Volume 21 — Wisconsin Reports

Action to recover for injuries doné to goods of plaintiff while in possession of defendant as carrier.

The defendant, after verdict against him for damages in a civil action, moved for a new trial on the ground of improper conduct of a juryman; and, the motion being denied, appealed from the j udgment. The substance of the affidavit on which the motion was based, is stated in the opinion. cited Keenan v. The State, 3 Wis., 243; 8 id., 132 ; 5 Geo., 149 ; Bradley v. Bradley, 4 Dali, 112 ; 22 Me., 198; 25 id., 474; 1 Bay, 373; 2 Gra. & Wat. on N. T., 463; Lit.

Action commenced in a justice’s court, November 16th, 1864, for $45.09, balance of account. Answer, that defendant had paid $40, July 4, 1863, not credited in plaintiff’s bill. The justice, in December following, rendered a judgment in plaintiff’s favor for the whole amount claimed; and defendant appealed.

Trespass, for remo~ring plaintiff's fence, in a certain section 8. Answer, highway &c. The locus in quo had been a highway, but plaintiff claimed that it had been discontinued by order of the town supervisors in 1862. He put in evidence: 1. An application to the town supervisors to lay out and establish a highway, and to discontinue one already existing in said section 8. 2.

This suit was commenced in a justice’s court, where plaintiff appealed from a judgment in its favor for fifty cents, damages, and the costs; and having had a new trial in the circuit court, under sec. 217, ch. 120, R. S., obtained a judgment for the same amount of damages, with the costs at the circuit court as well as before the justice. The defendant appealed from the judgment. relied on secs. 52, 56, ch. 133, R. S., and Smithbech vs. Larsen, 18 Wis., 183.

Action on a claim for bounty assigned to plaintiffs. On the 16th of January, 1864, William H. Cook became entitled to $200 of bounty from the defendant, as a volunteer in the U. S. service from that town. On the 2d of February, 1864, he assigned his claim to plaintiffs ; and in the written assignment authorized the town clerk to deliver to them all orders drawn in his favor upon said claim. The complaint alleges that this assignment was for a valuable consideration.

APPEAL -from the Circuit Court for Dane County. Action for injuries done to plaintiff’s horses by a train on defendant’s road, to which they escaped from an adjoining field. The only question of fact at issue was, whether the escape was caused by defendant’s failing to maintain in proper condition a certain set of bars in a fence between the track and land belonging to one Oleson.

APPEAL Rom the Circuit Court for Brown County. Action to restrain the collection of a tax. The complaint, alleges in substance that defendant is, and on the 6th of July, 1865, was, the owner in fee of about eighty-three acres within the limits of the Borough of Ft.

Action for slander, in charging the plaintiff with keeping a house of prostitution. Evidence was admitted for the defendant, against objection, tending to show that a daughter of the plaintiff had had sexual intercourse with two different persons, and also evidence of her admissions to the same effect, her use of lewd language to a witness, and her bad reputation for chastity.

Action to enforce a lien for materials. Tbe complaint avers tbat on, &c., the defendant was constituted a body politic and corporate (specifying the… Held: at which the authority claimed was given. 4 Brewster’s admissions were improperly received. The admissions of an agent cannot bind his principal, unless made by him while acting within the scope of his authority, and at the time of the transaction, so as to form a part of the res gesto. 1 Phillips’ Ev., 99-102 ; 1 Greenl.

The case is sufficiently stated by the court. The defendant appealed from a judgment in favor of the plaintiff. contended, 1. That a tenant is not estopped from showing that his landlord’s title has terminated. Arclib. Landlord & T., 219, 296; 1 Phil. Ev., 363 and note 5 ; Jackson v. Davis, 5 Cow., 123, 135; England v. Slade, 4 Term, 682 ; 5 Barn. & Aid., 10, 65 ; Adams on Ej., 315, note 1. 2.

Foreclosure of a mortgage. In 1852, Joel and Eand'all Whiting and Elias Palmer became liable to one Webster for moneys due bim from tbe defendant Farmin, tbus releasing certain property of the latter from attachment at the suit of Webster;' and Farmin thereupon, to indemnify them, executed to them, June 2d, 1852, the mortgage in suit, conditioned for the payment to them of $1500 on the first of December following.

Action to recover damages for tbe killing of two colts by a train upon tbe Racine and Mississippi Railroad, through tbe alleged negligence of the defendant, then bolding and operating tbe road.

Action for the value of a mule killed by a train on the Racine & Mississippi Railroad, through the alleged negligence of the defendant, then holding and operating the road. The only question at issue was, whether the spot where the accident occurred was a part of the depot grounds of the company. From the depot the railroad runs a little north of east 400 feet to a switch, which is on the eastern half of a highway running north and south.

Action for injuries to stock while being carried over the Racine and Mississippi Railroad, then operated by defendant. The complaint alleges that the injuries were caused by defendant’s negligence in carrying the cattle in a car with defective and imperfectly fastened doors, which were thrown open by the motion of the car, so that the cattle escaped.

APPEALS from the Circuit Court for Dane County. Foreclosure of a mortgage on lands in said county, executed by the defendants L. B. Tilas and luife, in September, 1855, to the plaintiff and Mrs. Louisa S. Lord, to secure bonds of said L. B. Tilas. These bonds were for the aggregate sum of $13,000, the purchase money of certain lands in Prairie du Chien, and in Grant and Green counties in this state.

