Volume 22 — Wisconsin Reports

Action on a note executed by defendant to one Arneson, under date February 5, 1865, for $200, with interest, payable February 1, 1866, on which certain payments were admitted, leaving a balance of $89.48.

In March, 1856, plaintiff sold to defendant four lots in the city of Milwaukee, for $1,000 in money and ten shares of stock in the Milwaukee & Watertown Railroad, of the nominal value of $100 each; and gave him a deed with covenants of seizin and against incumbrances. Defendant paid the money, and certificates for seven shares of stock, and gave the following due bill for the remaining three shares : “Due to Josiah A. Noonan three hundred dollars in Water-town Railroad stock.

Wilkinson brought suit against Taylor in a justice's court in said county, and recovered a judgment for $80; and Taylor sued out a certiorari to the circuit court, alleging that after issue joined the cause was adjourned on his motion to the 11th of October; that the entry of’ adjournment in the docket was, “ On motion of defendant, cause adjourned until October 11th, 1866, at 10 o’clock A. P., at my office,” etc.; tbat said defendant did not appear on tbat day, because be…

Action commenced in 1866, to foreclose a mortgage on real property in tbe city of Madison. Tbe complaint averred tbe following facts: 1. That Paul Berg and bis wife Adelaide, May 28, 1860, mortgaged tbe premises in question to one Kemerling, to secure a note to bim of same date for $140 and interest; and tbe mortgage was duly recorded about that time. 2.

Ejectment, for lots in tbe city of Milwaukee. Plaintiff claimed under tax deeds on sales made by tbe city treasurer for tbe non-payment of special taxes or assessments for local improvements in said city. Tbe facts admitted, and relied on as a defense, are stated in tbe first two sentences of tbe opinion, infra.

On the 3d of May, 1868, Roddis executed to one Ashford a contract, by which, for one dollar in hand paid “ and other good and valuable considerations,” he agreed to deliver to Ashford at Milwaukee, on or before the 10th of June following, four watches and a clock, being the same articles previously sold by Ashford to one ’Wermuth; or, on default of such delivery, to pay $590 as the stipulated value of the property.

Circuit Court for Trempealeau County. The plaintiffs, who are partners as attorneys-at-law, presented to the supervisors of Jackson county an account against the county… Held: in Carpenter v. Dane Co., 9 Wis., 274, that the county is liable for the services of an attorney appointed by the court to defend an indigent prisoner, though the statute confers no express • authority on the county to employ or the court to appoint counsel. The same reasoning would apply in this case.

Action for damages accruing to plaintiff by reason of his team of horses, while being driVen upon a highway, having been attacked by defendant’s dog, and caused to run away, whereby one of the horses was killed. The complaint avers that the dog was in the habit of attacking teams on the highway, and that plaintiff knew of such habit. Answer, a general denial.

Tbe complaint in tbis action alleges the following facts : On, etc., tbe defendant offered to sell tbe plaintiffs tbe right to manufacture and sell in tbis state, tbe article known as “ Heeker Bros.’ Self-Rising Elonr,” and the recipe for the same, representing that he owned the exclusive right of manufacturing and selling said article, and selling said recipe, within this state, acquired from John D’Wight & Co., of New York city, by an agreement made nominally between them…

Tbe plaintiffs, as lessees of' certain land and water power, brought this' action against Orton as owner of said land and power and of tbe dam connected therewith, and against Kinney as lessee of another portion of the power created by said dam, to restrain them from certain acts by which it is alleged that plaintiffs were deprived of the enjoyment of the full amount of water to which they were entitled.

Josephine Mountain, an infant, brought this action by her guardian, to recover the alleged value of about eight years’ services rendered to defendant, by her, as a domestic servant, from 1858 to 1866.

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

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

Action by the holder of a tax deed, against Bashford as claiming the legal title under the person who owned the land at the time of the tax sale, and Sheldon as holder of a mortgage thereon, and certain “ unknown ” parties, as having or claiming some interest in the premises.

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

Action by husband and wife for injuries to the person of the wife, alleged to have resulted from the negligence of the defendant.

Ejectment. In April, 1855, David Bresee executed Ms last will, whereby lie devised and bequeathed his property as follows: 1. To Sarah, his wife, her support from the farm then occupied by him (including the premises here in question), and the right to “ have a home thereon,” as long as she 'should remain his widow. 2. To Isaac and William, his eldest and third sons, certain other lands; and to Abigail, his eldest daughter, certain moneys. 8.

The plaintiff appealed from a judgment in favor of defendant. The case is stated in the opinion.. as to the insufficiency of the exceptions, cited Laws of 1860, chap. 264, secs. 14, 16; King v. Ritchie, 18 Wis., 554; Gilman v. Thiess, id., 528; Cornell v. Davis, 16 id., 686.

Replevin, for fifty cords of wood. Plaintiff claimed under a chattel mortgage from one Barlow, filed February 9,1864; defendant as sheriff, under an execution upon a judgnient against Barlow, docketed April 13,1864, which execution was levied upon said wood June 13, 1864.

A lot in the city of Madison belonging to Myers was levied upon June 3d, 1865, and sold to Ford on the 22d of the same month, to satisfy a judgment against Myers, the latter having notified the sheriff before the sale that he claimed the premises as his homestead.

Foreclosure of a mortgage. The defendants claimed the land free from the lien of the mortgage, as subsequent purchasers, without actual or constructive notice thereof. The essential facts are stated in the opinion.

Action to avoid for usury certain mortgages executed to Emerson by one Platt, in June and November, 1859. Plaintiffs claim to own the mortgaged premises as purchasers at judicial sales of Platt’s interest. The complaint did not aver payment or tender of any part of the sums which the mortgages were given to secure.

