Volume 16 — Wisconsin Reports

This was an action to restiain the treasurer of Dane county from selling certain real estate of tbe plaintiff, in the city of Madison, for tbe taxes for tbe year 1857. The objections made by tbe plaintiff to tbe validity of the taxes were; 1.

Action against a railroad company for a trespass in constructing its railway on a certain piece of land, alleged to belong to the plaintiff: The premises were a triangular piece of ground in the N. E. fractional quarter of S. 11, T. 6 N., R. 14 E., situate in the village oí' Jefferson, between the east line of Water street, the west line of block six, and the south line of the same block prolonged westward to Water street.

Action on a promissory note for $731.59, made by the defendant March 21, 1860, payable to bis own order, and indorsed by him to the plaintiff. The defense was usury.

This action was commenced in January, 1861, to foreclose a mortgage executed about the 1st of February, 1860, by George Jarvis and Sarah, bis wife, to one Findlay, to secure three notes for the purchase money of the mortgaged premises, the first payable December 10, 1860, and the others one and two years respectively from that date.

In May, 1859, the Racine & Mississippi Railroad Company, by deed, surrendered possession of its road with fixtures, equipments, rolling stock, franchises, &c., to the Farmers’ Loan & Trust Company, in trust for certain purposes, in accordance with the terms of certain mortgages upon the road held by the Trust Company to secure the payment of moneys due and unpaid.

This was an action upon the defendant’s acceptance of an order drawn by A. Hyatt Smith for $241.55, to be paid by the defendant out of moneys which should become due from him to said Smith as the rent of certain premises.

Whiton applied to the Board of Supervisors of Rock County to liave a certain certificate of sale of lands for delinquent taxes of 1853, alleged to have been purchased by him, cancelled as being… Held: that such purchase of the certificate was in effect, a payment by Walker of the tax for which the land had been sold, and that neither he nor his assignee could recover from the county the money paid.

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

Action against the defendant as indorser of a note. The sheriff’s return indorsed upon the summons and complaint, certified that he served the same upon the defendant on the 28th of December, 1861, “by delivering to and leaving a true copy thereof with Henry S. Durand, the president of said bank. ’ ’ Judgment was taken against the defendant, by default, on the 4th of February, 1862 ; and in April following, the defendant moved the court to set the judgment aside, upon…

The complaint charges, in substance, that on the 3d day of August, 1857, the defendant commenced an action in the district court of the United States for the district… Held: as against the other, and the respondent left to his quantum mer-uit for all his services. Whatever may be the view of the court now, of the technical existence of the old doctrine of champerty, it has utterly lost all taint of immorality, and the maxim ex dolo malo, non oritur actio has no application.

<p>The finding of the circuit court upon a question of fact will not be disturbed, where it is difficult to say on which side the evidence preponderates, and the circuit court had the advantage of seeing the witnesses on the stand and hearing them testify.</p>

<p>Section 1, chapter Z53, R. S., of the lien of mechanics and others, does not give a lien to a party who furnishes materials for a building, to a sub-contractor under the principal contractor with the owner.</p> <p>2. The provisions of chapter 153 R. B., do not extend the privilege of a lien, to every person who furnishes material, used in the construction or repairing of a building, and however remote from the first contractor; but the limit is with the-sub-contractor, and the person employed by, or material man of th® original contractor.</p>

On the 28th day-of December, 1861, Alexander Fleming filed in the office of the clerk of the circuit court for the county of Milwaukee his petition, duly verified, praying that a meeting of the stockholders of the Milwaukee and Minnesota railroad company, for the election of directors of said company, might be ordered according to law, for the neglect of the directors of said company to call and hold such meeting for the space of two years in succession; which petition sets…

Thomas M. Knox, administrator with the will annexed of the estate of John Phelan deceased, filed a petition in the county court for Milwaukee co.unty, for license to sell the south one-third of Lot 11 in Block 27 in the city of Milwaukee with the appurtenances to pay the debts of the deceased, unless the family of the deceased were entitled to the same as a homestead ; alleging in the petition that about the year 1854 and for a long time previous thereto, the deceased…

Action commenced in justices court for the recovery of a span of horses, unjustly taken and detained by the defendant, of the value of $100.

The respondents, McBain and Foster, brought an action against the appellant in justice's court to recover for a pump sold and delivered to him, for $14. Defence: general denial and payment.

