Volume 19 — Wisconsin Reports

Beplevin for a colt, brought by John W. Selsby. The defendant claimed as purchaser at a sheriff’s sale, in November, 1861, under an execution against the property of James K. Selsby, plaintiff’s father.

Oroix County. Action, commenced November 21, 1862, for the price of a horse sold by plaintiff to defendant. The answer set up several counter-claims, one of which was for a balance of $24.56 upon a note for $36, dated September 16, 1862, executed by Dryden to one Benjamin Tucker, and of which the defendant claimed to be the owner and holder. The note, which was put in evidence, had indorsed upon it, under date November 21, 1862, payment of $11.56.

The plaintiff and the defendants entered into a contract under seal, by which the former undertook to deliver at certain points on the Wolf and Embarrass rivers, “ one thousand cords of oak stave bolts, thirty-two inches long, one length of bolts to be counted as a cordfive hundred cords to be delivered by the 15th of July, 1862, and the balance by the 15th of October following.

APPEALS from the the Circuit Court for /Saule County. The complaint alleges that defendant Moseley, August 5th, 1858, executed to the plaintiff his note for $500 with interest payable August 5th, 1861, and as collateral security executed to him a mortgage of the S. W. 1-4 of Sec. 17, the S. 1-2 of S. E. 1-4, See. 18, and the N. 1-2 N. E. 1-4, Sec. 19, T. 9, in said county; which was recorded August 16,1858.

The case is stated by the court. The verdict and judgment were for the plaintiff; and the defendant appealed. cited 12 Wend., 591; 1 Smith’s L. C., 300; Redfield on Railways, p. 253, subd. 7 et seq.; 5 Term, 389; 8 M. & W., 258.

This was a creditor’s bill, filed in April, 1862, to enforce a judgment against John Poe. The defendant Sexton demurred to the complaint, on the grounds that the court had no jurisdiction of the action; that several causes of action had been improperly joined; and that the complaint did not state a cause of action. The demurrer was overruled, and Sexton appealed.

CEBTIÓBABI to a Justice of the Peace in Saule County. The petition of the plaintiff in error alleges the following errors: That the docket of the justice did not contain any statement of the return of the summons by the officer who served it; nor did it show in what manner the summons was served, if at all; nor that the justice held his court at the time or place appointed in the summons; nor at what hour the suit was called or the judgment rendered; and that the justice had…

Action to recover twice the value 'of a fence built by plaintiff on 'the line between his land and that of the defendants.

The action below was brought by the Board of Supervisors of said county upon the official bond of Jones, who was county treasurer for two years from January 1, 1858.

The action below was ejectment by Collins and Amelia Shackleford against Woodbury, commenced in February, 1864. Title to the premises vested in Barlow Shackleford, March. 14, 1842 ; and he died September 22, 1847, leaving the plaintiffs his sole heirs. Said Collins became 21 years of age in June, 1860, and said Amelia in September, 1863.

Action to foreclose a mortgage given to the plaintiff by one Aldrich, July 19, 1861, to secure the payment of $500 loaned to him by plaintiff on that day. Aldrich died before the commencement of the suit, having previously conveyed the mortgaged premises to Morley. No part of the amount loaned had been paid.

Action commenced in 1863 to quiet title to land of which the plaintiff claimed to be in possession, and to which he claimed title under a tax sale made in 1856, for delinquent taxes of the previous year, and deed executed therefor in January, 1863, and recorded the same month.

Action for the wrongful taking and conversion of personal property of the alleged value of about $760. Defense, that the goods were the property of one Chase, and were seized by defendant as deputy U. S. marshal, under an attachment from tbe United States District Court for Wisconsin, in an action by one Adams against said Chase for an indebtedness of $500. The answer contains the allegations usual in such cases.

Action for a libel. The complaint, after certain averments as to the character and reputation of the plaintiff, and that at the time of the alleged libel he was [sheriff of Milwaukee county, alleges, in substance, that on the day of November, 1861, at the city of Milwaukee, defendants “ falsely, wickedly and maliciously did compose and publish * * concerning the plaintiff, as such sheriff,” certain “false, scandalous, malicious and defamatory matter,” which is then set out…

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

Jj^This was a prosecution under sec. 101, cb. 19, R. S., against Milton Joyce and another, for obstructing a highway, commenced in justice’s court, where a judgment was rendered against the defendants ; and taken by appeal to the circuit court, where the judgment was affirmed as against said Milton Joyce, and reversed as to his co-defendant, the judge having found that the latter did not take any part in obstructing said highway.

