Volume 15 — Wisconsin Reports

This was an appeal by Daniel Cameron, sen., the father and heir at law of Peter Cameron, deceased, from an order of the circuit court confirming the report of a referee to whom had been referred the final account of Emma Cameron and Cyrus K. Lord, as administrators of the estate of said deceased. On the hearing before the referee, the bond given by Lord as administrator was admitted in evidence, although not indorsed “ approved” by the county judge.

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

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

<p>ERROR to tbe Circuit Court for Winnebago County.</p> <p>cited 12 Met., 242 ; 3 id., 327; 1 id., 264; 7 Gratt., 623; 16 Pick, 154; 10 Cusb., 478; 15 Wend., 159; 2 Corns., 245.</p>

<p>Where the return of a register of deeds to an alternative writ of mandamus to' compel him to hold his office at a place alleged to he the county seat, according to the result of a certain election, was adjudged insufficient on demurrer, and the relator haying moved for a peremptory writ, the clerk of the court of the same county presented affidavits alleging collusion between the relator and the register, and that similar suits had been commenced against other officers of that county to test the same question, in which issues of fact had been joined, it was held, that proceedings in the action against the register should he stayed until the further order of the court after a trial of the issues of fact should have been had.</p>

APPEAR from the Circuit Court for Bock County. This was an action to foreclose a mortgage. Tbe case is stated in tbe opinion of tbe court. argued tbat cbap. 88, Laws of 1861, was unconstitutional, and cited Bronson vs. Kinzie, 1 How. (IT. S.), 811, 820; Morsevs. Goold, 1 Kern., 281,291; Von Baumbachvs. Bade, 9 Wis., 559. It is not denied tbat a statute may be in part valid and in part void.

An alternative writ was issued, wbicb tbe defendant moved to quash. argued that a mandamus should not be issued where there is another remedy, and that it did not yet appear that an execution would not be effectual ; that tbe charter did not specifically require tbe common council to levy tbe tax (2 Hill, 46); that if it was a corporate duty, an action on tbe case would lie for its non-performance ; and that tbe court has no power to grant a mandamus to enforce tbe payment…

<p>ERROR to tbe Municipal Court of tbe City of Milwaukee.</p> <p>Tbe case is stated by tbe court.</p>

APPEALS from tbe Circuit Court for Marquette County. A very full report of tbe facts of tbis case and tbe former decisions of tbis court therein, will be found in 8tk Wis. 392-470. The additional facts necessary to show the questi0ns at issue in the present appeals, will sufficiently from tbe opinion of the court.

Action on a negotiable note given by tbe respondents to Manny, Blinn & Co., in part payment for a reaper, and indorsed by the payees, before due, to Manny and Blinn, wbo were members of tbe firm at tbe date of tbe note. Tbe defense was a breaeb of warranty, and that tbe reaper bad been returned to tbe vendors and accepted by them.

Tbe complaint in tbis action alleges that in May, 1847, William Howell and bis brothers Walter and Robert entered into a partnership in a general mercantile business in tbe state of New Jersey; that William put into tbe business $2500, Walter some amount which tbe plaintiffs are unable to state, and Robert put in no money or property; that in May, 1848, Robert, witb tbe consent of Walter, but in tbe absence of William and without bis consent, sold all tbe partnership…

Most of tbe material facts in tbis case are stated in tbe opinion of the court.

MANDAMUS. The alternative writ stated that the order drawn by Judge Cothren in favor of the Iowa County Bank, was given for a valuable consideration received of the bank. The other allegations of the writ are stated in the opinion. The defendant moved to quash the writ. The court has already decided that the order was an assignment of the quarter’s salary to the Iowa County Bank or its assignee.

<p>application under section 8, chapter 128, R. S. 1858, for a change of venue in a aotion 011 account of the prejudice of the judge before whom the action is pending, must be verified by the oath or affirmation of a “party ” to the action, and cannot be verified by his attorney.</p> <p>Where the applicant is a corporation, the verification may be made by such agents or officers as are authorized by the general provisions of law to verify such statements of corporations as are required to be under oath.</p> <p>By the “prejudice of the judge ” for which a change of venue is allowed under that section, the statute refers to aprejudice for or against one of the parties, and not to the fact that the judge has formed an opinion upon the legal questions in the case. — Per Paine, J.</p> <p>Where such an application is sufficient under the statute, it is the imperative duty of xhe circuit court to change the venue; otherwise not.</p> <p>An order refusing to change the venue upon such an application, is appealable.</p>

This was an action to foreclose a mortgage given to secure three notes, payable to the plaintiff in one, two and three years from date, the last of which only was alleged in the complaint to be unpaid.

In November, 1858, Baker entered into a written contract with Beach, by which the latter agreed to pay him for certain land in Waushara county, $200 in two equal payments, June 1st, 1860, and June 1st, 1861, with interest, &c.; and after such payments Baker was to give Beach a deed of the land.