<p>APPEAL from the Circuit Court for Ozaulcee county. The facts material to the decision of the court appear in its opinion.</p>

The complaint in this action alleged in substance that one of the defendants, Robert Thompson, was furnished by the plaintiff with the sum of $100, to purchase for him a tract of land to be selected by said Robert, and that said defendant purchased two forty acre lots of land in the town of Emmett, in Dodge county, with his own money, and eighty acres of land in the same town adjacent thereto with the money of the plaintiff, but took the title to the last mentioned eighty…

The affidavit 'upon which the garnishee proceeding was founded was mlade by the plaintiff and entitled in the original action, and stated that an attachment had been issued therein against the property of French, and further, “ that the plaintiff verily believes that Ira Cole, John A. Sumner and Eli Butler, co-partners doing business at La Crosse, Wisconsin, have property credits or effects in their hands or possession belonging to said defendant Joseph French, or are…

<p>Where in answer to an action on the covenant of seizin, the defendant alleges, that at the time of the conveyance, ho was wel! seized, &e., the burden of proof is on the defendant who has the affirmative of the issue, and the plaintiff is not bound, in order to make out his ease, to prove that the defendant has not kept his covenant.</p>

Action commenced in justices court for the recovery of $15, paid and advanced by the plaintiff to the defendant. The defendant put in a general denial, and alleged that on the 16tb day of November, 1854 the defendant and Andrew J. Damp recovered a judgment against the plaintiff before Geo.

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

Tbe defendants demurred to tbe plaintiff’s complaint, for tbat tbe plaintiff bad not legal capacity to sue, and tbat tbe complaint did not state facts sufficient to constitute a cause of action. Tbe material allegations of tbe complaint are stated in tbe opinion of tbe court.

This action was instituted to set aside a sheriff’s sale of certain portioDS of a village lot, situated in Sparta, Monroe county, owned by tbe plaintiff, and claimed by him as exempt from forced sale on execution; and to prevent the execution of a sheriff’s deed in pursuance of such sale.

The action was brought to foreclose a mortgage executed by tbe defendant Platto, who conveyed the mortgaged premises to the defendant Isham, and he was for that reason made a party defendant to the action. The defendant Isham demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause for action. The county court overruled the demurrer and the defendant Isham appealed.

This action was brought against the Marine Bank of Milwaukee as maker, and Hoover & Medbury as indorsers of two notes, one of $5,000 and the other of $4,000, to recover the amount thereof with interest. The notes were made on the 16th day of October and the 80th day of November, 1858, respectively, and signed by the cashier of the Marine Bank, and made payable to Hoover & Medbury who endorsed the same to the plaintiff.

The complaint in this action sets forth in substance that on the 19th day of February 1858, the defendants executed and delivered to the plaintiff their certain bond or writing obligatory, reciting that the defendant, Helfenstein, was the agent of the Atlantic Fire Insurance company, of Brooklyn, N. Y., and of the Commercial Insurance company, of New York, for the city of Milwaukee, and that by an act entitled “ an act in relation to insurance on property, in this state,…

The defendant demurred to the plaintiff’s complaint, on the ground that it did not state facts sufficient to constitute a cause of action. The circuit court over-ruled the demurrer and the defendant appealed to this court. The facts set out in the complaint are stated in the opinion of the court, so far as they relate to the point decided.

The case is fully stated iu the opinion of the court. contended that the decision of the court below, could not be reviewed as no bill of exceptions had been settled. Williams vs. Provost, 7 Wis., 1(58 ; Kavenaugh vs. Titus, 5 Wis., 143 ; Weeks vs. School District, 8 Wis., 166. The bond for appeal is not such as required by sec. 17, chap. 151, R. S., for the reason that it limited the amount which the plaintiff could collect for costs, rent and damages to the sum of $75.

This was an action in the nature of a quo warranto, to determine the right to the office of county superintendent of school's of one of the senate districts of Dodge county; The relator Phelps claimed in his complaint to have been elected to the office in question for the 18th senate district at an election held in November 1861, and that previous to such election it was given out and understood that he would be a candidate for that office in such district, and that the…

The complaint in this action alleged in substance that the plaintiff was the owner in fee of certain lands in Fond du Lac county (describing them) on the 18th day of January, 1854, and that he was still the owner thereof, and that said lands are situated near to Rock river and above the mill dam of the defendant ; that the defendant is a corporation created by an act of the legislature of Wisconsin, approved March 15,1854, entitled “ an act to incorporate the Horicon Iron…

<p>Where an order has been made overruling a demurrer to a complaint and granting the defendant leave to answer it within a specified time, and he fails to answer within such time, but after its expiration, obtains and serves an order staying all further proceedings in the action pending an appeal from the order overruling the demurrer; it is irregular for the plaintiff to enter judgment for want of an answer while such order staying proceedings is in force, though he might properly have done so before it was granted and served.</p>

This was an action for the recovery of the south half of a lot of laud containing one hundred acres situated in Dodge county; the complaint alleges that the plaintiff has an estate in said lands, particularly stating its nature and extent and that he is entitled to the possession thereof and that the defendant unlawfully withholds possession thereof from him to his damage, &c. The action came on to be tried before the court and a jury, when the defendant objected to any…

The case is sufficiently stated in the opinion of the court. argued that it was not necessary for the appellants to have reduced their claims to judgment, before equity would interfere to restrain the disposition of property fraudulently transferred, in the hands of the fraudulent vendee ; and cited Story Eq., § 88, 184, Chesterfield vs. Jaunsen,2 Yes., 155; Drake on attach., §’ 453 ; Brasher vs. West, 7 Pet., 608; Briggs vs. Kovns, 7 Dana, 405 ; Bech vs. Burditt, 1 Paige…

Alvord brought an action against Barrett and bis sureties for a breach of his official undertaking, in not faithfully performing his duties as town clerk of the town of Westford; before a justice of the peace. The substance of the complaint is stated in the opinion of the court.