The plaintiffs brought this action “in their individual capacity and as tax payers, as well in their own behalf as on behalf of all other corporators and tax payers ” of the city of Beloit in said county, who might be affected by the subject matter of the action, to restrain the sale of certain lots in said city by the treasurer thereof, for the amount of certain assessments alleged to have been illegally made against such lots, and also to restrain the execution of deeds…

The case is stated by the court. Verdict and judgment for the defendant; and the plaintiffs appealed. contended that the evidence showed the guaranty to have been given after the plaintiffs sold their goods to the maker of the note, and the verdict was conclusive on that point; and that therefore some consideration for it must be shown, other than the credit given by the plaintiffs to the maker of the note, citing Leonard v. Vanderburgh, 8 Johns., 29. 2.

The case is sufficiently stated by the court. The circuit court rendered a judgment in favor of the plaintiff; and the defendant appealed.

Action to recover damages for the flowage of land. The Fox and Wisconsin Improvement Company demurred to the complaint on three grounds, the second of which was, that several causes of action were improperly joined therein.

Elbridge Smith was discharged from bis debts, under the provisions of ch. 161, R. S., by the judge of said circuit court at chambers, April 10, 1862; and thereafter judgments were entered for the several creditors and against said Elbridge Smith, and such judgments were discharged of record, in accordance with secs. 21 and 22 of said chapter. A writ of error was sued out from this court by Frederick H. Smith, one of said creditors, under sec. 25 of said chapter.

Replevin, commenced in a justice’s court, October 23,1862. The plaintiff obtained possession of the property in dispute, under the statute.

This appeal was taken by the defendant from an order refusing to set aside an attachment. The grounds of the motion will sufficiently appear from the opinion. to the point that the affidavit was defective in not stating more particularly the nature of the defendant’s indebtedness, cited In re Hollmgshead, 6 Wend., 553 ; People v. Recorder of Albany, 6 Hill, 429 ; Cas-tellanos v. Jones, 1 Seld., 164; Quarles v. Robinson, 1 Chand., 29 ; Hlliott v. Jackson, 3 Wis., 653.

This action was brought in the county court of said county, and, on the affidavit of the defendants, alleging prejudice on the part of Hon. Gr. W. Washburn, the judge of said court, was removed to the circuit court. Sec. 17, ch. 861, Laws of 1860.

The County Board of Supervisors of said county disallowed the claim of the plaintiff for the amount of his fees as a witness in a criminal prosecution, he having been summoned for the defendant in such prosecution, and such defendant having been acquitted. On appeal to the circuit court, judgment was rendered for the plaintiff, and the defendant appealed. cited sec. 7, Art. I, Constitution of IV is.; sec. 8, ch. 177, R. S.; Westv.

The complaint in this action contained seven counts, the first five being for damages (amounting in the aggregate to $256) for the defendant’s neglect as a common carrier, in failing to deliver at New York city, within a reasonable time, five several consignments of flour. The form of the contracts between the parties is given in the opinion of the court.

The action below was by Jenkins and others against Steanka, to recover possession of certain lumber, or the value thereof (alleged to be $400), with damages for the detention. The plaintiffs obtained possession under the statute.

CERTIFIED from the Circuit Court for Winnebago County. Indictment for uttering and passing “ in payment to one George Eastman, as true, a certain false, forged and counterfeit bill, purporting to have been issued by a corporation duly authorized for that purpose by the laws of the state of Ver* mont, * * * that is to say, by the Bank of Rutland (the said Bank of Rutland being duly authorized by the laws of the state of Yermont aforesaid for the purpose of issuing bank bills)…

Action for goods sold and delivered. Answer, payment. Th'e proof showed that the alleged payment was made in bank certificates of deposit, payable in currency; which were protested for non-payment, the bank having failed. There was conflicting evidence as to whether the plaintiffs received the certificates in absolute payment.

This appeal was taken by the defendant from a judgment in favor of the plaintiff. The question presented will sufficiently appear from the opinion. cited 6 Wis., 636; 4 Chand., 72 ; Brnbury v. Conner, 3 Corns., 511; Le Guen v. Gouverneur, 1 Johns. Cas., 436, 2d ed., note A., 462; 2 Smith’s L. C., 669— 70; Fish v. Folley, 6 Hill, 54 ; 15 Johns., 432 ; 3 Wend., 154; Secor v. Sturgis, 16 JST.

This was an appeal from an order sustaining a demurrer to the complaint. The question presented will sufficiently appear from the opinion. Of the notes running from Barnes to Powers (referred to in the opinion) the first, which became due July 1st, 1858, was for $690, the amount of a quarterly installment.

