Volume 17 — Wisconsin Reports

Action by the owners of a grist mill against the owners of a saw mill situated above the former upon the same stream, and adjoining a dam at the outlet of Delavan lake into said stream, for damages caused by obstructing the water of said stream, and for a perpetual injunction.

The case is stated in the opinion of the court so far as is necessary for an understanding of the only point decided. The circuit court, on motion of the defendant, non suited the plaintiff. to the point that the defendant was not released from his subscription by the change of route or consolidation of companies without his assent, cited Pierce on Am.

■ This appeal is from an order for judgment, and from the judgment; in favor of the defendants, entered October 24, 1861, and based upon a report of tbe judge of said court, as referee in tbe cause, filed on the same day. Tbe order recites that due service of tbe notice of motion for judgment upon said report was admitted by tbe defendants’ attorneys. It does not appear from the record that tbe defendants appeared upon tbe bearing of tbe motion.

This suit was brought to reverse a judgment in said court against Fink.

Foreclosure of a mortgage. The complaint stated, among other things, that the defendant Sexton and others had or claimed some interest in the mortgaged premises, but that such interest was subsequent to the lien of the plaintiff’s mortgage. There was no answer. The court found certain facts specifically, and also found that all the allegations of the complaint were true. Judgment for the plaintiff, foreclosing the rights of all the defendants ; from which Sexton appealed.

The complaint in this action was substantially as follows: 1.

Action to recover the contract price of cigars and tobacco alleged to have been sold and delivered to the defendant by the plaintiff.

On the 21st of December, 1859, Bishop commenced an action in said circuit court against one Grant, and caused a writ of attachment to be issued against bis property. On tbe 80th of tbe same month, Young was summoned, as garnishee of said Grant, to appear before a court commissioner on tbe 5th of January following, and answer touching bis liability as such garnishee.

This case was before this court on a former occasion, and is reported in 15 Wis., 355. It was remitted to the county court September 9th, 1862. On the 19th of November, 1862, the attorney for the defendant Mitchell served on the plaintiffs’ attorneys notice of a motion to open the judgment and for leave to put in a proposed answer duly verified, a copy of which was served with said notice, together with an affidavit of merits, and also an affidavit of the defendant Mitchell.

Tbe defendant Orison Q. Ewings, in 1851, executed to E. D. Holton, a mortgage of lands in tbis state, conditioned for tbe payment of a note of even date therewith, for $1,500, payable to said Holton or order, at Milwaukee in tbis state.

APPEALS from the Circuit Court for Rock County. Actions to restrain the defendants from selling certain real estate in the city of Janesville for taxes. The ground upon which the relief was sought is stated by the court. These appeals are taken from orders of the circuit court refusing to dissolve injunctional orders previously granted, and also from orders overruling demurrers to the complaint. 1.

EEEOE to the Circuit Court for 'Washington County. The action in the court below was brought by William Ranger and Mary his wife, for slanderous words alleged to have been spoken concerning the wife by Goodrich, charging her with being “ a whore.” The first count alleges that the words charged were used by the defendant in a remark addressed to one Barnes ; the second that they were spoken to the plaintiff Mary herself, in the presence of other persons.

A stipulation was filed in this action which sets forth the following facts: Prior to the 17th of August, 1858, Joint School District No. 11, (the defendant) consisted of a part of the town of Eipon, and of the city of Eipon, both in Fond du Lac ■county, and a part of the town of Brooklyn, in Green Lake county.

Action to foreclose a mortgage made to secure a note of tbe defendants, Gyrus and Marcellus Pedrich, for $500, dated November 13, 1855, payable to tbe plaintiff in three years from date, with interest payable semi-annually. Tbe complaint states tbat certain payments of principal and interest bad been made, leaving due $294.17 with interest from November 13, 1859.

Action on a special contract, to recover for work done by the plaintiff for the defendant. The answer, among other things, denies that either the plaintiff or the defendant was, at the commencement of the action, or ever had been, a resident of the municipality of the city and town of Bipon, and denies, on that ground, the jurisdiction of the court.

There is no bill of exceptions in this cause now on file in this court. Tbe facts, so far as they are essential to an understanding of tbe point decided, are stated in tbe opinion of tbe court.

Action for the price of certain shingles alleged to have been sold to the defendants, as partners under the name of McDonald & Co., in June, 1857. The answer of McDonald was agen-eral denial. The other partner, Elizabeth, M. Franklin, did not answer.

Action commenced in June, 1858, for an injury alleged to have been done tbe plaintiff’s ferry boat by tbe steamer Henry Clay, by a collision, near tbe first rapids in tbe Mississippi river, in tbe state of Iowa, and wholly without the territorial limits of tbe state of Wisconsin.

Action against Helen Henderson and John Henderson to enforce an equitable lien for the purchase money of land. The case is stated by the court. The complaint states that the deed which the plaintiff agreed to execute was to be made in the name of John Henderson as grantee. The demurrer was filed and appeal taken by Helen Henderson. cited Hatch vs. Peet, 23 Barb., 575, and Smith vs. Brown, 17 id., 431.

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

The action first named was on a promissory noté executed by the defendant to the plaintiffs, at the city of New York, September 10, 1860, for $1561.03, payable six months after date, at the City Bank of Prescott in this state, ‘’with, the current rate of exchange on New York. The feomplaint alleges that when the note fell due, the rate of exchange between Prescott and blew York was five per cent, in favor of the latter, and demands judgment accordingly.

