Volume 20 — Wisconsin Reports

Replevin. On a former appeal (18 Wis., 495), it was helé that the defendants were entitled to judgment in the court below for a return of the property (which had been delivered to the plaintiff), or the value thereof in case a return could not be had. At the subsequent trial, the plaintiff declining to proceed, the court, of its own motion, ordered a judgment of nonsuit to be entered against him.

Action in tbe nature of a creditor’s bill against tbe Milwaukee, Chicago and St. Louis Steam Towing and Freight Co., William Goodnow and others.

<p>Practice — Meeersdl of Judgment — Five per cent, damages.</p> <p>1. A judgment will not be reversed because no notice of trial had been served on the party against whom it was rendered, unless there was a motion to set it aside on that ground.</p> <p>2. The appeal in this case having manifestly been taken for delay, the judgment is affirmed with five per cent, damages, in addition to the seven per cent, usually allowed.</p>

The plaintiff was in possession of a city order of the city of Milwaukee, for $130.91, payable to the order of one Ludwig; and the defendants, being engaged upon a committee appointed by the board of councillors of said city to investigate alleged frauds of some of the city officers in respect to such orders, obtained this one from the plaintiff to aid them in the investigation, under the promise to restore it. They failed to restore it, and this action was for its value.

Action on two promissory notes made by defendants March 25, 1859, for $400 and. $1,000 respectively, payable to S. M. Booth or order, and alleged to have been indorsed and delivered by Booth to the plaintiff. Defense, that the notes were not the property of the plaintiff, but of one Bacon. The plaintiff put in evidence the notes and indorsement, and rested. S. M. Booth, for defendants, testified that he wrote to the plaintiff about May 10th, 1850, enclosing said notes.

Action to abate a mill clam. A report of tbe decision on a former appeal, with a statement of tbe case, will be found in 17 Wis., 362-372.

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

Ejectment. Tbe answer sets up tbe facts stated in tbe opinion of tbe court, and “ demands judgment against tbe plaintiff, and for tbe costs of tbe action.” Tbe defendant appealed from an order sustaining a demurrer to tbe answer. cited Gillett v. Eaton, 6 Wis., 30; Tollman v. Ely, id., 244; StarJc v. Brown, 12 id., 572, and cases there cited. contended tbat tbe defense pleaded, if good at all under sucb a mortgage as tbat alleged, should baye been made by tbe mortgagee…

Action for for the amount alleged to be due on a contract for the sale and purchase of land, executed by the plaintiff as vendor, and Jesse' Pardun, the defendant’s testator, as purchaser.

This action was commenced in a justice’s court: the complaint, which was not verified, alleging that defendant, on &c, “ did unlawfully make forcible entry into tenements in the quiet and peaceable possession” of the complainant (describing them), and then and there did forcibly and unlawfully eject jilaintiff from said building, and that he still unlawfully and forcibly held the same from the complainant.

Action for the amount of one hunched and fifty interest coupons for ten dollars each, attached to thirty bonds for one hundred dollars each, issued by the defendant to the Wisconsin Central Bailroacl Company; and also for accrued interest upon said coupons. The act authorizing the issue of said bonds was approved February 23d, 1857. Private and Local Laws of 1857, ch. 39.

EBBOB to tbe Circuit Court for Dane County. Oleson was indicted under sec. 12, cb. 167, B. S., for aiding prisoners in tbe custody of tbe sheriff of said county, and confined in tbe county jail, to escape therefrom. Tbe form of tbe indictment will sufficiently appear from tbe opinion, infra.

<p>EEEOE to tbe Circuit Court for Manitowoc County.</p> <p>cited 1 Cbitty’s Or. Law, pp. 696, 699, 701, 704; 2 Hale’s P. C., 404-5.</p>

<p>Complaint — Action to try title to office.</p> <p>In an action to try title to a public office, it is sufficient if the complaint alleges that the relator, at the general election held, on &c., in the several towns and election districts of a certain named county, “was duly elected and chosen by the legal and qualified voters of said county,” to said office; and the whole number of votes given at such election for that office, with the number given for each candidate, need not be stated.</p>

“ Tbe Chamber of Commerce of tbe City of Milwaukee ” is a corporation existing under tbe provisions of cb. 132, Laws of 1858, B. S., p. 490.

ON EXCEPTIONS from the Circuit Court fox Winnebago County. /The defendant was indicted for larceny of two horses and a set of harness, the property of one Buhler; and the jury hav iug found him guilty, a new trial was refused.

APPLICATIONS for writs of Mandamus. Chapter 12 of the private and local laws of 1853, authorizes the board of supervisors of the town of Beloit to subscribe for $100,000 of the capital stock of a railroad company, and issue, in payment therefor, bonds of the town; and further provides that said board, “ whenever the same shall become necessary, shall annually levy a tax upon the taxable property of said town, sufficient to pay the interest upon said bonds,” &c. Said board of…

Tbe petition of tbe relator was accompanied by tbe affidavit of bis agent, stating in substance tbat said Sherman recovered in 1861, in tbe county court of said county, a judgment against tbe city of Milwaukee, for $802.75, wbicb was docketed on tbe same day, and still remains in force, and no part of it paid ; tbat execution was issued thereupon, and retmned nulla Iona; “ tbat said Sherman * * bas demanded payment of said judgment of tbe treasurer of said city, and tbe said…

APPEALS from, tbe Circuit Court for Racine County. Foreclosure of a mortgage. Tbe action was by Galvin 6?. Williams against Elizabeth Yager, Patrick Gt. Cheeves and wife, John A. Waltermire and wife, Zechariah H Link, and Elizabeth Ya-ger and Hiram, Hiestand as administrator and administratrix of tbe estate of Henry W. Yager, deceased.