Action to recover damages for injuries done to a colt belonging to plaintiff, and alleged to have resulted from the negligence of defendant’s servants in running a train upon its track. Verdict and judgment for plaintiff; and defendant appealed. The questions presented by the record are sufficiently stated by the court. cited secs. 1 and 2, ch. 280, Laws of 1860; Corwin v. N. Y. & E. B. B. Co., 3 Kern., 42; Btuche v. M. & JMJ.

Action commenced in 1863 to foreclose a mortgage executed in December, 1850, to secure a bond for $4688, due October 1, 1860, with… Held: the possession; that the net value of the rents and profits was $500fper annum ; that said Houghton had refused and neglected to pay the taxes and assessments which since said 19th day of November, 1859, had been legally assessed on said premises, and they had'been sold by the county treasurer for the taxes of the years 1860, 1861…

APPEAL fram to the Circuit Court for Calumet County. Ejectment. Trial by tbe court without a jury. Judgment for the plaintiff; from which the defendant appealed. The case is stated in the opinion. 1. Held: substantially, by this court in Quinney v. Denney.

This appeal was taken by the plaintiff from a judgment refusing to grant him a divorce. The case is stated by the court.

Ejectment. The plaintiff claimed under a deed from E. Stanley Smith, executed in April and recorded in May, 1849.

This cause was once brought to this court on an appeal by the defendants from an order of the circuit court setting aside its previous order which directed satisfaction to be entered of the judgment therein. The facts are fully stated - in 18 Wis., 575-594.

Action for divorce. The defendant appealed from a judgment for the plaintiff. The only question presented by the record is sufficiently stated in the opinion. cited secs. 1 and 2, ch. 184, Laws of 1858; Barnes v. Martin„ 15 Wis., 240 ; /Shoemaker v. McKee, 19 How. Pr. R, 86; P-v. P-, 24 id,, 197; Ghamberlain v. The People, 28 N. Y., 85; Marsh v. Potter, 80 Barb., 506. cited 2 Kent (10th ed.), 184, 185; 1 Blacks.

Action upon a claim for $200 for .bounty, assigned to the plaintiffs by one Cook, who had volunteered, was enlisted and accepted into the service of the United States in January, 1864. The assignment was made February 2d, and the plaintiffs filed it with the town clerk on the 10th of the same month, together with proof that said Cook had been mustered into the service and credited to said town.

Action for an unlawful and forcible entry and detainer. The premises were described in the complaint as the east half of the northeast quarter of a certain section in said county. After the plaintiff rested, the court, on defendant’s motion, ordered a nonsuit; and the plaintiff appealed from the judgment.

Judgment was rendered in this action in a justice’s court in favor of the defendant. The plaintiff served a notice of appeal and an affidavit of merits, &c., in a cause entitled Joseph Widner v. William Wood. After these papers were filed in the circuit court, defendant’s attorney served a notice of trial, accepted a notice of retainer, and filed a note of issue in the cause of Joseph Widner v. David Wood.

This action was commenced before B. L. Purdy, Esq., a justice of the peace; and on the 21st of September, 1862, the justice’s docket states that plaintiff “ declared orally on a note given by defendant to plaintiff, dated Eairfield, June 9, 1862, and demanded judgment on the same for $100.” The defendant answered, and after trial had, judgment was rendered in plaintiff’s favor for $100 damages.

This was an appeal from a judgment of the circuit court in favor of the defendant, on an appeal to that court from a decision of the county court of said county disallowing a claim of the plaintiffs as executors of the last will of Samuel Griggs, against the defendant as administrator of the estate of Asa Eoote. The claim was upon a joint and several note executed by said Asa Eoote and another to said Griggs or bearer. The circuit court found as facts: 1.

The action below was by Jarvis against Phillips, for $210, on a promissory note dated September 28, 1857, payable to H. Nelson or bearer, at three months from date. There was no allegation that the note was transferred to the plaintiff before due.

Action to reform and foreclose a mortgage on tbe west balf of lot 2, block 128, in tbe city of Madison, executed to the plaintiff by Jacob Smith and bis wife, Agnes Smith, to secure four notes for $125 each, and one for $100, with interest at 12 per cent., made by said Jacob to tbe plaintiff, and alleged to have been for a loan of $600. Tbe correction prayed for, and the grounds of such prayer, will sufficiently appear from tbe opinion.