Tbe complaint in tbis action avers tbe following facts : On tbe 1st of January, 1855, tbe plaintiff was, and ever since bas been, a corporation existing under certain acts of the legislature of New York, (which are set forth by their titles,) and authorized to receive the trusts hereinafter mentioned.

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

Action, commenced January 22, 1861, on a promissory note dated April 2, 1857, payable to the order of L. L. Eoote, signed “ Carpenter, Noyes & Go.

<p>APPEAL from tbe County Court of Winnebago County.</p> <p>The case is stated by the court.</p>

Action against James Ludington, William H. Whitcomb and John B. Tracy, for tbe value of certain repairs to a saw-mill, alleged to be tbe property of said Ludington, and to enforce a mecbanic’s lien upon said mill and other real property.

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

The relators applied for a mandamus to compel the defendant, as clerk of the board of supervisors of Pierce county, to issue them a deed for certain land sold for unpaid taxes.

The case is stated by the court. That part of the record of the trial which relates to the peremptory challenges, is as follows : “ The list of jurors called was submitted to the counsel for said defendants, for the exercise of th¿ right of challenge ; and thereupon said defendants, by their counsel, 'challenged one of said jurors so called as aforesaid, peremptorily, whose place was immediately supplied in the panel by another juror being called, which process was continued…

Tbe plaintiff obtained from a court commissioner an order for tbe service by publication of tbe summons in tbis action, upon an affidavit wbicb stated tbat tbe defendant could not, after due diligence, be found in tbis state, and was not a resident thereof, but of tbe state of New York, and tbat tbe action was for an accounting between tbe parties, and to remore a cloud from tbe plaintiff’s title to certain real estate; and tbat tbe defendant claimed to bold said real estate…

Yates and Gray, for value, gave tbeir note, indorsed for them by Horton before delivery, and payable to the plaintiffs or order at the Rock County Bank, at Janesville, in this state. Before the note became due, the plaintiffs, who were merchants in the city of New York, indorsed it for collection to Kissam & Taylor, bankers in the same city, who indorsed it and sent it for collection to the Central Bank of Wisconsin, at Janesville.

This action was for maintaining obstructions upon an alleged highway, and tbe complaint, without averring special damages to tbe defendant, demanded, damages and an injunction. The answer denied .that tbe land on which tbe alleged obstructions were placed was a highway.

-> On tbe 22d of March, 1860, at Janesville, in this state, Charles Colby made bis note for $600, payable to the order of Levi St. John and G-.

This action was commenced in a justice’s court to recover, a sum alleged to have been received by the defendant upon the sale of a note and mortgage belonging to the plaintiff, in excess of the amount which it was alleged that the note was deposited with defendant to secure. The defendant claimed to have purchased the note and mortgage.

Felicite Allie brought an action in said circuit court against John A. Schmitt, to recover an undivided third of a certain section of land. The answer set up title to the premises in the defendant, under a tax sale made in 1851, and a tax deed recorded in 1854, and subsequent continuous occupation of the premises by the defendant for more than three years and down to the commencement of the action.

Action commenced March 17, 1860, to recover possession of “lot 670 in the town plot of Navarino in the north ward of the city of Green Bay.” The defendant, by his answer, claimed title under tax sales made in 1852, 1853, 1855 and 1856 respectively, and deeds issued thereon (the land being unredeemed) in 1855, 1856, 1858 and 1859 respectively, and immediately recorded.

The action in the circuit court was brought by McEnery against Olancy.

This appeal was taken by the plaintiffs from an order of the judge of said circuit court, setting aside an attachment and all proceedings under it, on the ground that the affidavit attached to the writ did not comply with the requirements of the statute.

The case is sufficiently stated in the opinion of the court. Judgment for the defendant Eldridge; from which the plaintiffs appealed. 1. The first assignment was valid as between the parties, and void only as to creditors. Geisse v. Beall, 3 Wis., 367 ; Fargo v. Ladd, 6 id., 106; Laws of 1858, ch. 64, sec. 1. And creditors who chose might treat it as valid, and hold the as-signee to a faithful discharge of the trust.

<p>On dismissing an appeal from a justice of the peace by the plaintiif in an action for the recovery of personal property, it was error for the circuit court to render a judgment against the plaintiff; and where the judgment of the justice was for nominal damages and costs in favor of the defendant, with an order that the constable deliver the property to him, and that of the circuit court, on dismissing the appeal, was for a return of the property or its value, &c., the error was material, and the latter judgment must be reversed.</p>

Action to recover a certain sum claimed to be due upon an account for moneys advanced and services rendered.

<p>Although chap. 191 (secs. 1 and 9), R. S., 1858, repeals- all acts and parts of acts the subjects of which are revised .and re-enacted in that revision, or which are repugnant to its provisions, this must be construed as referring to general statutes, and not as repealing all provisions, of village and.city charters, previously enacted, which are in conflict with the general statutes contained in said revision.</p> <p>The charter of the village of Whitewater, enacted in 1858, (Pr. Laws of 1868, ch. 164, sec. 17, subd. 19,) provided'that the village authorities should have the exclusive right to grant licenses for selling spirituous liquors in said village; that the sum paid for such license should not he less than that fixed hy the laws of the state; and that the village treasurer should annually pay to the county treasurer ten dollars for each license so granted, which should be in full for all license money required to be paid by said, village to. the county treasurer, By the general statute then in force (ch. 90, Laws of 1855), the village would have been required to pay the county all moneys derived from such licenses; and this general statute was subsequently re-enacted in the revision of that year. Ch. 85, sec. 16. SM, that the provision of the charter is still in force.</p>

- Action to recover damages for a breach of covenant of warranty in a deed of land by the defendants to the plaintiff. The complaint alleged that at the time the deed was made, the paramount title to an undivided half of the land was not in the defendants but in H. K. Whiton, and that the plaintiff had been obliged to expend $200 to extinguish said title. The answer denied these allegations.

