Volume 11 — Wisconsin Reports

This was a motion for a rehearing of the decision reported in 8 Wis., 182, where the facts of the case are fully stated.

This was an action of ejectment by Thomas J. Ormsbee against Hiram Hayward for a lot in the city of Madison, the facts of which are fully stated in the former decision reported in 7 Wis., 111. It was again argued by

The facts of this case are sufficiently stated in the opinion of the court, for an understanding of the points decided; and as the points made by the counsel in the argument of the case, are left undecided, they are omitted.

<p>Finding — Bill of Exception — New Trial.</p> <p>Where a trial is had before a judge without a jury, and the judge omits to state all the faots in his finding, and exceptions are taken to the finding, for such omission, this court will not review the facts, unless there has been a motion for a new trial made and overruled.</p> <p>The case of Hutchinson vs. Eaton, 9 Wis., 226, considered and approved.</p> <p>Exceptions to the finding of the judge extend only to conclusions or decisions of law upon the facts found by him, and not to questions of fact.</p> <p>A new trial will not be granted, in a case tried by the judge, beoause the finding is against evidence, unless there has been a motion for a new trial in the, court below.</p>

INFORMATION FOR QÜO WARRANTO. The information in this case, by the attorney general, averred that the respondent had usurped and held the office of judge of the municipal court of the city arid county of Milwaukee, without legal election, appointment, or authority, &c. Upon this, a summons was issued, on the 22d of August, 1859. On the 30th of January, 1860, the defendant filed his answer: 1. Denying, in general terms, the averments of the information, or non usurpavit. 2.

The alternative writ of mandamus which was issued in this case, set forth that the relator, Benjamin B. Spaulding, presented to the respondent, G. DeWitt Elwood, who was the register of deeds of Green Lake county, a deed for registration, which Elwood refused to record, and endorsed thereon the following: “I acknowledge that this deed has to-day been presented for recording in this office,, by Benj.

This was a writ of mandamus issued to Laman E. Saxton, sheriff of the county of Juneau, to compel him to keep his office at the village of Mauston. The writ averred that the county seat of Juneau had been removed from New Lisbon,, the former county seat, to Mauston, by an act entitled “ an. act to provide for the removal of the county seat of Juneau county.” Approved February 21, 1859.

This was an alternative writ of mandamus, to compel Thos. H. Eaton, the clerk of school district No. 6, in the town of Monroe, Green county, to report to the town clerk of the town the amount of the value of the house in said district, which had been apportioned to school district No. 8.

The alternative writ in this case showed that one Ralph Gyles had obtained a loan of school money, and secured its payment by a mortgage upon an eighty acres of land, in Dane county; that the loan being unpaid, the land became forfeited, and the school land commissioners advertised the land for sale, on the 13th of December, 1859, at the capital; that on that day the land was struck off to the state, and afterwards, on the same day, the land was again offered for sale, and…

The writ in this case was issued on the application of the Attorney General of the state, and set forth that for 2 years the respondent had entirely failed and neglected to make and return to the treasurer the statement of the gross earnings of the company’s road, as required by law; and had also refused to pay into the treasury of the state, a sum equal to 1 per cent of the gross earnings of said plank road.

This was an applicalion for a writ of prohibition to prohibit and enjoin the county court and George A. Beck from proceeding in said court, in a case pending therein.

This was an action against the defendant, Herman Von Lileinthal, as indorser of a promissory, dated at “ Montello, Dec. 6, 1856/’ made by one John Donivon to William H. Catlin, for $200, and due in 30 months, and transferred to the defendant, and by him indorsed to the order of John Maxwell, who transferred the same to the plaintiffs, Duckert and Brockhaus. The complaint is in the usual form.