<p>A summons, complaint not served,, which stated that on defendant’s failure to answer within twenty days, &c., plaintiff would take judgment “for the sum of two hundred and fifty, with ten per cent, interest from ” &e., is fatally defective, and the word “ dollars ” will not he supplied by construction to sustain a judg-, ment taken by default.</p>

This was an appeal by the defendant from a judgment in favor of the plaintiff. The case is stated in the opinion. The plaintiff claims that the defendant, in consideration of the assignment to him of the contract, agreed to perform all the undertakings, and assume all the risks, liabilities and responsibilities imposed upon or assumed by Campbell, among which was the liability to pay for the “ dimension stone,” and save harmless his sureties.

In January, 1859, Moses and Therese Pacquette recovered a judgment of ejectment against Christian Pickness for a quarter section of land in said county.

Ferson and. Drew, having been copartners in the lumbering business, entered into a contract to settle the business of the copartnership in a certain manner, and in case they could not. agree upon any matters connected with such settlement, to submit them to the arbitration of one Hancock. Smith guarantied in writing the performance of said contract on the part of Ferson.

This appeal was taken by the defendant from an order of said court overruling a demurrer to the complaint as not stating a cause of action. The contract declared on is set out in the opinion.

Judgment was rendered against defendant in this cause, on his failure to appear when the cause was called for trial, December 22, 1863.

CERTIFIED from the Circuit Court for Winnebago County. to tbe point that this was not a case in wbicli exceptions could be taken under see. 7, cb. 180, R. S., cited R. S., chap. 37; 11 N. H., 156; 12 id., 144; 6 Pick., 104 ; 6 Blackf, 4,5 ; 39 Me., 472.

Tbe relator, Frederick S. Smith, asked for a mandamus to compel tbe respondents to revoke a certain order issued by them, releasing to one Eldridge Smith certain material which had been cut by him on a forty acre tract of school land, specified in said order; and also to compel them to seize and sell said property and allow the relator, at such sale, to bid the amount due the state for the land and the expenses of the seizure and sale, and upon the making of such bid to…

EEEOE to the Circuit Court for Kenosha County. The action below was brought by the State on the complaint of the supervisors of the town of Pleasant Prairie, against Seymour, for obstructing a highway running along the south line of the S. E. qr. of sec. 26, T. 1 in said county. Answer, that the locus in quo was land belonging to Seymour, and not highway.

This was an action to recover damages from defendant for converting to bis own use and delivering to the Milwaukee and Beloit Railroad Company, a note and mortgage executed by the plaintiff at the request of defendant (who was a stockholder in said company), running to the company as payee and mortgagee, but which the complaint alleges was delivered to defendant in pursuance of an agreement that he would safely keep and hold the same as an escrow, and would not deliver them…

This action was brought by Howland, Jordan and Hategan, residents and tax payers in the town of Pleasant Prairie in said county, on behalf of themselves and all othey persons similarly interested, against one Parish, treasurer of said town, and the County Board of Supervisors of Kenosha-.

Action commenced in April, 1862, on a promissory note for $1000, executed by defendants to plaintiff, October 15, 1858, with interest at twelve per cent. ' The complaint alleged that no part of the note had been paid except the interest for six months. The answer alleged a further payment of $180, on or about the 14th of April, 1859, and demanded “ that that sum be allowed as set-off and payment against and upon said note.” There was a reply in denial.

Ejectment, for one hundred and forty acres of land in said county. It appeared from plaintiff’s evidence that 120 acres of said land, being three quarters of the southwest quarter of a section, was entered and purchased of the United States, in 1841, by one Gibbs, and the other twenty acres were entered in 1839 by one Clark ; and that a tax deed of the tract first mentioned was executed to one Barker in 1848, and recorded in the same year.

In 1861, the plaintiff, as landlord, and the defendant, as tenant, entered into a contract for the cultivation of a farm in said county, and the division of the products thereof.

Action to recover $131.79 for goods alleged to have been sold by plaintiff, at his store in Delavan in said county, to the defendant residing at Whitewater in the same county. Answer, a general denial. It appeared on the trial that defendant’s wife purchased the goods in her husband’s name. The exceptions taken to the rulings of the circuit court, so far as they are passed upon by this court, will sufficiently appear from the opinion.

Action, to foreclose a mortgage given by the defendants William Hollister and wife to the Racine & Mississippi Railroad Company, to secure a note for $800, executed to said company by William Hollister. The plaintiff -claimed as assignee in good faith and for a valuable consideration before the note was due.

A motion to set aside a judgment rendered in said court against the defendant, was founded upon an affidavit of H. S. Durand, upon whom the summons and complaint bad been served September 14, 1863, that he was not at that time the president or other officer, or the “ managing agent” of the defendant.

