Volume 14 — Wisconsin Reports

Action on a promissory note made by tbe defendants, October 1, 1855, payable four years from date, to Ebenezer Jenkins, or bearer, and alleged to have been indorsed by Mm to tbe plaintiff, William H. Jenkins, before it fell due.

<p>Where the only issue was whether the defendants, as warehousemen and forwarders, had been instructed by the plaintiffs to ship certain flour by a railway line, and the plaintiffs’ witnesses testified that the agent of the plaintiffs went to the office of the defendants and told them that he had contracted with a certain railway company to carry the flour in question, and had given the company an order for it, and that the agents of the defendants answered “ it was all right,” it was not erroneous for the court to instruct the jury that if they believed the notice was given as testified to, they should find for the plaintiffs. Such information necessarily imported that the defendants were not to send the flour by propeller around the lakes, and that they were to deliver it on the order.</p> <p>If, after such notice was given, the defendants shipped the flour by a propeller around the lakes, and it was lost, that was a conversion.</p> <p>Where a complaint avers that the defendants were warehousemen and forwarders, and that the plaintiffs delivered flour to them and instructed them to forward it by a certain railway line, which they undertook to do, such facts import a hiring, and it could not be assumed that the agreement was nudum jiaetum.</p> <p>But an action for the actual conversion of the property is not founded upon negligence, and if a conversion is shown, may be maintained, whether the bailee was liable for ordinary or only for gross neglect.</p>

EBROR to tbe Circuit Court for Walworth County. Pierce entered up judgment in vacation, against Northey, under a warrant of attorney, upon four notes. In tbe body of each note was a memorandum stating that tbe defendant bad deposited with tbe plaintiff a quantity of grain, as security for its payment, with power of sale, &c.; and the judgment was for $223, tbe balance claimed to be due after deducting tbe proceeds of tbe grain.

The complaint in this case alleges “ that the defendant is indebted to the plaintiff for moneys by the defendant received from and for tbe nse of tbe plaintiff,” in tbe sum of $23 56 for that sum overpaid by tbe plaintiff to defendant for charges on certain goods received by tbe defendant as wharfinger for tbe plaintiff; and also, that tbe defendant received as a wharfinger, certain goods of tbe value of $133 63, and has not delivered them to tbe plaintiff, though tendered…

The plaintiffs, who were partners, signed and delivered to one Busack a note for $600. The note was in the forni of a joint and several contract: “ For value received, we, or either of us, promise,” &c.; and was signed by the plaintiffs in their partnership name. The payee offered it to one Pritzkow to be discounted, who required another name before he would discount it.

Malley commenced an action against Altman & Blossom in the county court, on the 7th of July, 1860, by the service of a summons; and on the same day, upon an affidavit stating, among other things, the belief of the plaintiff that the defendants had disposed of their property with intent to defraud their creditors, obtained a writ of attachment against them.

<p>APPEAL from the Circuit Court for Bock County.</p> <p>The case is stated in the opinion of the court.</p>

Ejectment. Tbe case was once before in tbis court, and is reported, 6 Wis., 244. Tbe plaintiff claimed under one Rague, wbo deduced bis title through one Alden. Tbe defendant claimed title through a sale of tbe land upon a foreclosure of a mortgage which was executed by Alden, while he owned the land, to one Fitch.

Tbe case is stated in tbe opinion of tbe court Tbe decree in tbe district court was rendered on tbe 9tb of August, 1858 ; tbe portion of it wbicb is referred to in tbe opinion as containing “ a further clause for judgment for any deficiency ” &e., was as follows: “ And in case said premises shall be sold under this decree, and shall not produce sufficient to satisfy the amount so reported as secured and unpaid, with interest and costs of this suit and of such sale, it is…

Eastman sold to Porter and one Travis, in 1855, certain land, for which the purchasers gave their four joint promissory notes, secured by a mortgage upon the land.

Action against a sheriff and his deputies for an unlawful taking of the plaintiff’s goods. Answer, 1st. A general denial. 2d. A justification under a writ of attachment in favor of one Woodward against the property of one King, alleging that at the time of the taking, the goods were the property of King, and were claimed by Hart-well under a pretended sale from King, which was fraudulent as to creditors. The answer was verified.

This action was brought by Hall against Gale, to foreclose a mortgage given by the latter to the former, for the purchase money of the undivided three-eighths of certain mill property conveyed by Hall to Gale in June, 1856.

In April, 1856, Bean made a contract to convey to Fisher and Goodhue certain land in Beloit, upon the payment of $14,000 in three months. Fisher and Goodhue acted under the direction of the Bacine & Mississippi Bailroad Company in making the purchase, and immediately assigned the contract to that company.

McQannan brought an action against Fitzer and Lawson, to recover the possession of a horse alleged to be the property of the plaintiff, of the value of $90, and to be wrongfully detained by the defendants. At the time of issuing the summons, the plaintiff entitled himself to and obtained possession of the property.

Tbe complaint in tbis case alleged that on tbe 9tb of August, 1858, tbe plaintiff and defendant entered into a written contract, by which tbe… Held: that a party having possession of land under a contract to purchase, has such an estate as is bound by the lien of a judgment; that by the deed of November 6th, 1857, Ansel-mus Van Camp acquired all the title which the plaintiff had under his contract of purchase with the Eox & Wisconsin Improvement Co.; that the plaintiff was…

Sauer obtained a judgment for tbe foreclosure of a mortgage executed by Steinhauer, which, after reciting that tbe referee bad reported that tbe mortgaged premises could not be sold in parcels without injury to tbe interests of tbe parties, directed tbe sale of tbe premises, without stating whether they should be sold in parcels or otherwise.

