Volume 13 — Wisconsin Reports

Absalom Williams, of Walwortb county, died intestate in June, 1857, owning a note given by Ely, secured by mortgage. In October, 1857, bis administrators made a written assignment of tbe mortgage and mortgage debt to Jeremiah Williams, “ in consideration that be was entitled to a part of tbe estate, as beir of said Absalom Williams, and this action was brought by Jeremiah to foreclose tbe mortgage.

Action to foreclose a mortgage. The case is stated sufficiently in the opinion of the court.

Tbe case is stated, in tbe opinion of tbe court. cited, as to tbe insufficiency of tbe verdict, E. S., 1849, chapter 88, sec. 146; Ford vs. Ford, 3 Wis., 399; Heeron vs. Beckwith, 1 id., 17; Smith vs. Phelps, 7 id., 211; Pulís et al. vs. Dearing, 7 id., 221; Miller vs. Tret, 1 Ld.

<p>Where the parties to an action in a circuit court stipulate that it may be tried before the judge at chambers, and the finding be filed and judgment entered with the same effect as though the trial were had before the court without a jury, a judgment entered in pursuance of such stipulation must be regarded as though actually entered upon a trial before the court.</p>

On the 16th of September, 1856, Mulhare executed to one Heeran a note for $3,000, payable to him or bearer in one year from date, and a mortgage upon land in Dane county to secure its payment. On the 24th of November, 1856, Heeran, at the instance of Mulhare, entered satisfaction of the mortgage, of record.

The complaint in this action alleged that one Michael Spil-more, in 1842, conveyed a certain tract of land in the county of Milwaukee, to one Hagelmeyer, for a pretended consideration of $600, but really in trust for himself, and for the sole purpose of preventing the property from being seized upon an execution against him in favor of one Skinner, and with an understanding that Hagelmeyer was to reconvey the land to bim.

Tbe case will appear from tbe opinion of tbe court. There was some evidence tending to show that after tbe machinery in the mill leased by tbe defendants to tbe plaintiffs, stopped running, tbe defendants took it down and used portions of it in a new mill which they were then constructing. 1.

By tbe first section of cbap. 171 of tbe local acts of 1853, tbe mayor and common council of tbe city of Milwaukee were “ authorized to issue bonds of said city to an amount not exceeding fifty thousand dollars,” “to raise money to be expended in tbe construction of a harbor” in that city.

Tbe complaint in tbis action (wbicb was commenced in June, 1858), alleged that tbe Milwaukee 'Patent Brick Manufacturing Company was organized in 1855, under an act of tbe legislature ; that tbe other defendants became subscribers to its capital stock in certain amounts; tbat tbe company went into business in 1855, and continued therein until June, 1857, when it became insolvent, having ceased its business and reorganization; that on, &c., the plaintiff obtained judgment in…

For a full statement of tbe contract on which, tbis suit was founded, and of tbe pleadings, see Ganson et al. vs. Madigan_ 9 Wis., 146.

T^ie complaint alleged tbat tbe plaintiff was seized in fee, as tenant in common witb tbe defendant, of an undivided fourth part of lots 5, 6, 7 and 8, of tbe subdivision of lot 10 in tbe N. E. qr. of a certain sec. 82, according to a certain-plat therein referred to, and prayed for a partition. Tbe defendant admitted tbe allegations of tbe complaint, except as to lot 8, of wbicb be claimed to be sole owner.

This was an action to recover possession of six casks of zinc paint from tbe defendants, wbo were warehousemen in tbe city of Milwaukee. About tbe middle of July, 1859, one Enoch Haskin, then a merchant in tbe city of Milwaukee, purchased tbe paint of Manning & Squier in tbe city of New York, on six months’ credit.

This action was commenced on tbe lltb of May, 1859, by Martha A. Wood, to foreclose a mortgage executed toberby Lalce, to secure tbe payment of bis note for $2,874.62, dated May 1st, 1858, payable to ber one year after date, witb twelve per cent, interest. Answer: * 1.

The case is stated in the opinion of the court. The sheriffs certificate of sale, referred to in the opinion, showed that notice had been published in the proper newspaper, once in each week for six successive weeks, and posted as required by law.

Tbe complaint was in substance, tbat tbe defendant promised tbe plaintiff for a certain reward, to castrate a colt belonging to bim, and “ do it in a skillful manner, and warrant tbe colt to do well and get well in a few days,” but tbat be castrated it in an unskillful manner, in consequence of wbicb it died, to tbe plaintiff’s damage, &c. Tbe defendant admitted tbat be castrated tbe colt, but denied eyery other allegation in tbe complaint.

ERROR from tbe Circuit Court for Milwaukee County. This case was submitted to tbe circuit court upon a statement of facts agreed upon by tlie parties, wbicb was in substance as follows: • “ Tbe Racine and Mississippi Railroad Company bad a contract witb tbe U. S. for conveying tbe mail from Racine to Freeport, in Illinois, and carried tbe mail under said contract from July, 1858, to tbe lOtb of May, 1859.

Tbe opinion of tbis court states as nrucb of tbe case as is necessary for a full understanding of tbe decision.

Tbe case is stated in tbe opinion of tbe court. cited, as to tbe power of tbe county judge to enlarge tbe time to answer, Adams vs. Sage, 13 How. Pr. R, 18; Howard’s Code, 622, note 3, and 624, note 6. Even if irregularly obtained, tbe order could not be treated as a nullity. Gudderbach vs. Faneley, 2 Wend., 624; Jaclcson vs. Jaclcson, 3 Cow., 73; Gould vs. Boot, 4 Hill, 554; Osgood vs. Joslin, 3 Paige, 195; Hempstead vs. Hempstead, 7 How. Pr.

This action was upon a joint and several note executed by the defendants on the 16th of October, 1857, in this state, and the complaint alleged, in addition to the usual averments in such an action, that the note was given for work done and materials furnished in the construction of a hotel upon a lot in Janesville, which then was and continued to be the property of the defendant A. M G. Smith, then and still the wife of the other defendant, A. Hyatt Smith. A. M. 0.