Foreclosure of a mortgage made by McClellan and wife to the “Kenosha & Rockford Railroad Company,” May 25th, 1857, to secure his note of same date. The plaintiff claimed as indorsee for value. Held: as an original question, to be a general law, yet upon the authority of Havemeyer v. The Board of Supervisors of Iowa Oity, 3 Wallace, 294, it must, between these parties, be held to be private and local. 4.

Foreclosure of a mortgage on the west half and north-east quarter of a certain quarter section of land, executed by Cyrus Curtiss, April 13, 1855, to secure his note of same date.

The action was brought by Mias Long against John B. Fuller and wife. The case is stated in the opinion. Judgment for the defendants ; and the plaintiff appealed.

Action on an award of the committee of arbitration of the “ Chamber of Commerce of the city of Milwaukee,” incorporated under ch. 132, Laws of 1858.

<p> Practice in replevin : Time to file security for costs. </p> <p>1. By sec. 90, ch. 133, R. S., plaintiff in replevin has twenty days to file security for costs, after notice of the order to stay proceedings on his part until it is filed; and the court cannot prescribe a shorter time.</p> <p>2.YThe court ordered that plaintiff file such security in a shorter time, or that defendant have judgment; and, on the piaintiff’s neglect to file the security within tbe time named, defendant called up the cause out of its order on the calendar, and took judgment; from which plaintiff after fiiing security within the twenty days, appealed. Held, that it must be reversed.</p>

The facts stated in the complaint as the first cause of action, are as follows : Daniel Newhall had in store in defendant’s elevator in Milwaukee, 20,413 bushels of wheat, and on the 6th of June, 1865, employed the plaintiffs to carry it to Buffalo in their vessel, and to that end directed defendant to deliver to the master, on board said vessel, the quantity of wheat above named; and defendant thereupon weighed and delivered to said master, on board said vessel, a quantity…

Beplevin, for five “ horse-shoeing rasps. ” Defendant claimed to own them as a part of a stock of goods purchased by him fromj one Hallock, in June, 1865. The cause was first tried in a justice’s court, by a jury. The plaintiff testified that some time in the previous March, he bought of Hallock some horse shoes, and then had some conversation with him about buying six rasps.

In March, 1856, plaintiff sold to defendant four lots in the city of Milwaukee, for $1000 in money, and ten shares of stock in the Milwaukee and Watertown railroad, of the nominal value of $100 each; and gave bim a warranty deed with full covenants. Defendant paid the money, and certificates for seven shares of stock, and gave the following due bill for the remaining three shares : “ Due to JosiahA. Noonan, three hundred dollars in Watertown Railroad Stock.

The plaintiff appealed from an order 'vacating a judgment in bis favor. The motion to vacate was based on the pleadings and an affidavit, the substance of which is stated in the opinion. argued, 1. That the answer does not traverse the allegations of fact in the complaint. (1.) A denial “upon information and belief,” is insufficient. Sec. 31, ch. 125, E. S.; Therasson v. McSpedon, 2 Hilt., 1; Hacked v. Richards, 11 Legal Obs., 315; 3 E. D. Smith, 13, 19, 28.

Action for injuries to a violin carried by defendant for plaintiff from Milwaukee to New York city, and alleged to have been “carelessly, negligently and wrongfully” split and broken by defendant.

Action by the bank comptroller of this state upon a stockholders’ bond, executed by the defendant in October, 1860, to secure the holders of bills of the Kosbkonong Bank. The allegations of the complaint showing a breach of the conditions of the bond, are stated, in substance, in the opinion.

An action for personal injuries, which, it is alleged, the defendant wronfully, willfully and maliciously inflicted upon and caused the plaintiff. Answer, in denial. After eleven jurors had been called, defendant was permitted, by stipulation, to move for a change of venue; and did so upon affidavits of himself and one Perry.

Action commenced in June, 1864, by holder of tax title, claiming to be in possession of the land, to quiet his title. Held: therefore, that plaintiff had not shown a possession adverse to that of the defendant.

This action was commenced March 14, 1865. The plaintiff, by his complaint, claims title to certain land in the city of Oshkosh, under a tax deed executed by the treasurer of said city March. 13, 1865, based upon a sale in 1859, for delinquent city taxes of 1858.

Trespass to the person. The court refused to receive the testimony of defendant’s wife in his behalf. Judgment for the plaintiff; and the defendant appealed.

Action to establish the plaintiff’s title to a lot in tbe city of Oshkosh, under a tax deed executed by the city treasurer in 1864, upon a sale in 1859, for the taxes assessed in 1858. The defendant Stringham was the owner of the lot when the tax was assessed, but in 1860 conveyed it to the Oity of Oshkosh, by warranty deed. The defendants answered, 1. That the lands were not liable to taxation, at the time when, &c.; but no cause of exemption is specified. 2.

Action by Augustin Brunette and Jean Baptiste Brunette to foreclose a mortgage for the purchase money of land.

Action, for bounty money. The plaintiff sued as assignee of one Lent, and averred that defendant, on the 30th of August, 1864, at the city of Oshkosh, agreed with Lent to pay him $300 if he would be mustered into the military service of the United States and credited to the town of Oshkosh; and that Lent duly performed said conditions on the 8th of September following. Answer, in denial. — The plaintiff's evidence tended to sustain his averments.