This was an appeal from an order of tbe circuit court for Winnebago county, sustaining a motion to dissolve an injunction. Tbe case is stated in tbe opinion of tbe court.

The plaintiff obtained a judgment against the defendant, in an action before a justice of the peace, on the 9th of July, 1860, and the defendant appealed from the judgment to the county court on Monday, tbe 30fch of tbe same month.

This was an. action under tbe mill dam law, commenced September, 1859.

This was an action against the administrator and heirs of Eufus McCraken, to foreclose a mortgage given by said Eu-fus to secur% the joint note of himself and one Y. A. Me Craken, payable to S. C. Hall or bearer, and transferred by the payee to the plaintiffs after it fell due.

Tbe plaintiff in this action appealed from a judgment of a justice of tbe peace to tbe circuit court for Hodge county; and that court made an order dismissing tbe appeal on tbe ground that tbe costs of tbe justice in tbe action appeared by tbe transcript of bis docket not to have been paid within tbe time limited by statute, but after that time-, from which order tbe plaintiff appealed to this court. argued that due service of tbe notice of appeal is sufficient to give tbe…

This action was brought by Cyrus Hewes to recover the value of certain goods alleged to have been wrongfully taken from his possession by the defendant on the 24th of June, 1857.

Luther obtained a judgment in the circuit court for Jefferson county, in an action against Bratley and Williams, for the foreclosure and sale of certain mortgaged premises on account of the… Held: as conclusions of law, that tbe sale under said order was legally made, and that tbe plaintiff' bad notice of tbe granting of said order. The plaintiff excepted to the conclusions of law. Judgment dismissing the com-i plaint, &c. i 1.

This action was upon a contract dated November 10,1858, wbicb, after reciting that Wheehr (of Milwaukee), thereby bargained and sold to Weiseger & Co. (of Louisville, Ky.), barrels of mess pork “packed at Milwaukee or Chica-g0;” a£ $14 5Q per barrei; to be paid on delivery, proceeded as follows: “said pork to be delivered to the said parties of the second part (Weiseger & Co.), during the months of next December, January and February, at the seller’s option, and at any…

This action was brought to set aside a conveyance of land in the county of Waukesha, executed to the defendant Amos by one Poster as an attorney in fact of the plaintiff, and to set aside also a conveyance of the same land which had been made by Amos to his co-défendant Stimson, and to compel a reconveyance of the land to the plaintiff.

<p>The common law writ of quo warranto, and the substituted statutory proceeding by information in the nature of quo warranto, are now abrogated, and the remedies before obtainable in those forms are to be obtained by a “ civil acljon.” Chap. 160, R. S., 1858.</p> <p>The summons in the civil action thus substituted, should be directed to the defendant, and be subscribed by the attorney general.</p> <p>But where the defendant, after service, obtained from the attorney general, by stipulation, further time to plead, it was held that he had appeared to the action, and thereby waived all objection to the form of the summons.</p> <p>The complaint in an action for the usurpation of an office, should state th e facts constituting the usurpation, or cause of action, and not mere legal conclusions.</p> <p>But the omission to make such statement of facts cannot be reached by a motion to dismiss, but only by demurrer or objection taken at the trial.</p> <p>The only pleadings in such an action, are the complaint and answer. No repli-' cation is allowed. (</p> <p>The framers of the constitution, in giving to this court power to issue writs off quowarramto, intended to give it the power to hear and determine controversies, of a certain character; and this jurisdiction cannot be taken away by any leg-) islative change in the form of the remedy, but the court may adopt any new process which is calculated to attain the same end.</p> <p>Where an action of quo warranto, brought in this court, involves the functions of a high judicial office and requires a speedy determination, and the issues of fact are few and simple, a jury may be called in this court to determine those issues.</p>

<p>under the statutes of this state, the certificate of the officers appointed to canvass the votes at any election, is only prima fade evidence of the matters contained therein; 'and when its correctness is called in question by a proper judicial proceeding, the party interested in sustaining it must meet the controversy upon its merits, and cannot repose upon the certificate itself, as against a party who offers to show that it is false.</p> <p>In this case, the relator having alleged that a certain certificate of election was false, and having set forth facts tending to sustain the allegation, a return by the respondent to an alternative manAarrms, setting up the certificate alone without denying the material facts alleged by the relator, was adjudged, on demurrer, to be bad; but leave was given to amend the return, upon terms.</p>

<p>Where an issue of fact is joined in this court in a case of mandamus or writ of prohibition, the statute requires that the issue should be sent for trial to the county in which the material facts relative to the issue are alleged to have taken place.</p> <p>Conceding that this court may, for proper cause shown, order the trial to be had elsewhere, it cannot, without proof and upon the allegations of the pleadings alone, assume that the cause cannot be fairly tried in the county where the material facts occurred, and send it to another county for trial.</p> <p>Where an order was made on motion of the plaintiff, without notice and without cause being shown, sending the cause for trial to a different county from that in which the material facts were alleged to have occurred, the order was on motion of the defendant set aside, and the issue sent to the proper county.</p>

This was an action to enforce a lien for materials furnished in the construction of a mill. The defendant Lewis Bailhy alone answered. The case is stated in the opinion of the court. Judgment for the plaintiffs. 1. A judgment against joint debtors, some of whom are not served, would be a lien on the real estate held jointly by all, only from the time of its entry; but the lien of a material man relates back to the time of furnishing the material.