This action was commenced against J. H. Wyckoff and Mary E. Wyckoff and the appellant Maxfield, to foreclose a mortgage given to secure a promissory note which was as follows : “ $800. For value received, I promise to pay Clayton Lemans or bearer, eight hundred dollars, three years from the 15th day of April, A. D., 1857, with the interest at 12 per cent after the first day of June, A, U., 1857. This note running with mortgage of same date.

This was an action to recover damages for breaking and entering the close of the plaintiff, the north-east quarter of the south east quarter of section twenty in the town of Pewaukee, in Waukesha county, on the 19th day of July, 1860, and carrying away the spring wheat, of the plaintiff then and there standing and growing and converting the same to the use of the defendants, to his damage of $300.

Action to restrain the execution and delivery of tax deeds, on a sale of lot six in block 14.6, in the fourth ward of Milwaukee, and lot seven in block 81, in the seventh ward, for state, county, city and ward taxes, for the year 1857, and to bare the certificates of sale cancelled.

The plaintiff, on the 20 th day of September, 1860, recovered judgment against the defendant for $167.71, and on the 8th of June, 1861, execution was issued thereon, by virtue of which the sheriff levied on certain real estate belonging to the defendant and advertised tíre same for sale. The defendant moved to set aside the execution and all proceedings under it, for the reason that no execution can issue against a city, under the laws of the state.

The case is stated in the opinion of the court. 1. The judgment is bad in form, because it determines the plaintiff’s light of recovery, and limits it, as to time, to the commencement of the action, in violation of sec. 15, chap. 56, R. S., which requires the damages to be assessed up to the trial.

The plaintiff, Nathan Paine, in his complaint brought against Calvin Wilcox, Fdwin Wheeler and Cornelius Coolbaugh, alleged in substance that one Geo.

Action to recover the amount of a promissory note for $281.13, signed by the defendant Ann Parry and by the defendant Evans as security, dated July 1st, 1859, payable two years after date.

<p>ERROR to the Oirouit Court for Boc/c County.</p> <p>The facts in this ease are sufficiently stated in the opinion of the court.</p>

<p>'fhe decision in the case of BuU vs. Conroe, 13 Wis., 233, adhered to and followed in a similar case.</p>

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

Action to recover damages for trespasses committed by the defendant’s cattle and horses upon the west half of the southeast quarter of section. 18, town 3, range 12 east, in Rock county. Defense, general denial and that the cattle and horses entered from a legal highway on the west side of the said premises, and that cattle and horses were free com-' moners, by a by-law of the town; and that the land of the plaintiff was not fenced on the west side along said highway.

Action to recover for work and labor, what the plaintiff reasonably deserved. Defence, that the plaintiff made special contracts with defendant, whereby the plaintiff was to perform the said work and labor for stipulated prices, much less than it was alleged to be worth in the complaint, which contracts, it was claimed, were made with the wife of the defendant and as his agejit.

Action on a policy of insurance for $1,200, issued by .'one Hyer acting as the agent of the defendant, to Alonzo D. Seaman and by him assigned to the plaintiff after the happening of the loss in question.

The defendant having answered the complaint, at the trial objected to any testimony being given by the plaintiff, on the ground that the complaint did not state facts sufficient to constitute a cause of action, and moved the court to dismiss it. The court sustained the objection and dismissed the complaint, and judgment was rendered accordingly, from which the plaintiff appealed. 1.

Action for the foreclosure of a mortgage, dated October 8, 1859, for $400, accompanied by a promissory note for that sum, payable one year after date, with interest at twelve per cent, per annum until paid, executed by Garr to McFarland.

<p>The facts in this case are sufficiently stated in tbe opinion of the court.</p>

This was an appeal from an order of the circuit court sustaining a demurrer to the plaintiff’s complaint, and the facts necessary to a proper understanding of the opinion of the court are stated therein. cited Cui/ler vs. Trustees of Rochester, 12 Wend., 165;.C&y of St. Paul vs. Seitz, 3 Minn.,297; Gumming vs. Ihe Mayor, &c., 11 Paige, 596; Manice vs. The Mayor, 4 Seld., 120; Wetmore vs. Campbell, 2 Sanf. S. C., 341; 18 N. Y., 442; 19 N. Y., 326.