Action brought by Linus My upon a note given by Tesch to William C. Ely and indorsed to tbe plaintiff, and an account for goods sold and delivered to Tesch by said William C. Ely, wbicb account bad been assigned to tbe plaintiff. Tesch answered, setting up an agreement in writing by wbicb William C. Ely, with tbe other creditors of said defendant, agreed to accept a conveyance of certain lands in full satisfaction of their debts.

Action to enforce the lien of a street commissioner’s certificates upon certain lots in the city of Milwaukee, by a foreclosure of the defendants’ equity of redemption, and a sale of the lots. Judgment for the plaintiff; from which the defendants appealed. The facts upon which the decision of this court is based are sufficiently stated in the opinion.

The case is stated in the opinion of the court. The circuit court found as a fact, among other things, that the mortgage in suit was duly assigned to the plaintiff. Judgment for the plaintiff, from which the defendants appealed. 1. The defendant could take advantage of the defect in the complaint at any stage of the case.

EEEOE to tbe Circuit Court for Ozaukee County. Tbe question presented by tbe record in tbis case is sufficiently stated in tbe opinion of tbe court. Tbe subpcena there referred to was addressed to Abraham Nelson.

Action against a sheriff and tbe sureties on bis official bond, for damages resulting to tbe plaintiffs from tbe neglect of said sheriff to make sale of property levied upon under an execution in their favor against one Larrabee, and also neglecting to make return of tbe execution. Tbe complaint stated that tbe plaintiffs bad obtained leave of said circuit court to prosecute tbe action.

Copeland commenced an action against Baton, July 25,1862, under sec. 46, chap. 86, R. S., for the refusal or neglect of the latter, for more than seven days after due request, to discharge of record a certain mortgage upon land belonging to Copeland., or to execute a satisfaction piece presented to bim by tbe plaintiff for that purpose.

In an action by Platt against one Hoag, the property of . Hoag was attached on the 15th of December, 1862, to satisfy a demand for $1,834.50, and the Sauk County Bank was summoned as garnishee of said attachment defendant.

This was an action commenced in January, 1861, to recover damages for the flowing of the plaintiffs’ lands in consequence of the maintenance of a certain mill dam by the defendants between the 18th of June, 1857, and the commencement of the action.

Huchting brought an action before a justice of the peace ■ against Moirlz Hngel, for breaking and entering the plaintiff’s premises, and breaking down and destroying his shrubbery and flowers therein standing and growing.

This was an action against William Roache and A. McIntyre upon a written contract for the delivery of wood. The complaint avers a failure to fulfill the contract, and damages. McIntyre answered by a general denial. The pleadings were not verified.

BEPOETED from tbe Circuit Court for Sauk County for tbe opinion of this court. cited E. S., cb. 165, sec. 20; ch. 179, sec. 13; cb. 180, sec. 8; Arcbb. Or. PL, 51, 56; 1 Whart. Am. Crim, Law (last ed.), 396, 419, 420, 1903; Wbart. Prec. of Ind., 195, 202 ; Regina v. Waverton, 6 Crown C., 339 ; 1 Hawks, 231; 1 Chitty’s Or. Law, 250, 253 ; 3 id., 988 ; 1 Eng.

<p>Where different portions of mortgaged property have been subsequently alienated at different times by the mortgagor, they are subject to sale, on a foreclosure of the mortgage, in the inverse order of alienation.</p> <p>One of three lots mortgaged to the state was afterwards mortgaged to F. The other two were then mortgaged to T. F.’s mortgage was subsequently foreclosed, but no sale made; and W. purchased the equity of redemption in the lot covered by it. An action was afterwards commenced to foreclose the mortgage to the state, pending which T. purchased F.’s foreclosure judgment. Held, that W , by purchasing said equity of redemption, acquired a right, as against T., to have the lots covered by the mortgage of the latter sold first on a foreclosure in favor of the state, and that this right was not affected by T.’s subsequent purchase of F.’s judgment.</p> <p>A recorded deed or mortgage of a portion of a tract of land covered by a prior mortgage, is notice to any subsequent purchaser or mortgagee of the balance of such tract, that the grantee in such recorded deed or mortgage! has an equitable interest in such balance, to have it first charged with the payment of the prior mortgage.</p>

This was a motion to stay all proceedings in. the circuit court for Green county for a trial of the issues of fact made by tbe pleadings. The case is stated in the opinion of the court.

<p>Where the agent of a person holding a certificate of sale of school lands paid the annual interest in due'time, but failed to specify the object of the payment so as to be understood by the state treasurer, or to deliver to him the unsigned receipt obtained from the secretary of state, and in consequence such payment was not entered on the treasurer’s books, and the land was resold as forfeited : Held, that the commissioners of school and university lands, upon ascertaining the mistake, were authorized (under sec. 121, ch. 28, R. S.) to declare the resale void.</p>

Schanz was convicted in said court under an indictment which is sufficiently described in the opinion of the court, and thereupon sued out a writ of error.