This was an action by Phaibe Barker and Edwin Barker for partition of the real estate of which Job Barker died seized. Held: that as no notice of her examination had been given to Walter Bar-Jeer■, Anson Rogers or Mary Rogers, and as said Walter and Mary were not present, her testimony could not be received to affect them, but might be received as against Leonard and Angeline March.

MOTION EOR AN ATTACHMENT against the defendant for refusing to comply with, a peremptory mandamus granted against him by this court. The opinion of the court upon a motion to quash the alternative writ of mandamus will be found in 13 Wis. R, 370. That opinion and the one which follows, contain a sufficient statement of the facts.

<p>J&.n application to this court, hy a defendant in error against whom a judgment ' for costshadheenrenderedhere, to have such judgment set off against a larger judgment in his favor obtained against the plaintiff in error in the circuit court, was granted under the circumstances of this case.</p> <p>The circumstances under which an application to set off one judgment against another is usually allowed, considered^1 Cora, .J.</p>

<p>A circuit judge will not be compelled by mandamus to settle and sign a bill of exceptions in a case which was tried before his predecessor in office.</p> <p>Whether a circuit judge can be compelled, after bis term of office expires, to settle and sign a bill of exceptions in a cause tried before him during his term, is not determined.</p>

APPEALS from the Circuit Court for Rock County. Some time after the sales of certain mortgaged premises under decrees of foreclosure obtained in the Rock circuit court in the actions above named, William Richardson, one of the defendants in the first named action, applied to the court for an order to compel Rnsign H. Bennett, the purchaser at the sale in said action, to pay so much as remained unpaid of the amount bid by him at said sale.

The complaint (the substance of which is set forth ante, p. 116) charged the defendant with having, on the 11th day of April, 1861, unlawfully usurped the office of judge of the sixth judicial… Held: is a necessary part of the constitutional system for choosing judges in this state, and is no violation of the provision for the election of judges.

EBBOB to the Circuit Court for Milwaukee County. The case is stated in the opinion of the court. 1. The act of Congress of February 12th, 1793, and the act of September 18th, 1850, are constitutional. 16 Peters, 341; 5 How. (U. S.), 215; 13 id., 429; 14 id., 13. 2. The judgment of the district court of the United States, set up in the answer, cannot be directly or indirectly reviewed, annulled or impaired by any action of the state courts.

<p>An appeal from two judgments rendered in different suits and from the several orders made in the suits before and after judgment, by one notice of appeal referring to all the orders and judgments, and by one undertaking, was hdd, to be irregular, and was for that reason dismissed.</p>

In this case a judgment was entered October 26th, 1860, for the foreclosure of a mortgage and for the sale of the mortgaged premises. The defendants excepted to certain findings of the court as to matters of fact, and to its conclusions of law, and to the order for judgment. In February, 1861, the defendant Sage moved the court, upon affidavits and upon the judgment roll, to set aside the judgment and all subsequent proceedings.

<p>Where the plaintiff and defendant are witnesses each in his own behalf, under the statute, and their testimony is conflicting, the jury are to determine the credibility of their testimony; and it is error for the court, in such a case, to instruct the jury, as a matter of law, that the testimony of one party is equal to that of the other, and that upon such conflicting testimony of the parties, there being no other evidence in the case, no fact can be found by them.</p>

An action to recover possession of personal property, brought by one Moore against Johnson, before Gallup as a justice of the peace, was submitted to the justice on the 13th of September, 1859; and he took seventy-two hours for consideration of the same, and within that time rendered judgment for the plaintiff, directing a return of the property to him and assessing its value, &c. On the 19th of the same month, the justice made an order directing Utter, a constable in whose…

This was an appeal from an order refusing to set aside a judgment.

Tbe facts are stated in tbe opinion of tbe court. Tbe complaint, after stating tbe delivery of tbe plaintiff’s execution to tbe sheriff’s deputy on the 4th. of February, and the delivery of an execution to the sheriff in favor of the Bank against the same defendant, on the 9th of the same ■month, and that the sheriff, on the last named day, levied upon certain gold and silver coin as the property of the execution defendant, and applied it upon the junior execution, and that…

One Damrt died intestate in Milwaukee county, in April, 1857, and one Bode was appointed bis administrator. In pursuance of an order of tbe county court, Bode sold certain real estate of his intestate; and Filner, tbe purchaser, gave his promissory notes for a part of tbe purchase money, secured by a mortgage on tbe property. Afterwards Bode, as administrator, sold and assigned'one of tbe notes and tbe mortgage to tbe plaintiff in this case.

Cord brought an action against one Hirsch to foreclose a mortgage executed by him, without making Elizabeth Moore, wbo bad become tbe owner of tbe equity of redemption, a party. Tbe deed from Hirscb to Mrs. Moore was duly recorded. Tbe mortgage was made to secure two notes of $110 each, payable respectively on tbe 4tb of January, 1860, and tbe 4tb of January, 1861, with interest annually. Tbe judgment of foreclosure was rendered July 24tb, 1860.

EEEOE to tbe Circuit Court for Ozaulcee County. Gottingham agreed to build for Kittridge a mill according to certain plans and specifications, and Kittridge agreed to pay bim tberefor $4,800, as follows: Eighty-five per cent, of tbe actual value, pro rata, of tbe work done at tbe end of every two weeks as tbe work progressed, and tbe remaining fifteen per cent, wben tbe work was completed.