Ejectment. The defendants appealed from a judgment in plaintiff’s favor. The case is stated ,in the opinion. to the point that ejectment would not lie until after plaintiff had selected the homestead and notified defendants, cited 87 it.

Ejectment, for a strip of land 147 feet long and six inches ' wide, in the city of Oshkosh. Defendant owned a lot immediately south, of one belonging to plaintiff, and had erected a brick building thereon, upon a stone foundation. Plaintiff afterwards erected a similar building on bis lot, putting bis wall eight inches from defendant’s north brick wall, and, as be claims, at least that far from the division line.

In September, 1863, tbe parties to this suit entered into a contract by which Wright agreed to'pay Boberts $1,500 as follows : $250 and the interest on the $1,500, as soon as Boberts should execute to him a warranty deed of certain land, and the balance in annual installments of $250 each (beginning one year from date); which payments, when fully completed, were to apply as purchase money of said land.

The plat of “ Arndt’s addition to the town of Port Howard” was recorded in 1849; that of “ Arndt’s second addition to the town of Fort Howard,” in 1857. In 1861 and 1862, plaintiff bought of the county certificates of sales for taxes, made.during those years, covering by their terms sundry lots in blocks 7, 8, 9, 10, 11 and 12 in “ Arndt’s addition and afterwards he took out tax deeds purporting to convey the lots by a similar description.

Tbe defendants appeal from a judgment for tbe plaintiff. Tbe case is stated in tbe opinion. contended, among other things, that a general judgment on several counts, some of which are bad, will be reversed, and a venire de novo awarded, citing Garr v. Gomez, 9 Wend., 649; Candler v. Bossiter, 10 id., 487. cited R. S., chap. 139, sec. 7; Laws of 1860, chap. 264, see. 7; Hurkee v. Stringham, 8 Wis., 1; 12 id., 664; 19 id., 475.

Ejectment. The plaintiffs appeal from a judgment for defendant. The case is stated'in the opinion. contended, among other things, that if the administrator’s deed under which defendant’s lessor held possession at the time the taxes accrued, was void, he was not bound to pay the taxes. — This tax was not assessed against tbe lessor. If it' had been, plaintiff would have offered proof of the fact. 2.

Replevin for certain barrels' of ale. The property was in possession of Joseph Ilurst at his death, January 4, 1867, being in his house at the city of Oshkosh. The action was •commenced on the tenth of that month, against Russell alone; and the complaint alleges that he was in possession on that day, and refused to deliver on demand of the plaintiff.

Ejectment, for an undivided two-thirds of two acres of land, part of'a certain fractional lot two; the boundaries of which part are described as commencing at the southwest corner of said fractional lot, thence running north along Wolf river 240 feet, thence east 350 feet to a certain fixed point, thence south 240 feet, thence west to the place of beginning.

Trespass. The complaint avers that defendant, on, etc., with force and arms, wrongfully broke and entered plaintiff’s close (describing it), broke to pieces and tore down his fences thereon, and, with various domestic animals named, eat up, trod down and destroyed his grass growing thereon, etc., etc., to his damage, etc. Eor a second cause of action it avers that, on, etc., and at divers offier times between the day named and the commencement of the action, defendant, with…

Action for damages for a conversion by defendants to their own use of a lot of pine logs alleged to have been cut on plaintiff’s land and to have been its property. The defense was, that defendants bought the logs'of oné Weatherby, by whom the logs were cut (in the winter of 1865-6) under a license from James McGillan, who acted as agent for the plaintiff.

<p>Claims against Estates: Appeals from County Judge — Right of Circuit Court to allow appeal by heirs, etc., after time expired — R. S., chap. 117, sec. 29— Chap, 1Ó1, secs. 22, 29.</p> <p>1. Sec. 29, chap. 117, B. S. (which empowers the circuit court, in certain circumstances, to allow an appeal from “ any act of the judge of the county court,” after the time allowed by law for an appeal has expired), applies to an allowance by the county judge of a claim against an estate, although the judge was not authorized to hear such claims until after the passage of said chap. 117.</p> <p>2. Where the petition for leave to appeal states a prima facie case, the court should grant it without considering counter-affidavits as to the justice of the claim.</p> <p>3. Under sec. 22, chap. 101, R. S., it is not necessary, to authorize an appeal from the allowance of a claim by the county judge, or commissioners appointed by him, that the claim should have been “ objected to ” before him or them at the hearing. It is enough that the party, on taking his appeal, objects to a part of the amount allowed equal to twenty dollars.</p> <p>4. Under sec. 29, chap. 101, R. S., the administrator is to be regarded as having “ declined to appeal,” without any express demand and refusal, when he has not appealed within the time allowed by law; and the circuit court may thereupon allow an appeal by the creditors, devisees, heirs, etc.</p>

This appeal was taken by Groner from the order mentioned in the previous case, permitting the petitioners to take an appeal from the decision of the county judge, allowing Groner’s claim against the estate of William Young, deceased.

This action was commenced Eebruary 11th, 1867, in justice’s court, for the .wrongful taking and conversion by defendant of plaintiff’s wood. Murphy & Cravath, attorheys-at-law, appeared for the plaintiff, and Page & Montague for defendant, and Mr. Cra-vath made oath that he was authorized by plaintiff to commence the suit. After the pleadings had been made, the cause was adjourned to Eeburary 25th. One Stebhins was examined as a witness for the plaintiff.

Bushnell recovered a judgment against the town of Beloit, in said court, for $162.78 damages, on coupons attached to bonds issued by said town under cháp. 12, Pr. & L. Laws of 1858; and the judgment was affirmed by this court. 10 Wis., 195.