Tbe complaint alleged tbat on tbe lOtb day of September, 1857, tbe defendant agreed with tbe plaintiff to convey to bim, by warranty deed, a clear title to a certain lot in Milwaukee, for $1000, payable $200 in band and tbe balance in four annual instalments with interest, to be secured by a mortgage on tbe lot: tbat tbe plaintiff paid tbe $200 to tbe defendant^ who then signed and delivered to the plaintiff his memorandum in writing of said agreement, acknowledging the…

The facts r are sufficiently stated in the opinion of the court. The general charge to the jury by the judge of the circuit court was, in substance, as follows : “ There can be no doubt that if the owner of premises dedicates them to the public use, such dedication, accepted by the public, is binding. A . dedication need not be made by deed, but may be made as a fact. Laying premises out as a highway may be a binding dedication.

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

Joseph Newman gave a mortgage to one Henry B. Marsh, upon certain personal property described in a schedule attached.

EKROK to tbe Circuit Court for Dane County. Action by Isaac Hamburger to recover possession of goods alleged to have been wrongfully taken and unlawfully detained from Mm by the defendants Reese and Johnston. The summons was signed by the attorneys of the plaintiff, and was not tested in the ñamé of the judge or subscribed by the clerk of the court in which the action was brought. A motion to dismiss the action for that reason was made by the defendants, but was overruled.

Action upon a written contract, dated June 15, 1857, by which the plaintiff had agreed to sell and deliver to the defendant, on or before the 80th of September following, at the Milwaukee and Horicon railroad depot, at Brandon, all the good merchantable wheat (except 250 bushels) which the plaintiff should raise on 110 acres of land, at ninety-six cents per bushel, to be paid on delivery.

The complaint stated that on, &c., it was agreed between tbe plaintiff, who was an infant, and tbe defendants, that tbe former should serve tbe latter three years as an apprentice in tbe trade of a machinist, at a stipulated price per year; that tbe plaintiff bad performed tbe agreement on his part, and that tbe defendants bad refused to pay him tbe price stipulated.

Tbis action was brought in tbe circuit court for La Crosse county, and tbe place of trial was changed to tbe county of Dane. On tbe trial, tbe plaintiff offered in evidence a deed from Peter Cameron for tbe land in controversy, wbicli was objected to, and excluded by tbe court, and tbe defendant bad judgment.

, Complaint, that the defendant, in a discourse concerning testimony which the plaintiff had given in a certain action before a justice of the peace, falsely and maliciously said of the plaintiff: “ I never heard him swear (meaning, give evidence in a judicial trial) but once. In a case between myself and Mm for sand, he swore it on to me. I thought he would swear to the truth, but he swore to a lie ” (meaning that the plaintiff committed perjury).

This was an action by Jasper Vliet, D. JJ. Richards, Garret.

This was an action on a promissory note for $2000, made ,by tbe defendants to tbe plaintiff. The case is stated in the opinion of the court. The circuit court instructed the jury as follows : “ 1.

Tbe complaint in tbis action, wbicb was for tbe recovery of treble tbe amount of moneys alleged to have been paid by tbe plaintiffs to tbe defendant as usurious interest, was filed in November, 1858.

The case is stated in the opinion of the court. An attachment tinder sec. 4, chap. 130, of the E. S., and chap. 101, General Laws of 1859, is a “writ.” 2 Burr. L.. Die., 1073. All writs issuing from courts of record, must be returnable on the first day of the next term, unless a different return day is specially provided by law. Sec. 1, chap. 136, B. S. The writ of attachment should be made returnable in twenty days after it is issued.

The case is stated in the opinion of the court. 1. The orders were duly served under secs. 37 and 38, chap. 140, R S. The service was good, whether the copies reached the respondent’s attorney or not. Howard’s Code, 632; 4 How., 246, 322; 1 id., 152 ; 3 id., 67 ; 5 id., 238; 1 Barb., 711. 2. Under sec. 32 of chap. 140, R. S., the county judge could enlarge the time to answer for more than twenty days. Wilcox vs. Clarke, 1 Code R, 96.

Action on promissory notes. Tbe complaint alleges tbat on, &c., tbe defendant Barron executed several promissory notes, wbicb are particularly described, payable to tbe order of tbe plaintiff at tbe Exchange Bank in La Crosse; tbat tbe defendants Cramer and Shepard indorsed tbe notes before delivery; tbat after sucb indorsement tbe same were, severally, for value, delivered to tbe plaintiff; tbat on tbe day when they severally fell due they were duly presented to Barron for…

EEEOE to tbe Circuit Court for Bocio County. Action commenced before a justice of the peace upon an account.

The plaintiff, who was a married man, became seized in fee in 1848, of a tract of land containing a little less than twenty-two acres, situate near the city of… Held: and still claims to hold it as agricultural land, exempt as his homestead from forced sale on execution. The defendants demurred to the complaint on the grounds that several causes of action had been improperly joined, and that the complaint did not state facts sufficient to constitute a cause of action.

This was an action commenced in September, 1859,, for the recovery of a lot in the city of Milwaukee. The plaintiff introduced evidence tending to show a regular chain of title to the lot in controversy from the U. S. to himself; to the admission of certain portions of which evidence the defendant objected, and the objection being overruled, excepted.

The bill alleged that on the 27th of October, 1848, one SpencerS.