The relator obtained a rule requiring the respondents to show cause why a peremptory mandamus should not issue, commanding them to levy a tax to pay a judgment rendered and docketed in the circuit court of the United States for the district of Wisconsin against said board of supervisors, for the amount of certain interest coupons attached to bonds issued in aid of a railroad. The order was based upon an affidavit and certain exhibits attached thereto.

On tibe 25tb of November, 1854, one Newell sold and conveyed certain lands in Eock county to the plaintiff, Wynn, and the defendant Lawsha, who mortgaged back the premises to Newell, for $7,991.50, being a part of the purchase money. The deed and the mortgage were both recorded in December, 1854.

Action to restrain tbe issue of deeds for plaintiff’s lots on Wells street, in tbe city of Milwaukee, upon certificates of sale thereof for certain special taxes assessed thereon for tbe amount of street commissioners’ certificates of work done in constructing a sewer in said street. See Kneeland v. The Oity of Milwaukee et al, 18 Wis., 411.

Action against Warrich Price and William B. Price, for moneys in their hands alleged to be the property of the plaintiff.

Tbe action below was brought by the bank against the railroad company, to recover damages for losses upon flour shipped by the company’s road, addressed to consignees in the city of New York, in consequence of delay in the transportation of the same, and also in consequence of careless handling. The receipt and bill of lading is set forth in the complaint as follows : “Detroit and Milwaukee Railroad, Milwaukee, January 3, 1862.

This action was brought by James, John and Isabella Stronach, infant children of James Stronach, deceased, by their guardian ad litem, against Lester Sexton and Adam Stronach. The facts alleged in the complaint are in substance as follows: James Stronach died in 1858, in Michigan, leaving the plaintiffs his sole surviving children and heirs-at-law.

Action for a trespass upon land. Tbe substance of tbe pleadings, and tbe decision of tbis court reversing a judgment of' nonsuit, will be found in 17 Wis., 504-12. Tbe grounds of tbe action and defense will also sufficiently appear from tbe opinion on tbe present appeal.

<p>Chango of place of trial — Interest of the judge.</p> <p>1. Where a claim in favor of J. county against M. county for $652 had been disallowed by the board of supervisors of the latter, and an appeal taken to the circuit court of M. county; Held, that a motion for a change of the place of trial should have been allowed, on the ground of interest of the judge, under sec. 7, cb. 123, and sec. 23, ch. 119, R. S.</p> <p>2. If no objection had been taken to said circuit judge sitting in the cause, or it had been necessary for him to do so to prevent a failure of justice, this court would have held him competent, his interest in the subject matter of the action being minute.</p>

Tfre complaint alleges that, on &c., the defendant bought of Peet & Williams, at Menasha in this state, one hundred barrels of flour, marked… Held: five dollars, wbicb was not done in this case.” The court instructed the jury that “ the answer admitted the delivery of the flour, and its acceptance by the defendant; that an existing indebtedness of the assignor of a thing in action, in which the plaintiff is interested as an entire or part owner of the same, is a sufficient…

Action upon an alleged equitable mortgage of tbe schooner L. J. Earwell by Isaac T. Branch to John Q-.

Action to foreclose a railroad mortgage, and to have a receiver appointed, &c. The complaint alleges the making of bonds for two million dollars by the La Ch'osse & Milwaukee R. R. Go., in 1858, with interest coupons attached, and the execution as security therefor of a mortgage or deed of trust running to William Barnes, and embracing the whole road of said company from Milwaukee to La Crosse, with all the real property connected with said road, and all its rolling stock,…

The plaintiff sought in this action to avail itself of certain covenants of the defendant company in a deed of indenture entered into between the latter and the La Crosse & Milwaukee Eailroad Company, to whose rights in that behalf plaintiff claims to have succeeded.

<p> Appeal to Supreme Court from, order of judge at chambers. </p> <p>1. Under eh. 139, Laws of 1861, a party applying for an injunction to a judge at chambers, who wishes to appeal to the supreme court from an order refusing his application, must give immediate notice of such appeal, and must within, three days tender to the opposite party a written undertaking, &c.</p> <p>2. The appeal in this case dismissed for failure to comply with these requirements of the statute.</p> <p>3. The fact that the respondent noticed the cause for argument in this court, held not to be a wawet' of this objection to the appeal,</p> <p>é. "Whether the legislature has power under the constitution of this state to provide for an immediate appeal to the supreme court from the decision of a judge at chambers, is not decided.</p>

Tbe plaintiff, a resident of tbe town of Mazomanie, listed Ms personal property liable to taxation there in 1864, as follows: “Horses oyer two years &c., 1 — $150.00 ; gold and silver watebes, 1 — $50.00 ; aggregate of all other articles of personal property, $800.00. Total, $1,000.” TMs statement be verified by tbe oath prescribed by law.

<p> Mil of Exceptions, by whom, to be settled. </p> <p>1 This court has no power to settle a bill of exceptions in a cause tried at the circuit court, where the judge hefore whom the trial was had died before the bill was settled; nor under any other circumstances.</p> <p>2, It is'the practice in this state for the judge before whom the cause was tried, if living, to settle the bill of exceptions, even after the expiration of his term o f office; and there seems to be no objection to this practice. Per Com, J.</p>

Tbis action was commenced in 1862 in tbe Milwaukee circuit court, to foreclose a mortgage upon certain lots in tbe city of Milwaukee, executed to tbe plaintiff by Anson Eldred and wife. It was removed to tbe Racine ckcuit court.