Trespass quare clausum: answer, highway. The case is stated in the opinion, except that certain instructions alluded to are not recited.

Appeal by tbe defendant, Walker, from an order permitting him, on certain conditions, to amend bis answer so as to set up usury as a defense in an action on a note dated January 15, 1857. Tbe amended answer also alleges tbe actual payment of certain sums for usurious interest, not credited on tbe note, nor acknowledged in tbe complaint, and demands that the amount thereof shall be allowed, and judgment be rendered against said defendant.

Action by tbe bolder of a tax deed • of land, to bar the original owner, under secs. 35 et seq., chap. 22, Laws of 1859. Tbe deed was executed April 11, 1868, upon a sale made in 1860 for tbe taxes of 1859.

<p> Reference to judge, with stipulation for judgment. </p> <p>1. A reference of a cause, hy stipulation, to the judge of dhe court in which it is pending, operates as a discontinuance.</p> <p>2. Where the stipulation was, that the cause be referred to the judge “as sole referee to hear and determine,” and that on filing his report, judgment might be entered “with the same force and effect as upon the verdict of a jury: ” Held, that judgment might be entered upon the referee’s report as upon a plea of confession; and such report would not be subject to review by the court.</p>

Action pn a bond, executed in 1864, as security upon a bid to do tbe state printing.

Plaintiffs filed in said court, Boy ember 12, 1859, their complaint for goods sold, and upon a promissory note to the amount of $454.43 and interest. On the complaint was the following endorsement: “ [Title of cause]. I, William JP.

Action to have a tax deed on lots 2 and 3, in section 4 of town 21 in said county, adjudged void, and all right, title and interest of defendants in and to the premises, under said deed, barred, and themselves adjudged to release to the plaintiff all claim thereto. The complaint averred title in fee and possession of the lands in the plaintiff, and the answer denied both. The plaintiff proved legal title to both, lots in himself by patent from the United States in 1851.

Action to recover damages for injuries to the plaintiff from being forced from a pier into the Eox river at the city of Oshkosh,- in consequence, as is averred, of defendant’s negligence while driving a wagon from the ferry-boat on to the pier.

Summons as in an action for relief; the complaint (served therewith) alleging that, on etc., defendant was mayor of the plaintiff city, and plaintiff delivered to him to sell in New York city and pay the proceeds to plaintiff, 2,013 shares of certain railroad stock, of the value of $100,000; that defendant afterwards, on etc., sold the stock, and received therefor $33,594; that afterwards, on etc., plaintiff duly demanded of him the latter sum, which he wholly neglected and…

Action by tbe wife for a divorce from the bond of matrimony. Tbe case is stated in tbe opinion. Tbe circuit court found that tbe parties bad not voluntarily lived entirely separate for five years next preceding tbe commencement of tbe action, and dismissed tbe complaint ; from which judgment plaintiff appealed. cited Gregory v. Bierce, 4 Met., 478; Ahrenfeldt v. Ahrenfeldt, 1 Hoffm., 47; 1 Bishop on Mar. & Div. (4th ed.), § 677; McQuaid v. McQuaid, Wright, 223.

On tbe 28th of February, 1862, a judgment was duly docketed in said court in favor of one Taylor against tbe city of Racine, for $8,048.40. In 1867, Farr appeared in-court by Matt.

The complaint avers, in substance, that on the 20th of May, 1864, Daniel Radway was owner in fee of certain described land in said county (N. J of S. f- of W. f- of a quarter section), under a deed of conveyance duly executed and delivered to him, for a good and valuable consideration, by one Charlotte Hunter, about February 9, 1868, which conveyance was taken by said Daniel for his own sole and exclusive use, and the consideration paid by him, and no other person acquired…

. The plaintiff declared upon three $500 bonds of the city of Kenosha (numbered 3, 4 and 5), with coupons attached, alleged to have been made… Held: that said three bonds and the coupons attached were null and void, and of no value whatever; that the scrip issued to plaintiff for signing bonds was also void; that the plaintiff was entitled to judgment for the sum paid by him for the bonds, less said two amounts of $175 and $100, i. e., for $926, with interest, etc. Judgment…

Sheriffs brought an action against one Wolcott to recover $154.76, and garnisheed Pugh; and the answer not being satisfactory, and judgment having been recovered against Wolcott, an issue was made up between the parties in said court. Pugh was owner, and Wolcott mate, of a schooner during the season of navigation on Lake Michigan and the connecting lakes, in 1864; and the- schooner was chartered for the season by Messrs. Pridham & Davison.

This action was brought against Hugh L. Johnston, executor of the last will of Alexander H. Johnston, deceased, and surviving partner of the late firm of Alexander H. Johnston & Sons, and against the sheriff of said county.

The complaint states that the Racine & Mississippi R. R. Co., one of the defendants, in 1856, constructed a part of its main track in front of a certain lot in the city of Beloit, and over the adjoining half of the street, and said structure has ever since been used as a part of said railroad track; that one Russell, ■who, on the 22d of November, 1858, was owner of said lot and half the street in front thereof, and “ had previously suffered damage from the building and…

Action upon a money demand on contract. The complaint was verified. The summons was served August 14, 1865, by leaving a copy, with defendant’s wife at his last place of abode in this state. On the 2d of September, James G. Jenkins, Esq., served on plaintiffs’ attorneys a notice of retainer for defendant, and a demand for a copy of the complaint ; and the complaint was served on him on the 22d of that month.