BEPOBTED from the Circuit Court for Walworth County. This was an action before a justice of the peace, under secs. 5-7, ch. 35, B. S., for vending, &c., liquors without license. The record is no longer on file in this court, nor any statement of its substance. The form of the complaint is stated in the opinion.

QUO WARRANTO. Boyd was appointed county judge of Outagamie county in March, 1865, to fill an unexpired, term; and by virtue of that appointment was entitled to hold the office until January 1,1866, and until his successor was elected and qualified.

MANDAMUS. The affidavit filed for the relators shows the following facts: In July, 1861, the state sold to the Rock River Bank its bonds to the amount of $42,000, and received seventy cents on the dollar, and the bond of the bank, conditioned for the payment of thirty cents more on the dollar, in semi-annual installments of one per cent., with an agreement that the state bonds so purchased should be deposited with the '.sank comptroller as security for the circulation of the…

The facts and pleadings in this case are so fully stated in 13 Wis., 37-56, and 17 id., 266-83, that they will not be repeated here.

Foreclosure of a mortgage. The mortgagors subsequently conveyed the premises to Harris, by deed of quit-claim and release, for the consideration, named in the deed, of one dollar.

In May, 1866, the common council of the city of Milwaukee adopted and published an ordinance, “to establish a city slaughter house, and to regulate the management of slaughter houses and packing bouses,” &c. Tbe first section is as follows : 11 The comptroller of the city of Milwaukee is hereby authorized and directed to procure from W. G. Benedict & Co., in behalf and in the name of the city, the privilege and right of all city butchers to use the slaughter bouse of said…

Ejectment, for a lot in the city of Milwaukee. Plaintiff’s claim of title, was based upon a tax deed executed to him as assignee of said city, Nov. 13, 1865, by the city treasurer, which recites that the land was sold to the city for delinquent taxes in 1852, &c. The circuit court refused to admit the deed in evidence, accompanied by proof that the defendant was owner and holder of the tax certificate at the time the deed was issued.

This appeal was taken by the defendants from a judgment for the plaintiff. The case is stated in the opinion. The contract of the plaintiff with Kriegsman, therein referred to, was secured by mortgage on real estate of tbe plaintiff in tbe city of Milwaukee. [No brief on file.] cited Sedgw. on Dam., 237-8, and notes; Story on Prom.

Action for rent Tbe facts are stated in tbe opinion. Judgment dismissing tbe complaint, &c.; from wbicb tbe plaintiff appealed. argued that an eviction, to constitute a defense, must be by title paramount; that tbe title of the premises was not in the La,Crosse and Mil. R. R. Co., at the time of the alleged eviction; and that the disturbance of defendant’s possession was therefore a trespass, for wbieb his remedy was against the trespasser. Arcbb.

This action was brought by the administrator of one Schuh, under secs. 12, 13, ch. 135, R. S., to recover damages from the defendant for haying negligently caused the death of said Schuh. The circuit court nonsuited the plaintiff, on the ground that it appeared from his own evidence that the deceased was guilty of negligence which contributed to the injury. Plaintiff appealed from the judgment.

Action against the City of Milwaulcee, the treasurer thereof, the Milwaulcee & Superior Railroad Company, and Cornelius V. S. Roosevelt and others, non-residents of this state, to have can-celled a certain note and mortgage in the hands of said treasurer, executed by the plaintiff to said railroad company in 'payment of a subscription to its stock.

Action by. tbe assignee of a mortgage of land, executed and recorded in 1853, to bave a tax deed of tbe land adjudged void.

APPEAL irom tbe Circuit Court for Fond du Lac County. Action, by tbe bolder of tax deeds of lots in tbe city of Osh-kosb, to establish bis title. The second and third causes of action alleged, were based upon tax deeds executed by tbe treasurer of said city in April, 1863.

Action against a sheriff for a refusal to serve a writ of assistance issued by the clerk of said county. The substantial defects in the papers on which the writ was issued, are stated in-the opinion. Judgment for the defendant; from which the plaintiff appealed. to the point that the writ was properly issued, cited Equity Rules, No. 8 ; 2 Wis., 507-17 ; 10 id., 101.

Ejectment Tbe complaint avers “that under and by virtue of a certificate duly issued, executed and acknowledged according to law by the commissioners of tbe school and university lands of the state of Wisconsin, dated tbe 20th day of September, 1850,” one Bartholomew McGlone, late of said county, deceased, was at the time of his death the owner and in lawful possession of the premises.

REPORTED from tbe Circuit Court for Jackson County. Defendant was indicted for selling spirituous liquors; and after conviction, the cause was reported to this court, under the statute, for the determination of questions of law raised by defendant’s exceptions to the rulings and instructions of the court below. The nature of those questions will appear from the opinion. contended: 1.