On tbe 6tb of August, 1861, Earley commenced an action against Dean to recover possession of a certain lot in tbe city of Madison in Dane county. On tbe trial, tbe plaintiff offered in evidence, among other conveyances, a tax deed for said lot, dated June 20, 1851, executed by tbe clerk of tbe board of supervisors of said county, in tbe name of tbe state, to tbe plaintiff’s grantor, duly acknowledged, and recorded June 24, 1851.

The complaint in this case, after reciting the material provisions of the acts of February 21, 1848, and February 9, 1850, (which are stated in the opinion of the court), alleged that in the summer of 1857, the defendants erected and completed a stone dam across Koch river at the place mentioned in said acts, which caused three pieces of land described in the complaint, to be overflowed and rendered worthless; that at the time said dam was erected, the plaintiff was the…

Vibbert obtained a judgment against Shepard before a justice of the peace, on the 7th of December, 1858, from which Shepard appealed; and the return of the justice was filed January, 1859. The case was not noticed for trial by either party until the 10th of December, 1859, when Shepard noticed it for trial at the March term, 1860; at which term, on motion of Vibbert, the court dismissed the appeal for want of prosecution.

The complaint in this action alleged the following facts: On the 27th of February, 1855, the defendant, who had contracted with the La Crosse and Milwaukee Railroad Company to construct a certain portion of its road, entered into a contract in writing with the plaintiffs, by which the latter agreed to construct said portion of the road for him.

An action was commenced in February, 1858, before a justice of tbe peace in Walworth county, by Winne, as receiver of tbe Troy Fire Insurance Company, to recover an assessment made by him upon a premium note executed by Allen to said company. Tbe justice rendered judgment for tbe defendant; which, on an appeal to tbe circuit court, was reversed.

This was an action to recover the value of six cases of steel which the defendant undertook to transport from the city of New York to Racine in this state.

Slander. The words were, “ That if ever a man swore false, Ourtis did;” • “ Curtis swore to an up and down lie;” “If I had sworn as Curtis swore, I would have sworn to a lie.” The other allegations of the complaint are sufficiently stated in the opinion of the court. A demurrer to the complaint was overruled. 1.

The principal facts in this case are stated in the opinion the court.

This was an action to recover tbe price of a reaping machine alleged to have been delivered by the plaintiffs to the defendant upon his written order. For a statement of the contract on which the action was founded, and of the facts upon which the plaintiffs relied to show a fulfilment on their 'part, see 13 Wis. Rep., 67, 68.

Action to foreclose a mortgage, commenced in October, 1858. After the passage of chap. 181, Laws of 1859, the plaintiff made Norton, Bagnall and others additional defendants, without leave of court, and served them with copies of the original summons and complaint, amended by adding the names of the new defendants, to which was attached a notice, requiring each party on whom such amended papers were served, to serve a copy of his answer by the 20th of .May, 1859.

On tbe 22d of April, 1861, Me Vichar filed in said circuit court his petition to be discharged from his debts, under the statute for the “ relief of insolvent debtors.” On the 7th of May following, while said application was pending and while the notice required by the statute was being published, Merman, Henry and Joseph Mann, who had recovered a judgment against Me Vichar in the county court of said county on the 6th of April (on which execution was returned unsatisfied),…

Action to foreclose a mortgage. The summons and complaint named Bagnatt, Me Vichar and several other persons as defendants, but neither John Nazro nor the Bank of Mil-waulcee was named in or served with the summons or complaint. The affidavit of “ no answer ” hied in the case, was entitled in an action in which all the defendants mentioned in the summons and complaint, and also John Nazro and the Bank of Milwaukee, were named as defendants.

The case is stated in the opinion of the court. The instrument sued on was payable in articles — not money — as needed.' If the payee needed any particular articles, the respondent should have been informed of it, and a reasonable demand made upon him for them, and the complaint should have alleged these facts. 5 Cow., 516 ; 20 Wend., 196 ; 2 Pars, on Con., 161-4; 2 Denio, 145; 4 Iowa, 590; 3 Watts & Serg., 295 ; 2 Penn., 69.

The facts material to an understanding of the points decided in this case, are stated in the opinion of the court. The mortgage referred to was given by Mallory to Mariner, to secure the payment of two notes.

This action was brought in July, 1860, to recover the statutory penalti' of $100, for the refusal pf the defendant to execute a discharge of the mortgage mentioned in the preceding case, and also for actual damages- alleged to have been occasioned by such refusal. The pleadings are stated in the opinion of the court. The plaintiff recovered judgment in the circuit court, for the penalty and for $180.66, special damages.

Action by Alonso L. Kane, to .recover real estate. The answer of the defendants was, 1. A general denial. 2. Held: as tbe same and similar expressions in other sections of tbe act must be, to be confined to persons interested in tbe manner mentioned in tbe 1st section of tbe act, their rights are express! y preserved by said section 32. Sucb we think is tbe plainly expressed intention of tbe legislature.

The stipulation referred to in the opinion of the court, having been written underneath the defendant’s bond, and signed by the parties, extending the time for the delivery of the award, was as follows: “ The time for the delivery of the award referred to in the foregoing'undertaking, is hereby, by mutual consent of the respective, parties thereto, extended,” &c. The other facts are stated in the opinion.