Replevin for tbirty-eigbt bushels of wheat, commenced before a justice of the peace. The instruction of the circuit court referred to in. tbe opinion in'this case, was as follows : “That the fact of the plaintiff’s being a temporary of this state did not deprive him of the'benefit of the exemption law.” The other facts in the case are sufficiently stated in the opinion.

Tbe first count in tbe complaint in tbis case alleged tbat tbe plaintiff employed tbe defendant, wbo was an attorney at law, to collect certain money due to tbe plaintiff from tbe United States, and gave bim a power of attorney for tbat purpose; tbat tbe defendant, as sucb attorney, collected of said money tbe sum of $1,708 53, and paid to tbe plaintiff $708 53, but tbougb often requested, bad not accounted for or paid to tbe plaintiff tbe residue of said sum, wbicb, with…

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

Tbe complaint in tbis action states, in substance, that the plaintiff, Hannah M. King, is -the widow of Jeremiah.

Tbe complaint in this case alleged that on the 26th of October, 1855, the defendant, being the holder of four certificates issued to him in 1854 and 1855 by the commissioners of school and university lands of this state, agreed to sell and transfer all his title and interest in said certificates to the plaintiff, for the sum of $645.75 ; and the plaintiff, upon the defendant’s representation that he or his assigns were entitled to a patent from the state for the lands…

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

Action on a promissory note for $200, executed by Chamberlain to Cougar. Tbe answer stated as grounds of defense, 1.

Tbe nature of tbe case is stated in tbe opinion of tbe court.

<p>In an action before a justice of the peace for the recovery of personal property it is not necessary for the plaintiff to prove the averment in his affidavit, that the property “had not been taken by virtue of any tax, &c., nor seized under any execution,” &c., although the affidavit in such a case constitutes the complaint.</p> <p>where, in such an action, the affidavit of the plaintiff’ stated the value of the property to be $14, and there was no finding as to its value by the justice of the peace, the case, on appeal, should be heard by the court on the original papers and the return of the justice, and should not be tried de novo.</p> <p>Where, in such an action, the value of the property in controversy was less than $15, and the justice, without any finding of facts, ordered the property to be delivered to the plaintiff, and that the defendant pay the costs, the county court, on appeal, could not disregard the absence of any finding, as a mere technical defect, under sec. 218, chap. 120, R. S., but was bound to reverse the judgment.</p>

This action was commenced before a justice of the peace. The plaintiff’s complaint stated that in 1856 he held a written lease from one Rycraft of certain property for the term of one year and fifteen days from the 15th of April of that year, at an annual rent of $600, to be paid in equal portions on the 15th day of July, October, January and April, the last payment to be made on the 1st of May, 1857; that on the 3d of June, 1856, he assigned the lease to the defendant, who…

The case is sufficiently stated in the opinion of the court. Judgment for defendant. A retainer in a suit is strictly limited to a prosecution or defense of that suit Herbert vs. Alexander, 2 Call, 418; Vail vs. Conant, 15 Vt., 314.

This was an action to foreclose a mortgage of real estate. In the title of the case the plaintiffs are styled “ executors of the last will and testament of William Moir, deceased.” The complaint, after alleging the making of certain notes and the execution of a mortgage to' secure the same by the defendant to William Moir, states that afterwards the said William Moir died at, &c., having by his last will and testament appointed the plaintiffs his executors, and that previous…

Action against Charles H. Wheeler and Ms wife, to foreclose a mortgage executed by them to secure a bond given by the husband only, for money loaned. Defense, usury. Trial by the court. It appeared that the bond and mortgage were assigned by the mortgagee to one Sage after due, and by him subsequently assigned to the plaintiff. There was some proof tending to sustain the defense. The other evidence need not be stated.

This was a bill to redeem mortgaged premises, filed on the 2d of Eebruary, 1856.

Hill and Rudd obtained a judgment against the La Crosse & Milwaulcee Railroad Company, in the circuit court for Milwaukee county in 'September, 1858; and an assignment of the same to E. Mariner, dated December 27th, 1858, was filed in that court June 12th, 1860. On the 13th of November, 1860, Langworthy, sheriff of Milwaukee county, collected $4,519 74, on an execution issued upon the judgment.

Henry J, Nazro and others, holders of certificates of the Merchants’ Mutual Insurance Company of Milwaukee, made application to the circuit court for Milwaukee county, in their own behalf and in behalf of such other holders of certificates of said company as might apply to become parties to the proceeding, and alleged in their petition the following facts: 1.

Action to foreclose a mortgage oh certain lots in Janes-ville, Rock county, executed and delivered to the plaintiffs by Albert 8. Johnson on the 31st of December, 1857, and recorded January 28d, 1858.

Action to foreclose a mortgage, executed on the 27th of November, 1854, by the defendant Bodden to one Cramer, to secure the payment of $3,500. The mortgage covered originally the west half of a quarter section of land. On the 3d of January, 1856, Cramer released the south twenty acres of the tract.

This was an action to foreclose a mortgage given by Jonathan Taylor and Mary, his wife, to secure a bond of same date, given by Jonathan Taylor for a certain sum of money, with interest payable semi-annually. The mortgage contained a stipulation that upon any default in the payment of interest when it should fall due according to the terms of the OT within ten days thereafter, the whole debt should, the option of the mortgagee, be immediately due and collectable.

The plaintiff, Gunn, appealed to the circuit court for Dodge county from two orders of the probate court of that county, made respectively on the 2d and 9th days of March, 1857. The nature of those orders and the interest claimed by the plaintiff will appear from the opinion of the court.

