole brought an action of replevin against Nay for the unlawful detention of two horses and two stacks of wheat. The defendant moved the court to quash the writ, because the affidavit upon which it was issued did not state the value of the property, for want of a sufficient praecipe, and that the writ did not state the sum for which the action was commenced, nor the value of the property.

<p>1. Statute construed. So much of article 12, statutes of Wisconsin, 340, entitled “ An act concerning- justices of the peace,” as is necessary to carry into effect the act of January 30,1844, concerning justices of the peace, and for other purposes, is retained and not repealed.</p> <p>2. Certiorari—practice. In proceedings hy certiorari, where the error relied on is that the evidence did not warrant the finding, it is not enough to detail the evidence in the affidavit for the writ, hut the error relied on must he distinctly pointed out; hut if the affidavit distinctly presents the points, it is not necessary to state at its close the precise grounds of error.</p>

<p>ERROR to the District Court for Grant County.</p> <p>The case is fully stated in the opinion of the court.</p>

EEEOE to the District Court for Green County. The deposition of Bennett, which was rejected as evidence, was taken in the presence of the attorneys for the parties, and cross interrogatories were put, and the caption of the deposition stated that the witness was “produced and sworn,” and that “on his oath he deposes and answers the several interrogatories propounded to him as follows.” The certificate of the justice did not state any thing as to the swearing of the witness…

BoutTiwick brought an action of trespass against Berry for taking and carrying away Ms horse of the value of $150. The defendant pleaded the general issue only.

Tiie plaintiffs in this action, who were merchants at Milwaukee, filed their complaint against the schooner “Dolphin” under the statute to provide for the tíollection of demands against boats and vessels, alleging that the “Dolphin” was indebted to them for supplies, etc. furnished the first of June and the first of October, 1841, at the request of John Low and Lester H. Cotton, owners, in the sum of $778.11.

<p>Application for a peremptory mandamus. The facts are fully stated in the opinion of the court.</p>

This was an application by John Y. Smith, superintendent of territorial property, as relator, for a peremptory writ of mandamus against the district court of Milwaukee county, to command it that it proceed with the trial, and to final judgment of said court, in an action in favor of the Territory of Wisconsin and against James D. Doty, John F. O’Neill and Augustus A. Bird, in a plea of trespass on the case. The facts are stated in the opinion of the court.

Peter Juneau filed his bill in equity against II. N. Wells and others, to foreclose a mortgage given by Wells to him, to secure the payment of $517 and interest, according to the terms of three promissory notes dated April 12,1841. The premises embraced in the mortgage were lots 5 and 9 in block 7, in Milwaukee, on the east side of the river.

The complainants, Charles Bracken, David Irvin, Amelia Daniels, Sarah Daniels and Cecilia Daniels filed their bill in the district court for Iowa county, against Sylvester B. Preston, William Kendall, William T. Phillips and William Nichols, claiming to be the owners of a certain tract of land in Iowa county and praying for a decree for an account of mineral taken therefrom by the defendants, and that they be decreed to yield and surrender possession thereof to the…

The complainant Elias B. Bowen filed a bill against Elihu Warner to compel the specific performance of an alleged parol contract for the conveyance of a tract of land, and for an injunction to stay proceedings in an action at law instituted by defendant against the complainant, to recover rent for the use and occupation of the premises in question.

Action of debt on an injunction bond. A motion was made by the plaintiffs in error for a further and amended return, the facts in relation to which are stated in the opinion of the court denying the motion.

Bill to foreclose a mortgage filed by Carman against Hurd from which it appears that Hurd made a contract with Carman and one Barker to pay them at the landing at Dekorra on the Wisconsin river, 50,000 feet of good merchantable pine lumber valued at $12 per thousand, to be delivered in September, 1843, provided if there should not be a sufficient rise of water to run the same from Conant’s mills before the last of September, then it was to be delivered as soon thereafter as…

<p>ERROR to the District Court for Rock County.</p> <p>The case is stated in the opinion of the conrt.</p>

Assumpsit brought by Broom against Messenger on two promissory notes. Plea of non-assumpsit and set-off. By consent an order was entered referring the case to three referees, who filed their report June 27, 1845, in favor of the plaintiff for $255.12. July 2, 1845, the report was confirmed and judgment for the amount reported was rendered in favor of the plaintiff; the defendant objecting thereto, in general terms, without assigning particular reasons.