Tbe plaintiff brought this action as sheriff, to recover the sum of $325, for which the defendant had ’been garnisheed as a debtor of one Rider, the complaint alleging that the defendant, after the service of garnishee process, paid over amount of said indebtedness to Rider, the attachment defendant.

The plaintiffs in this action were Patricio Duress and Bridget Duress. The case is stated in the opinion of the court. Yerdict and judgment in the circuit court for the plaintiffs. Where property is claimed by a married woman, she must show that she owned it at the time of her marriage, or acquired it afterwards by gift, bequest or purchase.

Action to recover for work done and materials furnished by the plaintiff in repairing a dam and raceway. Held: upon these facts, that the covenant for repairs by the grantees of Smith & Walker, ran with the land, and was binding upon the defendants; that there was an implied promise on the part of the defendants to pay the plaintiff their portion of the expense of repairs made by him, when ascertained according to the rule provided in the…

Judgments were entered by tbe clerk of tbe Dane circuit court, on tbe 17th of January, 1856, in favor of Fairchild . against Dean, upon notes and warrants of attorney, and were recorded in tbe usual form and docketed, but were not signed by tbe judge or a court commissioner. Declarations on tbe notes bad been filed, and also tbe warrants of attorney, and tbe defendant’s cognovit for tbe amount of each of tbe judgments.

Action to foreclose a mortgage on lot 7, block 69, in Milwaukee, executed by the appellant, Southwell, to one Cooper, and assigned by bim to tbe plaintiff. Tbe complaint was in tbe usual form, and alleged, inter alia, that tbe mortgagor agreed by tbe terms of tbe mortgage to pay tbe taxes on said lot, and had failed to pay them.

The case stated in the complaint was this: On the 22d of June, 1859, Converse & Wheelock, who were partners, and holders of fourteen notes amounting in all to about $,125.00, each of which was payable to them, or “ order,” or “ bearer,” assigned them, for value received, to Green & Healy, by an instrument in these words : “For value received of Green & Healy, we hereby assign, sell and set over all the accounts and notes belonging to the firm of Converse & Wheelock, and…

Replevin for lumber, commenced in the Wood circuit court, aQ(j remove¿ for ^al to circuit court for Columbia coun-The bond referred to in the opinion of the court, was a penal bond, the condition of which, after reciting that Beclmith had agreed to sell and convey certain lands to one Palfrey, for which Palfrey was to pay in lumber at the saw mill on the premises, part at the execution of the bond, and the residue in equal annual instalments, and also to pay the taxes on the…

<p>APPEAL from tbe Circuit Court for Milwaukee County.</p> <p>The case is stated in the syllabus and the opinion.</p>

<p>A tax deed conveys as good a title as any other conveyance, if the statute under which it was executed was in all respects complied with.</p> <p>Where tax deeds are admitted in evidence against the objection of a party, but the deeds themselves are not set out in a bill of exceptions, this court will presume that they were good in form and substance.</p>

<p>Chap. 80, General Laws of 1858, authorizing the issue of injunctions to restrain rail road companies, in certain cases, from using lands appropriated by them for the use of their roads, until they shall make compensation therefor to the owners, applies only to cases where the rail road company has appropriated the land without the consent of the owner, by right of eminent domain; and not to cases where the owner has voluntarily conveyed the right of way to a company upon a promise to pay for it, which has not been fufilled.</p>

<p>An appeal from a justice of the peace should not be dismissed, nor the case stricken from the calendar, because the return does not contain the testimoj ny given, or is otherwise defective.</p> <p>The remedy in such case is by application to the court to direct a further or amended return.</p> <p>It might constitute good ground for a continuance, that a sufficient return could not be procured before the trial.</p> <p>An appeal from a justice of the peace should not be dismissed because the return was made witlvm ten days after the appeal was taken. The statute is directory, and the return is good if made before the ten or after the thirty days, the parties themselves being in no fault.</p> <p>Notice of trial of an appeal from a justice of the peace, given before the return of the justice has been made, is premature, and the case should be stricken from the calendar, on motion. Sec. 216. chap. 120, R. S.</p> <p>An intermediate order of the court below, upon a motion to dismiss and strike a case from the calendar, is properly before this court for review, where exception was taken, and the motion and order regularly incorporated in the bill.</p> <p>In an action for conversion, a finding by the judge “ that the defendants converted the property ” (without stating what property, to whom it belonged or its value), and his conclusion “that a judgment be entered for plaintiff for $18.50 damages, and costs,” are defective and insufficient.</p> <p>A very general finding may do, if it states the facts with such fullness and accuracy that this court can see that the judgment is supported by them, and it may be sufficient, perhaps, if it refers to the complaint or other pleading containing a complete statement of the facts found.</p>

This was an'action by the mortgagee of'a stock of goods, against a deputy marshal of the United States, who had seized and taken away a portion of the goods -under an attachment sued out by a creditor of the mortgagor.

This was au actiou by Peter J. Martin and Barbara, bis wife, against Barnes, for an assault and battery upon tbe wife. Tbe answer was, 1. A general denial. 2. just before tbe time when, &c., said Barbara assaulted tbe defendant with a knife, and would have wounded him therewith, if be bad not immediately defended himself, wherefore be did defend himself, unavoidably bruising her a little, but doing her no unnecessary injury. 3.