<p>A deed of land contained a proviso that if the grantee should fail io pay a certain sum of money according to the conditions of a bond executed at the same time by the grantee to the grantor, then the conveyance and the estate created thereby should cease, and be of no effect, and the grantor or his legal representatives should have the right to re-enter into the premises, and sell and convey the same to any other person, and retain all moneys paid thereon without recourse either in law or equity. Held, that the grantor had the rights of a mortgagee in the land, and the grantee, those of a mortgagor,</p> <p>upon default in payment of the money secured by such bond, the grantee in the deed had an equity of redemption, which the grantor might foreclose in the usual manner; and if he found the premises vacant, the grantor might enter with the rights of a mortgagee in possession.</p> <p>Itogajn vs. WoZker, 1 Wis., 52Y, as to these points, approved.</p> <p>Such a conveyance should be recorded as a deed, and not as a mortgage, in order to protect the rights of the grantee therein.</p> <p>No form of words in the instrument, if it was designed to be a security for a loan of money, will prevent a court of equity from granting relief, nor will any lapse of time, short of the period of limitation fixed by law, affect the right of redemption.</p> <p>A bill to redeem is not demurrable because it alleges that;‘tbe bond secured by the mortgage was usurious, and prays to be relieved from it according to the usual course of equity in such cases.</p> <p>The statute of limitations does not begin to run against the owner of an equity of redemption, until the mortgagee takes actual, open and notorious possession of the mortgaged premises. If, after he has done so, the mortgagor permits him to remain thus in possession for ten years, without proceeding to redeem or requiring an account of the rents and profits, his right of action is barred, but not till then.</p>

Tbe case is stated in tbe opinion of tbe court. 1. Under tbe statute (R. S. 1849, cbap. 120), tbe building itself was liable first for tbe debts contracted in its erection. R. S. 1839, p. 141; Laws of 1842, p. 19; R. S. 1849, chapter 120, see. 1; Savoy vs. Jones, 2 Rawle, 343 ; BiPkel vs. James, 7 Watts, 9 ; Holdship vs. Abercrombie, 9 id., 52; Presbyterian Ghwrch vs. Stettler, 26 Penn. St., 246. 2.

This was an action by Haney and DeBow, judgment creditors of James Nugent, to set aside, ás fraudulent and without consideration, a deed for lot 4 in block 134, in the city of Milwaukee, executed by said James to his daughter, Mary Ann Nugent.

This was an action to recover part of section 20, town 8, range 8, in Dane county.

Action by tbe beirs of one Fisber to recover tbe S. W. qr. of tbe N. E. qr. of sec. 19, T. 7, E. 11, in Dane county. Judgment for tbe defendant.

Action to recover land. The complaint alleged that the 2d day of March, 1839, Dominique Brunette, being then seized of the land in dispute, conveyed it to his son, Augustine, in trust for the grantor and certain'of his children; that said conveyance was made without consideration, and with intent to hinder and delay creditors; that at the time it was made, a suit was pending in the circuit court for Brown county, in favor of Meade and others,; the executors of one Lawe,…

Tbe plaintiffs brought two actions against Hunger for rent. Tbe defendant put in a general denial.

This was an appeal from an order of the circuit court for Dane county. There were four cases of the same kind, between the same parties. Judgments were entered by the clerk of that court on the 17th of January, 1855, in favor of Fairchild against Dean, upon notes and warrants of attorney, and were recorded in the usual form, and docketed, but were not signed by the judge or court commissioner.

Action to recover a lot of timber alleged to have been lawfully taken and detained by the defendant. The plaintiff testified that he got out the timber under a written contract made by Mm with one Falkner for building a barn, and that the contract had been mislaid and he did not know where it was. The case is otherwise sufficiently stated in the opinion of the court.

This was an action for the specific performance of a contract, made by tRe plaintiff with the defendant, for the purchase of a piece of land. The complaint alleged that the plaintiff had demanded a deed for the land, and the defendant had refused to execute it. The other allegations of the complaint are sufficiently stated in the opinion of the court. An answer was filed.

This was an action to recover moneys which it was alleged that the defendants had collected as attorneys at law of the plaintiff, and had refused to pay over on demand. The summons was dated October 15, 1859, and was in the usual form, but concluded thus: “ in this action the plaintiff will apply to the court for the relief demanded in the complaint.” The complaint was attached to the summons, and demanded judgment for the sum claimed to be due.

Trespass, for breaking tbe plaintiff’s close. Answer, tbat tbe close, at tbe time when, &c., was tbe freehold of one Loomis, and tbat tbe defendants, as bis servants, broke and entered, &c. Tbe action was brought in Columbia county, and tbe place of trial changed to Dodge county.

Tbe complaint in tbis case alleged tbe following facts: That on tbe 8th of September, 1851, tbe members then belonging to tbe religious society called tbe German Evangelical Congregation in.

Action commenced in September, 1857, to reform a contract secured by mortgage, and to foreclose the mortgage. The facts alleged in tbe complaint are as follows: On the 16th of April, 1855, the plaintiff conveyed a farm to Edgar Meacham for $6,000, one-third of which was paid with other land, and the residue was to be secured by mortgage, and was to bear interest payable annually.

<p>INFORMATION in nature of quo warranto.</p>

who was indicted with others, in the cuit court for La Crosse county, for murder, applied for a change of venue, upon an affidavit that the inhabitants of that county were prejudiced against him, so that he could not have a fair and impartial trial therein. The application was denied. The next clay he applied for a change of venue, on the ground that the judge of the circuit court was prejudiced against him, and would not give him a fair and impartial trial.

<p>ERROR to the Circuit Court for Juneau County.</p> <p>The case is stated in the opinion of the court.-</p>

MANDAMUS to compel L. P. Harvey, secretary of state, to furnish to tbe relators, who were tbe state printers, of tbe laws for publication, or to sbow cause, &c. Tbe case turned upon tbe proper construction of chapter 240 of tbe laws of 1860, and is sufficiently stated in tbe opinion of tbe court. Tbe defendant moved to quash tbe writ.