Action to annul a street commissioner’s certificate, a special tax assessed on plaintiffs’ real estate in the city of Milwaukee for the amount named in the certificate, a sale for the amount of such tax, and the certificate of such sale; and to restrain a conveyance of the property by the city treasurer to the purchaser at such sale.

Action in the nature of a hill of interpleader, and for an account, etc., brought by Danaher and Rooney against Pren-tiss, Rodway, Power, Furlong and another. It appears that plaintiffs were garnished on the 2d of August, 1864, in an action by Prentiss against Power, for about $1,700, on a note for money loaned.

Action for damages for the unlawful taking and detention of a mare, alleged to he the property of the plaintiff Henry Kaye. Plaintiff claimed to have purchased the mare of his father, Joseph Kaye, in the spring of 1858. Defendant claimed under a chattel mortgage executed to him.by Joseph Kaye, January 20, 1858, and a judgment rendered in his favor December 6, 1862, m an action of replevin for said mare, brought by him against said Joseph.

<p>Trial de novo on appeal from justices suit in forcible entry and unlawful detainer.</p> <p>The appellant from' a’ judgment in justice’s court in forcible entry and unlawful detainer, is entitled, in all eases, to a trial de novo.</p>

Action to annul certain certificates issued to the defendant city, of tax sales in March, 1859, of plaintiff’s lots for city taxes of 1857, and to restrain the city treasurer from transferring the certificates or executing deeds thereon. The plaintiff avers that he had paid all city taxes assessed or levied on said lots for 1857, before the day of sale. The answer denies this averment. The evidence offered by the parties will sufficiently appear from the opinion.

Court for Winnebago County. Ejectment. The defense was, that in July, 1851, defendant purchased the land of the state as school land (part of a sixteenth section), paying a part of the purchase money, and receiving the usual certificate, and thereupon entered upon the land, of which he has ever since been in possession; that he paid the* interest and taxes until January 1, 1862; that during 1862, he delivered his certificate to one Tisman as collateral security, with his…

The. complaint avers that from August 21,1845, to February 22, 1866, one Nelson Burst was seized in right of his wife, Eliza Burst, of a certain eighty-acre tract of land in said county, and occupied and cultivated the same; that in December, 1862, plaintiff purchased of him ten acres of growing and standing timber on said land, for $45, and said Burst executed and delivered to him a conveyance of said timber.

The action below was by Emily G. Hardy, administratrix of the estate of Silas B. Hardy, against Wright, for alleged malpractice by him, as a physician and sui’geon, causing the death of said Silas.

Action for personal services rendered by the firm of Buttrick & Hill in the prosecution of certain suits for-the plaintiff in the TJ. S. Circuit Court for the district of Wisconsin; plaintiff claiming as assignee of said firm. Answer, a denial of indebtedness, with an allegation that plaintiff had paid said firm for the services so rendered $500, and that this was their full value.

<p>Sill of exceptions, amendment of: Practice in the Supreme Court. — Time to appeal.</p> <p>1. Bill of exceptions stricken from the files because appearing on its face to have been settled before serving notice of settlement.</p> <p>2. If the date of settlement written in the bill is erroneous, appellant should obtain leave to withdraw the record, in order that the bill, when duly amended by the proper judge, may be attached to the record, and returned with it by the clerk.</p> <p>3. Appellant does not need further leave to withdraw the HU for amendment; after the order to strike from the files, it is under his control.</p> <p>4. Leave to reinstate the bill without amendment denied, as useless,</p> <p>6. Whether the trial be by a jury or by the court alone, a bill of exceptions may be served at any time within sixty days after written notice of the judgment; provided, that the appeal must be taken within two years from judgment.</p>

EBBOB to tbe Circuit Court for Ozaukee County. Action to try title to tbe office of county judge of Ozau-kee county. Trial by tbe court alone. Tbe facts found will clearly appear from tbe opinion. Judgment for tbe defendant, Goetze ; and Lutfring took bis writ of error. to tbe point that tbe special provisions of sec. 92, cbap. 13, B. S., should prevail over tbe general provisions of sec. 157, cited Sedgw. Stat. & Con.

Ejectment. Tbe plaintiff offered in evidence a deed to him from tbe state and county, executed by tbe clerk of tbe board of supervisors of said county, and sealed with bis official seal, which was ruled out because not sealed with bis private seal. Judgment of dismissal; and plaintiff sued out bis writ of error.

Slander. Tbe case is stated in tbe opinion. Tbe defendant appeals from a judgment against bim, upon a verdict for $2,000 damages. to tbe point tbat evidence was admissible as to plaintiff’s bad character, in respect to tbe subject matter of the charge, cited Moyer v. Moyer, 49 Pa. St., 210; Leonard v. Allen, 11 Cush., 241; Bridgman v. Hopkins, Am.

Action against Timothy Dwight, Archibald Nichols, and the Waupun & Grand Rapids Railroad Company.

-The action below was by JRemlinger against Weyker, for the value of a horse which the latter, as deputy sheriff, levied upon and sold, under an execution in his hands against JRemlinger. The plaintiff claimed, and introduced evidence tending to show, that the horse was exempt from execution under the statute.

Replevin. Tbe plaintiffs obtained possession of tbe property (consisting of groceries), and sold it pending tbe action. Tbe goods were originally sold by plaintiffs to one Dayton, through their traveling agent, one Platt, who testified for them substantially as follows: “ I took the order for tbe goods in February, 1865, at Dayton’s store, in Ossian, Iowa.

A peremptory writ of mandamus Raving been granted in this case to compel tbe respondents to levy a tax, tbe relator subsequently moved for an attachment against them as for a contempt in refusing obedience to tbe writ.