, the court issued a writ of habeas corpus; to which Brown made return, in substance, that in February, 1859, the said Hannah and her mother were inmates of the county poor house in said county, and a county charge; that the father of said Hannah was at the same time a convict in the state prison of this state, and had long before then been unable to support said minor and ber mother; that on the 21st of said month the county superintendents of the poor of said county, by…

Cbap. 160, Private and Local Laws of 1854, contains tbe following provisions: “ Sec. 1. Held: a majority of the votes cast were against subscribing for the stock of said company; that in order to prove that there was no legal election, defendant must prove that there was no request on the part of the required number of electors of said town, or that no such notice as was required by the act was given by the supervisors, or,…

Trespass, for unlawfully entering the plaintiff’s premises and searching his house, barns and other out-buildings, hay and straw stacks, &c., for stolen property.

This was air application for a mandamus directing the clerk of the board of supervisors of Pierce county to issue to .the relators tax deeds of certain lands. The essential facts upon which the questions of law arose will sufficiently appear from the opinion.

In a proceeding under the statute (oh. 37, R. S.).to compel the plaintiff in error to support a child of which he was alleged to be the father, judgment was rendered against him in said court; and this action was brought to reverse said judgment. The return to the writ is no longer found on the files of this court.

This action was brought in 1862, to foreclose a mortgage given by tbe defendant William Mosher to Reuben Stone, tbe plaintiff’s testator, in 1841, to secure a bond for $1000, with interest. Tbe plaintiff’s co-executor, Reuben E. Stone, died in November, 1858. William Mosher answered denying any indebtedness, and alleging that in June, 1858, be paid said Reuben E. Stone tbe full amount of tbe mortgage debt, and that said Reuben E. thereupon discharged tbe mortgage of record.

Replevin, for a cow alleged to bave been taken by tbe defendant, April 22d, 1861, from tbe possession of tbe plaintiff, wbo bad levied upon tbe same as a constable on tbe 18tb of tbe same month, on an execution against one Nickerson, under a judgment against Nickerson in favor of one Bullen, rendered by Z. B. Burke, Esq., a justice of tbe peace in said county. Tbe defendant answered that tbe right of possession of said cow bad been adjudged by Lot.

This action was commenced in 1862, to rescind a contract for the purchase of real property, entered into November 3d, 1860, and to recover so much of the purchase money as had been paid by the plaintiff at the date of said contract. By the terms of the contract, $558. were to be-paid at the delivery thereof, and two installments of $494- in one and two years thereafter; and thereupon plaintiff was to receive a deed of the premises.

This cause was here before .on an appeal by the defendant from an order overruling its demurrer to the original complaint; and the order was reversed by this court. See 18th Wis., 17-24. The two causes of action as set forth in the original complaint, are clearly stated in the opinion on that appeal. After the cause was remitted to the circuit, the plaintiff amended his complaint.

Action against George Patchin and bis wife Jane, on a note for $281, executed by tbe latter dum sola, dated March 6, 1856, and payable in six years, with twelve per cent, interest, payable annually.

This action was brought to recover tbe value of five $1000 bonds, of tbe state of California, bearing interest at seven per cent., alleged to have been delivered to tbe defendant as a common carrier, September 6tb, 1857, at tbe city of Buffalo, New York, addressed to tbe plaintiff’s intestate, John T. Martin, at Madison in this state, and lost through the negligence of defendant’s servants. There were other counts for negligence of the defendant as a bailee for hire.

<p>where, after judgment entered in favor of the plaintiff, the verdict has been set aside and a new trial granted on motion of the defendant, he cannot proceed by writ of error to reverse the judgment, although it has not been formally vacated — an order for vacating it being grantable as of course upon his application therefor in the circuit court.</p>

Action to recover possession of six stacks of wheat, alleged to be the property of the plaintiff, and being, at the commencement of the action, “ on the farm occupied by Elizabeth Bishop and Godfrey H. Bishop,” in said county. The plaintiff obtained possession under the statute.

Ejectment, for a piece of land described in the complaint as follows: “beginning at the south end of the mill race in the west line of lot 3, block 1, in the village of Humboldt, and running thence south 38J degrees east, on the west line of said lot 8, to lot 4, thence westerly at right angles to said line of lot 3 about fifty feet, thence north 38J degrees west, at right angles to the last mentioned line, to the mill race aforesaid, thence easterly along the end of said…

The defendant was sued by the plaintiff for damages for overflowing by a dam certain lands alleged to be the property of the latter.

Action hy John Gf. Bennett and Almira, his wife, to restrain the sheriff from deeding a certain 80 acre tract of land to the other defendants, constituting the firm of Child, Gould & Co., who had purchased the land at a sale on execution against the plaintiff John Gr. Bennett; and to set aside the sale.