One Hale obtained in the Dane circuit court, a judgment of foreclosure and sale upon a mortgage made by one Massing to secure anote executed by him to Parish, and indorsed by Parish to a third person, under whom Hale claimed. The judgment directed payment by Massing and Parish of any deficiency; and by a subsequent order of said court, execution was issued against them for a deficiency, upon which certain land of Parish, in Crawford county, was levied upon and sold.

The resolutions were as follows: 1. “ That the special taxes levied for the year 1855 for the construction of a slip or ship canal in the fifth ward, be and they hereby are remitted on all lots on which said taxes have not yet been paid, and on which the city is the holder of the tax certificates.” 2. “ That the city treasurer is hereby directed to furnish the city clerk with a list of all lots on which the special taxes for said ship canal have been paid, and that the mayor…

Action against the defendant Jones as the indorser of a note made by his co-defendant Roberts. The answer denied notice* of non-payment. On the trial, the plaintiffs introduced . the notary’s certificate of protest of the note, in which it was certified that on the day the note fell due and was protested for non-payment, notice of the protest was delivered to Jones by the notary in person.

The plaintiff sued for dower, as the widow of E. B. Thrasher, deceased. The defendants were John Stanley and Mary Tyach and Joseph H. Tyach. The case is stated sufficiently in the opinion of the court.

<p>Equity will not interfere to compel the affixing of a seal to a volwntarn instru ment of conveyance which was invalid for want of a seal.</p>

Action to foreclose a mortgage given by Hewitt to McAl-lister and Rosier to secure four promissory notes, payable to their order and by them indorsed to the plaintiff, one for $125, and the others for $425 each, and due respectively on the 1st of October, 1857,1858,1859 and 1860.

Filen F. Juneau executed a mortgage to Hathaway upon property described as “ all her interest as one of the heirs of Solomon Juneau, deceased, in and to lots seven and eight,” ' &e. The interest ■which, she had in the lots, descended to her-as the heir of Josette Juneau and not of Solomon The present action was brought before ■ the mortgage debt was due, to reform the mortgage, by correcting the erroneous statement as to the origin of the defendant’s title, and in the…

This was an action by Felch to restrain the sale of his land under an execution issued upon a judgment recovered by one Chaffee against Felch and the defendant Bichard Lee, of which the other defendant, Thomas Lee, claimed tobe the owner by assignment.

This was an appeal from an order made by the court low, denying the application of the appellants for an order to set aside and dismiss a writ of attachment for irregularity.

EBEOR to tbe Circuit Court for Winnebago County. Buggies, as surviving partner &c., sued out a summons against the plaintiffs in error, in April, 1852, for breach of covenant, damages $800. He also filed a petition claiming a lien for that sum upon tbe saw-mill of tbe plaintiffs in error. On tbe 12tb of April, 1854, a declaration was filed in tbe action of covenant, and on tbe same day a default was entered, and an interlocutory judgment.

Eeplevin against a sheriff and his deputy, for several of wheat and oats, alleged to have been wrongfully taken and unlawfully detained Answer, a general denial; and property in the sheriff. The coroner replevied the property, and delivered it to the plaintiff.

The complaint in this case stated that in August, 1857, the plaintiffs were the owners of a certain safe with a combination lock and key thereto, and lent the safe, with its “ lock, combination and key,” to the defendant; that the safe then was and ever since has been in a warehouse in the possession of the defendant; that the defendant continued in possession of the same until January 1st, 1859 ; that in October, 1858, the plaintiffs demanded of the defendant said safe,…

This was an action before a justice of tbe peace, to recover tbe price of a map of Dodge county prepared and published by tbe plaintiffs; one copy of which tbe complaint alleges that tlie defendant subscribed for, but refused to receive.

County. Tbe State Bank of Illinois moved tbe circuit court, at tbe October term, 1858, to set aside certain sales of real estate made to Gorwith, upon executions issued on a judgment in that court in bis favor against tbe Bank, upon tbe ground that tbe judgment bad, after tbe sales were made, been reversed by tbe supreme court; and upon tbe ground also, that tbe executions upon which tbe sales were made, were without tbe seal of tbe court, and were therefore void.

This was an action to recover the possession of certain logs which the plaintiff, as sheriff of Juneau county, had levied upon under an attachment against Douglass and Bacon, and which had been taken from his possession by tbe defendant, Williams.

Eeplevin for lumber. Answer, that the defendant took and held the lumber, as sheriff of Winnebago county, by virtue of certain writs of attachment, &c. On the trial, the court found the following facts : On the 21st of December, 1859, the plaintiff, Paine, and one Millard, entered into a written agreement as follows: Millard agreed to sell Paine 600,000 feet of pine lumber in the log, and to deliver the same at the plaintiff’s saw mill in the city of Oshkosh, on or before…

The facts iu this case are stated iu the opinon of the court. The'clause in the amended complaint wbicb the circuit judge regarded as fatal to a recovery upon, the guaranty, was as follows: r to the point that the certificate, being payable in currency, was not negotiable, cited 3 Humph., 171; 6 id., 803; 11 Vt, 168; 3 McLean, 106; 14 Pet., 298; 28 Penn. St., 452.