Action on a note executed by tbe defendants Falvey and Reilly, February 1st, 1859, at ten months, for $529. Answer, that on tbe 25th of November, 1860, Falvey sold, assigned and transferred to tbe plaintiff promissory notes and mortgages made by third parties, to tbe amount of about $2,000, in satisfaction and •payment of tbe claim set forth in tbe complaint, and of a certain other claim of tbe plaintiff against Falvey.

Action against tbe Phoenix Insurance Company, of Hartford, Connecticut, on an insurance policy issued to tbe plaintiff De Pemor on bis property, and payable in part to tbe other plaintiffs, Joseph and William Blakeley. Tbe statement in tbe opinion shows sufficiently tbe point on wbicb tbe case turned, both in tbe court below and in tbis court.

Action against Dunning as former treasurer of said county, and the sureties on his official bond, for alleged breaches thereof.

REPORTED from the Circuit Court for Jefferson County. Indictment for obtaining property under false pretenses.

In 1853 a tract of land, 141-2 rods wide and 64 rods deep, in the city of Janesville, was sold and conveyed to J. M. Smith, and an adjoining tract of the same depth, and eight rods wide, was sold and conveyed to Mrs. Julia S. B. Smith, wife of said J. M. Smith; and the whole was thereafter known as “Smith’s ten acres,” and was described as ten acres in the assessment roll. In March, 1860, the tract first mentioned was sold for $19.36, and conveyed to Charles S. Roe.

EEEOE to tbe Municipal Court of tbe City and County of Mihuaulcee. Tbe bill of exceptions in tbis cause is no longer on file in tbis court; but tbe essential facts will sufficiently appear from tbe opinion.

Tbe plaintiff in error was convicted on tbe first count of an indictment, wbicb was in substance as follows: That one William E. Culver, on tbe 1st of April, 1865, at tbe city of Milwaukee, delivered and entrusted to bim (said White) tbe sum of $300 of tbe properties and moneys of one Joel Culver, to be carried by said White and delivered by bim for said William E. Culver, and by said William E. Culver sent to one Charles Clason of Williamstown in Dodge county; and said…

Action in tbe nature of Quo Warranto, commenced, in tbis court, in January, 1866.

This was an action for slander, brought by V. K,and his wife, 8. K. The complaint, after stating the marriage of the plaintiffs, the good character and reputation of the plaintiff 8.

Action under cli. 151, Laws of 1859, to enforce a lien against tbe schooner Rosabelle, her apparel and furniture, for the price of certain spikes, iron &c. furnished to one Boole for, and used in building and equipping, said vessel. The complaint alleges that said Boole, at the time said articles were purchased, was the agent of said vessel, and was duly authorized to purchase the material and contract the debt on her account.

Action for a divorce from the bonds of matrimony. The summons, dated January 25,1865, states that the complaint “ will be filed,” &c. An order of service by publication was obtained on the day of the date of the summons, and the same was published for six successive weeks, the first publication being on the 28th of January, and the last on the 4th of March, 1865. The complaint was filed April 11th, 1865.

Action by Franklin J. Blair and wife, to recover damages for injuries received by the latter while a passenger on defendant's road, and alleged to have been caused by defendant’s negligence.

This action was brought to recover for injuries suffered by the plaintiff while being conveyed as a passenger in a train of cars on defendant’s road. The occasion on which the injuries were received was the same as that described in the preceding case of Blair and wife against the same defendant {ante, jd. 254), to which reference is here made. The single point on which the judgment was reversed here, will sufficiently appear from the opinion.

APPEALS from tbe Circuit Court for Milwaukee County. These appeals were taken by tbe plaintiff, one from an order setting aside a judgment in tbe action (wbicb was to foreclose a mortgage), and tbe other from an order setting aside a sale made during tbe pendency of tbe first appeal. Tbe facts are statéd in tbe opinion. A court cannot, on motion, set aside a judgment rendered at a previous term, except in cases provided for by statute.

This action was commenced in the Winnebago circuit court, to foreclose a mortgage on real estate in Waupaca county. There was no appearance by any of the defendants. Judgment was rendered in the usual form, which recites, inter alia, due proof of personal service of the summons and complaint upon all the defendants.

Action to avoid a note and chattel mortgage, and to restrain tbe seizure and sale of tbe mortgaged property. Tbe defendant Marr was tbe mortgagee, and tbe sheriff of tbe county was also made defendant.

The action below was brought by Kennedy upon three notes executed to “Rathbone & Kennedy” in March, 1856, by one Kimball, in the firm name of 11 Lange & Kimball,” and alleged to have become the sole property of said Kennedy. The answer of Lange denies that any partnership existed between him and Kimball at the time of the making of said note, and also denies that he and Kimball ever made said notes, or that he was a party thereto or liable thereon.

Action to foreclose a mortgage, executed in 1857, to Leonard Bennett, to secure a note for $1100, of .same date, payable in one year therefrom.

APPEALS from tbe Circuit Court for Walworth County. These were applications for writs of mandamus commanding tbe supervisors of tbe tbe town of Richmond in said county to issue an order on tbe town treasurer in each case for $214, in favor of Willard Dockstader and-Dockstader, respectively.