This was an action upon a fire policy issued August 11th,. 1859, by the defendant through its agent at Milwaukee, containing the following conditions : “ If the assured or his assigns shall hereafter make any insurance on the property herein described, and shall not give notice thereof to this company and have the same indorsed on this policy, or otherwise acknowledged by this company in writing, this policy shall cease and be of no further effect. * * All persons insured by…

Action for the taking from the possession of the plaintiff, and the conversion of railroad ties alleged to belong to the plaintiff. Answer, 1.. A general denial. 2. Property in the Farmers' Loan & Trust Company, of which the other defendants were employees. Trial by the court without a jury, in September, 1860.

This was an action to foreclose a second, mortgage upon the Racine and Mississippi Railroad. Held: and no more could be due on those bonds to the holders, than the amount of their debts.. The resolutions of May 11, 1858, and July 3,1857, authorized the execution of the mortgage. It is said that the mortgage was in fact executed before the resolution of July 3d was passed.

After the decision of this case as reported in 9 Wis. R, 24, a motion was made by the respondents for a rehearing. The majority of the court overruled the motion without filing any further opinion. The following .dissenting opinion was filed.

On tbe 4tb of March, 1859, tbis court, on tbe application of tbe relator, granted an alternative writ of mandamus directed to tbe commissioners of school .and university lands, commanding them to execute to the relator certificates of sale for several tracts of land described in the writ, or show . cause, &c. From the papers now on file in the cause it appears that on the 22d of the same month the commissioners filed their return to the writ.

On the 12th of March, 1856, the' defendant Rage sold to McOlurg certain lands, and took from him a bond for the unpaid purchase money, secured by a, mortgage on the same lands. On' the 3d of November, 1858, Sage and McOlurg executed to the plaintiff their promissory note of that date for $1903.93, at six months, and as collateral security Sage assigned to the plaintiff said bond and mortgage.

The plaintiff claimed damages for the flowing of certain lands in Dodge county in consequence of the erection and maintenance of a dam by the defendant. The claim was submitted to arbitrators appointed pursuant to the defendant’s charter (Private Laws of .1854, p. 189), from whose award, made March 2d, 1859, the plaintiff appealed to the circuit court for Dodge county.

Roxana Smith died intestate on tbe 23d of July, 1859, leaving her husband Abraham Smith (the defendant in this action), and two children of their marriage, surviving her, and also two surviving children of a former marriage with one Simons. At the time of her marriage to Abraham Smith (which was in January, 1850), said Roxana owned forty acres of land in Dane county, which were occupied and cultivated or leased to third persons by said Abraham until her death.

This was an action against the treasurer of the town of Prairie du Sac, in Sauk county, the supervisors of said county and others, for a perpetual injunction against the collection of a certain tax assessed against the plaintiff.

<p>APPEAL from tbe Circuit Court for Winnebago County.</p> <p>Tbe case is stated in tbe opinion of tbe court.</p>

This was an action for an unlawful detainer of certain leased lands.

Action upon a judgment of tbe Marine Court of tbe city of New York. Tbe complaint alleged that tbe judgment wag « given ” in that court, but did not state tbe facts conferring jurisdiction upon tbe court, either as to tbe person of the defendant or tbe subject matter of tbe suit. Answer, a general denial.

<p>The doctrine of this court in The Town of Hoclmter m. The Alfred Bank, 18 Wis., 132, as to the invalidity of bonds issued by the officers of a town pursuant to a vote of the people thereof in aid of the construction of a railroad, before the law authorizing such vote and the issue of such bonds was published, followed in this case.</p> <p>Courts are bound to take notice of public acts, and to determine for themselves when such acts took effect.</p> <p>When the right set up in a complaint depends for its existence on an authority in one of the parties derived from a public statute, the court must determine as a question of law, whether the statute conferred such authority; and to do this, must determine whether the statute was in force at the time the supposed authority was exercised.</p> <p>In the absence of any suggestion making a more accurate inquiry necessary, the court will assume the date of the secretary of state’s certificate at the end of a volume of Private Laws, as the date of the first publication of a law found in such volume, there being nothing to indicate that it had first been published in a newspaper as a public act.</p>

EBBOB to the Circuit Court for Dane county. Action by the executrix of Wilson against McDonald as the maker, and Senier as the indorser of a negotiable promissory note, which fell due August 1-3, 1856.

Complaint against Bowman as indorser of four notes alleged to bave been executed on tbe first of December, 1859, by J. C. Lee and Charles Cain, under tbe firm name of Lee _ & Cain.

EBBOB to tbe Circuit Court for La Grosse county. John and WilUam Newman were indicted for tbeft. The indictment contained four counts.

This was an action to recover damages in consequence of certain false and fraudulent representations alleged to have been made to tbe plaintiff by tbe defendant, in regard to tbe location, character and value of certain land then belonging to tbe defendant, by which representations tbe plaintiff was induced to purchase the land. On the trial, evidence was introduced tending to sustain tbe complaint.

Action on a joint and several note for $53.60, made to tbe plaintiff March 1, 1858, by tbe defendant J. B. Bowen and one Daniel Bowen wbo bad died before tbe commencement of the action. Defense, payment by Daniel Bowen in his life time.

This was an action against Wright as, indorser of a promissory note, payable at the Bank of Oshkosh. The note was protested for non-payment, and the complaint alleged that due notice of protest and non-payment was given to the defendant : which allegation was denied by the answer. On the trial the plaintiff gave in evidence the note, with the certificate of protest annexed.