Action upon a contract by which the plaintiff and one Lyon agreed with the “ supervisors of the town of Erank-lin,” to fill up and grade a ravine, according to certain specifications, for which the latter agreed to pay a certain sum when the work on said grade should be begun, and a certain other sum when the work should “ be completed and accepted by the supervisors aforesaid.” The complaint alleged that the plaintiff and Lyon had performed the work according to the terms…

This was an action to foreclose a mortgage given by one Parker to the State of Wisconsin, June 5, 1849, upon lot 6 in block 15, in the city of Racine.

This was an action for wrongfully refusing to furnish gas to light the plaintiff’s store, upon a proper demand and offer to pay for it. The case was once before in this court, and the substance of the complaint and answer is stated in 11 Wis., 234.

This was an action by tbe assignee of Liana Taylor, against tbe defendants personally, as tbe makers of a note of which the following is a copy: “ $1545. Milwaukee, April 1st, 1858. Held: only a majority of a bare quorum may bind tbe corporation by their separate and individual action. Tbe charge of tbe judge was correct upon tbat point.

EKEOE to tbe Circuit Court for Racine County. The complaint in this case, wbicb was filed in September, 1860, stated, that on the 13th of March, 1856, one McClurg and the defendant, Van Pelt, entered into an agreement under their seals, by which, after reciting that McClurg had purchased of one Sage certain lots in the city of Eacine, and had taken a deed therefor from him for the equal benefit of said McClurg and Van Pelt, each owning one undivided half thereof, the said…

Purbin brought an action against Samuel Dale, David H. Waldo and Otis H. Waldo, to foreclose a mortgage, and served the summons and complaint upon them on the 23d of July, 1859.

This was an action against Alexander Mitchell, Charles But-hr and Alexander Spaulding, to recover for professional services, which, were shown, by a schedule attached to the com- . plaint, to have been, rendered in suits brought in the name of the defendants “as Trustees of the Eox and Wisconsin Improvement Company.” The summons was served on Mr. Mitchell April 9th, 1861 ; on Charles Butler on the 15th, and on Mr. Spaulding the 16th of the same month.

The board of supervisors of Portage county paid $840 upon an account presented by the sheriff of that county for boarding &c., furnished to prisoners delivered to him upon process from judicial officers in Wawpaca county, in which there was, at the time, no jail; and presented their account for the same to the board of supervisors of Waupaca county, who allowed upon it only $387.79.

APPEALS from tbe Circuit Courts for Milwaukee and Dane Counties. These actions were commenced in the county court for Milwaukee county, to charge Mrs. Lee's separate property with the payment of debts incurred by her in separate trade, and to reach the capital invested in the business.

Mrs. Lee sued Dunlop for forcibly entering her store, ejecting her from it and taking possession of the goods. The answer was, 1st. A general denial. 2d. That the defendant was, on &c., an under-sheriff of Milwaukee county, on which day there was delivered to him, as such officer, an order in writing under the seal of the Dane circuit court, of which the following is a copy: “ Circuit Court, Dane County. JRobert J. Faries vs. Lydia A. Lee and her husband, Francis 0.

Abraham Nelson applied to the county court for probate of a nuncupative will, alleged to Rave been made by Lars Nelson. The petition showed that Neil Glongland was the father and heir at law of the deceased. On the hearing, the probate was denied.

This actiou was brought, in January, 1860, against Bradley & Campbell, as partners; and the complaint alleged that the defendants were indebted to the plaintiffs for railway ties “ bought by them in the year 1857, from Winslow & Harvey,” the contract price being $1512.05, of which the defendants, in August, 1857, paid the vendors $850, leaving a balance of $662.05, due and unpaid, which had been, assigned to the plaintiff In March, 1861, the defendants filed a joint answer,…

from the Circuit Court for 'Walworth County. This was an action to foreclose a mortgage upon 160 acres 0f iaQ¿) given in February, 1853, by Gilbert I. Vanderhoof to one Rood, and by him assigned to the plaintiff, Henry Frey.

Alcerly brought an action in tbe Dane circuit court in September, 1860, against L. B. Vilas and wife, to foreclose a mortgage given by them in September, 1855, to said Aherly and Louisa S. Lord, to… Held: that where the court has tained jurisdiction of the parties and subject matter, an injunction may issue without bill filed. And in the following cases, cited supra, the plaintiff was enjoined from suing in another court, simply on motion or suggestion of the defendant.

Knox, as administrator of one Phalen, sued the defendants, Bigelow, Freeman and Munyan, for unlawfully taking a stock of boots &c., of which Phalen was possessed, as of his own property, at the time of his death. Phalen died on the 22d of November, 1860, and administration was granted to the plaintiff, February 18th, 1861.

The decision of this court upon a former trial of this cause may be found in 11 Wis. Rep., p. 207.