<p>Motion to quash an alternative mandamus. The form of the mandate will appear from the opinion.</p>

<p>APPEAL from the Circuit Court for Rock County.</p> <p>Motion to dismiss the appeal.</p>

Action for damages for the conversion by defendant of one hufldred barrels of flour, alleged to bave been delivered to it for shipment, subject to plaintiff’s order, and to bave been by it, wrongfully and without authority, delivered to one Tilton, who bad caused it to be transported out of the state, and converted it to bis own use. Demand made of defendant for the flour or payment therefor, and refusal, are alleged. Answer, in denial.

Action on a policy of insurance. After judgment against defendant by default, it obtained an order setting aside the judgment and granting leave to file an answer; and plaintiff appeals from tbe order. The character of the answer proposed will sufficiently appear from the opinion. as to the insufficiency of the proposed answer, cited Baker v. Bailey, 16 Barb., 54; Salinger v. Lusk, 7 How. Pr., 430; 'Davison v. Powell, 16 id., 467. cited Mussey v. Atlas Bis.

Complaint on a promissory note; answer, a general denial. On the trial, the instrument was put in evidence, and was on its face a promissory note in the usual form, signed by defendant and running to plaintiff, but endorsed thereon were the following words, without' date or signature: “ The conditions of the within note are as follows: L. S. Blake or bearer is not to ask or expect payment of said note until bis, Coleman’s, old mill is sold for a fair price.” Tbis was…

In pursuance of tbe provisions of sec. 7, chap. 133, Private and Local Laws of 1854 (tbe charter of tbe defendant company), arbitrators were appointed to determine a controversy between tbe parties to tbis suit, in relation to the flowage of plaintiff’s lands. Their award having been filed in said circuit court, defendant moved to set it aside, and plaintiff moved for judgment tbereon. ■ Both motions were denied; and both parties appealed.

EREOE to tbe Circuit Court for Fond du Lae County. Tbe action below was by Susanna Jones against Chaunce'j Davis ; and tbe present suit is to reverse a judgment in favor of tbe defendant below, on demurrer to complaint sustained. Tbe case is sufficiently stated in tbe opinion. contended that there was no allegation in tbe complaint that Davis made a deed, or that .tbe covenant sued on was bis covenant. 1 Saunders, 291, n. 1; 1 Chitty's PI., 237, 430 et seq. 2.

Young, as treasurer of the town of Port Washington in said county, brought the action below, under ch. 295, Laws of 1863, to recover the amount subscribed by JRemlinger to pay bounties to volunteers who should be credited to the town. The printed case does not contain the pleadings. An objection to the admission of any evidence under the complaint, on the ground that it did not state a cause of action, was overruled.

Ejectment. Plaintiff’s claim of title rested upon two tax deeds, which were received in evidence against objection. A motion by defendant for a nonsuit was denied. The jury, by the direction of the court, found for the plaintiff; and defendant appealed from the judgment.

Tbe action below was by Wendell against North ; and tbe latter seeks in tbis suit to reverse a judgment against bim. Tbe case is stated in tbe opinion.

<p>Negligence — Evidence.</p> <p>In an action for an injury occasioned by defendant’s horses while running away, the fact that they got loose after being hitched would be some evidence of negligence on his part.</p>

Tbe defendant appeals from a judgment in favor of tbe plaintiff- for tbe whole amount claimed by bim. Tbe case is stated in tbe opinion. cited Potbier on Ob., 497;. Cbipman on Con.,- 35-6; 280-81, sec. 49; 52 Pa. St., 363; 3 Conn., 58; 22 Yt, 301; 5 Wend., 393; 4 Ohio St, 38; 1 Doug.

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

Action for the flowage of land by a mill-dam. Yerdict for plaintiff; new trial denied; and defendant appeals from a judgment on the verdict.

The complaint against the defendant in a justice’s court, for selling liquors without a license, contained four counts, charging sales on different days to different persons named; while a fifth count charged a sale to persons unknown to the complainant, on divers days and times between August 1, 1866, and the making of the complaint.

<p>ERROR to the Circuit Court of Marathon County.</p> <p>cited Wright v. The State, 4 Iiumph., 194; State v. Bierce, 27 Conn., 320.</p> <p>cited R. S., ch. 164, sec. 39; Wharton’s Crim. Law, 1141; 3 G-reenl. Ev., 210; 5 Sneed, 581; 3 Zab., 30; 29 Conn., 232; 1 Hals., 329; Comm. v. Parr, 5 Watts & S., 345.</p>

In the winter of 1865-66, the firm of Briggs, Lemon & Co., of which plaintiff was a member, were the originators and owners of a lottery scheme in the city of Chicago, Illinois, known and described as a gift concert, the tickets of. which were sold at one dollar each.

Amelia F. Howard brought an action in said court against the Town of- Osceola upon a town order for.$100 bounty money. A judgment in default of an answer was set aside, on the ground that there had been no personal service on the clerk of the town; and defendant then answered, that on a certain day subsequent to the commencement of the action, it paid- plaintiff $92, which she received in full payment of said claim.

Court for Monroe County. The plaintiff recovered a judgment in said court for moneys expended hy it for- the support of one Betsy McCoy from October 1st, 1861, to December, 1864; and this appeal was taken hy the defendant from the judgment. The errors relied on to reverse it will appear from the opinion. The following are the notices referred to in the opinion: “ 1.

This action was brought to reverse a judgment against the plaintiff in error, and in favor of the defendant in error. The errors relied upon, so far as they are important here, will appear from the opinion.

The plaintiff in error having been found guilty of murder in the second degree, and a new trial having been denied, the present action is brought to reverse a judgment on the verdict. The errors relied on will appear from the opinion. [No brief.]