Action by Taft the vendor, against Kessel the vendee, to foreclose a written contract! for the sale and conveyance of one hundred and twenty acres of land. The contract states that Taft is the owner of the lands described therein, and that he is to convey the same to Kessel by a good and sufficient deed, free and clear from all incumbrances made or suffered, by, through or under Taft, if Kessel should pay him #450 on or before the 12th day of July, 1859,'with interest.

The complaint alleges that the defendant Single, being in' possession of the saw mills on Little Rib river, known as Single’s Mills, consisting of the water mill and double steam mill, with the appurtenances, on the 11th of November, 1856, made a'written lease of the same to Perley Dodge and Garry L. Judson., for the term of four years from the 1st day of December, 1856, and that on the 11th day of November, 1856, he delivered possession thereof to said lessees, and that…

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

Meyer brought an action against Foster to recover for work and labor; the defendant denied the complaint, and put in a set-off, and demanded a trial by jury. The jury found a verdict for the plaintiff of $12, and judgment was rendered in his favor for that sum and $17.11 costs .of suit. The defendant appealed to the circuit court.

The first two cases came up by appeal, and the last one by writ of error, from the circuit court for Dane county, and the question involved in each of them was, whether the act of May 25, 1861, Laws 1861, p. 334, exempting from civil process all persons who had or might volunteer, or enroll themselves as members of any military company mustered into the service of the United States, or of this state, during such service, was constitutional, and the cases were determined…

Court ior Jefferson County. Action brought by Garter against Dow,' Rice and Dutcher, for false imprisonment.

The defendant’s motion papers show that Cooley, Wadsworth fy Farwell, had recovered a judgment against West & Gregory, upon which there was on the 3d of Dec. 1860, due and unpaid, the sum of $463.36, and that on that daj Gregory made an agreement with the plaintiffs’ attorney by which he consented to the issuing of an execution on the judgment lor that sum, and was to pledge 600 bushels of wheat for the payment of the amount due, by the 1st of Eeb. 1862, and was to give an…

This action was brought against John A. Dutcher, Kellogg Sexton, Moses Baton, Jr., Jesse P. Palmer, Francis H. Willmms, Elisha W. Keyes„ Abel Keyes and James H. Howe, Louis P. Harvey and Samuel D. Hastings, commissioners of School and Univershy lands, to quiet 'the title to forty acres of land, and the plaintiffs complaint alleges in substance that the land was sold by the commissioners of the school and university lands on the 12th day of September, 1850, to Georye A Gary…

The plaintiff in error brought an action, in justice’s court, against the defendant in error, to recover $25, for one month’s services in teaching its school, on a contract entered… Held: and that it had not been noticed for trial at said May term, by either party, the respondent Webster moved the court to dismiss the appeal for want of prosecution, but the court denied the motion, and ordered the parties to go to trial at that term, to which ruling the respondent excepted.

The complaint of the plaintiff alleges in substance, that the defendant, on the 1st day of June, 1859, was indebted to him in the sum of $120 for money lent, and also in the further su cn of $231.13 the amount of a promissory note and interest thereon, executed by the defendant to him, the whole of which said indebtedness then amounted to $335.13, and that on that day the defendant proposed to give him a new note for the amount of such indebtedness, and to induce him to…

<p>A writ of error will not lie to a judgment which is interlocutory, as a judgment of respondeat ouster on a plea in abatement to an indictment.</p> <p>A writ of error will lie only upon a final judgment.</p>

. The plaintiff in error was indicted for murder, and pleaded in abatement of the indictment matters stated in the opinion of the court, upon which plea judgment of respondeat ouster was entered, and the plaintiff in error excepted thereto.

<p>APPLICATION for a Mandamus to compel the judge of the first circuit to sign a bill of exceptions.</p> <p>The ease is stated in the opinion of the court.</p>

MOTION -for a Peremptory Mandamus, and all the material facts on which it was founded, are stated in the opinion of the court.

ACTION against the state to recover the amount of a claim for professional services, for which the legislature had refused to make any appropriation. The facts are sufficiently stated in the opinion of the court

ACTION OF QUO WARRANTO against the Sheriff of Trempeleau County. Held: used and exercised the office of sheriff in certain towns, claimed in the complaint to belong to and form a part of Buffalo county, without any legal election, appointment or authority whatever, and that Andrew Heinrich was then sheriff of Buffalo county, and authorized to use and exercise the said office, in said towns, and prayed…

ACTION against the state to recover the amount of a claim for which the legislature had refused to make any appropriation. The facts are sufficiently stated in the opinion of the court.