Warring brought an action against The Farmers' Loan & Trust Company, in a justice’s court, to recover for a horse hilled by a train on the Racine & Mississippi railroad, of which said company was in possession. The summons issued by the justice was returned with a certificate of the sheriff indorsed thereon, that, on &c., he personally served the same “ by leaving a true and attested copy with G-.

In 1851, Gale contracted to purchase an undivided three eighths of certain mill property belonging to Hall, and in 1855 received a deed for the same, and executed back a mortgage upon it to secure payment of part of the purchase money.

<p>APPEAL from, thfe Circuit Court for Walworth County.</p>

The relator, Hiram Bowen, obtained from A. A. Jackson, Esq., a court commissioner for Rock county, a writ of habeas corpus cum causa, directed to the sheriff of said county and made returnable to the Hon. L. S. Dixon, Chief Justice of this court.

Action by holder of tax title to bar the title and interest of the original owners, Davis and Moore. The affidavit of service of summons and complaint was made May 3d, 1864, as follows: “ State of Wisconsin, Milwaukee County, ss.

APPEAR from the Circuit-Court for Rode County. This action was brought against the City of Janesville and the treasurer thereof, to restrain the sale of lot 78 in Smith, Bailey & Stone’s addition to said city, for the taxes of 1854 ’55, ’56 and ’57, re-assessed in 1862 under ch. 48, Laws of 1862. The facts found by the circuit court are sufficiently stated in the opinion.

Thie action was commenced in a justice’s court, and judgment was rendered against the defendant on his default; from wbicb an appeal was taken to the circuit court in June, 1864. The cause was not noticed by either party at either of the next two terms of said court. During the second of said terms, defendant obtained an order upon plaintiff to show cause why he should not be permitted to file an answer, and have the cause continued to the next term.

This appeal was taken by tbe defendant from an order of tbe circuit court dismissing an appeal to it from tbe county court of said county.

Danaher and Booney were garnisheed, August 3d, 1864, in a suit then pending between tbe plaintiff and one Power; andtbeir answer being unsatisfactory to tbe plaintiff, tbe issue was tried before a jury.

APPEAR from tbe Circuit Court for Milwaukee County. Tbe complaint alleges, in substance, that in 1858 tbe defendant loaned to tbe plaintiff $4000, and received from him five notes for $1000 each, at 12 per cent, interest, secured by a mortgage of real property; that said notes and mortgage bad, about a month before said loan, been executed to one Wilson, and by Wilson indorsed to defendant or in blank, without recourse, and redelivered to plaintiff, tbe transaction being…

APPEALS from tbe County Court for Milwaukee County. Foreclosure of a mortgage. Tbe case is stated in tbe opinion. cited and rebed upon State ex rel. Child v. Smith, 19 Wis., 531.

APPEALS from tbe Circuit Court for Milwauleeo County. Plaintiff recovered judgment against defendant for $424.48 and execution was issued and returned nulla bona.

Tbis was an action for divorce from tbe bond of matrimony, for alleged adultery of tbe wife; and tbe defendant being, at tbe time of its commencement, resident at Cassel, Germany, tbe summons was served in July, 1865, by jDublication and by mailing a copy to ber at that place. There being no answer or ajspearance on ber part, and evidence having been taken and reported by a referee, tbe court rendered a judgment of divorce, as prayed for, on tbe 30th of September, 1865.

Tbis was an action upon a policy of insurance upon tbe life of John S. Rockwell, plaintiff’s husband, deceased ; and the defense was that the plaintiff had failed to pay the annual premium last preceding the death of her husband, the condition of the policy being that upon such a default in payment it should be forfeited.

The decision of a former appeal in this cause is reported in 18 Wis., pp. 431-37. The cause haying been remanded, the plaintiff amended his complaint so as to make defendants all the persons who owned the bonds of the Oity of Milwaukee, issued in aid of the Milwaukee & Superior Railroad Company.

Tbe plaintiff was a passenger on tbe defendant’s road from Chicago to Milwaukee ; and it is alleged in tbe complaint tbat while getting off tbe cars, after then- arrival at tbe latter place (which was about one o’clock at night), she, through defender's negligence, was thrown down by the motion of the train, which had commenced backing, and received severe personal injuries; to recover damages for which this action was brought. The answer denies these allegations.

Foreclosure of a mortgage executed to defendant Shadrach Burdick by defendant Dickinson, to secure bis note, and subsequently assigned and transferred with tbe note to plaintiff together with, a bond of said iShadrach Burdick, conditioned that the principal and interest secured by said note and mortgage should be paid when due. The complaint stated these facts.

Foreclosure of a mortgage. The defendants Lewis and wife and. Tesch asserted by their answer a paramount title, undertax deeds.

Tbis was an action to recover for injuries inflicted on the plaintiff Elizabeth Piclcett by a ram belonging to the defendant, which was permitted to run in in the highway and is alleged to have been a vicious animal and disposed to injure mankind, of which fact defendant had notice. The answer denied all the material allegations of the complaint as to the injury. The testimony on both sides was voluminous, but need not be stated here.

Action on a note and mortgage executed by James F. Mc-Collum to the La Crosse & Milwaukee Railroad Company, in June, 1855, to be paid for in its capital stock. The note was for $6000, payable to the said railroad company or its order, January 1st, 1865, with interest at eight per cent., at the city of Milwaukee.