<p>APPEAL PROM CIRCUIT COURT, WASHINGTON COUNTY.</p> <p>The facts in this case are sufficiently stated in the opinion of the court.</p>

<p>Railroads — Service of Process.</p> <p>Where the Milwaukee and Watertown Railroad Company had procured an appraisement of damages for locating its railroad track, from which the claimant appealed to the circuit court, hut before the trial in the circuit court took place, the rights of the company became vested in the Milwaukee, Watertown & Baraboo Valley Railroad Company, and the latter company was substituted for the for~ mer company; the notice of substitution was served by letter sent by mail to E. and P. without anything to show that either of them was the attorney of the company; Held, that such notice so served did not give jurisdiction to the court of the latter company, and the judgment against it must be reversed for that reason.</p>

The facts in this case will be understood from the preceding one, and the opinion of the court. The two cases were argued at the same time, and upon the same printed case.

This action was commenced by David S, Ordway, clerk of the board of education of the city of Beaver Dam, against E. P. Smith, the mayor, and the common council of the city, to compel them to raise, by taxation, $3,840 for educational purposes in that city.

<p>ERROR TO CXRCUIT COURT, DODGE COUNTY.</p> <p>The facts in this case will sufficiently appear in the opinion < of the court.</p>

<p>APPEAL EROM CIRCUIT COURT, WASHINGTON COUNTY.</p> <p>The facts of this case sufficiently appear in the opinion of the court.</p>

<p>J11 tachment — Frivolousness—Pleadings.</p> <p>A complaint for a breach of an undertaking given in an attachment suit to obtain possession of the goods attached, which sets out the undertaking in lime verba, and avers that judgment was recovered against the defendant in the attachment suit, and execution returned unsatisfied, &<s.f will be held good upon general demurrer.</p> <p>An undertaking given by the defendant in an attachment suit, to obtain possession of the goods attached, may be declared on as “ an instrument for the payment of money only." And in such a suit, after the demurrer has been declared frivolous, the plaintiff may assess damages and enter judgment without notice to the defendant.</p>

This was an action commenced by Edgar D. Beardsley and wife against L. G. Tuttle, Mark T. Green and David Green, to compel 'the surrender and discharge of record of a mortgage made by the plaintiffs to the defendants.

This was an action commenced by John Barnum against John Fitzpatrick, the administrator of Wm. H. Kittridge, before a justice of the peace, for an amount due from the estate of Kittridge. Judgment was given by the justice in favor of the plaintiff, of #47 93, and the defendant appealed to the circuit court, where the plaintiff recovered #46 damages, #31 53 costs, from which the defendant took this appeal. The other facts in this case fully appear in the opinion of this court.

This was an action brought to foreclose a mortgage, made in May, 1858, by Daniel Pinney and wife, to secure the payment of $700 to Lyman P. Root. The complaint is in the usual form, and the answer admits the making, execution and delivery of the mortgage and note mentioned and described in the plaintiff’s complaint.

This was an action to foreclose a mortgage, dated the 22d of December, 1855. The complaint is in the usual form. The answer averred a payment of $32 which had not been allowed ; and then answered that the contract was usurious, specifying in what manner, and claimed the benefit of his plea. On the trial the defendant was sworn as a witness, and several questions were put to him, tending to elicit proof of the usury, and also offers made to prove the usury.

This action was commenced by the service of a summons upon all the defendants personally, and was brought to recover the value of certain goods and chattels alleged to have been taken by the defendants, which the plaintiff claimed as 'assignee of one R. J. Casselman, by virtue of a written assignment executed and delivered by Casselman to 6.

This action was commenced by Adam Carlyle and Thomas Dowse, against Washington Plumer, Francis Plu-mer, and John H. Brown, upon a promissory note for $331 67, also for goods, wares, &c., $48, for rent of a storehouse, $87 50, and for rent of an office, $13. The complaint is in the usual form, charging the partnership of the defendants and plaintiffs.

This was an action brought by Daniel Malbon and William H. J. Nichols, against John W. Birney, to enforce a lumberman’s lien .on the defendant’s premises, on account of lumber furnished to one Kennedy for the purpose of building a house on the premises.