Charles B. Haney sued out of this court a writ of certiorari to bring up for review certain proceedings which were had in the circuit court for Dane county in 1858, ’54 and ’55, “ in the matter of the petition of Berry Haney, guardian of Charles B. Haney, an infant under the age of fourteen years,” by virtue of which certain lands, of which he was then the owner, were sold.

Indictment for the murder of one MdNamee. On the trial the defendant excepted to the admission of certain evidence, the nature of which is stated in the opinion of the court.

The note sent up with the record in this case was signed by J. W. Stewart, but did not purport to be signed by the plaintiff in error. The other facts are stated in the opinion of the court. A warrant of attorney is not sufficient to authorize a judgment without the note which it describes; and the note in suit is not the note described in the warrant of attorney.

Action in a justice’s court for damages for an alleged trespass of the defendant in throwing down the fence inclosing certain lands of the plaintiff, in consequence of which his crops were injured by cattle. Defense, 1. That the act was done by the defendant “while acting in the capacity of overseer of highways.” 2. That the locus in quo was the defendant’s close and freehold. The cause was duly certified to the circuit court.

Indictment for arson. The second count, .after the formal part, was-as follows: “That the said Newton Jasper Grubb, late of the said county of Grant, heretofore, to-wit, on the twelfth day of February, in the year of our Lord one thous- and eight hundred and sixty-one, in the 'county of Grant aforesaid, a certain barn of one Jared Bishop, there situate, feloniously, willfully and maliciously did set fire to, and the said barn then and there by said firing as aforesaid,…

This action was brought to recover damages for several breaches of the plaintiff’s close, alleging matters in aggravation of damages. The answer denied all the material allegations of the complaint. The plaintiff obtained a verdict and judgment for $800 damages. On appeal to this court the judgment was reversed and a venire de novo awarded, upon the ground that the defendant was not allowed to show certain matters in mitigation of damages.

This was an appeal from an order of the circuit court re fusing to set aside a -judgment, taken by default, foreclosing a mortgage executed by the defendant. The affidavit of the defendant upon which the motion was based, showed, among other things, that the notice of lis pendens filed in the action did not correctly describe the mortgaged premises.

This action was commenced before a justice of the peace, by the town superintendent of the town of Glen Haven in Grant county, in the name of the supervisors of the town of Cass-ville in the same county, against Samuel Morris, treasurer of said town of Cassville, and the sureties on his official bond,'a copy of which was attached to the complaint.

The nature of this action is stated in the opinion of the court.

<p>APPEAL from the County Court of Grant County.</p> <p>The case is stated in the opinion of the court.</p>

Action to foreclose a mortgage executed to the plaintiff hy the defendant Mary N. Oilman, May 18, 1859, to secure her note of same date for $600 with 12 per cent.' interest. The defendant’s answer set up the defense of usury, and also a counter-claim for $104 54. The plaintiff’s reply admitted the counter-claim. When the case was reached by the circuit court, on the 5th of January, 1861, an order was made, at the plaintiff’s request, discontinuing the action.

This action was commenced in the circuit court for Rock county.

Action against the assignee of a lease, for rent in arrear..

Action against Sarah O. M. Kellogg and Edwin Kellogg to foreclose a -mortgage given by said Sarah to secure two negotiable notes made by said Edwin, which, with the mortgage, had been assigned to the plaintiffs before due. The complaint also demanded a personal judgment against the defendant Edwin for any deficiency.

This was an action to remove an alleged cloud from the plaintiff’s title to certain land.

APPE AL from the Circuit Court for Ozaukee County. This was an action to recover possession of certain land in Ozaukee county, and was tried by the court without a jury. The plaintiff, William M. Stewart, offered in evidence a deed for the land from Peter B. Grignon to W. E. Stewart, dated February 27,1856; and a deed from W. E. Stewart to the plaintiff' executed in March, 1856.

The circuit court sustained a demurrer- to the complaint in this cause, and from that order the plaintiff appealed.

The plaintiff in error was indicted for uttering and publishing a'false and forged school order.

<p>In an action in a justice’s court to recover a penalty for a willful obstruction of a highway, an answer alleging that the locus in quo was, at the time when, &c., the defendant’s own freehold and in his actual possession, and that there was no highway open or running over or across any part thereof, states facts showing that the title to land will come in question.</p> <p>An objection to defective service of the summons in an action is waived by an appearance and answer to the merits.</p>

The nature of this action is stated in the opinion of the court. The following are the instructions given by the court to the jury, to which exceptions were taken by the defendants. “1. That the several matters given in evidence on the part of the defendants were not sufficient in law to bar the plaintiff of his action. 2.

This was an action to recover the value of the retainer and services of the plaintiff, as an attorney for the Rock River Valley Union Railroa<jl Company, during two years last preceding the 11th of December, 1854. The defendant demurred to the complaint as not stating facts sufficient to constitute a cause of action'; but the circuit court overruled the demurrer, and from this decision the defendant appealed.