BEPOBTED from the Circuit Court for Washington County. This cause, while pending oh a motion to set aside the verdict, and for a new trial, was by the judge of said circuit court, under the statute (sec. 8, ch. 130, B. S.), reported to this court for its opinion on questions of law involved in the motion. cited Schumaker v. State, 5 Wis., 324; Keenan v. The State, % id., 132; State v. Cole, 17 id., 674; People v. Cancemi, 7 Abb., 271, 302-3. cited 18 N. Y., 128, 137; 37…

Action on defendant’s promissory note. Tbe jury, by direction of tbe court, found for tbe plaintiff; and tbe defendant appealed from tbe judgment.

The terms of the contract.on which' the action was brought, are stated in the opinion. The judgment decreed not only a specific performance of the contract, hut also a perpetual injunction.restraining the defendant, etc., from proceedings in justice’s court under the statute to recover possession of the premises, and from instituting any other suit for the restitution of the same by reason of any alleged past breaches of the provisions of the contract.

The case stated in the complaint is substantially as follows: In 1858, Oilman leased to one Krause, a certain lot in the city of Milwaukee for- a term of years at a specified rent, the lessee to pay taxes assessed upon the premises during the term, and Gilman to have a lien (with power of sale) upon such buildings as Krause might place on the premises during the term, as security for the payment of any rent or taxes, not paid when due.

Action by the executor and executrix of Pinney Youngs, deceased, to recover the amount of two promissory notes, purporting to have been made April 18, 1869, by “ Lee & Cain,” payable to their order, and by them indorsed.

Action by the owners of a vessel against the owner of a cargo of wheat shipped on said vessel from Port Washington in this state to Buffalo, New York, to recover $391 and interest, retained by the consignee from the freight earned, as the value of 197 bushels of wheat, the difference between the number expressed in the bill of lading and that delivered to such consignee.

In March, 1857, Blake conveyed to Meeklem the south eighty feet of “ lots 7 and 11, in block 17,” in a certain section of land in Washington county, the consideration named being $4,000; and the deed contained the usual covenants of seizin and against incumbrances. Meeklem brought this action to recover the purchase money paid, alleging a breach of said covenants. The facts will sufficiently appear from the last paragraph of the opinion.

Action by Mary and Patrick Madigan to bave a deed of forty acres of land in said county executed by them to Walsh, adjudged fraudulent and void as against her. Plaintiffs.are husband and wife, and were such in.

The action was on the following instrument: “ $1500. On or before the 8d of October, 1866, for value received, I promise to pay Chester Bichard or bearer the sum of nine hundred dollars, and the sum of six hundred dollars in addition, providing the said Chester Richard has paid or caused to he paid, satisfied and discharged, a certain mortgage given by him to the La Crosse & Milwaukee R. R. Co., for $600, on a certain piece of land for which this note is given in part…

Action for plaintiff's services as attorney. The essential facts of the case will appear from the charge of the circuit court to the jury, which was in substance as follows: “ Defendant and a number of others were arrested by military authority for riot and opposing the draft. \_In re Kemp, 16 Wis., 359.] Defendant employed the plaintiff as attorney, and he obtained defendant’s release, and claims pay for his services.- There is some evidence showing that there was some…

Van Dresar and Bartlett shipped thirty-two head of cattle from Eond du Lac to Chicago, by the C. & N. W. Railway. Bartlett attended to loading the cattle, fifteen of which were put in the only open cattle car that the company had at the depot, and seventeen in a box car. It does not appear that Bartlett made any objection to the use of the latter.

Action on a fire insurance policy, which, is set out in the complaint. One clause declares that the policy “ is made and accepted in reference to the charter and by-laws,” of the defendant company, “ which are to be used and resorted to in order to explain the rights and obligations of the parties ” to said policy, in all cases not therein specially • provided for, and are declared to be a part of the contract.

Replevin for a stock of goods seized by defendant as sheriff, under an attachment against a third party.

Ejectment. Eaton (plaintiff below) introduced in evidence a tax deed to one Loomis, dated April 24, 1862, founded on the tax sale of 1869; a quitclaim deed from Loomis to one Knapp, dated June 24, 1862; a warranty deed from plaintiff to Knapp, dated August 26, 1859; a mortgage from Knapp to plaintiff, of same date, without covenants of warranty — all covering the land in dispute; also the judgment roll in the cáse of the same plaintiff against Knapp and one Eoster, for the…

Action to enforce a claim against the defendant. The substance of the pleadings, and the nature of the evidence objected to, will appear from the opinion. Verdict for the plaintiff; new trial denied; and judgment on the verdict; from which the defendant appealed.

This appeal was taken by defendant from an order overruling his demurrer to the complaint as not stating a cause of action.

■ as to the renewal of the recognizance, cited sec. 5, ch. 37, R. S. As to the effect of the admission on the face of the answer, they cited Gould’s PL, 152; Chitty’s PI. (8th ed.), 585; Saltusv. Genin, 3Bosw., 250; 7 Abb., 143; Andrews v. CHadboume, 19 Barb., 147; Crosbie v. Leary, 6 Bosw., 312.

Tbe complaint avers demand and refusal of tbe lumber; and that its value was $900; and demands judgment for that sum, with interest, and also “ a further judgment awarding bim tbe possession of said property, and in case it is retained by defendant pending tbe action, sucb further damages for such wrongful detention as shall be just, with costs.” Answer, a general denial. Tbe sheriff took possession of tbe property.

Replevin, for logs. Plaintiff, in March, 1863, conveyed land to defendant, by deed containing the reservation recited in the opinion.