<p>EEEOR to the Circuit Court for Dane County.</p> <p>The case is stated in the opinion of the court.</p>

Action commenced in March, 1861, to foreclose the defendant’s equity of redemption in certain lands.

<p>In an action upon a contract for the payment of money only, where the defendant has appeared but failed to answer, an assessment by the clerk of the amount due, and prior notice to the defendant of such assessment, are not required in case the complaint is verified.</p>

This action was brought in the circuit court for. Milwaukee county, to recover a balance alleged to be due the plaintiff for work done and materials furnished by him in constructing three sections of a harbor at the “straight cut” in the city of Milwaukee, under., a contract with the city. A demurrer to the complaint was sustained by said circuit court; and its decision was affirmed by this court, on appeal, at the June term, 1860. See 12 Wis. Rep., 47.

Action to restrain tbe defendants from executing deeds of certain lands in tbe city of Kenosba, sold in 1858 by tbe treasurer of Kenosba county, for tbe taxes of 1857.

Action commenced March 6,1860, to foreclose a mortgage on part of lot 1, block 12, in the city of Janesville. The lot appears from the evidence to be eight rods square, and to be on the east corner of the block, fronting to the N. E. on East street, and on the S. E. on South Second street The mortgage was executed by the defendant May on the 19th of March, 1850, and recorded on the 15th of May following.

Action to foreclose a mortgage executed by the defendants Samuel Hart and Sarah, his wife, to the Bacine, Janesville & Mississippi Bailroad Company, to secure a note for $2,000, given by said Samuel, and payable to said company or bearer. The complaint alleges that the railroad company, for a good and valuable consideration, “ duly sold, transferred, assigned and delivered said note and mortgage ” to the plaintiffs, before maturity.

Foreclosure of a mortgage on lot 4 and the south half of lot 3, block 63, in the city of Milwaukee, and also upon another lot. The mortgage was executed by Joseph W. Ilashin and wife, July 22, 1856, as a security for the payment of $9000 and interest, and by its terms the sum of $9,540 was claimed to be due.

Action on the following due bill: “Due to Josiah A. Noo nan, three hundred dollars in Watertown Railroad stock. Milwaukee, March 22, 1856.

The decision of this court on an appeal from an order of the circuit court refusing to dissolve an injunctional order obtained by the plaintiff in this action, will be found ante, p. 30. The pleadings are there sufficiently stated. After the cause was remitted to the circuit court, the issue made by the pleadings came on for trial.

This was an action to recover for certain services rendered by the plaintiff as deputy sheriff, and also the amount of certain expenses incurred in performing his official duties.

This case was similar to that of Smith vs. Vandyke and others, adm’rs of Rogers, ante, p. 208, except that in this case the court below refused to receive any evidence, and dismissed the complaint, on the ground that it did not state a cause of action. Erom this decision, and a judgment in favor of the defendants for costs, the plaintiff appealed. [The following is a condensed statement of the argument filed by Messrs.

The plaintiffs in this action composed the firm of Harrison, Hanford & Go.

This appeal was taken by Outler and Gonkey, two of the defendants, from a judgment in this action, rendered against them in favor of their co-defendant Higby. The questions at issue between the parties will sufficiently appear from the opinion of the court. as to the rule on the subject of rendering judgment between co-defendants, cited 2 Whit. Pr. (3d Ed.), 535-6; Norbury vs. Seeley, 4 How. Pr. R., 73; Woodworth vs. Bellows, id., 24; Wells vs. Smith, 7 Abbott, 261, 265. 2.

. One Hoyt stored in tbe warehouse of tbe defendants in Milwaukee, a lot of flour, and took a warehouse receipt therefor, on tbe 11th day of June, 1862. On tbe saíne day one Comstock agreed to purchase tbe flour, provided be could get a loan upon it in store.

The erection of a dam across Rock river near the village of Horicon, was commenced in 1845, and completed in 1846 or 1847. A saw mill was built in connection with tbe dam in 1847, and a grist mill in the winter of 1848 and 1849. In June, 1852, the dam went out; and another was immediately commenced, and was completed in the spring of 1853.

. This action was brought to recover damages resulting from the negligence of the defendant in transporting various lots of flour received by it from the plaintiff at Milwaukee in this state, to be transported to the city of New York. The complaint contained no allegation as to the manner in which the plaintiff became possessed' of the flour.

Action to recover the amount of a policy of insurance issued by the defendant to Wise & Co. on a stock of groceries, which was destroyed by fire February 24th, 1860. The complaint was in the usual form, with a copy of the policy annexed.

This was an appeal by the plaintiffs in the action from a judgment in favor of the defendant. The facts will sufficiently appear from the statements made in the opinion of the court.

The complaint alleges that on &c., the plaintiffs sold and delivered to one Boole a certain number of kegs of iron spikes &c., to the value of $152.35; that said spikes were used in building, fitting out, furnishing and equipping the Schooner Bosahelle, “ and the said debt accrued to the plaintiffs on account of said Boole ; ” that said schooner was of the burthen of twenty tons and upwards, and was built for navigating the waters of this state, and was then (at the…

In 1858, one Eichards, in an action against Jacob Omans for an assault and battery, obtained judgment for $1,000 damages. Execution was issued on the judgment, under which the sheriff levied on and sold certain land belonging to said Omans, for which a deed was issued to the purchasers, Smith and Lander, in May, 1861. The grantees in said deed then com- . menced the present action to recover possession of the land.