The return to the writ showed. that the commissioner on the petition of Seth D. Higgins, in the usual form, alleging among other things, that his son, Parley E. Higgins, was unlawfully restrained of his liberty at Camp Randall, by Brigadier Gen. W. L. Elliot, commanding the department of the North-West, upon the pretense that he, said Parley E. Higgins, had enlisted as a private in the first Wisconsin cavalry, but that such enlistment was void, for the reason that he was at…

HABEAS CORPUS. On the 4th day of December, 1862, a writ of Habeas Corpus was it-sued out of this court and directed to Greneral W. L. Elliott, commanding the department of the North West, requiring him to have the body of Nicholas Kemp, with the time and cause of his imprisonment before the ' court on the 16th day of December, 1862, to do and receive, &e. This writ was issued on the petition of John Deidrich, on behalf of said Nicholas Kemp, alleging among other things, his…

The complaint alleged in substance, that at an election held in Dane county, in Nov. 1862, for the election of a sheriff of said county, the relator received four thousand legal votes, and the respondent three thousand eight hundred and forty-two votes, whereby the relator became and was elected 'to said office, that he had qualified as such, and that the respondent had intruded into and usurped said office, and still continued to do so, and that his claim thereto was based…

APPLICATION to the Supreme Court, for a writ of habeas corpus, made in term time, by Henry S. Pierpont, on behalf of Frederick Griner, Lewis Suche, Peter Paul Turk, Valentine Paulus, Drauget Augustine, Nicholas Kerr, Titus Werner, and August Barthel, representing, among other things, that they were jointly restrained of their liberty, and jointly imprisoned in the county of Dane, on one and the same pretext and pretended cause, by Col. Daniel J. Dill, to-wit: That one Alfred…

Carl Wehlitz, the petitioner, was born in the kingdom of Prussia, and came to the United States in 1854, after wbicb, and before bis enrollment on the militia list of the 9tb ward of the city of Milwaukee, of which he was a resident, be declared bis intention to become a citizen of the United States, in conformity with the laws of the United States, but bad not been admitted to citizenship or taken the final oath required by law.

Action for slander, in charging the plaintiff with having stolen two bottles of wine. The facts are sufficiently stated in the opinion of the court. cited R. S. chap. 125, § . 26; Graham vs. Stone, 6 How. Pr., 15; Brown vs. Orvis, id., 376; Bush vs. Prosser, 1 Kern., 347; 13 Barb., 22; Bisbey vs. Shaw, 2 Kern., 67; 15 Barb., 578. 1. All the evidence given on the part of the defendant was given with a view to justify the charge.

The case is stated in the opinion of the court. The question presented in this case is not one of jurisdiction, but of comity or necessity. It cannot be denied that the court had, at the start, jurisdiction of the process, of the subject mat ter, and of the parties. And in similar cases, the state courts and the courts of the United States have taken and exercised jurisdiction.

Action for the recovery of real estate. At the trial below, it was admitted that on the 17th day of June, 1848, the title to the premises in question became and was vested in the defendant Goon.

These three cases come up by appeal from the circuit court for Milwaukee county. The actions were brought to foreclose mortgages, executed by Davis fy Moore and their wives to the respondents.

This was an action brought by Mary Jane Racket and her husband against Bonnell & Matsell for the recovery of personal property, alleging in their complaint that the same had been acquired by the wife by purchase from one Thompson ; and that it was purchased with her separate estate, which she had and owned in her own right before her marriage.

<p>A delivered a city order payable to B or order, to a committee engaged in investigating certain alleged frauds of some of the city officers, under a promise on the part of the committee to restore it; and it was ascertained that the order had been surrendered by the payee thereof, without having been endorsed by him, to the city officers, and that he received other orders in its place, and it was not cancelled but was subsequently fraudulently put in circulation, the payees endorsement thereon having been forged, after which it came to the hands of A ; the committee having refused to return it, in an action against them, to recover the value of the order. EM, 1st, That the amount of the order could not be recovered against the city by the payee, or any one claiming under him, and that it was of no value in the hands of A, and that it was not necessary that he should tender the order to his vendor in order to enable him to recover the amount he paid for it.</p> <p>2. A note drawn payable to order cannot be transferred without the endorsement of the payee, so as to cut off the equities between the original parties to it, and where his endorsement is forged, no'title whatever passes.</p> <p>8. Where a party buys property and is subsequently deprived of it by paramount title in a third party, he is not .bound to tender it back to his vendor, as a condition precedent to maintaining an action for the money he paid for it.</p>

Action against Lydia A. Lee and Charles F. Lee her husband to charge the separate estate of one of the appellants, Lydia A. Lee, a married -woman, who with the consent of her husband, was a separate trader in the millinery business; with the payment of a certain debt alleged to have been contracted upon the faith-and credit of such estate.