The action below was ejectment, commenced May 6th, 1864, by Mary JB. Reynolds against Gottlieb Schmidt, for seven thirty-sixth parts, undivided, of sixty acres of land. The complaint was in the usual form. The defendant, by his answer, claimed to be the owner in fee of the whole of said tract, and entitled to the possession.

APPEAL fi’om the Circuit Court for Dane County. This action was brought by Sarah K. Boys, as executrix of the will of Samuel H. Roys, deceased, upon a claim alleged to have accrued in 1856 and 1857 against the defendant and in favor of the law firm of Roys & Pinney, for professional services ; Mr. Pinney, after the dissolution of said firm by the death of Mr. Roys, having assigned Ms interest in said claim to the plaintiff, “ as a part division of the assets of said firm.”…

This action was commenced before a justice for the balance of an account between the parties; and in the plaintiff’s bill of particulars the largest item charged to defendant was — ■“ Damage from bad seed corn, and from cattle eating what corn did grow — $100.” The answer contained a general denial.

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

On tbe 26tb of November, 1857, Pearley Dodge and Carry L. Judson executed to tbe plaintiff a cbattel mortgage to secure tbe payment by them to Mm of $11,000 on or before July 1st, 1859.

Foreclosure of a mortgage of real estate executed June 12, 1857, to secure a note of tbe same date for $2200, payable in one year with interest at 12 per cent. The defendants, hy their answer, claimed to offset various sums paid as usurious interest, against the plaintiff’s demand.

Foreclosure of a mortgage executed by Lovejoy and wife to one Merrill, to secure a note of tbe same date for $1000, with interest at 12 per cent. The mortgage and note were subsequently assigned, after due, to the plaintiff. The defense was usury: and the facts will sufficiently appear from the opinion. Judgment for the plaintiff; from which the defendants appealed.

Action to recover for labor and services in cutting and getting out logs, &c. Defendants claimed to recoup for damages done them by the plaintiff while so engaged in their service, by so cutting a tree as to cause it to fall upon and kill two horses belonging to them. Evidence was introduced tending to establish the defense.

This action was brought against Tarleton Jones for goods alleged to have been sold to him and delivered to Jones & Co. at his request, during the year 1859. Answer, a general denial. The plaintiff filed a bill of particulars. The testimony given by the plaintiff in his own behalf at the trial, and the circumstances under which his offer of his books of account in evidence was rejected by the court, are sufficiently stated in the opinion.

Whittemore & Weisbrod presented to the board of supervisors of said county their account for services in making briefs and oral arguments in the supreme court at two different terms, in the case of The State v. Cole; and the account having been disallowed, recovered a judgment for the amount thereof in the circuit court. The defendant appealed.

Ejectment for a strip of land in Broad street, in the city of Oshkosh. A report of the decision of this court upon a former appeal will he found in 18 Wis., 85, to which reference is made.

Tfrere was a judgment of discontinuance in this cause as to all tire defendants, on the motion of the attorney for several of them; and the jDlaintiff appealed.

Action to bar the defendant of all title to and interest in certain land under a tax deed, and compel Mm to release bis claim thereto, and to have the tax deed declared void, &o. It is alleged in the complaint, among other things, “ that the tax on which said land was sold, was, including fees, interest and all lawful charges up to the hour of sale, the sum of $22.91; that the said county treasurer, voithout authority of law, demanded an additional sum of one dollar and…

Ejectment. In June, 1848, tbe plaintiff conveyed to one Wright lands described as follows : “ commencing on the road at the northwest corner of section eleven, in town six north of range nineteen east, in the Milwaukee land district; thence south on the road dividing sections ten and eleven, sixteen rods; thence, at right angles with said road, and parallel with the north line of said section, twenty rods, to a stake; thence, at right angles, and parallel with the west line…

Tbis was an action to hare a street commissioners’ certificate of work done in grading a street in front of a lot belonging to tbe plaintiff, in tbe city of Milwaukee, declared void, &c. Tbe complaint attacks tbe validity of tbe proceedings under wbicb sucb certificate was issued, upon a variety of grounds, wbicb were also elaborately argued by tbe counsel for tbe respective parties in tbis court; but tbe facts necessary to an understand-, ing of tbe point decided are…

This action was brought to restrain the defendant from obstructing a certain mill-race described in the complaint. The facts are stated in the opinion. The circuit court dismissed the complaint; and the plaintiff appealed. cited Sheldon v. Boclcwell, 9 Wis., 183 ; and also contended that the plaintiff’s right was established by limitation under ch. 184, Laws of 1862. as to the remedy by injunction generally, cited Willard’s Eq. Jur., 242-392; Gardner v. Newburgh, 2 Johns.

■ So much, of tbe evidence for tbe plaintiff as is contained in tbe bill of exceptions, shows tbat tbe building was erected six or seven years before tbe action, by one Ingles, on tbe northeast quarter of tbe southeast quarter of section 17 in a certain town in said county; tbat in November or December, 1863, it was moved by Ingles on to tbe north half of the southwest quarter of section 16, in tbe same town ; tbat it remained there on poles or rails, just as it was moved,…

George McNight presented to tbe county court of said county a claim against tbe estate of Tbomas McNigbt, consisting of charges for tbe board of said Tbomas and of bis son Walter, and for washing and mending clothes for them, between September, 1858, and May 1st, 1861. Tbe claim amounted to $420.00, and tbe county court allowed only $75 thereof; and from this decision tbe claimant appealed to tbe circuit court.