The case is stated in the opinion. to the point that a license founded upon a consideration cannot be revoked, cited 2 Am. L. C., 786-43; 2 Seld., 288; 10 Johns., 246; 7 id., 288; 15 Wis., 229; Cow. Tr., 409. cited Hall v. Chaffees, 13 Vt., 150; Pierrepont v. Barnard, 6 R. Y., 279; Houston v. Baffee, 46 R. H¡, 505; Buggies v. Lesure, 24 Pick., 187; .Miller v. Auburn $ Syr.

Foreclosure of mortgage. The plaintiff’s attorney made and filed an affidavit for the service of summons by publication on the defendant Schenek, the terms of which will appear from the opinion.

Replevin. From a judgment that plaintiff Rave possession of the. property and recover costs, defendant appealed. The case is stated in the opinion. argued, among other things, that the plaintiff could not recover because the property did not belong to him at the commencement of the action as alleged in the complaint. R. S., ch. 125, sec. 3; Child v. Child, 13 Wis., 17; TSveret v. Walworth Co. Bank, id., 420. 2.

Ejectment, for a part of “ lot one hundred and thirty-one of the Stoekbi-idge Reservation, in the town of Stock-bridge.” The plaintiff’s evidence was as follows: 1. Patent for said lot, from the United States to one Jacob Davids, dated October 8, 1860. 2. Deed of the premises from the defendant to one Howe, December 6, 1851, duly recorded; containing covenants of seizin and wai-ranty and against incumbx-ances. 3. Warranty deed from Howe to one Denell, June 13, 1853. 4.

Beplevin, for a great variety of chattels, some of which are described in the schedule attached to the complaint as, “ at passenger depot, Sheboygan, and freight house adjacent;” others as “at Plymouth station;” “at Glenbeulah station;” “on Sheboygan engine;” “in shop,” etc., etc. The plaintiff alleges ownership and right of possession in himself.

Action to restrain the collection of a judgment. The complaint alleges that the defendant Guernsey, on etc., obtained judgment against plaintiff in said court for $645.81, damages and costs; that afterwards, for a valuable consideration in each case, the judgment was assigned by Guernsey to one Everett, and by him to one Carrier, by whom, for value, the judgment was discharged of record; that nevertheless Guernsey, and his attorney Barbgr, had directed Glise, the sheriff, to…

The plaintiff was owner of a saw mill and certain land adjacent thereto, on the Kickapoo River in this state, the power for which mill is created hy a dam across said river on plaintiff’s land. The defendants were owners of saw mills lower down on the same stream.

Ejectment, for land in said county. Plaintiff claimed as purchaser at an' execution sale; and it appeared that the judgment was rendered June 19, 1855, by a justice of the peace for Winnebago county; that a certified transcript thereof was filed in the circuit court of the last named county on the 27th of July following, which showed an execution issued on the judgment by the justice, June 20th, and returned nulla bona, July 25th.

<p>Evidence — Rape—Consent.</p> <p>Proof of the woman's consent (not produced by fear) is always fatal to a charge of an assault with intent to commit a rape.- -</p>

Eoreclosure of a mortgage of land. The complaint and prayer for relief were'in the usual form, and the railroad company was made defendant as haying or claiming some interest in or lien upon the premises, or some part thereof, which interest or lien, if any, is alleged to have accrued subsequently to the mortgage.

This action was brought by the City of Janesville, Bandall Williams, David W. Inman and several others.

This appeal was taken by the defendant from a judgment in favor of the plaintiff. The case is stated in the opinion. to the point that all the covenants in defendant’s deed relate to the condition of the title and possession at the time when the deed was delivered, cited Clark v. Swift, 3 Met., 390; Billsbury v. Mitchell, 5 Wis., 17; Ellis v. Welch, 6 Mass., 250; Nagleev. Ingersoll, 7 Pa. St., 205; Rawle on Cov.,181; Frost v. Earnest, 4 Wharf., 86. 2.

Action for the flowage of land by a dam. The substance of the complaint is stated in the opinion. On the trial, the plaintiff asked a witness: “ Where, with reference to tbe mill of tbe defendants, are tbe dam and embankment, and wbat tbeir extent?” Objection sustained.

Action to recover real estate. Tbe defendant derived title through a guardian’s sale, made by tbe order of tbe probate court, for tbe education and maintenance of infant wards, of whom tbe plaintiff in this action was one. Tbe sale was made on tbe 10th of December, 1850, and tbe oath of tbe guardian that be would' exert bis best endeavors to dispose of tbe property in such manner as would be most for tbe advantage of all person interested, was made on tbe same day.

<p> Injury causing death of child: Excessive damages. </p> <p>1. A verdict against a railroad company for $3,775, for negligently causing-the death of a girl about ten years old, is set aside as excessive, the evidence' showing no ground for extraordinary expectations of pecuniary benefit from continuance of life.</p> <p>2. This court will not, in such a case, allow a part of the damages to be re- . mitted, and affirm the judgment as to the remainder.</p> <p>3. A verdict in the case for more than $2,000 should be set aside.</p> <p>4.'On proof of the child’s disposition, and that the “circumstances and health of the parents were poor,” the judgment would not be reversed, because the jury were allowed to consider, in estimating damages, the .parents’ reasonable expectation of pecuniary benefit from continuance of her life after she should become of age.</p>

Action to foreclose a mortgage for $4,000, given in March, 1854, by the defendant Lennan to the La Crosse and Milwaukee Pailroad Company, and assigned in 1855, for value, to persons from whom the plaintiff purchased it. The complaint showed that part of the mortgaged premises was sold at sheriff’s sale in 1862, upon the foreclosure of a mortgage for $112, given hy Lennan to one McNeil in 1852, and was bought hy one Munn, who afterwards quitclaimed it to the defendant Doty.