<p>APPEAL from the Circuit Court for Rock County.</p> <p>No statement of the facts is necessary to an understanding of the opinion of the court.</p> <p>cited 6 Wis., 262 ; 7 id., 566.</p> <p>cited 2 Barb. Cb. P., 617.</p>

<p>Where a part only of the mortgage debt is due and the mortgaged premises cm-woibe sold in parcels, the judgment should not be absolute for the sale of the property for the whole sum due and to become due, but should provide that proceedings be stayed upon the payment before a sale, of the amount actually (hue upon the mortgage, with interest and costs. Sows vs. English,, 6 Wis., 262.</p>

The case is sufficiently stated in the opinion of the court. to the point that the plaintiff is within the rule protecting a bona fide purchaser of negotiable paper, cited Low vs. Taylor, 4 Cush. (Miss.), 567; Fryattvs. Sullivan Go., 5 Hill, 116; Am. Lead. Cases, 344; Stalker vs. McDonald, 6 Hill, 93; 20 How.

An alternative mandamus was issued requiring Hon. David Hoggle, judge of the first circuit, to allow and insert in a bill of exceptions, a certain instruction, which, as was alleged, be bad given to a jury in an action pending before bim, and bad refused to insert in tbe bill of exceptions, or to sbow cause, &c. Tbe affidavit upon wbicb tbe writ issued, alleged that after tbe judge bad given bis cbargé to tbe jury, M. H. Carpenter, Esq., one of the counsel of tbe plaintifij…

<p>The provisions of see. 2, art. VII of the constitution, authorizing the legislature to “ vest such jurisdiction as may he deemed necessary in municipal courts,” even if construed as requiring such a court to' be located in a city or incorporated village, yet do not create any prohibition against vesting in such court territorial jurisdiction beyond the limits of such city or village.</p> <p>Accordingly where the legislature established a municipal court in the city of Milwaukee, and gave it jurisdiction territorially over the entire county, it was held,, that the act was not unconstitutional for that reason.</p> <p>On an application for a change of venue, on account of the prejudice of the judge of the municipal court, the venue was properly changed to the circuit court of that county.</p>

The contract for doing the state printing for the years 1855 and 6, was let, by the proper state officers, to Beriah Brown, as the lowest bidder. Brown assigned Ms interest to Calkins and Proudfit, who filed their complaint in this court, against the state, to recover money alleged to be due to them for work performed under the contract; and certain issues of fact between the parties were certified to the circuit court for Milwaukee county for trial by a jury.

County. The case is stated in the opinion of the court. as to the power of the legislature to prescribe the boundaries of cities and enlarge their limits, without the consent of the inhabitants of the territory annexed, cited 2 Kent, 372; Ang. & Ames on Corp., § 767 ; 1 Green! Ev., §331; People vs. Dm-per, 1 Smith (N. Y.), 561; Gity of St. Louis vs. Bussell, Missouri, 507; Berlin vs. Gorham, 34 N. H., 266; Gheaney vs. Hooser, 9 B. Mon., 330. 2.

Tbe case is stated in tbe opinion of tbe court. cited 2 Bur. Pr., 173; 1 Wend., 297-9; 12 id., 246; 9 Wis., 345. Tbe order denying tbe change of tbe place of trial was not appealable, and no relief can be bad except by mandamus, wbicb is therefore tbe proper remedy. 18 Wend., 575; 20 id., 20; 5 Hill, 616. cited 3 Wis., 809.

on a tract of university land, sold to him in 1856, and described in certificate No. 177, and issue to him a full and final receipt therefor, and to cancel another certificate of sale for the same land, issued to one Fletcher in 1858. An alternative writ having been granted, the commissioners made return thereto, setting fortb facts which are stated substantially in the opinion of the court. Motion for a peremptory mandamus.

<p>By the original act incorporating the “ Burlington Union School_ District,” the directors were to he elected annually. By an amendatory act of Eebruary, 1858, it was declared that the directors should he elected annually, and that said district should he subject to the same rules as were prescribed by law for common school districts, and that all the general laws of the state, and any alterations which might thereafter be made relating to common schools, should be applicable to said district, except as was otherwise provided in the original act of incorporation, and in the amendatory act. Chap. 188 of the general laws of 1858 changed the term of office of the officers of common school districts from one year to three years. Sdd, that the term of office of the directors of the district above named continued to be for one year only.</p>

<p>Under chapter 264 of the General Laws of 1860, an appeal does not lie to this court from an order of a circuit judge at chambers, refusing to vacate an in-junctional order previously made at chambers.</p> <p>The party aggrieved should move to vacate or set aside such chamber order, at a regular or special term; and from an order denying the motion, an appeal lies.</p>

A former decision of this court in this case will be found in 10 Wis., 136. Subsequently the plaintiffs, by leave of the circuit court, amended their complaint. The amended complaint was demurred to, as not stating facts sufficient to constitute a cause of action, and the court made an order sustaining the demurrer, from which the plaintiffs appealed.

The case is stated in the opinion of the court. relied upon the decision in Smith vs. Phelps, 7 Wis., 211. cited as to the verdict, R. S., p. 753, sec. 11; How. Code, 380, sec. 261, note; Archer vs. Boudinet, 1 Code Rep. 1ST. S,, 372; and as to the judgment, R. S. p. 757, sec. 81; How. Code, 410, sec. 277, note; Fitzhugh vs. Wiman, 5 Seld., 559.

<p>APPEAL from tbe Circuit Court for Bock County.</p> <p>Tbe matter at issue, and tbe nature of tbe evidence, is sufficiently stated in tbe opinion of tbe court.</p>

<p>APPEAL from the Circuit Court for Hacine County,</p>

<p>APPEAL from tbe Circuit Court for Racine County.</p> <p>No statement of tbe case is necessary.</p>

These actions were brought to restrain the collection of a tax levied to pay the interest on certain bonds which purported to have been issued by the boards of supervisors of the towns of Kochester and Burlington respectively, and to have . the bonds declared void. Both cases depended on the same state of facts.