The action below was ejectment by Baton, for a half lot in tbe town of Brothertown, in said county. The plaintiff claimed under (1.) A tax deed executed May 20, 1852, to one Eastman, upon a tax sale made in 1841; and a deed from Eastman to the plaintiff. (2) A tax deed to H. Modlin, dated December 18, 1851; and a deed from Modlin to plaintiff These two were ruled out because the tax deed was sealed only with the official seal of the board of supervisors.

This appeal was taken by tbe defendant, Mary A. Batchelder, from an order overruling her demurrer to the complaint, as not stating a cause of action against her.

Action for the value of the use and occupation of premises alleged to have been the property of one Holdridge, and affcer-terwards of the plaintiff, and to have been occupied by the defendant “ according to the permission” of said Holdridge and subsequently of the plaintiff, from October 1st, 1859, to February 1st, 1863. The plaintiff had taken an assignment of Holclridge’s claim for that portion of the time during which the latter owned the premises.

In April, 1862, tbe legislature of this state passed an act (cb. 95, Pr. & L. Laws of 1862) which declares tbat H. J. Gleason and John JG. Ferrel, their heirs &c., shall have tbe exclusive right for tea years, of maintaining a power ferry across the Wisconsin river, on sec. 22 in town 8 north, of range 8 west, in Grant and Crawford counties.

Action to recover possession of personal property. Tbe complaint alleges “ tbat tbe defendant bas become possessed of, and wrongfully detains from tbe plaintiff, tbe following personal property, goods and chattels, tbe property of tbe plaintiff,” &c. Tbe defendant demurred to tbe complaint as not stating facts sufficient to constitute a cause of action; tbe demurrer was sustained; and tbe plaintiff appealed. to tbe point tbat tbe complaint was not bad because it did not…

Tbe defendant, Yeeder, on tbe 20tb of November, 1852, was, and for a long time previous bad been, in possession and occupation of a tract of land in Columbia county in this state; wbicb was a part of tbe land granted to tbe state by an act of Congress in 1846 to aid in tbe improvement of tbe Eox and Wisconsin rivers, and accepted by tbe state by an act approved August 8, 1848.

Tbe administrator of tbe estate of Jobn T. Martin appealed to said court from so much of an order made by tbe county court of said county in June, 1865, providing for tbe distribution of certain moneys of the estate, as required him to pay to Asa W. Allen tbe sum of $1888. Tbe claim thus ordered to be paid was allowed by tbe county court on tbe 17th of March, 1862. Tbe circuit court affirmed tbe order; and tbe administrator appealed.

Chap. 17 of the acts passed at the first session of the 28th Congress, approved May 23, 1844 (5 U. S. Statutes at Large, p. 657), provides as follows: “Whenever any portion of the surveyed public lands has been or shall be settled upon and occupied as a town site, and therefore not subject to entry under the existing pre-emption laws, it shall be lawful, in case such town or place shall be incorporated, for the corporate authorities thereof, and, if not incorporated, for the…

ON EXCEPTIONS from Marquette County. This cause was brought up on exceptions from the circuit court for Marquette county, where a yerdict of guilty had been found against the defendant on an indictment for larceny.

U. Parry presented to the commissioners appointed to examine and adjust claims against the estate of U. Parry, jr., deceased, a claim founded on a promissory note for $4,716.

<p>APPEAL from the Circuit Court for Waupaca County.</p> <p>The facts are stated in the opinion of the court.</p>

This was an action before a justice of the peace for injury to the plaintiff’s crops by the defendant’s cattle, and for negligently burning the plaintiff’s rails, &c. Answer, a general denial. Judgment before the justice for $100, from which defendant appealed. Before the case was noticed for trial, the defendant served on the plaintiff’s attorney an offer in writing to permit the plaintiff to take judgment against him for $20 and costs.

The defendants appealed from an order refusing to set aside a verdict for the plaintiff, and grant a new trial. The case is stated in the opinion of the court.

Replevin. Verdict for plaintiff. Tbe defendant moved on “ tbe minutes of the judge and all tbe papers in tbe cause,” and certain affidavits, for anew trial, because of misdirection of tbe judge, newly discovered evidence, incompetency of one of tbe jurors and other reasons.

Action to recover possession of a package of gold coin of the United States, “representing at its par value $400, of the value of $850,” which it was alleged, the defendant wrongfully detained from the plaintiff. The complaint demanded judgment for a return of the gold, and damages for its detention.

Action by Vaughan upon a written contract with Howe & Rahlin for the delivery by the former to the latter, on the bank of a certain stream, of good, sound, merchantable logs, to the amount of 400,000 feet, or more, not exceeding 1,000,000 feet, to be scaled on the bank, at $3 per 1,000 feet.

Margaret Weatherbee made a motion in April, 1865, to set aside a judgment for 'divorce rendered against her in the same court in June, 1863, on the ground that the court had not acquired jurisdiction of her person.

Cady brought Ms action in said court to recover the amount of the coupons on certain bonds issued by the City of Water-town., under cbap. 128 of the Private and Local Laws of 1856. Judgment in the court below for the amount of the coupons, with interest from the time they fell due; and the city brings this suit to reverse the judgment.