EBBOB to the Circuit Court for La Fayette County. The defendant in error,' Jane Tolly, brought her action in the circuit court to recover possession of “ one jackass, jennet or hinny, and one jack colt,” which were alleged to be of the aggregate value of $800, and to have been wrongfully taken from the plaintiff’s possession by Derrich, one of the defendants below, and unjustly detained by him and by Rose, the other defendant.

<p>Under the Revised Statutes of 185S, a party who has suffered judgment by default before a justice of the peace, has the right of appeal. Forbes m. Turner, 14 Wis., 622, followed.</p>

This was an action to recover real estate, on the trial of which the plaintiff offered to read in support of his title a tax deed executed on the 22d of May, 1858, by the clerk of the board of supervisors of Waukesha county, which was as follows: “ To all to whom these presents shall come, greeting. — Whereas, Gordon C. Cone has deposited in the office of the clerk of the board of supervisors of the county of Wau-kesha, eight certificates of the treasurer of said county,…

iphis was an action to restrain the defendants from selling, on executions in favor of the Second Ward Bank, a certain lot in the city of Milwaukee, which the plaintiff claimed as his homestead. The facts are sufficiently stated in the opin-court circuit judge held that the lot was not exempt as a homestead, and dismissed the complaint.

This action was brought to restrain the issuing of tax deeds for certain property of the plaintiff m the city of Milwaukee, which had been sold for taxes for the years 1857, 1858 and 1859. The first count in the complaint referred solely to the taxes for the year 1857, and from the decision of the circuit court in regard to that count no appeal was taken.

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

<p>The court will not award the writ of habeas ca>'¡yu8, if, upon the facts disclosed in the petition, it is of opinion that it could not discharge the prisoner from custody.</p> <p>Under sec. 2 of the act of Congress, approved Feb. 13, 1862 (construed in connection with the acts of Sept. 28, 1850, Dec. 10, 1814 and Jan. 20,1813), a minor over 18 years of age may make a valid contract of enlistment in the military service of the United States, without the consent of his parent or guardian.</p>

This was an action to foreclose a mortgage of real estate. Judgment was entered June 12,1860, for want of an answer Tbe judgment directed that “if the proceeds of such sale [of the mortgaged premises] be insufficient to pay the amount so reported [by tbe referee] as due to -the plaintiff, with interest and costs as aforesaid, the said sheriff shall specify tbe amount of such deficiency in his report of sale, and that the defendant Anson Mdred pay tbe same, and that tbe said…

This was an action upon a contract, entered into between the plaintiff and the territory of Wisconsin. The complaint counted upon the contract as an unsealed instrument. A motion was now made for leave to amend the complaint by stating that the instrument was under the seal of the territory.

The complaint stated that on the 1st day of July, 1859, at, &c., the defendant, by the president and secretary of its board of school commissioners, made its order in writing of that date, requiring the treasurer of said city to pay to one Pomeroy or bearer, $88.88, with interest at the rate of ten per cent, from the date thereof, out of any money belonging to the school fund, the same having that day been allowed for salary as a teacher, and delivered the order to said…

This was an action to recover the value of services rendered by the plaintiff as an attorney at law, at the request of the city of Milwaukee, in the prosecution of divers criminal proceedings against one Lynch and others who had lately been officers of the city, for divers misconducts in office; and for services rendered by the plaintiff, upon like request, to a committee appointed by the common council of the city to investigate its affairs in connection with the acts of…

This action was brought in the circuit court for Rock county, by Meade, who was a citizen of the state of New York, as trustee of the separate estate of Ann M. C. Smith, a married woman residing in this state, against Walker, who was a citizen of the state of Illinois.

Carney brought an action against the La Crosse fy Milwau-Icee Railroad Company, to enforce a lien for the value of materials furnished by him to Hill & Rudd, who had made a contract with the railroad company to erect for it certain buildings. The railroad company filed a general denial of the complaint.

<p>APPEAL from the Circuit Court for Jefferson County.</p> <p>Motion' to strike the bill of exceptions out of the record.</p>

On the 27 th of August, 1852, the county court of Dane county made an order -which, recited that an instrument in writing purporting to be the last will of Edward Eisher, deceased, had been presented for probate on behalf of William Fisher, one of the executors named in said instrument, and that it appeared that there would be necessary delay in proving said instrument and granting letters testamentary thereon ; and thereupon appointed L. J. Farwell administrator to collect…

Action by Thomas Hitchcock to foreclose a mortgage made by Merrick to William E. Hitchcock. Tbe complaint described tbe bond secured by tbe mortgage, as being for $11,-359.60, and stated that tbe sum due thereon was three thousand three hundred and fifty nine 60-100 dollars, with interest, &c. It also stated that tbe bond and mortgage bad been “legally assigned” to tbe plaintiff, and that be was their lawful owner and bolder.