This was a judgment entered by confession. The statement was as follows : “ I do hereby confess judgment in this cause in favor of Jno. S. Thompson for the sum of twenty-three hundred dollars, and authorize judgment to be entered therefor against me, and hereby stipulate and agree to and with the said plaintiff that said judgment shall draw interest at the rate of ten per cent per annum from the date of the entering up of the same, and that execution issue therefor when due.

This was an action commenced by O. E. Dreutzer, who, on the 14th of September, 1858, had, by an order of court, been appointed receiver of the property of Charles L. Bell, against Bell and his wife, and William Hibbard, to recover possession of four lots, in the village of Waupacca. The complaint shows that the plaintiff had been appointed under proceedings supplemental to executions in favor of Boynton & Smith against Bell.

This was an action commenced by Abraham Vanderpool against the La Crosse and Milwaukee Railroad Company, Joseph Bailey and L. B. Bloomer & Co., to foreclose a mechanic’s lien claimed upon the railroad bridge across the Wisconsin River at Kilbourn, for lumber furnished by him to Bailey, as sub-contractor, and Bloomer & Co. as contractors for constructing the bridge.

This was an action brought by John H. Jewett, James L. Gates and Henry Johnson, against James Whalen, by attachment. The facts of the case sufficiently appear by the opinion of the court. The evidence was all saved by a bill of exceptions, but there was no motion for a new trial. Judgment was rendered for the plaintiffs, and the defendant appealed.

APPEAL PROM CIRCÜIT COURT, COLUMBIA COUNTY. This was an action commenced by Israel F. Burdick, against Harvey Briggs and Frances L. Briggs, to foreclose a mortgage.

<p>Evidence— Witness — Parties.</p> <p>Where one defendant puts in a defense which does not constitute a defense for his co-defendant, he may call the co-defendant as a witness, without giving notice to the plaintiff that he intends to call him, to establish the facts of his defense.</p>

This was an action commenced by James Learmonth and A. Carnagie, against Richard F. Veeder, to enforce a mechanic’s lien in building a hotel building in the city of Portage. The facts in the case will sufficiently appear in the opinion of the court.

APPEAL PROM COUNTS'COURT, DANE COUNTS- This was an action commenced by Luke Mowry against John P. W. Hill and.wife to foreclose a mortgage. The complaint was in the usual form, and verified, and served on the 13th of May, 1859. On the 13th of September, the defendants moved to dismiss the summons for irregularity in its form, which was over-ruled on the 14th, and on the same day the plaintiff entered judgment for the amount of the mortgage for want of answer.

<p>APPEAL FROM CIRCUIT COURT, RACINE COUNTV.</p> <p>This was an action for a specific performance of a contract to convey a part of a lot in the city of Racine. Sage had entered into a contract to sell the lot to one Putney for $500, payable in five equal annual payments at 12 per cent., commencing on the 20th of March, 1852, and ending 1856. The agreement provided, that “ in case of failure of the said party of the second part to make either of the payments, or perform any of the covenants on his part, the party of the first part should have the right to declare said contract forfeited and determined, and to re-enter and take possession, and to have and retain all payments that should have been made upon said contract” The two first payments were made by Putney, when he assigned his contract to the plaintiffs, Du-rand & Hill. . The payment due in 1854 was not called for; and in November it was offered and refused, but it was finally agreed that the whole matter might rest until the fourth payment became due, when complainants were to pay the three payments remaining unpaid. On the 21st day of March, 1855, the whole amount due and to become due, was offered to the defendant and refused, because it was not tendered on the 20th. On the 20th of March, 1856, the whole amount unpaid, with interest at 12 per cent., and interest upon interest, and #50 in addition, was tendered by the plaintiffs in gold, and a deed was demanded, which was refused, and the money was on that day deposited, where it has been since and still remains in tender for defendant.</p> <p>On the trial in the circuit court, the judgment was given for the plaintiffs, from which the defendant appealed.</p> <p>1. After the written notice that the contract was forfeited, the day of performance became material and of the essence of the contract, and the respondents were confined to their strict legal rights. Hall vs. Delaplaine, 5 Wis., 215 ; Cowen and Hill’s Notes, 343, 345 ; Benedict vs. Lynch, 1 John Ch., 369; Breed vs. Hurd, 6 Pick.; DeWolf vs. Long, 2 Gilman, 679; 1 Saunder’s Plead., 33, note 2; 8 East., 168; Graham’s Prac., 541 and cases cited; Miller vs. McOlain, 10 Yerg., 245; Lanier vs. Trigg, 6 S. & M., 641.</p> <p>2. Time becomes more material when the value of the property has greatly changed. Lead. Cases in Equity, vol. 2, top p. 20, and note; Story’s Eq., vol. 2, 102, and note; Sug. on Yen., 495.</p> <p>The complainants claim that time was not of the essence of the contract, and that the defendant was not authorized to treat the contract as forfeited in consequence of the nonpayment of the installments as they fell due, neither was he authorized to declare the contract forfeited on the 16th of November, without any previous request of payment, or a previous notice that it must be paid within a reasonable time. Edgerton vs. Peckham, 11 Paige, 352; Braisher vs. Gratz. 6 Wheat., 528; Hall et. al. vs. Delaplaine et al., 5 Wis., 206.</p>