The complaint alleges that on the 12th of November, 1855, Robert J. Norris and Asa White were duly elected and acting supervisors of the Town of Beaver Bam, and were duly authorized by the plaintiff to make in its behalf the agreement hereinafter mentioned; that on said day the plaintiff, by said supervisors, and the defendants entered into an agreement which is set out in hcec verba, and is substantially as follows : The defendants agree to furnish for the use of said town…

The defendant in this action obtained a judgment against the plaintiff herein before a j ustice of the peace in said county. The circuit court reversed the decision, for reasons which will sufficiently appear from the opinion of this court, and the defendant appealed. The following is the record of the second adjournment of the cause by the justice: “September 6th, 1861, 9 o’clock, A. M. Suit called; parties appeared and answered to their names.

Foreclosure of a mortgage of real estate, executed January 4, 1859, to secure two notes of tbe same date for $110 each, payable in one and two years from date, with interest. On the first of November, 1859, one Elizabeth Moore purchased the mortgaged premises of Hirsch, and took a deed of him, which was recorded the next day. She immediately occupied the premises, and continued to own and occupy them until the commencement of this action, but was not made a party herein.

The case is stated in the opinion of the court. Judgment in the circuit court for the plaintiff; from which the defendants appealed.

<p>EBBOB to the Circuit Court for Ozaukee County.</p>

A reference to tbe opinion of tbe court in tbis cause as reported in 13 Wis., 31, and tbe following opinion, will render unnecessary any statement of tbe facts in tbis place. — The cause came up at tbis term on an appeal by tbe defendants from a judgment rendered against them in tbe circuit court.

This was an action at common law to recover damages for the flowage of the plaintiff’s lands by reason of the maintenance, by the defendant, of a dam across Rock Ritfer at sec. 9, Town 10, Range 16, in Dodge county. Judgment for the plaintiff.

This action was brought by Margaret Driscoll against Simon P. Damp for money had and received of her by him, amounting to $15, and interest from October 8th, 1859. The defendant pleaded in bar a judgment previously rendered against the plaintiff at the suit of Simon P. Damp and Andrew J. Damp, for $24.95 damages, which, he alleged, included the claim in question. On the first trial, judgment was rendered in favor of the plaintiff for the amount of her claim.

This is an appeal by the defendants from a judgment in favor of the plaintiff. The facts are stated in the opinion of the court.

Goss brought bis action in tbe circuit court against tbe Chicago & Northwestern Railway Company, for damages for tbe killing of two colts by an engine and cars running over them at a point in the city of Fond du Lac where the company’s road crosses Western Avenue, a public street.

<p>A judgment for damages will not be reversed on an appeal by tbe defendant, upon the ground that certain evidence bearing on the question of damages was improperly admitted, where it appears that the defendant admitted on the trial that the plaintiff, if he recovered at all, would be entitled to the amount for which the verdict was in fact rendered.</p>

The action in the circuit court was by Gillet against Eaton, on a promissory note. The complaint showed that the note was made more than six years before the action was commenced, but that a payment had been made upon it within six years. The defendant demurred, setting up the statute of limitations as a defense; and the court rendered judgment for the plaintiff, on the ground that the demurrer was frivolous; upon which Eaton sued out his writ of error.

On the 15th of August, 1861, Jenkins, Barringer & Co. purchased of the Iowa County Bank two drafts — one upon New York for $500, at ninety days after sight, in favor of Samuel Grrayden, a creditor to whom they wished to remit that amount; the other upon Chicago for $100.00, payable thirty-five days after sight, in favor of Davis, Sawyer & Co., who were also their creditors.

The case is stated in the opinion of the court. contended that before a court of equity should interfere to restrain- the collection of the amounts assessed against the lots in question, the plaintiff should be required to show that the assessment was inequitable. The court should not interfere for a mere irregularity, without any pretense of injustice. Mills vs. Gleason, 11 Wis., 497.

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

The complaint in this action alleged that in 1849 the plaintiff borrowed $100 of one Northrop, with which to purchase of the United States a certain tract of land in Jefferson county ; that in 1850 he borrowed of said Northrop another equal sum with which to purchase another tract of land in the same county; that to secure the repayment of said sums, by agreement between Northrop and the plaintiff, the lands were entered in Northrop’s name, and the duplicates and patents…

This was an appeal from an order of tbe circuit court oyer-ruling a demurrer to tbe complaint. The substance of tbe complaint, and tbe grounds of demurrer, are stated in tbe opinion of tbe court. In Graham v. The La Crosse & Mil. B. B. Co., 10 Wis., 459, this court decided that tbe proceedings supplemental to an execution, provided by tbe Revised Statutes, were a substitute for a creditor’s bill, and were tbe only mode of obtaining tbe relief formerly given by tbe bill.

This is an appeal by tbe plaintiff from an order of tbe circuit court sustaining a demurrer to tbe complaint. The aver-ments of the complaint, and tbe grounds of tbe demurrer, are sufficiently stated in tbe opinion of tbe court. to tbe point that tbe railroad company had authority to take tbe note and mortgage in pay ■ ment for stock, or in tbe ordinary course of its business, cited Ciarle, vs. Farrington, 11 Wis., 320; Blunt vs. Wallcer, id., 344.