EBBOB to the Circuit Court for Hacine County. The plaintiffs in error brought their action in the court below, alleging that they were judgment creditors of defendant William- Buckingham; that certain land in the city of Eacine had been conveyed to the defendant Maria Buckingham, wife of said William, and continued to be held in her name, but that said William had paid the purchase money therefor, &c.; and that the conveyance was taken in the name of said Maria for the…

Tbis was an action to foreclose a mortgage executed tbe defendants McDonel and Graham, to secure two promissory notes made in March, 1856, and payable on tbe 1st 0f January of tbe years 1857 and 1858, respectively, “ with interest.” Tbe complaint alleges, among other things, that on or about tbe days when tbe notes - were respectively made payable, tbe defendants agreed with tbe plaintiff, in writing, to pay 12 per cent, interest on so much as remained unpaid upon each after…

James McLachlan died in February, 1852, having devised all bis estate to bis infant son, John McLachlan, and appointed the defendants, Staples and McKay, his executors. In December, 1857, John McLachlan died, at the age of seventeen years, and the defendant Staples was appointed his administrator.

This was an action to foreclose a mortgage given to tbe plaintiff, Isaac McOonihe, Jr., by Alexander McOlurg and wife.

<p>APPEAL from the Circuit Court for Walworth County.</p>

Tbe plaintiff, who was a married woman, sued tbe defendants, Otis, Randall and Tymeson, for unlawfully taking and converting to their own use 70 tons of bay and four bead of young cattle, which she claimed as her own separate property: Tbe defense was, tbat tbe property belonged to tbe plaintiff’s husband and her son Cornelius, and -bad been put into her hands by them for the purpose of defrauding the defendant Otis, to whom they were indebted at the time rent; and that the…

Tbe facts are stated sufficiently in tbe opinion of tbe court. argued that tbe petitioner stood in tbe same situation in wbieb tbe ants Brear and Winters would have stood, if there bad been no assignment of tbe judgment, and could make any motion in tbe case wbieb they could bave made.. Tbe petitioner is privy to their interest. Bouv. Die. “ Stranger2 Blacks. Com., 356; 1 Greenl. Ev., §§ 23, 189, 190, 211; Knowltonvs. Kay, 4 Wis., 288.

<p>APPEAL from the Circuit Court for Green Lake County.</p>

Tbe Racine & Mississippi Railroad Company, on tbe 1st January, 1857, executed to tbe plaintiffs a mortgage upon tbeir railroad and its appurtenances, including tbe depots, &c., at all places along tbe line of tbe road, and tbe lots of land on wbicb tbe same were or might be erected, and all tbe pieces of land wbicb should be used for depots or station purposes, &c. After tbe mortgage was duly recorded, tbe appellants, under a contract with tbe railroad company, commenced tbe…

The facts alleged in this case are in substance as follows: in 1848 one Benoni R. Grillett died intestate, leaving plaintiff, William W. Gfillett, with eight brothers and sisters, his only heirs at law-. At the time of his death, said Benoni was in possession of, and claimed a& mineral lands, the whole of the tract in question, the title to the same being in the U. S. In 1852, Philo Gillett was duly appointed administrator de lonis non of said Benoni.

EEEOB to tbe Circuit Court for La Fayette County. Mazzuchelli brought an action against Mary and John McCabe, to recover ten acres of school or university land in La Fayette county. To prove his title, the plaintiff offered in evidence a patent to himself for the land in controversy, executed by the governor and secretary of state, bearing date April 7th, 1859.

Tbe case is stated in tbe opinion of tbe court. Tbe court should have opened the judgment, on tbe application of ithe defendant, under tbe circumstances of tbis case. Kane vs. Demarest, 13 How. Pr. R, 465. Refusal to do was error. Fox B. V. B. B. Oo. vs: Shoyer, 7 Wis., 365-71. An appeal is tbe proper remedy. General Laws of 1860, cbap. 264, sec. 10, subd. 1 and2 ; Beid vs Hibbard, 6 Wis., 176.

<p>APPEAL from, the Circuit Court for Crawford County.</p> <p>The case is stated in the opinion of the court.</p> <p>cited Howard vs. Jackson, 2 Stew., 493; Northrop vs. Speary, 1 Day, 23.</p> <p>cited JEarl of Aylesford’s Case, Strange, 783; Gale vs. Nixon, 6 Cow., 445; Lowry vs. Me-haffy, 10 Watts, 387; Patchin vs. Swift, 21 Vt, 292; Worrall vs. Munn, 1 Seld., 229,244; CUason vs. Bailey, 14 Johns., 484.</p>

The case is stated in the opinion of the court. 1. The statute of 1858, set forth in the complaint, does not authorize the bringing of an action. The plaintiff has no claim outside of the statute. ATmy vs. Harris, 5 Johns., 175. 2. The statute requires the county treasurer, and not the defendant, to make the payment therein mentioned. The board of supervisors has no control over the conduct of the treasurer in such a case, and consequently is not responsible therefor.

The defendant Otis, as a deputy marshal for the district of Wisconsin, seized a stock of goods as the property of Abram H. Pilling, under an attachment issued from the United States district court. Elias and Isaac Pilling, brothers of Abram H., claimed the goods under a sale made by him to thembefore the issuing of the attachment, and brought this action to recover the goods.

APPEALS from the Circuit Court for Walworth Couuty. These were actions for damages for the wrongful taking and conversion of chattels, which were in the possession of the plaintiffs at the time of such taking, and to which they claimed title. The cases are stated in the opinion of the court. Judgments for the defendants.

Croix County. This was an action for the amount of the plaintiff’s fees for printing a delinquent tax list for the year 1858. A claim for the amount was presented to the board of supervisors of that county, in November, 1859, and disallowed. On peal, the circuit court rendered judgment for the plaintiff. The grounds upon which the claim was disallowed by the supervisors, will appear from the opinion of the court. 1.

This was a joint action against the makers of a promissory note, and Lawrence, Farwell and Fairchild, who were indor-sers successively in the order in which their names are tioned. The plaintiff recovered judgment against the makers and Lawrence the first indorser, but Farwell and Fair-child had a verdict in their favor, under the rulings of the court on the trial, upon the question of notice.