The relation in this case was filed on the 19th of March, 1860, and an alternative writ issued the same day.

ARPEA! PROM CIRCUIT COURT, WASHINGTON COUNTY. This action was commenced by Alexander Spaulding and Nathan Pereles, against the Milwaukee and Horicon railroad company, and others, to recover the amount due from the company upon certain bonds of the company, secured by mortgage upon the road, and to foreclose the mortgage; for an account among the several bond-holders, and for the appointment of a receiver, &c., to take charge of the road, its lands and effects, books and…

This was an action commenced by Orlando Hunter, the defendant in error, against the Milwaukee and Chicago Railroad Company, to recover damages for personal damages, suffered in consequence of the locomotive and cars of the company running against him, and throwing him from his wagon, to the distance of some SO feet, through a board fence, and breaking his leg, and for other damages.

This was an.action commenced by J. M. Judd against N. M. Littlejohn and B. F. Babbett, to recover the amount of $245 32, due as a balance for freights upon lumber transported over the M. & M. R. R. The facts are fully stated in the opinion of the court. The verdict, under the instruction of the court,.was given for the plaintiff, and the defendants appealed.

<p>ERROR TO CIRCUIT COURT, WALWORTH COUNTY.</p> <p>The facts in this case are fully stated in the opinion of the ■court.</p>

This was an action commenced by Eli G. Runnels against Chas. C. Brown, to recover the amount due upon several promissory notes. The summons was served on the 24th of May, and the complaint filed the 10th of June, 1859. The answer was served and filed the 28th of June. On the 4th of November, Brown served a notice of a petition for a change of venue, which was brought on on the 16th, and denied.

<p>Bill of Exceptions — Practice.</p> <p>A bill of exceptions must be settled and signed by the circuit judge, or it will not be considered by the supreme court upon an appeal.</p> <p>To entitle a party to review the questions decided in the court below, he must have his exceptions regularly settled, and made a part of the record.</p>

This was an action commenced by Rebecca Hawkes, to recover $435, the amount of loss incurred by fire, in the destruction of her house and furniture.

This was an action commenced by Rouse Simmons and Samuel H. Sweet against James S. Putnam, in a justice’s court, to recover damages for the breach of a contract, and for the amount paid upon it to the defendant.

This was an action commenced by Celim L. Seymour, against William Seymour and Cyrus Briggs, in the nature of a creditor’s bill.