<p>where the jury, by consent of parties, found a general verdict for the plaintiff, upon which judgment was to be entered for him if the court should think that the verdict ought to stand, but otherwise the verdict was to be set aside and judgment entered for the defendant — and the court gave judgment for the defendant: Held, that a general exception to the order for judgment was not sufficient to bring up specific questions of law or fact.</p> <p>After a judgment of affirmance in such a case, arehearing was granted, with'leave to the appellant to make application in the court below for such an amendment of the record as would show the facts.</p> <p>Where a special verdict has been found, or a case made stating thn facts upon which the questions of law arose (and notj merely the evidence of the facts), it seam that a general exception to an order for judgment upon those facts will bring up for review the legal questions arising upon them.</p>

Ejectment for a tract of land in Grant county, commenced in August, 1859, by Charles F. Legate, and tbe widow and beirs of Tbomas J. Parish, deceased. In February, 1838, Legate and Parish became owners of tbe land as tenants in common.

Foreclosure of a mortgage of real estate. Among the parties made defendants as having an interest subsequent to the lien of the mortgage, was “ Alexander W. Randall, Governor of the State of Wisconsin,” who demurred, on the grounds that the complaint did not state facts sufficient to constitute a cause of action against him as governor of said state; that the court had not jurisdiction of him as such governor; and that the court had not “jurisdiction of an action against the…

This was an action on a joint and several note made by the four defendants and two other persons. Demurrer to the complaint on the ground,, among other things, that the other two makers of the note were not made defendants.

<p>Where the defendant in a justice’s court went to trial without security for costs haying been required from the plaintiff, he must be deemed to have waived it.</p> <p>It is error for the circuit court in such case to dismiss an appeal by the plain-</p> <p>tiff from the judgment of tbe justice, because security for costs bad not been filed in the justice’s court.</p> <p>Where tbe record shows that a cause wns dismissed for want of jurisdiction, and shows also that the court had jurisdiction, it is not necessary that there should have been a bill of exceptions to enable this court to review and correct the error.</p>

This was an action to restrain tbe defendants from selling certain land of tbe plaintiff upon execution. Judgment for tbe plaintiff. Tbe question at issue is sufficiently stated by tbe court.

Action on a promissory note. Defense, that the note was 'given for a mare sold by the plaintiff to the defendant, which was warranted to be sound, kind and true, gentle in harness; and fitted to be used either single or in a team with another horse; and that there was a breach of the warranty. Yerdict and judgment for the plaintiff. The nature of the exceptions taken will appear from the opinion of the court.

Ejectment. Yerdict and judgment for plaintiffs. On tbe tbe 6tb of April, 1860, they were put iu possession by tbe sheriff. The next day, on tbe application of tbe defendants, tbe court made an order for a new trial. On tbe 19th of October, 1861, tbe plaintiffs and tbe attorney for tbe defendant signed a stipulation, which was filed and entered by tbe clerk in tbe rule book on tbe same day, stating that tbe case was dismissed and tbe costs paid.

Tbe case presented by tbe complaint was tbis: In May, 1856, Ludington represented to tbe La Grosse & Milwaukee Railroad Company by affidavit that be had lost sundry certificates of its stock, and among them one for ten shares, numbered either 285, 295 or 317, be could not say which.

Frances H. Bosseel brought this action against Mary Jarvis, sen., and Mary Jarvis, jun., to foreclose a mortgage given to her by them to secure their bond for the purchase money of a tract of land conveyed by her to them simultaneously with the execution of the mortgage. William, B. Jarvis was also made a defendant, under an allegation that he claimed some interest in the mortgaged premises, which accrued subsequently to the execution of the plaintiff’s mortgage.

<p>APPEAL from the Circuit court for Walworth County.</p> <p>The case is stated by the court.</p>

<p>A bill of exceptions was duly settled and signed by the judge, both parties appearing. Afterwards the appellant’s counsel persuaded the judge to sign another bill of exceptions. It appeared that no notice was given of the settlement of the second bill; and the court refused to consider it as part of the record. <</p> <p>A motion to dismiss the appeal for the reason that the matters contained in the first bill of exceptions were blended in the printed case with matters which belonged only to the second bill, was denied, on the ground that it was possible to distinguish the two bills as printed.</p> <p>¡This court will not review the finding of facts by the court below, even though the evidence brought up does not sustain it, if it appears that a part of the evidence is not contained in the bill of exceptions. The presumption would be that the evidence omitted was such as to support the finding.</p> <p>¡Under the Code, the rule upon this point is the same in law and equity cases.</p> <p>A judgment will not be reversed on the ground that evidence was improperly admitted, if the record does not disclose any objection or exception to its .admission.</p>

<p>Under section 29, chapter 140, B. S. 1858, a court commissioner could, by order, stay proceedings after judgment in a foreclosure suit, the trial having been by the court alone, so that, technically speaking, there had been no verdict.</p>

Action to foreclose a mortgage of real estate executed by the defendant Brown, June 10th, 1856, to secure a certain note. The mortgage was of an undivided half of a certain tract of land, and was recorded on the day of its execution.

<p>ERROR to the Circuit Court for Kenosha County.</p> <p>The case is stated by the court. Judgment was rendered in the circuit court for the plaintiff.</p>

<p>TTnder section 15, chapter 122, R, S. of 1858, the husband must be joined as a defendant with his wife, although the action concerns her separate property alone.</p>

A statement of the facts in these cases, with the decision of this court upon the merits, will be found in 14 Wisconsin Rep., p. 157. The question upon which they were again brought up, will sufficiently appear from the opinion of the court. to the point that the purchaser should pay interest on the balance of his bid remaining unpaid, from the date of the tender of the deed, cited Van Bensselaer v. Jewett, 2 Comst., 135; Stevenson v. Maxwell, 2 Sandf. Ch. R, 273.