The case is stated in the opinion of the court. Judgment in the circuit court for the defendant, and motion for a new trial denied. Upon default in payment of the debt secured by the chattel mortgage, the' legal title to the mortgaged property vested absolutely in the mortgagees.

The case is stated in the opinion of the court. 1. The alleged contract set up in defense is void for want of a consideration, since the plaintiff was to recover nothing thereby that was not already secured by the notes and mortgage. Bean vs. Burbank, 16 Me., 259; Tucker vs. Woods, 12 Johns., 190: Cooke vs. Oxley, 8 Term. B., 65S ; 1 Caines, 594; ChittyonCon.,25-6. 2. The contract was void because not in writing.

Tbis was an action to foreclose a mortgage given to secure tbe purchase money of real estate conveyed by tbe plaintiff to tbe defendants. Tbe tenor of tbat conveyance is stated in tbe opinion of tbe court.

<p>Where the person beneficially interested was a resident defendant, and was served with process and appeared and made defense, her trustee, who was a non-resident defendant and served only by publication, will not be let in to make the same defense over again, on an application after judgment, in pursuance of section 10, chap. 124, R. S. 1858,</p> <p>That section was designed for the benefit of defendants who had had no real opportunity to defend for want of actual knowledge of the suit; and not to enable one who had had full opportunity, and had made defense, to litigate the same matters over again through an absent trustee.</p>

The case is stated in the opinion of this court. The circuit court rendered judgment for the plaintiff. 1. The agreement to discontinue the suit, having been made on Sunday, was void. 1 Ohand., 33 and 207; 3 Wis., 345-6; Story on Con., §§ 616-620 ; 7 Blackf., 479; 4 Cush-ing, 322; 4 Corns., 455 ; 7 Wend., 276-281; 14 id., 248 ; 2 Peters, 527; 14 N. H., 140. If the agreement had been pleaded before the justice, that court could not have lent its aid to enforce it.

Castleman sued Griffin for a balance claimed to be due on tbe purchase money of tbe “ Lake Side Retreat,” near Madison, which be bad sold to Griffin. Tbe agreement for tbe sale of tbe property was executed in Chicago on tbe 5th of March, 1858, and contained a stipulation in regard to a road through tbe property, which is recited at length in the opinion of the court. The deed from Castleman to Griffin was executed in the city of New York.about the 17th of March, 1858.

Thayer sued upon tbe following due-bill, wbicb was assigned to bim in December, 1859: “April 29, 1858. Due Ibberson & Griffin, for value received, one hundred and fifty-six 67-100 dollars. H. B. Gallup.” Tbe answer of tbe defendant is substantially stated in tbe opinion of tbe court. On tbe trial, tbe plaintiff offered in evidence tbe dejoosition of Gardner Gallup, wbicb was taken at tbe residence of tbe witness, more tban thirty miles from tbe place of trial.

This was an action by tbe assignee of a promissory note against one of tbe makers, wbo signed tbe same as surety. The defense set up in tbe' answer will appear from tbe opinion of tbe court. Verdict and judgment for tbe defendant. 1. A contract to give time to tbe respondent would not discharge him. 2.

Tbe complaint alleged that Van Antwerp, in 1855, executed and delivered to A. Hyatt Smith an instrument in writing, by which be promised to pay, two years after date, to said Smith or order $100, witb interest, &c., provided Smith should, within that time, cause to be erected a hotel in Janesville, upon a certain site, and in accordance witb a certain plan therein described; that Smith, within tbe time specified, duly performed tbe condition therein mentioned, and in 1859,…

This was an action to restrain the assignee of a mortgage (with power of sale), from selling the mortgaged premises, and to have tbe mortgage, and tbe note secured thereby, delivered up and cancelled, on tbe ground tbat tbe note was given for a loan of money at usurious interest, and tbat tbe assignee took tbe note after it was due, and tbat tbe principal sum loaned bad been paid.

<p>In an action on a promissory note, by tbe payee, where the defendant admits the making of the note, and alleges a failure of consideration as the only defense, the court should not nonsuit the plaintiff because it appears that the note is not in court at the time of the trial, but is in the hands of the plaintiff’s attorney in another county.</p> <p>The plaintiff may properly be required, in such case, to produce the note and cancel it before judgment is giren in his favor.</p>

In tbis case, which came to tbe circuit court on appeal from tbe allowance of a claim in the, probate court, an issue was made up by a complaint which alleged that tbe defendant was executor of tbe will of Mary P. H. Cutler, deceased, and was indebted to tbe plaintiff in: tbe sum of $59 50, for board, &c., furnished at tbe request of said Mary, for her infant child, and an answer which denied tbe indebtedness, and alleged also that H. D. B. Cutler, wbo was tbe husband of…

<p>APPEAL from tbe Circuit Court for Winnebago County.</p>

Paine brought an action before a justice of tbe peace, in July, 1860, to recover possession of a lot of pine logs, &c., alleged to bave been unjustly taken and detained by tbe defendant.

<p>Where an original mortgage has been destroyed by fire, if it was recorded, the party seeking to prove it, should produce a certified copy.</p> <p>If the register made a mistake in recording the initial letter of one of the names, on proof of such mistake the copy, it seems, should still be admitted.</p> <p>If the opposite party, after such proof, still objects to the admission of such transcript, and the court below rejects it, such party has no reason to complain of the admission of parol evidence of the contents of the mortgage.</p>

Ejectment, commenced, in January, 1860. The answer stated that the plaintiff (whose maiden name was Ann Pollard) was married in May, 1849, to one John Dean, who, at or just before the marriage, in consideration thereof, conveyed to her the land in controversy; that on the 1st day of November, 1850, said John obtained a decree in the circuit court of said county of Jefferson, by which the said marriage was dissolved, and said Ann was directed to re-convey said land to said…

The case is stated in the opinion of the court. as td the insufficiency of the verification of the complaints, cited 11 How. Pr. R., 374; 12 id., 64; 14 id., 334. , as to the sufficiency of the verification, cited Gillett vs. Houghton and Mills vs. Hough-ton, 8 Wis., 311; Bates vs. Pike, 9 id., ¡224; 1 Whittaker, 333; 2 id., 407; Latson vs. Lefever, 5 Sandf., 650; Hixwell vs. Wordsworth, 2 Code Rep., 1. *

This case came to the circuit court for Dane county on appeal from the board of supervisors, of that county.