The case is sufficiently stated in the opinion of the court. 1. The relation which Barber sustained to the company,, as president and^as a stockholder therein, prevented him. from acquiring any title to the company’s lands, through the tax deed, which would not -inure to the benefit of the company. Willard’s Eq., 189,-et. seq.; Bingo vs. Bmns, 10 Peters., 260; Van Bps vs. Van Bps, 9 Paige, 241; Van -Horne -vs. Fonda, 5 Johns. Oh., 406 ; 4 Cowen, 714. 2.

This case was before the court on a former occasion, and the facts proved on the trial appear from the report of the case, 14 Wis., 101, and from the opinion of the. court reported below. The plaintiffs have no right of action, unless they have done or offered to do all that was necessary to entitle them to the possession of the pork. 1 Pars, on Cont., 449.

Action against the defendant as joint indorser of a promissory note with one Allison Lewis, who died a few days before its maturity, and the question was whether the holder of the note had used due diligence to notify the personal representatives of Lewis of its dishonor, ,the defendant Orton having received due notice. After the plaintiff had rested his case the defendant moved for a non-suit, the court overruled the motion and the defendant excepted.

Action to set aside the settlement and satisfaction of a mortgage on certain real estate, executed by the defendant to one McDonald, for the sum of $2,350 and interest, which had been assigned to the plaintiff.

The complaint alleged that on the 8th day of September, 1855, a written contract was made between one Merrick of tbe first part and the city of Milwaukee of the second part, by which Merrick agreed to grade Wells street and the side walk in front of and adjoining lots, 14, 15 and 16, in block 53, and to grade Sixth street and the sidewalk in front of and adjoining lots 1 and 8 in block 171; that said contract was made by Merrick as the agent of the defendant Gilman and for…

APPEALS from tbe Circuit Court for Milwaukee County. Two actions were brought by Arnold, one against Samuel L. Elmore and others, and the other against Alexander Elmore, for the recovery of certain parcels of real estate in the city of Milwaukee. The questions determined are the same, and depend on substantially the same state of facts, in each case.

Action tried before a justice of the peace. The plaintiff alleged that on the, 28th day of June, 1861, the defendant and her cattle broke and entered the close of the plaintiff, of which he was possessed by virtue of a lease, and trampled down the grain, grass, &c., in the said close, of which the plaintiff was possessed as aforesaid, to his damage of $100. The defendant answered, denying the allegations of the complaint.

Action for breach of covenant, trial before the court without a jury, and the court found that the defendant on the 21st of June, 1852, for the consideration of $100 gave the plaintiff a deed of said lot 12, covenanting that he was the lawful owner of said lot and seized and possessed thereof in his own right in fee simple, and had full full power to convey, free and clear from incumbrance ; that he was not owner of an undivided half of said premises ; that he was not seized…

Action brought injustice’s court for breaking and entering the close of the plaintiff in the town of Wilson, and tearing down the fence of the plaintiff on the east line of his said close.

This was an áction to recover the sum of $3000 on an insurance policy, for damages caused by fire. Held: that the portion of property thus assigned by one partner to the other, ceased to be covered by the policy, upon the transfer of title being made. The following cases will show the effect of an assignment of a policy before loss, and of the words, “ the loss, if any, payable to A B ”: Fogg vs. Mut. Ins.

After this cause was decided, ante, 178, a motion was made and argued for a re-hearing, and the following opinion was given thereon.

<p>A writ of error does not lie to an order made by a judge at chambers, declaring a demurrer frivolous.</p> <p>An order made by a judge at chambers declaring a demurrer friviolous, may be reviewed by a motion made at a general or special term of the court to vacate it, and the order made on such motion is appealable; or the party may wait until judgment is perfected against him, and settle his exceptions and take his writ of error.</p>

This was an action brought by the plaintiff, who bad recovered a judgment against the defendant, Lyman E. Boomer, on a note given by him to Ann Cole and transferred to the plaintiff, to set aside a conveyance of certain real estate made by Lyman JE. Boomer to the defendant Alanson Boomer, on the ground that the said conveyance was made with intent to hinder, delay and defraud the creditors of Lyman JE. Boomer, and particularly the plaintiff.

The complaint alleges in substance that the plaintiff and the defendant with John Bonner and others made a certain promissory note to one Jane: Jones for @337, with interest at twelve per cent, and that the plaintiff had paid and taken up the note and that the defendant refused to pay his proportion thereof, and that there was due from him to the plaintiff on account of the premises the sum of $84.25 with interest, for which he claimed judgment.

The defendants, after tbeir application for a change of venue bad been denied, declined to participate any further in the trial, and the plaintiff obtained a verdict upon which judgment was entered, and the defendants appealed'. Such other facts as are material to the decision are stated in the opinion of the court. argued that the plaintiff’s complaint was not sufficient, and, in fact, was not a complaint at all.