County. Tbe complaint, wbicb was filed in April, 1860, stated that in October, 1856, tbe plaintiff and tbe defendant Robinson entered into an agreement under seal, wbicb was duly acknowledged and recorded in July, 1858, whereby tbe plaintiff agreed, among other things, to break up and sow a certain tract of land (commencing tbe work in tbe spring of 1857), and to cultivate it for five years, delivering one-tbird of tbe crop to Robinson, and also to help fence a certain other…

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

Tbe complaint in tbis action (wbieb was commenced in tbis court, June 27th, 1859) alleged in substance, (1) That tbe plaintiff was, on tbe 14th of January, 1858, elected sergeant-at-arms of tbe legislative assembly of tbis state, and served as such during tbe whole session of the legislature of 1858; that certain committees of investigation were appointed by tbe assembly, and a certain joint committee of investigation by tbe senate and assembly, during said session ; and…

Bill to foreclose a mortgage, filed April 3d, 1856. Judgment pro confesso against the mortgagors, October 6th, 1856. Wm. B. Jarvis, Sen., who was made a defendant as the owner of another mortgage on the same premises, having been duly shown to be a non-resident of the state, an order had been procured and duly published requiring him to plead, answer or demur on or before the 27th of October.

This was an action to foreclose a mortgage executed by the defendant Harris to the plaintiff, January 10th, 1857, to secure the payment of $185.41, payable four months after date, with interest at 12 per cent. The land originally covered by the mortgage was the S. E. qr. of the S. E. qr. of sec. 8, and the S. W. qr. of the S. W. qr. of sec. 9, in town 10, in Eichland county.

Action to enforce a mechanic's lien. The complaint stated, among other things, that the defendant was indebted to the plaintiff in'the sum of $300, with interest, for work done in the construction of a grist mill for the defendant, on the northwest quarter of the southeast quarter of Sec. 7, T. 17, E. 1W., &c., for which, oh the 22d of December, 1858, (being the day when said work was completed) the defendant gave the plaintiff two notes for $150 each, payable respectively,…

APPE ML from tbe Circuit Court for Grant County. On the 17th of December, 1860, Jones, treasurer of Grant county, presented to the board of supervisors of said county the following account, duly verified: “ Grant county, Wisconsin, to James A. Jones, Treasurer, Dr. To issuing, between Eeb. 1st and Sept. 6th, 1859, 594 tax receipts, containing in all 1875 descriptions of land upon the tax list returned to the office of said treasurer as delinquent taxes for the year 1858,…

Action to set aside a sale on executions, of a certain lot in arL Before the 23d of December, 1840, one White and others, severally owning 'certain lands in the then town of Be-loit (but which lands are now comprised in the city of Be-loit), made a plat thereof, which represented streets, blocks, lots, &c., as the same had been previously laid out upon the ground constituting the site of said city.

The complaint in this action alleges the following facts: On the 21st of June, 1854, the plaintiff entered into an agreement in writing with one Bartlett, as solicitor and agent of the defendant, by which it was agreed that the defendant should advance to the plaintiff, within sixty days from that date, $7500 as a loan for two years, and that the plaintiff should give as ■ security for such loan, a mortgage on property in the state of Missouri, unincumbered, and valued at…

The affidavit upon, which the alternative writ issued, and the decision of the court overruling a motion to quash the writ, are reported in 12 Wis., 562. An answer was after-wards filed bj tbe respondent, and a reply by tbe relator, to wbicb there was a demurrer.

This was an action to recover the price of some lime alleged to have been sold and delivered by one Williams to the defendant, the account for which had been assigned to the plaintiff, Dodge. After the plaintiff had closed his evidence, a motion for a nonsuit was made and overruled, and exception taken. Verdict for plaintiff; motion for new trial overruled, and judgment. The facts are sufficiently stated in the opinion of the court.

On tbe 11th of January, 1853, Hill gave a mortgage to one Whittlesey upon tbe N. E. qr. of tbe S. E. qr. of S. 32, T. 9, R 10, and tbe E. bf. of tbe N. E. qr. of S. 5, T. 8, in tbe same range. This mortgage was assigned to one Lute Mowrj, who obtained a decree for its foreclosure, in wbicb it was directed that tbe land in S. 32 should be first sold for its payment. The amount of the decree was $466, but no sale had been made under it.

The county court of Milwaukee county, in an action be tween Alexander Mitchell, plaintiff, and Alanson Sweet and another, defendants, which had been removed to said court from the circuit court for that county, made an order directing said Sweet to show cause why certain portions of his an swer in said action should not be stricken out.

The evidence upon the issues of fact in this case was voluminous, and is not deemed of sufficient interest to the pro fession to require its publication here.

This was an action to have a note which'had been executed by the plaintiffs, declared void, a judgment which had been rendered thereon in March 1860, in favor of the defendant in this action, vacated, and proceedings under the execution which had been issued upon the judgment, stayed.

This was an action to have certain conveyances of land, made by the plaintiff to one Wm. B. Ogden, and by the latter to one Mahbn D. Ogden, set aside, or declared void, and to compel a reconveyance to the plaintiff.

<p>APPEAL from the Circuit Court for Fond du Lae County.</p> <p>The case is stated sufficiently in the opinion of the court.</p>

<p>It seems that if, under the charter of a city, it becomes the duty of the city authorities to collect an assessment made against a lot to pay for grading done under a contract, or to put the proper machinery in motion for that purpose, and by neglect or collusion with the owner of the lot, they fail to make a proper defense to a suit brought by such owner to enjoin the collection of the assessment, and thus become incapable of performing that duty, the city would be held liable to the contractor for the amount. But in this case the evidence does not show any such neglect or collusion.</p> <p>A party cannot recover upon an entirely different cause of action from that set out in his complaint.</p>

APPEALS from tlie Circuit Court for Dane County. These appeals were taken by the plaintiff from two orders of the circuit court, made respectively on the 10th and 15th of May, 1861. The nature ofthese orders, and the questions at issue, will appear from the opinion of' the -court. The writ of attachment is merely a provisional remedy, and the jurisdiction of the court in the action, and the validity of its judgment, do not depend upon the regularity or validity of that writ.