<p>1. Criminal law — adultery—evidence. Definite, positive proof of the offense of adultery is not required to convict the defendant, but . the guilt of the accused may be inferred from facts and circumstances sufficient to satisfy a rational and just man, beyond a reasonable doubt.</p> <p>2. Same. Where upon the trial of an indictment for adultery, which contained but one count, the prosecution proved that the accused and the , female with whom he was charged with having committed the offense, on a certain occasion slept in the same bed. Held, that it was competent for the prosecution to give evidence of other acts of the parties, tending to show an adulterous intercourse between them down to the time of finding the. indictment.</p>

Wilder brought an action of assumpsit in the' Rock county district court on a promissory note of which the following is a copy: “ June 24,1831. “For value received, I promise to pay Cook Husbrook, or bearer, $100, as witness my hand. “MAHLON HUSBROOK.” “Indorsed. “ August 28, 1832, received on th® within $35.” The declaration contained a count on the note, and the common counts and a copy of note.

<p>ERROR to the District Court for Racine County.</p> <p>The case is stated in the opinion of the court.</p>

Action of debt upon a bond in tke penal sum of $700, conditioned for tke payment of $350, in several installments, some of which were due at the commencement of the action, and others became due before trial and judgment. The declaration assigned but one breach, for the non-payment of the first installment. The award of execution was for other installments, and such as became due before the commencement of the action.

The case is fully stated in the opinion of the court. 1. The court erred in rejecting the assignment of the note to William Yineyard. 3 Binn. 394-400. 2. The statute which makes an instrument evidence that it was signed by the party by whom it purports to have been signed, until its execution is denied under oath, rendered the receipt competent evidence without the testimony of the subscribing witness. 1.

Action brought by John Burnett against Elias S. Bowen and Jared Warner, administrators of the estate of Christopher Bowen, deceased. The case is stated in the opinion of the court. 1. The judgment which was the foundation of this action, having been obtained before the lapse of one year from the time of granting administration on the estate of the defendant’s intestate, was a nullity. 2.

There were cross writs of error brought to reverse certain decisions of the district court for Crawford county. Pierre Chouteau, Jr., 'John B. Sarpy, John P. A. Sanford, Pierre Menard, Felix Talle and Joseph A. Sire, partners, under the name of Chouteau & Co., brought an action against Joseph Rolette, the testator, in his life-time, and which was pending at the time of his death.

The Janesville Bridge Company filed its bill against Luke Stoughton, Guy Stoughton, Asa Blood, James M. Burgess, George Brown, and I. N. Wagoner, setting forth that in 1838, one Henry F. Janes obtained from the legislative assembly of the Territory a grant of a franchise to keep a ferry across Rock river, at Janesville, and in pursuance thereof, kept said ferry in operation, taking tolls for the same; that in the fall of 1838, Charles Stevens, of Janesville, purchased of…

Jesse Oakley and Hezeldah B. Loomis filed their bill in equity against William B. Hibbard, which he answered, and the complainants put in a general replication. The cause was heard upon bill, answer and replication and exhibits, no proofs being produced. The district court decreed that the defendant pay to the complainants $706.15, with interest from February 16, 1846, with costs of suit, from which decree he'appealed.

The complainant, Charles Bracken, filed his bill of complaint against Daniel M. Parkinson, Lewis D. Vanmatre, John Vanmatre, and the unknown heirs of Andrew P. Vanmatre, deceased, and Aaron Colley, setting forth that in August, 1828, he surveyed for Lawrence, Bailey, Moore and Reed a tract of 320 acres, which they had leased of the agent of the lead mines for smelting purposes ; that in July, 1829, an addition to said survey was made for said Bailey by Samuel Cole, adjoining…