This action was brought before a justice of tbe peace to recover for several items of indebtedness, of which tbe following was tbe last set forth in the bill of particulars: “ April, 1860. Paid John Walker, $400. ” The evidence given as to this item on the trial, is stated in the opinion of the court. Judgment for the plaintiff for damages and costs, in-eluding in the latter the fees of the defendants’ witnesses. On appeal to the circuit court, the judgment was affirmed. 1.

This action was commenced before a justice of the peace. The complaint alleged that on &c., tbe defendant tore down and removed part of a fence dividing certain land of which the plaintiff was lessee, from the land of the defendant, in consequence of which the plaintiffs growing crop of wheat was damaged $50.

<p>The decision of this court granting the motion for a rehearing in the case of Kneeland vs. The City of Milwaukee, was not intended to overrule or in any way affect its decision in Knowlton vs. The 8u$e?'visors of Book Coimty, 9 Wis., 410.</p>

Replevin, commenced in February, 1862. The answer justified the taking of the property by virtue of a chattel mortgage, which was given by the plaintiff with the intention to secure his note for $660.11, dated March 15th, 1859, payable thirty days after date; but set out in hceo verba the mortgage, which describes the note secured by it as being for $530, dated November 16, 1858, and payable in one year after date; and alleged that the misdescription of said note in the…

<p>An appeal from a judgment in an action for partition, was dismissed because no printed “ case;” nor any brief on either side, had been filed.</p>

This was an action to foreclose a mortgage given by tbe Racine & Mississippi Railroad Company to Jesup and Raymond to secure certain bonds. Tbe Oity Banlc, of Racine and others were made defendants as judgment creditors of tbe railroad company subsequent to tbe mortgage. On tbe 17tb of July, 1860, judgment of foreclosure and sale was rendered for $870,644.85, being the whole amount of tbe bonds so secured, with interest.

This was an action commenced in November, 1861, by the holder of a tax deed executed October 5, 1861, and recorded on the 16th of the same month, conveying land sold in September, 1858, for delinquent taxes of 1857.

This was au actiou brought by Downer against Andrew Q. Miller, The Wisconsin Marine and Fire Insurance. Company Banhaná. Mitchell Steever, for au injunction and relief.

This was an action for the recovery of money paid by the plaintiff to the use of the defendant, at his request Answer, a general denial.

This was an action to recover an amount claimed to be due tbe plaintiffs from the defendant on an insurance policy, and was commenced before a justice of the peace in Eacine county, by the service of a summons upon one Wright, agent of the Insurance Company in the city of Eacine.

This action was commenced by tbe assignee of a mortgage, to restrain tbe 'mortgagor from cutting down and removing tbe timber growing on tbe mortgaged premises.

<p>On an appeal from a judgment of foreclosure this court will not review an order in the cause made prior to the judgment, denying a motion to bring in anew party defendant, unless the order was excepted to, and a bill of exceptions settled, under sec. 12, chap. 264, Gen. Laws of 1860.</p> <p>An appeal might have been taken from the order without any exception, under secs. 5 and 8 of the same chapter.</p>

The complaint in this action alleged in substance the following facts: On the 2d of February, 1850, the plaintiff was indebted to the defendant Mitchell (then and since a banker in Milwaukee), in… Held: large sums of money, amounting to upwards of $50,000, over and above all indebtedness of tbe plaintiff to bim, and also held a portion of said real estate which he ought to reconvey to tbe plaintiff, but that be bad refused, on tbe plaintiff's demand, to account for tbe same.

Action to compel tbe defendants to convey a bouse and lot to tbe plaintiff in pursuance of a parol agreement. Tbe cause was referred to a referee for bearing and determination.

Tbis action was commenced October 3d, 1860, to foreclose a mortgage dated March 8, 1854, given by Charles Harrison to secure a joint and several promissory note of the same date, executed by him and Caleb Harrison, payable six months from date, to the order of James Doyle.

Action to recover $100 wbicb tbe plaintiff claimed to have paid tbe defendant under a mistake of fact. Tbe plaintiff bad contracted with tbe defendant for a tract of land, and bad, at different times during four years, made payments thereon.

Hannah M. King appealed to tbe circuit court for Bock county from an order of tbe county court adjusting, on a partial settlement, tbe accounts of Whiton and Lawrence, as executors of tbe will of Cbancy P. King. Tbe matter of appeal was beard before referees.

<p>APPEAL from tbe Circuit Court for Bock County.</p> <p>Tbe case is stated by tbe court.</p>

<p>The facts in this case, 'and the opinions filed upon the original hearing, and also those filed upon granting a motion for a rehearing, will be found ante, pp. 454-474. After the cause had been re-argued, the court affirmed the decision of the court below, and the following opinion was filed:</p>