<p>APPEAL from the County Court for La Crosse county, from an order allowing an amendment of a petition and complaint, in an action to establish and enforce a mechanic’s lien. The case is stated in the opinion of the court.</p>

Action to enforce a vendor’s equitable lien on lots 8 and 9, in block 3, in Burns & Overbaugh’s addition to the city of La Crosse, for unpaid purchase money, which lots were sold and conveyed by the plaintiff to the defendant for the sum of #5,000, to be paid as follows: $2,000 in the bonds of the La Crosse & Milwaukee railroad company; the sum of $1,500 in the promissory note of one Hathaway, and,the balance in a note against Douglas & Co., for $1,500, coming due the 20thof…

<p>It is a competent and proper practice to set aside a judgment entered by warrant of attorney on a note which is subject to some defense growing out of the note or transaction, or an agreement of the parties in relation to it affecting it with equities, and to allow these matters to be settled and adjusted in the same suit.</p> <p>Courts have a discretionary control over judgments entered upon warrants of attorney, and should protect the defendant from any mistake, imposition or fraud which may intervene in entering them up; but this power will not be exercised so as to permit a defendant to come m and litigate claims arising out of ci llateral matters, where the equity does not attach to the note itself or grov. out of some agreement in relation to it.</p> <p>Where J, who was then a post-maser, took a judgment note from K who was about to succeed him in office, for the price of certain letter-boxes, drawers and office furniture, it being agreed that each one should receive his proportionate share of the rent of the boxes and drawers during the quarter when K took possession of the office, and that K’s share should, as soon as it could be ascertained, be endorsed on the note as a payment; and which amonnt received by J and due to K was $50, and J entered judgment on the note for the whole amount thereof. Meld, 1. That the judgment should be set aside and K be permitted to answer, setting up such partial defense, and that the agreement related to the note and the manner in which it was to he paid. 2. That it was competent to show such contemporaneous agreement, as to the manner in which the note was to be paid, by parol evidence.</p>

Action in justice’s court brought by the plaintiff as chair man of the board of supervisors of the town of Madison, under chapt. 175 of the laws of 1860, to recover damages for the killing of sheep by the defendant’s dog.

Action to foreclose a mortgage on certain real estate, executed by the defendants, Rufus Hall and Betsey his wife to one Henry Tew and by him assigned to the plaintiff.

Action to enforce a mechanic’s lien. The complaint alleges that the plaintiffs are carpenters and joiners and that as such they built and erected for the defendant a dwelling house at his request; that said house so erected by the plaintiffs is the defendant’s, and was built and is now situate upon the following described lands, to wit: all that part of fraction number three, in section number thirty-four, in township number twelve, north of range number seven, east, in the…

The case is stated in the opinion of the court. The complaint states the cause of action in the language of the statute in all particulars. It was not necessary to set forth the particular acts of violence used by the defendant, nor whether the plaintiff’s possession was actual or constructive; these facts are matters of proof and not of pleading.

The case is stated in the opinion of the court. 1. If either count is defective, inasmuch as the ven.ict is general, the j udgment will be arrested or reversed, for ;he reason that the verdict may have been rendered on the defective count. 1 Ch. PL, 411 ; Benson vs. Swift, 2 Mass., ,53; Kingsly vs. Bill, 9 Mass., 198; Bayard vs. Malcom, 2 Johns., 573 ; Gheetham vs. Tillotson, 5 Johns., 434; Vaughn vs. Havens, 8 Johns., 110 ; Cooper vs. Bissell, 15 Johns., 318 ; Hopkins vs.…

Action under Chap. 22, laws of 1859, for the purpose of barring the former owner of all right in the land described in the complaint.

Action, to quiet the title to certain real estate mentioned in the complaint, and to compel the defendants, Doty, Pulling & Collins, to… Held: occupied, possessed or enjoyed the same, or that at the commencement of the action, they were in possession of the same or any part thereof, and alleged that the defendants claimed title thereto adversely to the plaintiffs, under and by virtue of the tax deeds mentioned in the complaint, one of which was executed by the clerk of the…

Action in the nature of a bill guia timet brought by Ovisley & Perldns against Betsey K. Case and Jachson Chse her husband, to set aside a tax deed which Betsey K. Case had obtained on the lands mentioned in the complaint and which she claimed as her separate property. The court below non-suited the plaintiffs on the ground that the husband was improperly-joined in the action, and the proofs did not show that he had any interest in the property in his own right.

The complaint alleges that on the 20th day of July, 1857, the defendants made and delivered to the plaintiff a promissory note or instrument in writing, in the words and figures following: “ $200. Oshkosh, July 20, 1857. One year from date for value received we promise to pay Jane Leonard or order two hundred doll.