A rale having been granted in this cause, requiring the supervisors of the town of Beloit to show cause why they should not be compelled to levy a certain tax, Q harles Peck, as chairman of said board, answered that at the annual town meeting in April, 1865, one Ruble and one Parish were elected supervisors of said town; that each of them neglected and refused to qualify, and declined and refused to accept the office; that neither of them had since said election ever…

' Plaintiffs filed a bill in equity in tbe circuit court for Milwaukee county, in January, 1855, by wbicb as subsequently amended, they alleged in substance as follows : In 1850, Wol-cott, Dousman, and Zelotes A. and Sanford D. Cotton, being then owners of certain lands on both, sides of the Milwaukee river, at the village of Humboldt, in Milwaukee county, and of a dam across the river, and the water power created thereby, entered into an agreement, under seal, with the…

Tbe case is stated in tbe opinion, so far as is necessary for an understanding of tbe points decided. Tbe defendant appeals from a judgment for tbe plaintiff.

Tbe complaint alleges that on tbe 28d of November, 1864, at Beloit, in said county, defendant agreed witb plaintiff that if tbe latter would find a purchaser for a certain farm belonging to said defendant, at a price there named, be would pay plaintiff $100; and that plaintiff found such a purchaser according to defendant’s instructions, whereby defendant became indebted, &c., and bad refused to pay. Answer, in denial.

Action under the statute (secs. 12,13, ch. 135, R. S.), to recover for injuries done to plaintiff’s intestate (who was bis wife), resulting in her death. Demurrer, on the grounds, 1. That plaintiff has not legal capacity to bring the action, it being one which his intestate could not bring, if living. 2. That the husband, as such, is the sole party in interest, and should bring the action in bis own name. 3. That the complaint does not state a cause of action.

This case was precisely similar to the preceding, except that the injury is alleged in that case to have occurred “ in the city of Janesville in this statewhile in the present case the words “-in this state ” are omitted.

In June, 1854, A. Hyatt Smith mortgaged lot 2, block 40, in the city of Janesville, with some water power thereon, to the plaintiff, Mead, as trustee of the separate estate of Ann M. C. Smith, the wife of said mortgagor, in trust for said Ann, to secure the payment of $95,000 belonging to her estate.

Action upon two promissory notes, made by defendant to Adams, McKinney & Co., and by them alleged to have been endorsed for value, before maturity, to the plaintiff. All the averments of the complaint are upon information and belief.

Action on a note and mortgage executed by Haselton to the plaintiff in August, 1858, for $500, with interest at 12 per cent. Defense, usury. The facts will appear from the opinion.

Foreclosure of a mortgage. Judgment against all the defendants in the usual form ; from which the defendant Knight appeals. The grounds of the appeal will appear from the opinion.

<p>APPEAL from the Circuit Court for Kenosha County.</p> <p>The respondent (plaintiff below) moves to strike out the bill of exceptions.</p>

Action commenced in 1866, upon a mortgage executed by Barnes and wife in 1851, “ conditioned for' the payment of the sum and interest mentioned in ” a note of the same date for $700, payable in one year from date. Demurrer, on the ground that the alleged cause of action appears from the complaint not to have accrued within six years. The defendants appealed from an order overruling the demurrer.

Action for a balance of $2017, alleged to have been collected by the defendant as a general agent for the plaintiff, and wrongfully converted by him. The complaint avers that defendant’s agency terminated on the 22d of December, 1868.

Ejectment. Plaintiff, W. H. Wright, claimed under tbe purchaser at a foreclosure sale, in Dec., 1859 ; and also under a tax deed to one Gfeorge W. Wright, made March 27th, 1861, on a sale in 1857, for taxes of 1856.* The circuit court held the tax deed invalid, because Mr. Sperry, in whose name the land was assessed, resided thereon, with sufficient personal property to satisfy the taxes.

Action commenced in May, 1864, to foreclose a mortgage executed by Knight and wife to the Farmers’ Bank of Saratoga, New York, in 1857, to secure his note of the same date for $5000, at one year, with interest at ten per cent., payable at Darlington in this state, with the current rate of exchange on New York.

Oroix County. Action upon two orders drawn, by the clerk and director of “ School District No. 2 of the town of Cylon,” in said county, upon the treasurer of that district, in favor of the plaintiff.

Oroix County. Ejectment. Defendant claimed title under tax deeds: one issued to him by the clerk of the board of supervisors of said county, September 17, 1861, on the sale of 1858, which named the county only as grantor; and two others issued by the same in lieu of the former, in 1865, after this action was commenced. The first was ruled out.

Croix County. Ejectment, commenced some time in 1865. Clapp claimed to be in possession under one wlio beld a contract for the purchase of the land from Tredway, bis co-defendant; and the latter set up title under tax deeds.

This was an appeal by the defendants from an order setting aside a verdict. The grounds of the order will appear from the opinion.

Action for the negligent killing of plaintiff’s cattle. Plaintiff was permitted to testify in bis own behalf, against defendant’s objection, no notice having been given of bis intended examination. He lived east of the defendant’s track, and pastured bis cattle in a field west of it, from which, the evidence for plaintiff tended to show, they escaped upon the track, in consequence of the fence along it, built by defendant, having been burned down some nine days before.

Action to recover damages for injuries alleged to have been done to plaintiff’s intestate, Frances L. Bishop, through, defendant’s negligence, causing her death. The father and mother of said Prances (wbo was in the twelfth year of her age at the time of the injury) were living at the time the action was commenced; and the damages are laid at $5,000. The questions here decided arose upon the instructions; and these are sufficiently set out in the opinion.