<p>In an action upon a note drawing interest at -kuelve per cent., the answer alleged that the note was given for a loan of money from the plaintiff upon an agreement that the defendant should pay interest therefor at fifteen per cent, per annum, and that a certain amount of usurious interest had already been paid upon the contract. Held, that the answer was not frivolous, but showed & good defense to the action, except as to the principal sum loaned.</p>

This was an action to foreclose a mortgage. A decree of foreclosure was obtained on the 29th of July, 1856. The defendant Mead, trustee of the separate estate of the defendant Ann M. C. Smith, afterward filed an answer, claiming the mortgaged premises under a sale upon the foreclosure of a certain other mortgage, and denying the priority of the plaintiff’s lien.

The nature of this action is stated in the opinion of the court. The instructions referred to, as asked by the defendants and refused by the circuit court, were as follows: “1. In all cases of breach of contract, if the party injured can protect himself from damage at a trifling expense, or any reasonable exertion, he is bound to do so; he can charge the'delinquent party only for such damages as, by reasonable endeavor and expense, he could not prevent. 2.

This suit was commenced before a justice of the peace: The complaint alleged that the plaintiff bought a horse of tbe defendant for $150, tbe defendant representing at tbe time that tbe horse was sound and gentle in harness, as the horse was then unsound and ungovernable in harness, as the defendant well knew, to the plaintiff’s damage, &c. Yerdict and judgment for plaintiff. 1.

1. To entitle a married woman to ¡recover in an action for injury done to personal property, sbe must allege in ber complaint, and prove upon tbe trial,;that tbe property is ber sole and separate property, and that sbe owned it at tbe time of her marriage, or acquired it afterwards by gift, bequest or purchase. 6 Wis., 888; 7 id., 398. 2.

This was an action to redeem mortgaged premises in the possession of the mortgagee.

<p>The facts material to the plaintiff’s cause of action, should be positively averred, either upon knowledge or upon information and belief, and should not be left to be imfei'retl from other facts alleged.</p> <p>Where the action was brought to restrain the issuing of deeds upon sales of the plaintiff’s lands for certain assessments, upon the ground that the sales were invalid, if the complaint averred positively one defect in the assessment proceedings fatal to the validity*of the sales, it would not be demurrable, though a large part of its averments were immaterial.</p> <p>Where work is ordered tobedonein front of lots in the city of Milwaukee by the street commissioners, it is essential that they should first give notice, to the lot owners to do the work, before they can let it by contract to other parties, and the want of such notice would be fatal to the sale of such lots on assessments to pay the amount due on such contracts.</p>

q. The payment of money by tbe plaintiff into tbe coun-treasury, upon a void contract of sale, created, eo instanti, a liability on tbe part of tbe county for tbe payment of tbe same. 12 Pick, 7; 4 id., 861; 5 id., 498 ; 4 Met., 181; 5 id., 73; 17 Mass., 461. 2. Tbe statute by its terms renders tbe county liable, by declaring that tbe treasurer shall refund tbe money with interest out 'of tbe county treasury. 8.

EKROBi to the Circuit Court for Ozaulcee County. The case is stated in the opinion of the court. contended tbat this was an action, in its nature, of wbicb a justice of tbe peace bad jurisdiction; tbat sec. 10 of cbap. 120, R. S., wbicb denies jurisdiction to justices, of certain actions, does so in reference to tbe nature of tbe actions, rather than to tbe ámount tbat maybe claimed; and that' subdivision 3 of section 38 of cbap. 133, applies to tbe actions only wbicb. are…

<p>A decision of the circuit court overruling a motion made for a new trial, on the ground that the verdict was contrary to the evidence, will not be disturbed unless there was a total want of evidence to support the verdict.</p> <p>Where there is no evidence on which the verdict can rest, the denial of a motion for a new trial is such an abuse of discretion on the part of the circuit court as would be corrected in this court; otherwise, the verdict must stand.</p>

<p>Where a vendee, with, covenants of warranty, purchases an outstanding title, and thus perfects his title, the rule of damages for a breach of the covenant is th e amount paid by him in perfecting his title.</p> <p>Where an administrator was a non-resident and had neglected for ten years to take any proceedings in the settlement of the estate, and application was made, for these reasons, for the appointment of an administrator de bonis non, of the hearing of which due notice was published, and on the hearing such appointment was made, reciting that by reason of the facts stated, the appointment of an administrator de bonis non devolved upon the court: JMd, that such appointment was not invalid for the want of an express removal of the first administrator, arevocation of his authority being necessarily implied by the new appointment.</p>

This was an action against James 0. Case and Angeline bis wife, to redeem land wbicb bad been sold upon a fore-c^osi;ire a mortgage executed by them to one Cheney to the sum of $300 and interest. Cheney had assigned the mortgage to one Eisher, who filed a bill in January, 1851, for its foreclosure, making the mortgagors the only defendants; but the subpoena which was served, was, by mistake, tested the 21st of February, 1851, and made returnable on the 5th of the same month.

Tbe case is stated, in tbe opinion of tbe court. argued that it must affirmatively appear from tbe record, that tbe judgment appealed from is tbe identical judgment returned by tbe justice, and that tbe notice of appeal must show this. If it does not, tbe defect is fatal. Jewett vs. Monroe, 3 Wend., 426; Ex parte Weed, 5 Cow., 286; Ex parte Alvord, 6 id., 585 ; Ex parte Brown, 7 id., 468.

