Volume 23 — Wisconsin Reports

This action was commenced by Leverett 8. Kellogg against James H. Fcmeher, Edgar H. Kellogg and one Starkweather.

This action was commenced in the circuit court for La Payette county, and removed for trial to the circuit court for Bock county.

Action under the statute against the Milwaukee da Prairie du Ohien and the Chicago and Worth- Western Railway Companies, for the killing of Mary E. Langhoff, plaintiff’s intestate, by trains on defendants’ roads, at a street crossing in the city of Janesville, through the negligence, as is alleged, of defendants’ servants, and while said trains were running at an unlawful rate of speed and racing with each other upon adjoining tracks at said crossing.

Two joint and several promissory notes were made by John M. Keep with several other persons, in 1853, payable December 31, 1854. Interest was paid to 1859 by one of the other makers, but no payment was made by Keep. On the 20th of December, 1860, plaintiffs commenced an action on said notes in said circuit court against all the makers; and Keep was duly served on that day, and answered.

This action was for beef .sold and delivered to the defendants. On a reference for trial, the facts found were as follows: 1. In the first week in November, 1862, plaintiffs agreed with defendants to pack for them six barrels of beef at $9 per barrel, but no memorandum of the agreement was made, and no part of- the beef was then delivered, and no part of the purchase money paid. 2.

Action on an executory contract for the manufacture and sale of corn cultivators, on the ground that those made were not such as the contract called for.

Action by Hyland Raymond against Francis Holborn, for a partition of lots 5 and 6, block 1, in the city of Kacine, of wbicli lie claimed to be owner of an undivided one-tbird. Defendant claimed a paramount right to the whole. The facts found by the court*were as follows: On the 26th of December, 1856, Elisha Eaymond, Seneca Eaymond and one Dutton, being then owners of said lots, mortgaged them to one Moss for $3,000, payable within one year, with interest.

Action to enforce tbe specific performance of a contract to convey lands in payment for a barge and tbe half interest in a steamboat, alleged to have been sold by plaintiff to defendant. Tbe plaintiff excepted to tbe findings of fact and conclusions of law of tbe-circuit court, and appealed from a judgment for tbe defendant.

Beplevin, for a horse valued at $175, and á sleigh valued at $75, which the defendant, as sheriff, seized under an execution against plaintiff’s property. It appeared in evidence, that the plaintiff was a practicing physician; that he had no other horse or sleigh than those in question, and used these in his business.

* On the 8th of October, 1866, MeUssa Throup, of the city-of Racine, presented to the county court of said county, a petition which stated that Juliana Page, late of said city… Held: that said deceased, at the time and place aforesaid, made a valid nuncupative will in the words above stated, which was entitled to probate. Judgment accordingly; and Henry Dawson appealed. The following extracts contain the essential parts of the opinion prepared in this case by the Hon. Wm.

<p>'Specific performance of contract to convey: Assignment of contract pending the suit — Convey anee to assignee decreed.</p> <p>1. After the court had settled the basis of a decree for the specific performance of a contract by defendants to convey, but before any finding was filed or judgment entered, plaintiff and P., to whom he had assigned the contract for value pending the suit, applied to have such conveyance decreed to be made directly to P. An order denying the application is reversed, it not appearing that defendant’s rights would in any way be injured by granting it.</p> <p>S. The application should, however, be granted on such terms as would protect defendants from any additional expense from the substitution.</p>

Section 1, chapter 483, Laws of 1865, enacts as follows : “ In all cases in which any work has been done in the city of Janesville, in either of the years 1854, 1855, 1856,1851 or 1858, in opening, grading, graveling, planking or paving streets and alleys in said city, or in repairing streets and alleys therein, when such work has been done under or in pursuance of any contract entered into between the said city of Janesville, or any of the officers thereof] with [and] any…

APPEA L from the Circuit Court for Milwaukee County. Trespass, for entering on plaintiff’s land and piling wood thereon, and keeping the same so piled, etc. Answer, a general denial, and also a special denial of plaintiff’s title to the land. Yerdict for the defendant; new trial denied; and plaintiff appealed from a judgment on tbe verdict. Tbe case will appear from the opinion. cited Bovaston v. Payne, 2 'Smith’s Lead. Gas. 214; Pearsall v. Post, 20 Wend.

Ejectment. The plaintiff appealed from an order sustaining a demurrer to the complaint, as not stating a cause of action.

Action for libel. The alleged libelous words are stated in the complaint. The defendant appealed from an order overruling a demurrer to the complaint, as not stating a cause of action.

The plaintiff, Frances Kerman, is the only child of Ellen Hill, wife of Isaac Hill, by a former husband. Held: on these facts, that the money should be paid to Howard, as such administrator, to be disposed of according to the will, and rendered judgment accordingly; from which the plaintiff appealed. argued at length, that, under the statutes of this state, the husband does not succeed to his wife’s pei’sonal property at her death.

Action for the value oí goods sold and delivered by plaintiff to “Leahy Bros.,” on the faith, as is alleged, of defendant’s promise to pay for the same. The facts which the plaintiff’s evidence tended to establish, will appear from the opinion. The plaintiff appealed from a judgment of nonsuit. cited Parsons on Con. 500 ; Pecker v. Moit, 15 N. H. 143 ; Groft v. /Smallwood, 1 Esp. 121; liiehardson v. Flnmphreys, 1 Ala. 383; Browne on Frauds, § 199.