<p>Chati el Mortgage— Conveyance — Railroad.</p> <p>Although a mortgage purporting to convey personal property thereafter to he acquired by the grantor, does not pass any title to the grantee, without some new act by the grantor, after the property is acquired, assenting to the conveyance, yet, if the grantor after such property is acquired surrenders the possession of it by deed or otherwise to the grantee, that would be such a new act as would confirm the conveyance.</p> <p>A railroad mortgage granted the “ railroad with its superstructure, track and all other appurtenances made or to be made/' also, all and singular their rail road furniture, including engines, tenders, cars of every description, tools, materials machinery, and every other hind of personal property 'which shall l>e used for operating said rail road ” Held that there waá nothing in the mortgage purporting to grant property thereafter to bo acquired by the company, except so far as it should become appurtenant to, or be used in operating the road. And that certain rail road chairs, afterwards acquired by the company, but never used in the construction of the road, were not appurtenant to it nor used in operating it ,* and therefore the mortgagee had no title, although after such chairs were acquired, the company surrendered possession of the road and the mortgaged property to the mortgagee.</p> <p>The doctrine of Pierce vs. Emery, 32 N. H., 484, that where a railroad company mortgages its entire road and all its franchises, that any after acquired property will pass to the mortgagee as an incident to the franchise of acquiring property, if correct at all, cannot be applied to a case where several mortgages are given on separate divisions of the road.</p> <p>Chynoweth vs. Tenney, et al, 10 Wis., 397, considered and approved.</p>

On the 13th of June, 1857, the defendants entered into a contract with the plaintiffs for building their depot building at Milwaukee. Held: that upon grounds of public policy and necessity, a mechanic’s lien did not attach to the structures forming part of the road.

■ This action was commenced by the defendant in error against the plaintiff in error. The complaint was in the ordinary form upon a note for #5,000 with interest at ten per cent per annum. The facts set up in the answer are noticed by the court in its opinion.

This is another action for the same cause as that decided in 6th Wis. Reports, 539, between these same parties, commenced in the circuit court. The complaint sets forth that the plaintiff in error, who- was the plaintiff below, was, in 1857 and 1858, doing business as a merchant, having a store and shop on East Water street, in the city of Milwaukee, in which he sold hard ware, and manufactured and sold tin ware.

The facts in this case are sufficiently stated in 7 Wis. Rep,, 425, when it was before this court on an appeal, and a new trial was ordered. The exceptions and points now made depend entirely upon the charge of the circuit judge given to the jury on the trial. He first instructed the jury as follows: “ This is an action to be tried as any other action; the plaintiff seeks to recover for an alleged injury which he has sustained on the cars of the defendants.

<p>Affidavit of Merits — New Trial — Jlgreemcht.</p> <p>Where a verbal agreement is made in relation to the trial of a cause by the counsel of the parties, and the stipulation is relied and acted on by any of the parties, the other will not be allowed to disregard it, and thereby obtain an unjust advantage, notwithstanding the rule requires all such agreements to be in writing.</p> <p>An affidavit of merits, which avers that the defendant has “stated Jm defense” to counsel, ¿so., is insufficient; it should aver that he had “stated the case,” &e.</p> <p>A new trial will not be granted, on motion, without an affidavit of merits, filed with the motion.</p>

<p>ALTERNATIVE WRIT OF MANDAMUS.</p> <p>The facts in this case are sufficiently stated in the opinion by the court.</p>

This is an action to recover possession of lot five, of section thirty-three, township 13, of range 9 east, in Columbia county, the complaint was in'the usual form, and was filed originally in the circuit court for Columbia county, but “ for the convenience of witnesses and the furtherance of justice/’ the place of trial was changed to the county of Milwaukee, by order of court.

The facts in these four cases will be found sufficiently stated in the opinion of the court, except the opinion of Judge McArthur, given upon the motions made in the court below, as follows: “ It is contended that the plaintiff might well treat the appeal of Runkel as a nullity, the judgment having been taken against him for want of an answer. It is said he has no right of appeal.

This is' an action brought to recover a demand claimed to be due on a contract, of $813 86, per balance due for wages as master of the appellant’s vessel, and for monies paid out and expended.

This was an action commenced by the plaintiff against the defendant, and one Herbst, to recover certain real estate in Milwaukee county. Herbst was then in actual possession of the land, and Fullerton was a non-resident of the State of Wisconsin. The summons and complaint, which was sworn to and had the usual affidavit attached, were in the usual form, claiming title to the land in suit in fee, and were served on the defendant, Herbst, personally, on February 14th, 1859.