After the decision in this cause at the June term, 1866 {ante, p. 88), the plaintiff moved the court below for leave to withdraw bis replication to the separate defenses set up in the answer by way of counter-claim, numbered respectively two, three and four (ante, pp. 92-3), and to file demurrers thereto. The demurrers which he proposed to file to the third and fourth defenses were on the ground that they did not state any defense or counter-claim.

EEBOB to the Circuit Court for Bane County. Action below against Cutler as indorser of. a note payable; at the Bank of Madison. The complaint alleged that when the note became due, it was duly presented to the. maker, and payment duly demanded, but not made; that the note was thereupon duly protested for non-payment, and due notice given to defendant, &c. Judgment for plaintiff, in default of an answer; which this action is brought to reverse.

Action to recover balance due for 122 days’ work alleged to bave been done for tbe defendant between May 1st and October 29tb, 1864. Answer, tbat plaintiff bad labored for defendant only 53 1-2 days, for wbicb be bad been fully paid. It was claimed tbat tbe remainder of tbe time named in tbe complaint, plaintiff was in tbe employ of one John Kimball, and not of defendant.

Action for damages for obstructing an alley in the rear of plaintiff’s Tillage lots. The defendants are alleged to be the owners of certain adjoining lots, on both sides of the alley, and to have built a single fence enclosing all their said lots, and thus closing up the alley. The right of all lot owners in the block to the free use of such alley is alleged, and also special facts to show plaintiff’s damages, which are laid at $100.

The affidavit of relator’s attorney, on which the application was founded, states the following facts: In April, 1865, the relator recovered a judgment in said court against the town of Jefferson, fox $2,-007.32, damages and costs, which was affirmed by the supreme court, on appeal, about the 1st of November, 1865.

The case stated in the complaint is as follows: Nelson Freyer and wife, in April, 1857, executed to Gardner and Thayer a mortgage of land in said county, as security for notes of same date, running to said Gardner and Thayer, made by N. Freyer & Bros., of which firm Nelson Freyer was a member.

On the first of April, 1862, the plaintiffs, Creen and Sheldon, who were co-partners in the business of drilling wells, were employed by Gilbert to drill a well for himj at a place by him designated on bis land. Oreen furnished the drilling machine, and sometimes assisted Sheldon, who during that year did most of the work.

In 1861, Cushman executed, to McFarlane a penal bond, conditioned to pay the latter $245.70, with, interest from date, when McFarlane should perfect his title to certain lands flowed by Cushman, so that the title thereto should be “formally or informally adjudged to be perfect by the judge of the circuit court for said county, upon production to him of an abstract thereof, duly certified by the register of deeds and other officers of said county, and notice to said Cushman,…

Action for damages to a chest of carpenter’s tools, &c., carried for plaintiff by defendant from Madison in said county, to the city of Chicago, Illinois. The goods were sent on the 16th, and arrived at Chicago on the 17th of March, 1864; were not called for by plaintiff until the 23d of that month; and were injured by an accidental fire while in defendant’s possession.

Foreclosure of a mortgage made by Miza Moore to the Milwaukee & Horicon Railroad Company, in 1854. Lake was made a defendant as having or claiming some interest in the premises subsequent and subject to the mortgage; and a copy of the summons and’ complaint, with notice of no personal claim, was served upon him.

The parties to this action entered into an oral- agreement, in November, 1864, by which defendant was to deliver to plaintiffs on the railroad at the city of Appleton, an unlimited number of railroad ties; the same to be counted and accepted by plaintiffs, or by a certain person in their behalf.

Replevin for 100,000 feet of logs, held by defendant, as sheriff, by virtue of an attachment levied thereon September 28, 1865, at the suit of one Haskin, as the property of one Elbridge Smith. Plaintiff put in evidence: 1.

Replevin for logs, taken by defendant (who was sheriff of' said county), October 10, 1865, by virtue of a writ of attachment against the property of one Mowry, at the suit of Alden and others. Mowry claimed title under Elbridge Smith; and the plaintiff claimed under Frederick H. Smith. The question presented will sufficiently appear from the opinion below! Verdict for the defendant; new trial denied; and plaintiff appealed from the judgment.

APPEAL 'from the Ciro ait Court for Winnebago County. Replevin (commenced November 9, 1868), for logs, cut by plaintiff’s intestate, Nathan Paine, on certain lots in Shawano county to which he claimed title under tax deeds. Defendant claimed under the original owner of the land.

Action by a second mortgagee of chattels against Blalce, the mortgagor, and Coolbaugh, the assignee of a prior mortgage, to redeem. The first mortgage was made in January, 1862, to one Rowley, to secure the payment of $8.40 in three months from date, and the costs of a certain suit in which Rowley had become security for Blake.

This appeal was taken by the defendant from a judgment for the plaintiffs. The case is stated in the opinion. to the point that if it were true that defendant fraudulently misrepresented the value of the notes taken in payment, plaintiffs had mistaken their remedy, cited Pasley v. Freeman, 2 Smith’s L. C., 55; Smith v. Mariner, 5 Wis., 551; McNaughton v. Conhling, 9 id., 816; Castleman v. Griffin, 13 id., 535; Bussell v. Clarh,.7 Cranch, 69-92; Lord v. Goddard, 13 How.