Action against O. O. Taybr and N. B. Taylor to recover a money demand, in which the plaintiff sued out an attachment for reasons stated in the opinion of the court, and the sheriff returned in the first instance that he had attached the property in question, as the property of O.O. Taylor, the appellant, but on the day preceding the trial of the traverse of the affidavit for attachment, made by the appellant, the sheriff amended his return by certifying that he had attached…

The relator on the 28th day of April, 1862, upon an affidavit setting forth in substance, that there was a legally existing township road running from the limits of the city of Racine, into the town of Mount Pleasant, in said county, crossing Root river in said town, over which a bridge had been built and kept in repair by said town up to 1856; and that the same had been in March, 1861, nearly destroyed by a flood in the river, whereby the same had been rendered and still…

In the court below the plaintiff had judgment of foreclosure and sale as prayed for, and the defendants appealed. The case is stated in the opinion of the court. The evidence introduced by the plaintiff did not show him to be an indorsee of the note.

This case was before this court at the June term, 1861, and is reported in 18 Wis., 325, to which reference can be had for a statement of the case, as it then appeared.

Action brought before a justice of the peace to recover the price of fourteen and a half bushels of wheat sold and delivered by the plaintiffs to one Mather, at the request of the defendant. The defendant an.swered denying each and every allegation of the complaint and setting up other defenses not necessary to he noticed.

On the 27th day of July, 1862, the circuit judge of the first circuit, on the application of Strang & Thompson, under chap. 45, Laws 1852, (the charter of said company) appointed Jacob West, Jonathan Cory and (xabriel Crist, commissioners to appraise the damages sustained by them by reason of the construction of the railroad of said company over their lands.

Action of trespass. The complaint alleged that the plaintiff on the 12 th of July, 1854, was the owner in fee of eighteen and a half acres of land in Kenosha county, (particularly describing the same,) and that the eastern boundary thereof was one hundred and sixty-eight rods in length, and on and along West Main street and a public highway four rods in width; said West Main street passing along eighty-four rods of the length of said boundary, and the highway along the…

Action to enforce an award. The complaint alleges, among other things, that on the 8th of June, 1860, the plaintiff and defendant for the purpose of putting an end to divers disputes and controversies existing between them, touching a demand which the plaintiff had against the defendant for money loaned to the defendant, and the interest thereon, and also for work and labor before then performed by the plaintiff for the defendant, and which the defendant disputed in part;…

Action on a covenant of seizin, to recover back tbe consideration paid on tbe sale and conveyance of a quarter section of land from tbe defendant to tbe plaintiff, tbe title having failed. The cause was tried before a jury, and tbe defendant bad a verdict and judgment for costs, and tbe plaintiff sued out a writ of error to reverse it, alleging that tbe court erred in refusing to give certain instructions to tbe jury asked by tbe plaintiff.

Action against Pease & Balbu for the recovery of personal property unlawfully detained. The- case was tried before a jury and a verdict was rendered for the plaintiff upon which j udgment was entered and the defendants appealed.

Action to obtain a judgment declaring a certain dam on Rock river a nuisance, and that it be abated, and for a perpetual injunction restraining the defendants from re-building the same, and from re-building or repairing a certain wing dam on said river, or obstructing the flow of water in the river.

Action for a perpetual injunction to restrain the collection of a judgment, entered by warrant of attorney on a promissory note for $200, dated March 19, 1857, payable eight months after date to Gregg against the plaintiff Hugh Riley and one Goodman ; in favor of said Gregg the present defendant.

Action to foreclose a mortgage on several lots in the city of Milwaukee, executed by Allison Lewis and Jonathan Taylor to the plaintiff, to secure the payment of $10,000, according to the condition of their bond for that sum. The complaint alleged, among other things, that the mortgagors had parted with all their interest in the mortgaged premises; and they were not made parties to the action.

Action against The Marine Bank of Milwaukee as indorser of a promissory note, made by Jacob Hoover payable to the said bank or order, at its banking office in Milwaukee. The manner in which the indorsement was made is stated in the opinion of the court, and it was alleged in defense that the indorsement was not so made as to bind it under the general banking law of the state, and that the holder had not taken the necessary steps to charge the bank as indorser.

Action on contract. The eomplaint for the first cause of action sets out an agreement by which the plaintiff agreed to erect for the defendant, a building on certain lots in Milwaukee for the sum of $1280 and avers performance of the contract, and also that the plaintiff performed certain extra work and furnished extra materials in doing the same, of the value of $80, and admits payment of the sum of $889.70 on account thereof and claimed the sum of $400.26 as due thereon…

Action to foreclose a mortgage, the complaint containing all the allegations usual in such a case. The defendant demurred, assigning all the causes allowed by law, and the plaintiff obtained judgment on account of the frivolousness thereof, and the defendant appealed.

Action on an undertaking, given on an appeal te the supreme court from a j udgmént of foreclosure, for costs and damages, and to stay the execution of the judgment pending the appeal, under § 26, ch. 264, Laws 1860, in an action in which the present plaintiff was plaintiff, and John S. Pill-more and others were defendants.