This was an action brought by the plaintiffs, to enforce a mechanics’ lien, claimed by them upon certain real estate of the defendant.

<p>APPEAL PROM COUNTY COURT, MILWAUKEE COUNTY.</p> <p>The facts in this case appear by the opinion of the court.</p>

The judgment in this action had been entered upon the lien of the plaintiff accuring for painting the house of the defendant. The complaint was in the usual form, and the defendant appeared and made a defense, and judgment was rendered in favor of the plaintiff for $119 77 and costs, on the 7 th of December, 1859.

This was an action commenced by Royal Bowman, against Page and Waldo, by bill in chancery, to compel them to give up and surrender, two deeds made by the complainant and his brother, Walter Bowman, conveying an eighty acres of land to the defendants.

APPEAL PROM CIRCUXT COURT, DODGE C0ÜNTV. This action was commenced by William D. Clark against William Farrington and wife, by the service of a summons and complaint.

O o Cl w ¿a w o o M Q O Cl 3 ►3 *1 W o d o ft d tel This action was originally commenced by Charles Blunt, against Wiram Knowlton and his wife, the Milwaukee and Mississippi railroad company, and Gilbert Hurd. The complaint attached to the summons for relief set forth that on the 18th of May, 1858, Knowlton and wife made the note and mortgage to secure the payment of $675, payable in eight months at 12 per cent, interest, covering certain tracts of land in Prairie du Chien.

The facts in these cases may be gathered from the finding of the circuit court, and the opinion of this court. The notes and mortgages, and bonds of surrender, &c., on which the foreclosures are founded, and which were put in evidence, and the pleadings, are similar to those given in the case of Blunt vs. Walker et al, supra 334.

This action was brought to recover the amount due upon two bills of exchange made by Dutton & Raymond on Niles & Kinne at Buffalo, each for $5000 at 30 days from date, and indorsed to the plaintiff, with interest.

This was an action in replevin, under the code, by the plaintiff against the defendant, who was the sheriff of Milwaukee county. The complaint was in the usual form, averring title to the possession of the property taken, a piano taken from Horace Belden.

The complaint in this case was in the usual form, to recover possesion of personal property, and was put in issue by the answer, which also set up fully the judgment and execution upon which the defendant, the sheriff of Dodge county, made the levy and claimed the possession of the property.

APPEAL PROM CIRCUIT COURT, DODGE COUNTY This was an action to vacate a judgment entered by a justice of the peace in favor of the defendant against the plaintiff, and to restrain the collection of the same. The complaint showed that on the 9th of August, 1858, Knarr procured a summons from the justice which was duly served on this plaintiff, an issue was made and a trial by jury had on the 2d of September, and verdict for $100 rendered in favor of Knarr.

On the trial of this action, in the circuit court, the judge found that “ the note upon which this action is brought was given for the premium of a certain policy of insurance, issued by the plaintiff, by Cyrus P. Hiller, the agent of said company. in the county of Sheboygan, and state of Wisconsin, in the year A. D. 1855; and that the said plaintiff had not filed a statement of the affairs of said company in the office of the Secretary of State, at Madison, for said year,…

APPEAL PROM COuNTV COURT, GREEN LAKE COUNTY. This was an action upon a promissory note by Wm. J. Frank, and indorsed by the defendant to the plaintiff. The facts will be sufficiently gathered from the opinion of the court.

This case was brought to this court upon a writ of error from a judgment entered by the circuit court of Ozaukee county, upon an action upon the covenants of title in a deed for lands made by the plaintiff in error to the defendant in error, the defendant in error now moved for a stay of proceedings in this court, until the plaintiff here had paid him his costs in prior appeals, adjudged to him by this court in this same case, and also for costs on such appeals in the court…

APPEAL PROM CIRCUIT COURT, POND DU LAC COUNTS’. This was a case in chancery, commenced by George C. Tallman against Sally McCarty and 120 others, in 1855. The bill set forth that in 1843 the patent of the United States was issued to Pierre Pauquette, for sections 11, 12, and 13, in township 15, range 17 east, in Fond du Lac county, as the reserve of Pauquette, under the Treaty with the Winneba-goes, approved February 13, 1833.