While having obtained a judgment for the foreclosure of a mortgage given by Polleys on lots 1 and 2 of B. and O.’s addition to the (now)- city of La Crosse, and the premises having-been advertised for sale by a referee, Polleys applied to the court for an order directing the referee to cause his homestead, situated on said lots, not exceeding l-4th of an acre, to be surveyed by some disinterested, competent person, and set off to him as provided by law in case of sale on…

This was a contest for the guardianship of Libbie Ramsay (a girl about two years old), between Bhoda F. Bamsay, the mother of the child, and Bobert M. Bamsay, its uncle. On the trial in the circuit court, it appeared that Thomas M. Ramsay, the father of the child, enlisted in the army in August, 1864, and died in November following, and that about a year before his death, he and his wife Bhoda had separated, Libbie remain ing with her father.

The complaint alleged that in September, 1852, one Reed entered by pre-emption, at the land office in Menasha, a cer- ■ tain tract of land which was subject to such entry ; that at the time of proving his pre-emption claim, he paid the receiver the price of said land, and received a certificate of purchase; that in December, 1852, he conveyed the land to one McFarland, through, whom the plaintiffs derive title; that in April, 1856, the commissioner of the general land…

Action by Hiram Wescott and Charles D. Wescott against William Delano, for taking away and converting to his own use certain marsh hay. Verdict and judgment for the plaintiffs; and the defendant appealed. The facts necessary to an understanding of the point decided by this court are sufficiently stated in the opinion. cited 6 N. Y., 279-298; 8 Met, 84 ; 4 id., 580; 83 Pa. St, 251; 6 N. Y., 279 ; 1 Washb. on Real Property, 414-419 ; 3 Johns., 528; 7 Cow., 48.

<p>Judgment on ref wee's report, whei'e ordw of reference reversed, without sta/y of pro ceedmgs. — Bill of exceptions on appeal from order, apart of the recordfor all purposes.</p> <p>1. Where an order of reference for trial was reversed, a judgment previously rendered on the referee’s report (proceedingsnot being stayed) must also be reversed, though appellant had notice of the trial before the referee, and of the motion for judgment, and did not appear.</p> <p>2. The bill of exceptions settled on an appeal from an order remains a part of the record for all purposes.</p>

Action to enforce a vendor’s lien on land for the purchase money. The case stated in the complaint is substantially as follows: In May, 1856, the plaintiff, being seized in fee of 209 acres of land, and holding school land certificates for 120 acres of state land adjoining, agreed with John Henderson, as the agent of Helen Henderson, to convey said lands to said John as such agent, but in his own name, and said John, as such agent, purchased the same.

In October, 1854, one John Matson entered the land by pre-emption, and on the 1st of November following sold and conveyed it to the plaintiff, and the deed, together with a mortgage back on the premises executed by the plaintiff on the same day to secure a part of the purchase money, was recorded on the 10th ’ of that month; on which day also a quit-claim deed of the land from Ann Matson, wife of said John, to the plaintiff, was executed and recorded.

Action under mill-dam act, for flowage of plaintiff’s lands.

This was an action by the administrator of Prances L. Bishop against the defendant, for negligently causing the death of said Prances, a child about ten years old, who with her mother, was a passenger on the defendant’s train from Chicago to Port At-Mnson.

One Lloyd obtained a judgment against John Jones in December, 1864, for $289.47, and execution having been returned “no property,” supplementary proceedings were had, in which C. B. Hamlin was appointed receiver; and he brought this action to set aside, as fraudulent against creditors, a conveyance of 320 acres of land which Jones had made to his son on the 4th of May, 1860; which land the son, on the same day, conveyed to his mother, Mary Jones.

Tbe complaint in this case (which was against Sarah Bagan and her husband) stated that said Sarah, in 1858, employed tbe plaintiff and bis then partner, Mr. Williams, to bring an action to set aside a conveyance which she and her husband bad made to tbe Milwaukee and Watertown Bailroad Company, of certain real estate which tbe said Sarah owned as her separate estate ; that tbe plaintiff and said Williams, upon tbe credit of such separate estate, brought said action and…

The complaint stated that the plaintiff was a mulatto, of half white and half African Wood, a citizen of this state, and a resident for several years last past of the 7th ward of the city of Milwaukee; that at the general election held in said state, in November, 1849, in pursuance of the constitution and of a law passed for that purpose, the question was submitted to the electors of said state, whether the right of suffrage should be extended to persons of African descent…

Action on a promissory note. Judgment for the defendant ; and the plaintiff appealed. The case is stated in the opinion. cited Todd v. Lee, 15 Wis., 365, 381; Elliott v. Benily, 17 id., 591; 2 Story’s Eq. Jur., § 1387 ; Dillaye v. Parles, 31 Barb., 132. cited sec. 12, ch. 122, R. S. ; Elliott v. Benily, 17 Wis., 691.

The plaintiff sought in this action to have a certain forty acre tract to which she held title in fee, and another forty in which she claimed a right of dower, discharged from the lien of certain mortgages. These tracts are respectively the S. W. qr. of the S. W. qr. of sec. 24, and the N. W. qr. of the N. W. qr. of sec. 25, in town 10 N., R. 15 E., in said county.

In January, 1854, one Rudolph. Kalmerton executed to the Milwault.ee & Horicon Bailroad Company his note for $1200, at ten years, with, interest payable annually; and as security therefor, a mortgage on land. In July following, the company assigned the note and- mortgage as collateral to a bond of its own for $1200, purchased by the plaintiff.