The circuit court set aside a verdict for the plaintiffs and granted a new trial in this cause, on affidavits showing that one of the jurors had removed from said county to Dane county, and that this fact was not known to the defendant or his attorney, before the trial. The plaintiffs appealed from the order. argued that the only qualifications for a juror prescribed by the statutes of this state, are citizenship of the United States and the right to vote in this state.

This action was brought to reverse an order of said court dismissing an appeal by the plaintiffs in February, 1864, from the decision and… Held: in this office, that such an appeal is subject to stamp duty as an original process. The same rule is held to apply to all appeals from an inferior court to a court of record.” (2.) This appeal is a suit prosecuted in a court of record. Weston v. Gity Council of Charleston, 2 Pet., 449. It was also commenced in the circuit court.

Action on a promissory note alleged to have been executed by the defendant Dousman to the defendant Larkin, and by the latter indorsed to the plaintiff. The defendants answered setting up certain special defenses; and Larkin, for a separate defense in his own behalf, denied presentment and demand of payment, and service of the notice of protest.

This action was brought against Maurice Fitzgerald as administrator of the estate of Garrett M. Fitzgerald, deceased, for the amount due on a note executed by said Garrett in his life time, and allowed in plaintiff’s favor by tbe commissioners appointed to adjust claims against said estate. , The court ordered service of the summons by publication, upon an affidavit of one of plaintiff’s attorneys, which was in substance as follows : that a summons bad been issued in the…

Ejectment for two'Village lots. Neither the original bill of exceptions nor any copy of the printed bill is now found .on the files of this court. The facts will however sufficiently appear from the opinion of the court. The judgment was for the defendant; and the plaintiff appealed.

On the 24th of February, 1855, defendant contracted with the La Crosse and Milwaukee Railroad Company to construct that part of its line of road “ extending from the Junction to Horicon on the east bank of Rock River,” to the satisfaction and acceptance of the chief engineer of the company.

Foreclosure of a mortgage executed by Biley to TJndevwood, December 3d, 1858, on the “ east 40 acres of the south 100 rods of the south-west quarter of section 20, township 7 N, range 21 E.,” to secure a note of same date for $1370, payable in ten years with interest.

Action to recover damages for tbe flowage of plaintiff’s land, caused by tbe maintenance of a mill dam across tbe Ocono-mowoc creek, tbe outlet of Okaucbee lake in said county.

The ground on which a reversal of the justice’s judgment in this case was sought, will sufficiently appear from the opinion.

Austin recovered a money judgment against Sabin, June 22d, 1868, which was docketed in the office of the clerk of said circuit court on the same day; and the next day an execution was issued thereon,- which omitted to state the time and place of such docketing.

The plaintiff in this action asked for judgment that the defendants execute to him a quit-claim deed of certain lands, and be restrained from encumbering or disposing of the same, or bringing suit to recover possession thereof; and for general relief.

<p>APPEAL from tbe Circuit Court for Dodge County.</p> <p>Ejectment. Tbe case is stated by tbe court. Tbe defendants appealed from a judgment in favor of tbe plaintiff.</p>

This court having on the 19th of November, 1861, reversed a judgment for the plaintiff in this cause, and awarded a venire de novo, the record was transmitted to the circuit court in De-comber following.

This action was brought by the plaintiff in behalf of himself and such other creditors of the Bank of Fond du Lac as might elect to become parties thereto, against said bank and certain persons named as stockholders thereof.

This action was brought by Oatharine Webster, as adminis-tratrix of the estate of Lemuel Webster, deceased, against Samuel H. Tibbits, Asa Foster and Sally P. Tibbits. After the proper allegations as to the representative character of the plaintiff, the complaint alleges in substance the following facts: In the life time of her decedent he was the owner and in possession of certain described lands in Walworth county in this state, comprising about 325 acres and worth $6000.

Grosly and others filed a bill in equity in the circuit court for Rock county, in 1856, in which they aver that they are the owners of certain lands in said county adjoining Rock river: that in 1846 a dam about four feet in height was built across said river within the present limits of the city of Janesville, and a little distance below plaintiffs’ lands, and has since been maintained at that height; that during the time it has been so maintained it has caused the waters of…

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

The action below was ejectment by Delaplaine and Burdich against Fladland. The plaintiffs’ title was derived through a mesne conveyance from one Jesse Rhodes ; and to establish title in the latter they put in evidence the record of a decree and proceedings in a suit in said court brought by said Rhodes against John Liedburg and Davenport Rood to foreclose a mortgage of the premises here in dispute.