Farrand appealed to said court from an award of commissioners, appointed pursuant to ch. 137, Laws of 1865, to determine the compensation to be paid him by the defendant company as damages for occupying with its track land which he claimed to own in the east half of Broad street in the city of Oshkosh, adjoining two lots on that street occupied by him as a residence.- — In establishing his chain of title, he was permitted to read in evidence, against defendant’s objection, a…

This was an action under the statute for the flowage of land by a mill-dam, and was brought originally against one Russ and one Chapman. Their answer stated, inter alia, that a part of the water-power created by said dam, and certain mills situate thereon, were owned by Weage and Palmer; and the court ordered these persons to be made defendants, and they filed answers.

Chapter 129, Laws of 1861, provided that in counties containing three or more assembly districts, there should be elected one member of the county board of supervisors in each as sembly district, and that when there was an even number of such districts, exceeding three, an additional supervisor for the county at large should be elected; that they should be elected at the general election in November of each alternate year, and should hold for the term of two years; and that…

Trespass quare clausum. Answer, highway. Plaintiff, in 1861, and until 1864, occupied or claimed to occupy as tenant of one Richards, a triangular tract of land, containing about two acres, bounded on the north by a town line separating it from plaintiff’s farm, on the west by the Fox river, and on the south by a strip of land taken by the Racine & Mississippi R. R. Company for its road-bed, running in a north-easterly direction from tbe river to said town line, and tbenee…

The action below was brought by the Northwestern Iron Company against the Ætna Insurance Company, of Connecticut, on an alleged policy of marine insurance upon pig iron, from Milwaukee to Cleveland, upon Lakes Michigan and Erie and the navigable waters connecting them.

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

Foreclosure of a mortgage made 18th June, 1852, to one Lenck, by defendant to secure his notes of the same date; and assigned to plaintiff by the executrix of said Lenck. The suit was brought in 1866.

Action to enforce a specific performance of an alleged contract by Meade to sell and convey certain lands, and to restrain Meade from disturbing plaintiff in its possession of the land, or creating a cloud upon its title. The facts are stated in the opinion.

In 1847, Luther A. Cole and others conveyed to one Creen and one Reed, lot 1, block 80 in the village of Watertown, with sixty-four square inches of water for propelling machinery, to be furnished on said lot, “ in a flume or race running from the dam across Rock river above, down to said lot, and to be taken by them [the grantees] from either side of said flume or race, at an opening or openings between the bottom and the top of the same: provided no more water be taken at…

Action for injuries to the person of the plaintiff received in consequence of the condition of a public road in the defendant town. The facts are stated in the second paragraph of the opinion. The circuit court instructed the jury, at defendant’» request-, as follows : “ 1.

This appeal was taken by the defendants from an order refusing to vacate a judgment in favor of the plaintiffs, and grant a new trial under ch. 115, Laws of 1866. The case is stated in the opinion. 1. The term ex post facto in the constitution applies only to criminal laws. Sedgw. on Stat. & Con. Law, 191; Smith’s Comm., 366; Calderv. Bull, 3Dallas, 386; Dashv. Van Kleech, 7 Johns., 477 ; Carpenter v. Com. of Pa., 1 How. (U. S.), 456. 2.

Action in the nature of a quo warranto, commenced in this court, to try the title of the defendant to the office of Inspector of the House of Correction for Milwaukee county. The substance of the complaint and answer will sufficiently appear from the opinion. A motion to quash the answer was denied, on the ground that the proper practice was to demur. The complainant then demurred to the answer as not stating a defense.

This was an action, brought in this court, to recover a balance alleged to be due the plaintiffs for work performed under a contract for doing the state printing. Former ¡Droceedings and decisions in the cause will be found in 13 Wis., 389-398.

Ejectment. The plaintiff claimed under a tax deed executed by the city clerk of the city of Janesville; the form of which will sufficiently appear from the opinion. This deed was ruled out by the circuit court, and judgment rendered for the defendants ; from which the plaintiff appealed.

In an action in said court against one Erahm, in which an attachment was issued against him, plaintiff made an affidavit that he believed the New England Fire Inswance Company, of Hartford, Ct., was indebted to Erahm, and procured service of said affidavit and a notice in garnishment addressed to J. B. Rowley, as agent of said company, notifying bim to appear &c., to answer under oatb all snob questions as should be put to bim touching'his liabilities as garnishee of said…

Ejectment, for a lot in tbe city of Janesville, brought by Lucy F. Call against Fvaleen A. Ghase and. Nathan Dearborn. Miss Gall claimed under a tax deed from said city, dated January 21, 1865, for taxes of 1861; Mrs. Ghase as owner of the original title, and Dearborn as her tenant.

Action by lot owners in the second ward of the city of Racine, to restrain a sale of their lots for the non-payment of certain assessments made thereon, in 1856, for the construction of piers and breakwaters in said ward.

Sec. 1, ch. 19, Laws of 1865, empowered the district board of the defendant school district, to purchase for the district “ a certain new wooden building, situate,” &c., for a school house, and to take a lease of the ground upon which it was situate, not exceeding one acre, “ for the sum of $800; and also to pay for said building and lease the additional sum of $250, if, at a special meeting or the annual meeting,” a majority of the qualified voters of the district should…

Action founded upon a judgment which, it is alleged, “ plaintiff recovered against” the defendants “in the circuit court of Kent county, state of Michigan, [stating the amount], in an action in said court wherein the plaintiff was plaintiff, and said defendants-were defendants;” which judgment has not been paid, &c. No facts are averred in the complaint to show that said court had jurisdiction to render such judgment.