This action was brought for the taking and conversion of a stock of goods. The plaintiffs claimed title under a mortgage executed to them by one Harshaw to secure a debt of $4142 97, due from him to them. The defendant justified the taking of the goods, as an officer, under certain writs of attachment issued against Harshaw at the suit of other creditors.

<p>APPEAL from tbe Circuit Court for Milwaukee County.</p> <p>1. An adjournment improperly made is a discontinuance of tbe suit. Gamage vs. Law, 2 Johns., 192; Wiest vs. Gritsinger, 4 id., 117; Proudfit vs. Henman, 8 id., 390; Green vs. Angel, 13 id., 468; Kimball' vs. Made, 10 Wend., 497; Allen & Taylor vs. Edwards, 3 Hill, 499. 2. Wbat is or is not a record, is matter of evidence aliunde. Starbuch vs. Murray, 5 Wend., 148; Aldrich vs. Kinney, 4 Conn., 380;. 2 Cow. & H.’s Notes, 799-801. Every fact stated in a record, upon wbicb jurisdiction depends, may be controverted. Barber vs. Winslow, 12 Wend., 102; Bradshaw vs. Heath, 13 id., 407-418; Shumway vs. Stillman, 6 id., 447; Parol evidence is admissible to show an alteration of a record. Brier vs. Woodbury, 1 Pick, 362. This is not an attempt to impeach a judgment collaterally, because the motion to dismiss was not a collateral proceeding. 3. The appellant’s remedy was not by procuring a further return from the justice. The statute (E. S. 698, sec. 214) applies only to cases where there is a defect in the original return.</p> <p>1. If the return of the justice was defective, the appellate court was authorized to compel an amended return. If it was false, to the injury of a party, he had his remedy by action against the justice. 2. The return of the justice as to all facts required to be returned, is conclusive. Bawson vs. Adams, 17 Johns., 130. 3. The judgment of the justice cannot be impeached collaterally. 6 Wis., 143-214. 4. A dismissal of the appeal by the circuit court leaves the judgment of the justice undisturbed. E. S. chap. 120, sec. 216.</p>

ERBOR to tbe Circuit Court for Milwaukee County. 1. Tbe defendant, as lessee of tbe road, acquired no greater rights or immunities than the company possessed. 10 Cush. (Mass.), 562. 2.

Tbe case is stated in tbe opinion of tbe court. A deed containing sucb a description of land as is set forth in tbe complaint, would not create a cloud upon tbe plaintiff’s title, but would be void on its face, for uncertainty. 2 Ohio, 287; 6 and 7 id., 161; 15 id., 134; 5 Blackf., 51; 13 Serg. & Eawle, 151; 1 Adams, (N. H.), 93; 12 HI, 409; 13 How. (H. S.), 18; 4 Pet, 349; 3 Iowa, 84. No action will lie by a party apprehending injury from a deed void on its face.

Seymour made an assignment of Ms personal property to Bates, in trust for bis creditors, several of whom afterwards caused a portion of tbe property to be seized and sold under attacbments against Seymour. This action was brought by Bates against tbe attacking creditors, tbe officer who seized tbe property, and tbe attorneys wbo directed tbe seizure, to recover its value. The validity of the assignment was the question in controversy.

Bockwell sued tbe Elkhorn Bank as tbe maker, and Sibley & Mills as indorsers, of tbe following note: $2,020 00. Elkhorn, August 4, 1857. Seventy-two days after date, for value received, tbe Elk-horn Bank promises to pay to tbe order of Sibley & Mills, two thousand twenty dollars, payable at tbe Elkhorn Bank, with interest, at tbe rate of twelve per cent, per annum. d. d. SpeNCEK, Cashier.

Goodwin sued Merrill before a justice of tbe peace, for $75, a balance alleged to be due from tbe defendant for 535 bushels of wheat sold and delivered. Tbe proof tended to show that tbe plaintiff bad contracted to sell tbe defendant 1,000 bushels of wheat at a fixed price per bushel, and bad delivered only 535 bushels, and bad sold tbe residue to another person at a higher price.

Tbe complaint in this case asked for a foreclosure and sale of mortgaged premises, and for a judgment against tbe mortgagors for any deficiency which might be found due. A demurrer to tbe complaint was adjudged in tbe circuit court to be frivolous. in support of tbe demurrer, cited 3 Johns. Ch., 330 ; 5 Cow., 380; 8 Paige, 480. 2.

The nature of this case, the facts in evidence, and the instructions given and refused by the circuit court, are stated in the opinion of this court.

<p>Under the Revised Statutes of 1858, a third party who guaranties the collection of a note secured by a mortgage, is not a proper defendant in a suit for the foreclosure of the mortgage; and it is error to render a personal judgment against him, in such case, for any deficiency which might be found due after the sale of the mortgaged premises.</p> <p>The holder of the note and mortgage must exhaust his remedies against the mortgagor and the mortgaged property, before he can have a remedy against the guarantor.</p>

This was an action to foreclose a mortgage. Tbe defense was, that tbe notes secured by tbe mortgage were given in payment for a stallion, wbicb tbe plaintiff sold to tbe defendant, witb a warranty that tbe horse, was sound, and “ sure and perfect for stockand that tbe defendant bad sustained damages by a breach of tbe warranty, to an amount greater tban tbe notes.

APPEALS from tbe Circuit Court for Dodge County. These actions were brought to recover for losses under fire policies issued to the plaintiff by the several insurance companies above named. The questions in each case were the same.

<p>APPEAL from the Circuit Court for Winnebago County.</p>

Ej ectment for tbe pi ece of ground in tbe city of Milwaukee, lying in front of lots 4 and 5 in block 51, and between those lots and tbe east side of Biver street, as indicated on tbe aboye plat.