On the 16th of January, 1855, this cause, wherein Galvin G. Williams was plaintiff, and Ann Garrison, Ozias V. Troop, administrator of the estate of Andrew Garrison, deceased, and in his own behalf, the unknown hei.rs of Andrew Garrison, and two other persons, were defendants, was pending in said circuit court.

Tbe case is stated by tbe court. 1. Tbe office of a common law certiorari is to confine inferior tribunals witbin tbeir jurisdiction, to prevent tbeir exercising powers not delegated to them, and not to correct any error they may commit in exercising tbe powers that are delegated. Tall-madge v. Potter, 12 Wis., 817. 2. Sec. 11, chap. 120, R. S., in regard to the entries to be made by a justice of tbe peace in bis docket, is directory.

Action for damages resulting from defendant’s negligence in transporting nursery stock belonging to the plaintiff.

The plaintiff, while riding as a passenger in one of the defendant’s cars, over a bridge on its road, had his arm broken. This action was brought to recover for the injury, on the ground that it was caused by the defendant’s negligence. The answer denied the injury and the negligence averred in the complaint; and also alleged that such injury, if any, was caused by the plaintiff’s negligence in riding with his arm projecting from a window of the car.

In July, 1856, the Milwaukee & Mississippi Railroad Company became liable, upon contract, to pay the plaintiff ten shares of its full paid stock, in consideration of the plaintiff’s having caused certain lands in Prairie du Chien in this state' of which he claimed to be the equitable owner, to be conveyed to said company by the persons who held the legal title to them. The stock was never paid to him, though demanded of said company in May, 1857.

The complaint in this action alleged, in substance, that during the months of June, July, August and September, 1856, the defendant, by himself, his workmen &c., without leave and wrongfully, entered upon certain land in which the plaintiff had an undivided interest, and broke up said land, and proceeded to locate a railroad over it, and graded and prepared a railroad track thereon, and rendered the whole of said l^nd worthless to the plaintiff.

Action to foreclose a mortgage. The complaint avers that the mortgage was given in 1862 by the defendants Justus Carpenter and K P. Parsons, conditioned for the payment of a note of the same date, executed by said Carpenter and Parsons, for $500, payable November 1, 1860, to George Lovimond or bearer, with interest payable annually; that said note and mortgage were, on the 6th of November, 1860, duly assigned and delivered by said Lovimond to Mrs. H. T. Strong, for a…

The case is stated by the court. There are numerous cases, even at common law, which hold that although the wife or husband is interested in the question at issue in a suit (to which neither is a party), the other is nevertheless competent as a witness, because the one so interested cannot be concluded by the verdict, nor receive the proceeds of the suit. The cases, of course, except confidential communications.

At tbe May term of tbe circuit court for Jaclcson county, beld by tbe Honorable Isaac E. Messmore, William N. Bloom was indicted for arson, and was tried, convicted and sentenced to confinement at bard labor in tbe state prison for five- years. This court having adjudged that tbe appointment by tbe gov- . ernor, under which Mr. Messmore exercised the office of circuit judge in said county, was made without authority of law, and that the Hon. Geo.

Action commenced in 1859 on a note in the following form : “ Waukesba, July 10, 1854. Due W. D. Bacon or bearer one hundred dollars, six months from date, with interest at 12 per cent until paid. Sauford Bickhell, Elias Curtis.” There was an answer by both defendants, setting up a counter-claim, and a reply in denial.

On tbe 9th of July, 1863, Owen Caine applied to this court for a writ of habeas corpus in favor of Martin Conway and James Gibbons, alleged to be unlawfully restrained of their liberty at Camp Randall in the city of Madison, by Capt. Samuel Harriman, commandant of said camp.

This action was brought to foreclose a mortgage executed by tbe defendants William M Tallman and Emmeline D. Tail-man, in December, 1855, to secure a bond of the same date given by said William M. to the Chicago, St. Paul & Fond du Lac Railroad Company for the payment of $4000, with interest. The bond was given in payment for forty shares of the stock of said railroad, each share being of the nominal value of $100.

The complaint in this action alleges that in June, 1849, the state of Wisconsin sold and conveyed to the defendant Oram a certain tract of school land; that Oram paid a certain part of the purchase money, and executed a bond to the state for the payment of the residue in ten equal annual installments, with interest payable annually ; and also executed a mortgage on the premises to secure the same ; that said defendant had made default in the payment of the several…

The complaint in this action alleges that on the 6th of February, 1859, at the village of Richfield in Washington county, the plaintiff and defendant entered into an' agreement, whereby, in part consideration of the sale of two lots in said village, next adjoining the premises owned and occupied by the plaintiff; the defendant agreed not to give or to sell, at any time, any spirituous liquors in any smaller quantity than a balf-barrel; and that the defendant thereupon…

Tbis action was brought by tbe plaintiff in bis own behalf and in behalf , of all other creditors of tbe Marine Bank of Milwaukee who might choose to come in and be made parties thereto, or become interested therein. Tbe bank itself, and its stockholders by their individual names, were made defendants ; and the complaint contained an allegation showing the amount of stock held by each of the latter at the time the cause of action arose.

The plaintiff', a married woman, brought this action to recover damages for the conversion of seventy-one cords of wood belonging to her. The facts are stated sufficiently in the opinion of the court. Verdict for the plaintiff for $417 damages. Motion for a new trial overruled. Judgment upon tbe verdict ; from which the defendant appealed.