Ejectment, commenced 16th April, 1863, for the east half of the west half of the south-west quarter of a certain section in said county. The answer set up as a defense the following facts : On the 1st of March, 1858, plaintiff was in possession, with right of pre-emption, of the whole of the west half of the south-west quarter of said section, containing eighty acres.

Action commenced June 18th, 1864, to restrain the issue of city bonds by the defendant, in aid of a railroad. Held: in which a majority of the qualified voters voted in favor of issuing the bonds of the city for the purpose mentioned in said act. The complaint and answer were verified.

This action was brought against George Houle and Mary, his wife, to foreclose a mortgage alleged to have been executed, acknowledged and delivered by them on the 12th of January, 1859, to one Berner, to secure a note for $232 of same date. The mortgaged premises were a farm of fifty-six acres; and the mortgage was recorded January 26th, 1859. The answer of Mary Houle denies, inter alia, that she ever executed, acknowledged or delivered the mortgage.

This was an action to forclose a mortgage of real estate in the city of Madison, executed by Hoel K. Lawrence, October 16th, 1855, to George P. Delaplaine, to secure the bond of said Lawrence conditioned for the payment of $10,500. On the 2d of November following, Lawrence conveyed an undivided fourth of the mortgaged premises to each of the defendants Hopkins, Atwood and Harwell, and on the 10th of the same month conveyed the remaining undivided fourth to said Har-well.

This action was originally brought by John White against Maurice Fitzgerald, administrator of Garret M. Eitzgerald, deceased, and four persons, children and heirs-at-law of said Garrett, and one Mullen. The complaint alleges the following facts: In 1852, during the life-time of said Garrett, he and the plaintiff entered, under an oral agreement, into a partnership for the purchase and. sale of real estate in the county of Milwaukee.

This action was brought by Herman J. Langhoff, as administrator of the estate of Mary E. Langhoff, deceased, against the Milwaukee & Prairie du Chien and the Chicago On the trial the plaintiff introduced evidence tending to establish the following facts: From the railroad crossing on St. Mary’s Avenue (where the accident occurred), it is nine or ten rods north to a cattle guard, about eighty rods to a whistling post, and about half a mile to the northern limit of the city.

Action commenced June 9fch, 1860. The complaint alleges that the plaintiff is now and for many years has been the owner in fee of certain real estate situate on section 6, T. 1 N, R. 11 E., and in sec. 1, T. 1 N., E. 11 E., in said county; that his dwelling house stands on the southwest qr. of said section 6, and is distant from any public highway; that for the purpose of securing ingress and egress to and from a public highway across land of the defendant also situate on…

This was an action to cancel a certificate of sale of lot seven and the south one-third of lot eight in block seven of the city of Milwaukee.

This cause was before this court at the June term, 1868, on appeal from an order overruling a demurrer to the complaint, and is reported in 17 Wis., 542, where will be found a statement of the substance of the complaint and of the written contract on which the action was brought.

<p>Under section 38, ch. 125, R. S., a party who has failed to file exceptions to the report of a referee (to whom the cause was referred for trial), within the ten days allowed by statute (sec. 14, ch. 264, Laws of 1860), may be permitted, by order of court, to file his exceptions subsequently upon satisfactorily excusing his failure.</p> <p>The provisions of the Code of Procedure, now scattered through the Revised Statutes, are to receive the same interpretation as when the Code constituted one act or chapter.</p>

A report of this cause upon a former appeal will be found in 15 Wis., 641, where a full abstract is given of the pleadings and of the amendments to the complaint which the court refused the plaintiff leave to make. After the cause was^ remitted, the plaintiff offered the same amendments, basing his motion upon an affidavit which is suffiiently described in the opinion infra.

This was an application for a mandamus to compel the judge of the county court of Milwaukee county to proceed to the trial of an action for divorce brought in said court by the relator, Cyrus Child, against Elizabeth Child.

In this action a judgment was obtained foreclosing a mortgage and directing a sale of the property of the Fox and Wisconsin Improvement Company to pay off the indebtedness secured by the mortgage; and a reference was made to a referee to report the amount of indebtedness outstanding against said company, for thp payment of which the trust fund included in said mortgage washable.

The action in the court below was ejectment by Eaton against Smith, and judgment was rendered for the latter. The case is sufficiently stated in the opinion of the court.

The plaintiff in error -was indicted for murder, and being convicted upon the first trial, the judgment was reversed by this court upon a writ of error. See 16 Wis., 333-6. The present action was to reverse a second conviction. The alleged errors chiefly relied upon are sufficiently stated in the opinion.

The action below was ejectment by Moses Pacquette and Theresa Brislois, against Adam Frederick.