On the 7th of January, 1859, a judgment was entered in the county court of Milwaukee county, in favor of the Second Ward Bank of Milwaukee against Diedrich and Henry Upman, on a note and warrant of attorney, for $2104 and costs.

Action to recover possession of certain lumber alleged to belong to tbe plaintiff, and to have been unlawfully detained, &e. Answer, a general 'denial; and title in tbe defendant by purchase at a sheriff’s sale upon an execution on a judgment in favor of tbe defendant against one Single, who was tbe owner of tbe lumber at tbe time it was taken in execution ; with a demand of judgment for a return of tbe lumber and for damages. ' ' After tbe plaintiff bad closed bis…

Action commenced in February, 1860, to foreclose a mortgage given to secure tbe payment of two notes, for $250 ea°k’ ma(^e payable to one Scott, and alleged to have been assigned by bim to one Stone, and by Stone sold to Butler, an(} foy Butler and Stone assigned to tbe plaintiff. The complaint averred that the plaintiff was the holder and owner of the notes.

This was an action by tbe owner of certain lots abutting on Broad Street in tbe city of Osbkosb, to recover damages caused by tbe construction of tbe road bed of the defendant through tbe street in front of bis lots, some of which were situated on each side of said street, and for a perpetual injunction to restrain tbe defendant from laying its track in said street, or digging up tbe soil thereof, or doing any other act tending to encumber tbe street, or to obstruct its free…

<p>APPEAL from the Circuit Court for Lafayette. County.</p> <p>The case is stated in the opinion of the court.</p>

Burnham sued Eorbes and Turner before a justice of tbe peace on an account. Tbe summons was served on Eorbes personally, and on Turner by copy. Neither of tbe defendants appeared, and judgment was rendered against them both on tbe 5th of September, 1860, for $75.

The plaintiff alleged in his complaint, which was filed July 19, 1860, that he had never been a resident of the state of Wisconsin; that he is the owner of lot 1 in block 10 in the city of Oshkosh; that in the year 1858, he was assessed in the 2d ward of that city, in the sum of $15,000, for personal property, the tax charged on which was $811 85 ; that after the tax list of that year, with the warrant appended to it, had been duly returned by the city treasurer to the…

Action commenced February 25th, 1860, to recover two instalments, with interest, alleged to be due on a land contract.

Section 1 of chapter 1 of the charter of the city of Milwaukee, Laws of 1852, chapter 56, provides that the corporation shall have the general powers possessed by municipal corporations at the common law.

This was an action brought in June, 1860, to foreclose a mortgage made by the defendants to one Brydges, and by him assigned to the plaintiff. The mortgage and the bond secured by it bore date April 1, 1859, and were given to secure the payment of $1,300 in two years after that date, with interest to be paid annually at the rate of twelve per cent, per annum.

Paine and Millett brought an action in the Racine circuit court, upon a transcript of ajudgment alleged to have been rendered in favor of one Ayre against Chase in the court of common pleas of Greauga County, Ohio, on the 3d of April, 1838, and to have been assigned to the present plaintiffs. Judgment was rendered against the defendant, upon affidavit of service of the summons and complaint and of no answer or demurrer served.

Tbe case is stated in tbe opinion of tbe court. Tbe verification in this case is witbin tbe decision of tbis court in Mills vs. Houghton, 8 Wis., 312-313. Tbe verification is in tbe language prescribed by tbe statute; tbe person verifying is tbe plaintiff’s attorney, and as such has in bis possession tbe note upon which action is brought, both of which facts appear from tbe verification.

Action for maliciously writing and publishing of the defendant, a minister of the Evangelical Lutheran Church, the following libel: “ Who and what is Mr. Sans ? * * He had not been here [at Watertown] long, before bad rumors concerning him or a man bearing his name, originated. At that time I had the confidence of Mr. Sans, and told him about it.

This was an action to foreclose a mortgage given by tbe defendant Isaiah Johnson and wife to Betsy D. Goff, dated March 10th, 1856, to secure tbe note of said Isaiah, of that date, for $600, payable to her order one year after date, and alleged in the complaint to have been indorsed to tbe plaintiff before it fell due. Tbe acknowledgment of tbe mortgage purported to have been made before William Goff, who was tbe,husband of said Betsy, and was a justice of tbe peace.

Action to foreclose a mortgage. Answer by tbe defend-ai1^ Judgment for said defendant, from which the appealed. The nature of the case will appear from the opinion of the court.

APPE ML from the Circuit Court for Jefferson County. Lewellen brought this action against Randall, Anderson and Williams, upon a note executed by them to him, and obtained a verdict for the amount of the note. The defendants moved for a new trial upon affidavits of Williams and of I. E. Leonard, Esq., who was attorney for Randall and Anderson.

The complaint in this action (which was commenced on the 2d of June, 1859), alleged in substance that on the 25th of August, 1858, the plaintiff made his promissory note for $200, payable with interest October 25th, 1858; that after-wards, as collateral security for the payment of said note, then held' by the defendant, he deposited with said defendant five notes for $200 each, made by one Spaids, and a mortgage executed by Spaids to secure six notes, including the five so…

Tbe case is sufficiently stated in tbe opinion of tbe court.