In July, 1860, Eliphalet L. Pease deceased, leaving him surviving bis widow, Charlotte M., and three children of a former wife, to wit: Ezra B., Delos H. and Imogene T. Pease, the last three being respectively twenty-two, seventeen and fourteen years of age. Delos H. died at Keokuk, Iowa, in June, 1864, without issue. Imogene T., in July, 1864, intermarried with one Jason Walker, and in April, 1865, deceased in said county of Eond du Lac, without issue.

The case is stated in the opinion. The appeal was by the plaintiffs from a judgment dismissing the complaint as to Mather. 1. A mortgagee cannot, either directly or indirectly, by or through a tax sale, acquire a title adverse to his mortgagor. Blalce v. Howe, 1 Aiken, 306 ; Willard v. Strong, 14 Yt, 532 ; Blackwell on Tax Titles (eel. of 1864), p. 399 ; Douglas v. Dangerfield, 10 Oblo, 152 ; Ballance v. Forsyth, 13 How.

Action by Mary A. Donovan for a divorce from the bond of matrimony from John B. Donovan.

Action for damages for defendant’s failure to deliver at tbe city of New Tort, within a reasonable time after their shipment, sundry consignments of flour. The decision of the court on a former appeal will be found in 19 Wis., 118-125. The form of the contract will be found set forth in that report.

EEEOE to tbe Circuit Court for Milwaukee County. Tbe plaintiffs in error were convicted on an indictment of wbicb tbe first count charged (with specification of time and place) that tbe accused “ tbe dwelling bouse of Oscar C. Per-ris, situate in tbe city of Milwaukee in said county of Milwaukee, feloniously did break and enter, witb intent tbe goods and chattels and property of tbe said Oscar C. Perris, in tbe said dwelling bouse then and there being, then and there in the…

Booth brought his action against Ableman and Coggswell to recover possession of certain personal property ; and the defense was, that the defendants took and detained the property as marshal and deputy marshal of the United States, by virtue of an execution against the property of Booth issued out of the district court of the United States for the district of Wisconsin to make the amount of/ an unsatisfied judgment in said court in favor of one Grarland.

Eeplevin for a quantity of wheat Tbe complaint alleges tbat on and before July 6th, 1864, plaintiff was tbe owner of 1500 bushels of No. 1 spring wheat, of tbe value, &c., in tbe possession of one Wm.

Foreclosure of a mortgage. The amount claimed to be due was $500, with interest from July 1st, 1860. The complaint did not state the value of the property. There was a demurrer to it on the ground, among others, that the court had no jurisdiction of the subject of the action; and this was the only ground relied upon here.

Knapp obtained a judgment of foreclosure and sale of mortgaged premises, against one Diekerman (tbe mortgagor) and bis wife, one Hoyt and bis wife, and one Whipple, said Hoyt and Whipple being made defendants as subsequent incum-brancers.

Tbe plaintiffs were partners residing and owning saw mills in Wood county, and on tbe 5tb of June were owners of 15,000 feet of “pine lumber, board measurement in tbe log,” tben situated in tbe town of Texas in Marathón county, in Pine river and on tbe banks thereof, which was then in transit to said mills in Wood county, but was temporarily detained by low water.

This was an appeal by tbe defendants Ira P. and Lyman Bacon, from a judgment of said circuit court, perpetually restraining (for fraud in obtaining it) tbe collection of a judgment rendered by a justice of tbe peace of said county, in favor of Ira P. Bacon against Orandall, which judgment bad been assigned to Lyman Bacon.

<p> Vacating of Judgment after- one year. </p> <p>1. A final judgment in a court of last resort cannot be vacated after a year from its rendition, on the ground that the court had no jurisdiction of the subject matter.</p> <p>2. Such a judgment remains valid and binding although the court, in subsequent actions of a similar character, may have determined that it has no jurisdiction over the subject matter.</p>

<p>APPEAL from the County Court of Milwaukee County.</p>

<p>APPEAL from the Circuit Court for Fond du Lac County.</p> <p>The plaintiffs (who were respondents here), moved to dismiss the appeal.</p>

ERROR-to the Circuit Court for Dane County. The case is stated in the opinion. If the jury had found the house to be Fullers, whether they found it to hare been occupied by Norton and wife or not, they ought to hare found a verdict of “ guilty as charged in the first count,” the penalty for the offense there charged being less than for that charged in the other counts. And they should have been so instructed. Wharton’s Prec., 2, note.

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

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

On decreeing a divorce of Erancis Glasscott and Jennett Glasscott from the bond of matrimony, at the suit of the latter, said circuit court, in September, 1864, awarded the care and custody of their child, Erancis Douglass Glasscott, to said Jennett.

APPEAR from tbe Circuit Court for Marathon County. This appeal was from an order setting aside a sheriff’s sale.

The plaintiff declared on a note executed by defendants, Bassett, Bnglish, John W. Powell and Nathaniel J. Powell, November 15, 1859, payable one year from date with interest at twelve per cent., it being alleged that there was due and unpaid thereon the principal sum with interest from January 5th, 1863.

Action, commenced in 1862, to foreclose two mortgages executed in 1849 and 1851 respectively by the defendant Baxter. The first mortgage was given to secure the payment of $300, “ according to the condition of a certain note,” of the same date; which note called for the payment of said sum in three equal installments in 1851, 1852, and 1853, with interest at seven per cent.

This action was brought by Mary K Edson against the defendant as treasurer of a sobool district, for the amount alleged to be unpaid on a school order drawn upon defendant by the clerk of said school district to pay for her services in teaching the district school. One of the defenses was, that the plaintiff was a married woman, and not authorized to maintain the action.