The state having accepted a grant of land from the United States to aid in improving the navigation of the Eox and Wisconsin rivers, the governor was authorized by ch. 179, Laws of 1851, to enter into a contract with the plaintiff, Morgan L. Martin, to construct certain portions of said improvement, other portions of which had previously been contracted to other parties; and such contract was accordingly entered into on the 17th of May, 1851.

<p>ERROR to the Circuit Court for Dane County.</p>

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

<p>CERTIFIED from the Circuit Court for Grant County.</p> <p>as to the sufficiency of the indictment rmder sec. 35, ch. 164, R. S., cited Wharton’s Precedents, No. 245, p. 186; People v. Pettit, 3 Johns., 511; People v. Borges, 6 Abb., 137 ; 3 Abb. Dig., 335 ; Wüso.n v. Biate, 1 Wis., 184.</p>

<p>APPLICATION for a Mandamus.</p>

In December, 1854, “ Mclndoe & Shuter” executed their note to “ Robert Holmes of St. Louis, Missouri, or order” for $15,500, payable one day after date, with interest at one per cent.

Action to recover the amount of an alleged subscription by the defendant to the stock of the plaintiff.

Bevitt, as constable, levied an execution against the property of Crandall upon a grain drill belonging to the latter; and Crandall brought his action in the circuit court to recover the property.

Creditor’s bill, filed originally by Howe against George A. Spaulding, the judgment debtor, and Henry W. and Emily E. Colby and others as fraudulent grantees of certain lands from said Spaulding. Howe’s judgment against Spaulding was obtained March 27th, 1868, on a note executed July 5th, 1858.

The action before the justice was by Combs against Dunlap, on a promissory note made by the latter for $24.32, and was commenced February 20th, 1864.

The action below was by tbe state against Soule to recover a penalty under secs. 102 and 103, cb. 19 R. S., for the defendant’s neglect and refusal to rem >ve a fence from an alleged highway in the town of Rutland in said county, after tbe supervisors of said town bad declared tbe fence to be an obstruction of tbe highway, and had ordered its removal, and served notice of such order upon the defendant.

Action to remove a cloud from plaintiff’s title to land, created by tax deeds, and to restrain the defendant George Jarvis from proceeding in an action pending in the same court and brought by him under chap. 22, Laws of 1859.

Action commenced September 14th, 1864, to have a tax deed declared void, and defendant adjudged to release his claim to the land covered thereby. The sale was made in 1860, as for the taxes of 1859, and the deed executed September 12th, 1864.

Action for damages for the negligent killing of plaintiff’s cow by a construction train on defendant’s road. The cow was in a public highway, at the railroad crossing, when struck, and the complaint'alleges that she was lawfully there. The defendant denied generally. The plaintiff’s evidence did not show clearly how the cow came to be in the highway, but tended to show that she was running at large.

The case is stated by the court. The circuit judge refused to give the jury the following instructions asked by he defendant : “ 1st. If you find from the evidence that all the proceedings were regular up to the time of the sale, the county treasurer had authority to sell the lands in question. 2d. Payment of the bid by the purchaser is subsequent to and no part of the sale: and the county treasurer could have sued the purchaser therefor on his refusal or neglect to pay the…

Action by tax title claimant, nnder chap. 22, Laws of 1859, commenced Sept. 15th, 1863.

On the petition of Mary E. Tallmadge, the county j udge of Eond du Lac county, on the 18th of July, 1864, made an order appointing one Selim Newton guardian of the person and estate of the relator, on the ground of his incompetency, by reason of intemperance, to manage his own property.

Chapter 14, Laws of 1865 (approved and published Eebrua-ry 2d), provides as follows: “ Sec. 1. Held: and the object of the same, together with the amount of tax proposed to be voted, thereat, which notice shall be so posted not less than five nor more than ten days previously to the time appointed for holding such special meeting.

The plaintiff, a resident freeholder of the town of La Payette in said county, sought in this action to restrain the collection of taxes assessed upon his land in 1864, for the purpose of paying… Held: that was authorized by law, and that the notííjdxíioé's not follow the request in stating such purposes. The foilbWmf is the record of the proceedings “Doings of the town of La Fayette, bounty to pay volunteers, February 6th, 1864.

Ejectment for the undivided half of lots 5 and 10 in block 92 in the city of Madison. The plaintiff proved that Thomas P. Burnett died intestate in 1846, seized of said lots, .and read the deposition of Alfred Branson proving that the plaintiff (now married to one Emery) and her brother, Thomas B., were the sole heirs of Thomas P. Burnett.