Ejectment. Plaintiff claimed under a tax deed, executed in September, 1865, upon a sale made in September, 1862. The court refused to receive the deed in evidence; and the plaintiff appealed from a judgment of nonsuit.

Action for a partition, the plaintiff claiming to own an -undivided half of the premises, and the defendant denying such claim. The facts alleged in the answer and found by the court, are substantially as follows : On the 5th of June, 1858, Elisba and Seneca Raymond, owning the whole of said premises, mortgaged the same for $500, payable in three years, with interest at 12 per cent.

Action, against the defendant as a carrier by water from Milwaukee to Port Washington in tjiis state, for the value of a keg of liquor delivered to him by plaintiffs at Milwaukee, and for which defendant gave the following receipt; “ Milwaukee, July 11, 1865. Received of Hermann & Hartmann, * to be forwarded without delay as directed in the margin: M. Mueller, Waupacca. One half brl. Whiskey. Boat to Port Washington, One keg liquor.

Action for damages for a conversion by defendant of a lot of coal alleged to be the property of plaintiff. In October, 1864, X. Y. & Co., coal dealers in Milwaukee, to secure the plaintiff, who had signed with them as surety a note for $5,000, assigned to him a bill of lading for 200 tons of coal, which was then in transitu; and on the 1st of November following, said coal being then in their possession, they gave plaintiff a warehouse receipt for the same with other coal.

Action on a promissory note for $20, as the difference in plaintiff’s favor in the value of two horses exchanged by the parties. Yerdict for defendant. Motion for judgment for plaintiff non obstante veredicto, and also a subsequent motion for a new trial, denied. The grounds of the motion will appear from the opinion. Plaintiff appealed from a judgment for defendant. relied on Stever v. Lamoure, Snp. to Hill & Denio, 852-57; and Jaclcson v. Wetherill, 7 S. & R., 480.

Replevin for a horse and wagon. Defendants’ evidence tended to show that they., acquired possession of the property from plaintiff under an oral contract of sale ; and that plaintiff was to call a few hours afterward at their place of business, when they were to settle for it; that plaintiff did call, and defendants then offered to set off against his claim for the property in question, certain claims which they made against Trim on account of other transactions.

Action on a policy of insurance upon the life of John S. Rockwell, plaintiff’s husband, who died in February, 1863. Defense, non-payment of the annual premium due June 5, 1862, which, by the terms of the policy, worked a forfeiture.

On or about the 14th of November, 1862, the plaintiffs and one Wise (whose interest was subsequently assigned to plaintiffs), delivered to defendant, at Milwaukee in this state, 800 bbls. highwines and 400 bbls. alcohol, which, the complaint alleges, defendant agreed to convey to New York city and deliver there to the consignee, at 90 cents per cwt, within fifteen days from the time of such delivery at Milwaukee; the conveyance from Grand Haven, Mich., to New York city to be…

The defendant appealed from a judgment in plaintiff’s favor. The case is stated in the opinion. cited 5 Mees. & Weis., 475; 8 id., 160 ; 9 B. & C., 145. [No brief on file.]

At the annual election for county officers of Milwaukee county, in November, 1866, Hilmantel received a majority of tbe votes cast for the office of clerk of the board of supervisors of said county ; and having received the certificate of election, he entered upon the duties of the office. Doerflinger was the opposing candidate for said office at that election.

Action in tbe nature of a quo warranto, to try respondent’s title to the office of treasurer of Portage county. The questions considered arose upon demurrer to the answer; but the pleadings are no longer on file here.

Action for damages resulting from the opening of plaintiff’s trunk, and the taking of goods therefrom, while the same was •being carried, with the plaintiff herself, from Harrisburg, Pa., to the city of New York. Defendant appealed from an order overruling a demurrer to the complaint as not stating a cause of action, and also for a defect of parties defendant in that the other railroad - companies named in the complaint were not made defendants.

Action on a bank check drawn by defendant in plaintiff’s favor, September 17, 1868, and payment of which was refused by the bank at defendant’s request. • The answer alleges in substance, that in June, 1863, Dorcas S. Rice, the wife of defendant, and the plaintiff, who held certain farming lands as her tenant, entered into a written agreement, by which the latter was to cultivate and harvest the crop on said lands, cut the Ray &c. &e., and. have one half of all''crops…

The complaint, after alleging proceedings in pursuance of law in calling a special town meeting in the defendant town, “ for the purpose of voting upon the question of raising by tax $6000, to pay a bounty of $200 each to volunteers who should thereafter enlist under the call of the president of the United States, of December 19, 1864:, and should be credited to said town under such call, and to persons who should procure substitutes for themselves before being drafted, and…

Trespass qaare clausum. The answer, inter alia, denied that plaintiff owned the premises. The court found for the plaintiff, and rendered judgment accordingly; and defendant appealed. The facts bearing upon the points decided are sufficiently stated in the opinion.

Ejectment, for a strip of land between the middle and eastern boundary of wbat is known as Broad street, in tlie city of Oshkosb. Plaintiff claimed tbe premises as part of Ms lots fronting on said street, and located in Conklin’s addition to said city.