Action commenced June 20, 1862, against Arnold Cleveland, Elizabeth A. Porter, and Benajmin W. Porter, ber husband, to recover possession of land. Cleveland was in possession of tbe land as a tenant under said Elizabeth, wbo claimed under a tax sale made in April, 1855, upon wbicb a deed bad been issued to ber in November, 1858, sbe being then a feme sole.

Ejectment for land held by the defendant under a tax title. The case is stated in the opinion of the ctjurt. Judgment for the plaintiff. contended that chap. 197, Laws of 1859, did not in terms repeal the law of 1849, limiting the time in which actions could be brought to recover lands conveyed for taxes ; and the law does not favor repeals by implication. Lolcer vs. Broohline, 13 Pick., 343, 348 ; 2 id., 172, 176.

Ejectment, commenced September 7, 1860, by Pleasants and Brent against Rohrer. The plaintiffs made out a prima facie case by tracing their title to the United States. The defendant relied upon adverse possession under two tax deeds executed to his grantor, one recorded June 2, 1856, and the other June 2,1857.

<p>In an indictment for murder, the surname of the person killed was spelled in three different ways, to wit: “ Giddings,” “ Gidings ” and “ Gidines,” the Christian name being the same in every case. Held, that the variance was not sufficient ground for an arrest of judgment, the second and third forms being each idem sonarn with the first, within the decisions upon that subject.</p> <p>To sustain an indictment for murder, it must be shown that the Christian name of the person killed, as given in the indictment, was his true name, or one by which he was to a considerable extent called and known among those who were acquainted with him.</p> <p>"Where all the witnessess agreed that they never knew the deceased to be called by the name alleged in the indictment, but two of them, without professing to know the real name, testified in substance that they supposed it to be as alleged, from their recollection of certain writings which they had seen some time before : JKdd, that it was error for the court to so instruct the jury as to leave them to think that they could convict upon such evidence, by stating that “'if they found from the evidence that the deceased was known by several different Christian names, and was described by one of these in the indictment, and there was proof of the name as laid, it was sufficient.”</p>

The plaintiffs, supervisors of the town of Jefferson in said county, brought this action for the use of the town, against Guttenberg as treasurer of said town, and the sureties on bis official bond.

<p>Raftsmen on navigable streams have no right to moor their rafts in such a manner as to deprive wharf owners of access to their wharfs.</p> <p>Defendant, owning a vessel and a wharf upon a navigable stream, and finding a raft of lumber belonging to the plaintiff fastened in the stream so as to obstruct the approach of his vessel to his wharf, untied the raft, doing no unnecessary damage ; and, not being in charge of any person, it floated away. Held, that he was not liable for the loss of the lumber.</p> <p>In an action for damages in such a case, evidence of a custom of raftsmen to anchor their rafts regardless of the wishes or convenience of the proprietors of adjoining lands, was not admissible. Raftsmen cannot establish a custom among themselves which will override the common law rights of riparian owners.</p> <p>One party to an action cannot object to the appearance of the opposite party by his attorney, on the ground that such attorney has not procured a license as such from the government of the united States.</p>

This was an action commenced in the supreme court to re cover a balance alleged to be due the plaintiff on a contract with the territory of Wisconsin, for certain work upon the Capitol and materials furnished therefor. Former decisions in the cause are reported in 9 Wis., 88 ; 10 id., 454; 16 id., 488 ; where the facts will be found more fully stated.

This appeal was taken by tbe plaintiffs from an order of tbe circuit court sustaining a demurrer to tbe complaint, as not stating a cause of action. Tbe facts stated in tbe complaint will sufficiently appear from tbe opinion of tbe court.

On the 18th of May, 1860, one Kern recovered a judgment against the defendant Henry Bently for $213.46, on wbicb execution was issued to the sheriff of Milwaukee county (where said Henry resided), and was returned unsatisfied. Upon supplemental proceedings, Elliott was appointed receiver of all the goods and chattels of said Henry, and duly qualified and entered upon that office.

<p>ERROR to the Circuit Court for Columbia County.</p> <p>The ease is stated in the opinion of the court.</p>

Action to restrain the defendant, as clerk of the board of supervisors of Dane county, and bis successors in office, from executing tax deeds for certain lands in the city of Madison, and to have the certificates of sale of said lands for the taxes of 1858 declared illegal, &c. The county court found the following among other facts: 1.

Gfee brought bis action against Bolton in tbe Dane circuit court, in July, 1859, to recover possession of certain land in Dane county, and for the rents and profits. The cause was af-terwards sent to Rock county for trial. In December, 1852, Danforth Whiting, being the owner of the land in question, exchanged the same with C. M. Sifert and his wife, Harriet 0. Sifert, for a dwelling and shop, or store, owned by them in the town of Medina, Dane county.

Croix County. Hathaway brought bis action to foreclose a mortgage executed to one Pingree by Henry H. JBoody and Gould Jewell and their wives, and alleged to bave been recorded September 19, 1856. The complaint alleges that the mortgage was executed to secure certain notes given by the mortgagors to the mortgagee, and that the notes and mortgage bad been duly assigned and transferred to the plaintiff.

This action was for rent alleged to be due from tbe defendant upon a lease of a storeroom in Milwaukee to Wm. Strickland, for five years from May 1, 1857, wbicb lease, tbe complaint alleges, was assigned by Strickland to tbe defendant on tbe 22d of December, 1857. Tbe facts are stated in tbe opinion of tbe court.