This action was commenced by Amos Nadd, against Henry Wells and others, the partners of the American Express Company, to recover damages for the non delivery of a box of machinery, delivered to the defendants, in Boston, Mass., to be transported to Milwaukee.

APPEAL PROM CIRCTJIT COURT, CALUMET C0UNTT. This action was commenced to recover the amount of a coupon of ¡$>100, being the interest due upon a bond issued by the town of Lima, to aid in the construction of the Tay-cheeda and Green Bay Plank Road, and made payable at the Bank of Fond du Lac. The complaint is in the usual form, upon a money demand, and the bond and coupon are copied at length in the complaint. The defendant demurred, and the court sustained the demurrer.

This action was commenced in the name of the state, before a justice of the peace, to recover a penalty for an obstruction to a highway, and taken thence by appeal to the circuit court. On the trial the plaintiff introduced evidence tending to show that the highway had been worked through the lands of the defendant for several years previous, and that it had been laid out, and the survey recorded. Considerable testimony was given on this point.

The complaint in this case averred criminal conversation and connection with the wife of the plaintiff, which had been forbidden by the plaintiff; but yet the defendant broke and entered the close of the plaintiff, and into the dwelling house, and concealed himself therein in a private bed room of the house, and remained there for the space of several hours, with intent, &c., to seduce and carnally know the said wife.

After the reversal of the order of the circuit court in this cause, as reported in 8 Wis., 376, and the remission to the circuit court, the counsel for the defendant again moved to set aside the sales upon the executions. The motion now made was placed upon other grounds than the former motion. The motion was granted by the court, and the plaintiff appealed.

This was an action of ejectment commenced in the circuit court of Dane, by Wakeley & Tenney against Sprecker & Seckler, to recover the possession of a lot in Madison.

This was an action commenced on the 25th day of February, 1858, to recover possession of lot two, in block twenty-five, in Walker’s Point addition, in the city of Milwaukee. The complaint was in the usual form.

This was an action commenced by the treasurer of the county of Outagamie, to compel the State Treasurer to pay over the amount due the county from the sales of the swamp lands in that county. The State Treasurer answered that the county was indebted to the state the amount claimed, and, therefore, he had refused to pay, &c. The relator demurred to this answer.

On the 29th of May, 1860, the plaintiffs commenced an action against the defendant, and set forth in the complaint, that the plaintiffs had obtained a judgment against the defendant ; that execution had issued against them and been returned unsatisfied ; and also averred that the defendant had property which it unjustly refused to apply to the payment of the plaintiffs’judgment, and there was danger of its loss and misapplication by the officers.

The complaint averred that the plaintiff was the owner, &c.. of the lands on which the tax was levied; and that the defendant claimed there was due upon them #1,049,88, for the non-payment of which Gleason had advertised the same for sale.

The facts in these cases can very readily be gathered from the opinion of Chief Justice Dixon. Mr. Justice Paine having been of counsel for Booth in the cases, took no part in the decision of the motions, and the Chief Justice and Mr. Justice Cole disagreeing upon the question presented, the motions were denied by an order made in open court, but no opinion has been filed by Justice Cole.

After the decision of the motion in this case reported 9 Wis., 557, the main appeal came on to be argued by the counsel. The facts of the appeal appear sufficiently in the opinion of the court.

<p>ERROR TO CIRCUIT COURT, DANE COUNTY.</p> <p>The facts in this case will sufficiently appear from the opinion of the court.</p>

<p>APPEAL FROM CIKCUrT COURT, WINNEBAGO COUNTY.</p> <p>The facts in this case may be gathered from the opinion of the court.</p>