Indictment for larceny of certain articles of clothing and of certain United States treasury notes, tbe values of wbicb are specified. Tbe caption was as follows : “ State of Wisconsin, Winnebago county, ss.

The defendant was treasurer of Milwaukee county from the first Monday of January, 1863 to the first Monday of January, 1865.

Action for false imprisonment. The case is stated in the opinion. The jury, by direction of the court, found for the defendant, and the plaintiff appealed from the judgment!

Tbe action below was ejectment by Mary Hennesy against Farrell, for eighty acres of land. Answer: 1. A general denial. 2.

The complaint alleges the following facts: By an act of the legislature approved March 31, 1856, it was provided that certain territory, then a part of the town of Beloit, from and after the first Tuesday of May, 1856, should be erected into the city of Beloit, with the powers usually pertaining to municipal corporations, and said territory has ever, since said last mentioned day constituted, and now constitutes, the Oity of Be-loit.

Action for the specific performance of an oral contract for the conveyance of land.

The judgment of the court in the preceding cause required the defendant, within ten days after written notice thereof, to execute and deliver to the clerk of said court a deed to plaintiff of one half of the mill property described in the complaint, and also a bond for the reconveyance, on certain conditions, of the land conveyed to him by plaintiff.

This action was brought in the name of the plaintiff district by the director thereof, at the request of the district board, to recover damages from defendants for illegally entering the school house, breaking the locks and otherwise injuring the building. Answer, 1. A general denial. 2. That defendants entered by permission of the electors and also of the officers of the district. 8. That the officers of the district had no authority to bring the action.

Action for slander. After the time to answer had expired, to wit, on the 3d of May, 1866, the defendant moved for leave to file an'answer containing a general denial, upon an affidavit which (in addition to the usual statements of an affidavit of merits) stated that the defendant is a Grerman, and speaks no other language than the “ Low Dutchthat he is entirely ignorant of all legal proceedings, and the forms thereof; that a paper which he is informed is a copy of a summons…

Eoreclosure of mortgage. Lewis and wife, McCarty and Wheeler are named as defendants in the title of the cause; but there was a defect in the service of the summons upon Wheeler. The complaint alleged the following facts: On the 12th of August, 1862, Lewis and wife conveyed certain land by warranty deed to James Hays, the plaintiff’s father; the consideration named being $2,000.

Action for an injunction. The defendants appealed from an order overruling a demurrer to the answer. The substance of the complaint is stated in the opinion. to the point that the case made in the complaint is that of a public nuisance, indictable but not actionable, cited 4 Blacks. Comm., 167-8, and note ; Willard’s Eq., 391; Cornell v. Tump. Co., 25 Wend., 365, 368.

The defendants appealed from an order overruling a demurrer to the complaint as improperly uniting several causes of action.

Eoreclosure of a mortgage. On the 21st of September, 1858, the defendant Jenkins executed two promissory notes, one for $90, payable one year from date, and the other for $100, payable two years from date, both bearing interest, and secured by a mortgage to the payee of the same date.

The action below was replevin for cattle, and was brought by Harriet and Jane Blinebury against Miller as administrator of one Cron. Defense, that Cron, as sheriff, seized the cattle as the property of one Goodrich, under a writ of attachment. Plaintiffs claimed under a chattel mortgage. Verdict and judgment for the plaintiff below. One of the errors assigned by Miller is the refusal of certain instructions asked by him; which will sufficiently appear from the opinion.

The complaint avers that, on &c., plaintiffs, who then were and still are husband and wife, bargained with defendant for certain described lands in Iowa to be conveyed by him to the plaintiff Ghauncey Read, and also to borrow of defendant $100, for which they were to execute to him their note ; that defendant falsely and fraudulently represented himself to plaintiffs as the owner of said lands, &c., &c.; that, confiding in the truth of such representations, plaintiffs agreed…

Replevin, commenced in justice’s court, the value of the property being stated in the affidavit at $8. Verdict, that the property belonged to the plaintiff, no other fact being found. Judgment for plaintiff for $8.00 damages, and costs of suit. On appeal, the circuit court directed the issue to he tried hy a jury, and rendered judgment upon their verdict against the defendant ; from which he appealed.

Eoreclosure of a mortgage to a railroad company, assigned to plaintiff. The complaint was served by mail, and received by defendant’s attorney, at the city of La Crosse in said county, July 30,1866. On the 8th of September, plaintiff’s attorney, at Milwaukee, received the answer, which was a general denial, the same having been mailed on the 7th.

Upon the respondent’s return to an alternative mandamus, the relator moved for a peremptory writ.

<p>Injunction, to restoa/in, tax sale, for fraudulent assessment. — Right of holder of school land certificate to such injunction.</p> <p>1. The owner of a school land certificate has such an interest in the land as entitles him to have the collection of an illegal tax thereon restrained.</p> <p>2. After a tax on school lands held by certificate has been returned delinquent to the county treasurer, the county is a proper party defendant to an action to restrain its collection.</p> <p>8. The collection of a a tax upon land will be restrained where the taxing officers of the town have fraudulently discriminated in the assessment, with the intention of compelling the owner to pay more than his just proportion of the tax payable in such town.</p>