Slander. The words spoken are stated in the opinion. The answer, in justification, alleged that the plaintiff stole wool from Lloyd, and stated several otter specific acts of larceny which, it alleged, plaintiff had committed. On thq trial, the defendant, after introducing some evidence tending to show the larceny of the wool, offered to prove the other acts of larceny mentioned in the answer, but the court excluded the evidence.

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

Action against Frederick W. Huebner and Juliana, his wife, to enforce a lien for the price of a quantity of lime alleged to have been furnished by the plaintiff’s intestate for the erection of a brick building on premises owned by the wife as her separate estate.

Action under the statute for causing the death of the plaintiff’s intestate by suffering a bridge which was out of repair to be left open at night, without a watchman, proper guards, or a light to warn of danger, in consequence of which the intestate, without negligence on his part, fell through and was drowned. The facts proved are sufficiently stated in the opinion. After the plaintiff’s case was closed, a motion for nonsuit was overruled.

<p>An order striking from the calendar an appeal from a justice of the peace on the ground that no notice of trial had been given, merely works a continuance, and is not appealable.</p>

The plaintiff, a merchant, set down the monthly average of his stock at $660, in his sworn statement returned to the assessor under the law of 1865. The board of equalization of the city of Appleton added to the valuation the sum of $2,400.

Tbe complaint stated that, on etc., a certain portion of tbe side-walk on College avenue in tbe city of Appleton, became out of repair, tbe planks thereof having been carried away, leaving an open space in tbe walk of several feet unplanked, at a point where tbe grade of tbe walk bad been changed by order of tbe city, so as to leave a dangerous hole or pitch, which walk was suffered by said city to remain open during tbe night of said day, without any protection against…

Replevin, for a lot of pine logs. Answer, inter alia, that on etc., one James L. Eaton filed in the office of the clerk of the city of Oshkosh his petition for a lien upon said logs (giving a particular description of them) for the value of his services performed on the same, at the request of Charles R. Eaton and John W. Eaton, in cutting, rafting, etc.; that said James L. Eaton brought bis action in tbe circuit court of said county against Charles R. and John W. Eaton, to…

Action against a steamboat to recover for meat alleged to have been furnished at the request of an agent of the boat, and used by the officers, hands and passengers. It appeared on the trial that The Brooklyn was a freight boat, engaged in navigating Lake Winnebago and Eox River, and that the supplies in question were purchased by the steward. The plaintiff was admitted as a witness on his own behalf, against the objection of counsel for defendant.

Action (commenced before a justice of the peace) to recover for services of the plaintiff in defending a suit brought by one Smith against the defendant and the plaintiff, and for money expended by the plaintiff in carrying on the defense, and in paying the judgment recovered in the action; the complaint alleging that the services were performed and moneys expended and paid at the request of the defendant, and that he promised to pay the plaintiff* therefor.

Smith brought ejectment for a lot in Menasha. The summons and complaint were served October 20,1866, on Pretty, who was then in possession, and judgment was entered (hy default) June 18,1867.

The facts in this case are stated in the opinion. The circuit court decreed a' divorce from bed and board, and alimony during plaintiff’s life at the rate of $175 a year. The defendant appealed. To authorize a divorce under subd. 5, see. 9, or subd. 3, sec. 11, ch. Ill, there must be either actual violence committed, with danger to life, limb or health; or there must be reasonable apprehension of such violence. 1 Hagg. Consist. Rep., 35; 1 Edw. Ch., 292.

The alternative mandamus issued on the relation of the board of education of the city of Oshkosh, stated that said board, besides having general power to build schoolhouses in said city and to cause such sums of money to be levied annually as they might deem necessary for defraying the expenses of the public schools in said city, were authorized by chap. 236, Local Laws of 1866, to raise by special tax such sums of money as they might deem necessary, not exceeding the sum of…

Beplevin, for a lot of shingles. Answer: that, on etc., one Patrick McKane filed in the office of the clerk of the city of Oskosh, his petition for a lien on a certain lot of shingles (described by their mark), for $80.75, alleged to be due from E. Watson and H. E. Garfield for labor performed in cutting the same (partly by himself and in part by others named who had assigned their claims to him); that an action was brought before one Eorbes, a justice of the peace, to…

Action for damages suffered by reason of a defect in a highway, while plaintiff was driving a team attached to a separator. After the plaintiff rested, the defendant called one Kyser, who testified that he was not present at the time the plaintiff received his injury, but talked with him a few hours afterwards. Question: “What do you know about this team; how did they appear and act?” Objected to generally, and objection sustained.

A judgment herein having been reversed on a former appeal (20 Wis., 344), and the cause remitted for a new trial, the complaint was.amended so as to aver negligence in the defendant in not keeping properly lighted its car (in which plaintiff as a passenger for hire had arrived at the terminus of the road in Milwaukee about midnight), and in not giving plaintiff notice of its intention to remove the train from the depot, although it had notice that she was still on board said…

The parties to this action, having failed to agree as to the amount to he paid hy the defendant company to the plaintiff for the flowage of his lands by its dam, each chose an arbitrator; and these not agreeing, a third arbitrator was appointed pursuant to defendant’s charter.

The complaint avers in substance tbe following facts : In January, 1837, one Noonan sold and conveyed to Eield and Ford, then residents of Chicago, Ill., an undivided fourth interest in certain lands (about 1,400 acres) in Dane county, for $3,080; and took from the grantees, on the same day, a bond and a mortgage of the premises, to secure the purchase money. Eield and Eord shortly thereafter deeded back said premises to Noonan for a good and sufficient consideration.