The complaint in this case stated that the plaintiff was the owner in fee of a certain tract of land ; that the defendant was in possession of it; that the plaintiff had served upon the defendant a notice in writing requiring him to deliver up the possession forthwith ; that the plaintiff was entitled to the immediate possession of the premises; and that the defendant unlawfully and wrongfully withheld the same.

This was an appeal by Sabin, the mortgagor, from an order confirming the sale of the mortgaged premises under a judgment of foreclosure. The mortgage was executed August 14, 1857.

Tbe case is stated by tbe court. contended, among other things, that section 5, cb. 35, R. S., was repealed by implication by cb. 147, Laws of 1862, because tbe two are inconsistent.* Bisbop on Crim. Law, 91 et seq.; Commonwealth v. Kimball, 21 Piet., 376; Comm. v. Marshall, 11 id., 350. The repeal of a statute, or a change of the penalty, puts an end to the power of punishing offenses committed under it, unless there is a saving clause. Bishop on Crim.

Ejectment for about twenty-eigbt acres of land in the northwest fractional quarter of section 1, of a certain town in Jefferson'county. Both parties claimed under one Burchard; the deed under which defendant claimed being of the south half of said quarter section, executed to one Potter in 1850; while that under which the plaintiff claimed was of the north half of said quarter, and was executed in 1855.

This was an action by the bank comptroller of this state upon a bond in the sum of $12,500, executed October 8, 1860, under section 17 of the G-eneral Banking Law, by the defendants Sackett and Lawrence, the former as sole owner and the latter as surety for the Portage County Bank.

This was an action brought in this court, under the statute, to determine whether the relator or respondent was entitled to hold the .office of county judge of Winnebago count}' for the term commencing January 1,1862. On the 25th of September, 1861, Alexander P. Hodges was county judge of said county, and was entitled to hold the office until the first of January, 1862, and until his successor was elected and qualified.

EBBOB to the Municipal Court of the City and County of Milwaukee, The plaintiff in error was indicted in said court at the October term, 1862, for keeping a house of ill fame, “ at the city of Milwaukeein the county of Milwaukee.” At the trial, she objected to the reception of any evidence, and moved to quash the indictment, on the ground that the offense was not sufficiently charged therein. Motion denied.

<p>A warrant by a justice of the peace, under sec. 134, chap. 120, R. S., in an action to recover the possession of personal property, described the property to be seized as “ one piece of square timber about thirty long and twelve inches square, of pine, of the value of” &c. Held, that the defect in the description of the length of the timber (being a clerical mistake) might have been corrected by amendment, and did not render the process utterly void.</p> <p>Although the officer might perhaps have refused to execute the writ, yet, after he had in fact seized the right property under it, a party indicted and convicted for resisting such seizure could not reverse the conviction on the ground of such defect in the writ.</p>

EKROB to the Circuit Court for Ozaulcee County. late district attorney for Ozaukee county, to the point that a writ of error would lie in this case in behalf of the state, cited E. S, ch. 139, secs. 25, 34; ch. 115, secs. 5, 6 ; ch. 181, sec. 10 ; ch. 10, sec. 50 ; State v. Buchanan, 5 Har. & J., 317, 324; State v. Graham, 1 Pike (Ark.), 428, 432 ; Commonwealth v. Barr, 5 Watts & S., 345 ; Comm. v. McKisson, 8 S. & R, 420; Comm, v. Taylor, 5 Binney, 277 ; U. S.v. Satter,…

MANDAMUS to compel the defendant, as register of deeds for the county of Juneau, to remove his office from the village of New Lisbon to the village of Mauston. The facts alleged in the relation are stated in the opinion of this court upon a demurrer to the respondent’s return to the alternative writ of mandamus, 14 Wis., 122.

<p>Under sec. 1, ch. 118, R. S., a qualified elector of this state who is not also a citizen of the United States is not qualified to serve as a grand juror.</p> <p>Where one of the grand jury by which an indictment was found was not a citizen of the Unite,d States, the court erred in refusing to quash the indictment on that ground, and also erred in afterwards overruling a plea in abatement for the same cause.</p>

Sill was indicted, tried, convicted and sentenced in said court for larceny of several U. S. treasury notes, a motion to set aside the verdict and for a new trial having been denied. ■ The grounds of'the motion were, “1. That the verdict was rendered in said action and returned into court, and received and read by the court, and filed with the clerk, in the absence of the prisoner. 2.

<p>After the passage of the act of congress of March 8d, 1863, and the proclamation of the President of the 15lh of September following, there was a valid suspension of the writ of habeas corpus in the cases therein defined.</p> <p>The language of the act applies to the case of a person detained by the military authorities as a volunteer in the service of the United States.</p>

MANDAMUS. This was an application for a mandamus to compel the supervisors of the town of Farmington in Jefferson county to audit the relator’s account against the town for damages done to his land in said town by the laying out of a road thereon, and to levy and collect the amount. The relation states that the relator, on the 19th of March, 1860, was owner of the south half of the north-west quarter of section 18 in said town; that Wm.

The case is stated by the court. Judgment in the court below for the plaintiff, that he recover of Noyes and Davis the sum of, &c., and that the action be dismissed as to Flertzheim and Kimball without prejudice to the judgment previously recovered against them jointly with Noyes. Noyes and Davis appealed. 1. Upon tbe record, as it stands, the “real parties in interest,” who alone can sue on this bond, are Kimball and Flertz-heim.