This action was originally brought January 3, 1867, against Adam Reith, F. W. Cotshausen, Mason G-. Smith, William Birkha/user, and Albert Alden, sheriff of said county, by Dent as special administrator on the estate of Anna Maria Birk-hauser, deceased. The facts alleged in the complaint were substantially as follows : Said Anna died intestate August 4, 1865, leaving certain children her heirs at law.

Action for damages accruing to the plaintiffs from a failure of defendant to carry goods of the plaintiffs from Milwaukee to New York, and deliver them at the latter city within fifteen days, as it is alleged that defendant contracted to do ; also for damages resulting from alleged improper handling, etc. The decision of this court, on a former appeal in the same cause, will be found in 21. Wis. 554-62, to which reference is made.

The defendant was garnished in an action by the plaintiffs against one Wiener; and issue was joined on his answer.

Eeplevin, for a stock of merchandise. Plaintiff claimed under a mortgage from one Fisher, to secure a promissory note for $1,000, money loaned by plaintiff to Fisher, which mortgage was filed in the clerk’s office, August 21, 1861, and contained a clause giving the mortgagee power to take possession, .whenever he should deem himself insecure. Defendant claimed as sheriff, by virtue of an attachment against the property of said Fisher.

On tbe 13tb of December, 1864, the defendant company received from the plaintiffs at Milwaukee, thirty-five tierces of lard, consigned to Buffalo, N. Y., and gave plaintiffs a receipt therefor, which declared that the lard was to he transported by its road to Detroit, and there delivered to the next connecting railroad corporation or other transportation line, and in like manner to be delivered to each connecting corporation until it should have reached its destination.

The plaintiff was incorporated in 1852, and by its charter is empowered to manufacture and sell gas for the purpose of lighting the city of Milwaukee, and any houses, etc., therein, and to lay pipe… Held: that in directing the construction of the bridge they would not provide for the occasional case of high water which might interrupt navigation under the bridge.

The action below was by Curtis a/nd wife against the railroad company, for injuries to the person of Mrs. Curüs from her being thrown from the platform of a car on one of the company’s trains, in consequence of the sudden starting of the train while she was getting upon it.

Action upon a parol contract of marine insurance. The complaint, after the allegations set forth in the opinion as to the authority of the defendant and its agents in Milwaukee to do the acts and enter into the contracts afterward mentioned, further avers, that in June, 1865, plaintiff applied to said agents for marine insurance upon a certain quantity of pig-iron, which the plaintiff proposed to ship over the lakes from Milwaukee to Cleveland, Ohio, “ against all adventures…

Action by judgment creditors of Frederick B. Miles, against said Frederick and Ella V. Miles, .bis wife, and one Miller, to have certain conveyances of real property from said Frederick to Miller,… Held: that as to existing .creditors every'voluntary conveyance is void. 3 Johns. Ch. 481, and cases cited.

In May, 1861, plaintiff became insurer of 17,700 bushels of wheat on board a brig. Held: That the defendant was not liable in this action for the wheat jettisoned; that plaintiff s rights as to it must be determined in proceedings between the three parties interested in the vessel and cargo. 2.

Action by Uriel B. Smith against Miranda A. Snith, to have plaintiff adjudged to be the owner in fee simple of certain real estate, free from all claim of title on the part of the defendant. Both parties claimed under a deed which grants the land to them, “ their heirs and assigns forever,” and which then, after a description of the land, contains the language quoted in the opinion.

The complaint alleged that, on, etc., defendant executed and delivered to plaintiff his promissory note, whereby, for value received, six months from the date thereof, he promised to pay plaintiff $200; that said note is now lawfully held and owned by the plaintiff, and there is now due and in arrear from defendant to plaintiff thereon $200, with interest from date.

The plaintiff brought this action by his guardian ad litem, to recover for injuries to his person, in consequence of his being run over by a train on the defendant’s track. The grounds of complaint and defense will sufficiently appear from the opinion.

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

This appeal was taken by tbe plaintiff from an order refusing bim leave to amend bis complaint. Tbe substance of tbe complaint (wbicb was of considerable length) will be found in 22 Wis., pp. 696-700. Tbe amendments proposed were substantially as follows: 1.

A statement of tbe facts upon wbieb tbe application was based, and tbe terms of tbe deeds under wbieb defendants claim,-will be found in 21 Wis. 478-82. Tbe facts put in evidence upon the subsequent trial of the cause, so far as important here, are stated in tbe opinion, infra.

Court for Bane County. The report of the decision made by this court upon a former appeal from the judgment of the circuit court, found in 21 Wis., pp. 88-112, contains a sufficiently full statement of the pleadings herein. At the October term of the circuit court, 1867, the cause was brought to trial before a jury. Ch. 79, Laws of 1867.

Ejectment. The complaint merely avers, that plaintiff is owner in fee, and as such entitled to possession of the premises, and that defendant unlawfully withholds the possession thereof. The answer of Shepardson contains : 1. A general denial. 2.

This action was brought by JLenry Gollins and thirty others against Jerome I Case and sixteen others, to compel an accounting by Gase for all moneys received by or for him upon certain subscriptions,… Held: That plaintiffs are entitled to an account, as prayed. 2.

Tbe complaint alleges, that, in August, 1865, at tbe city of Racine, tbe plaintiff1, Martha Brown, by ber agent John W. Brown (wbo was and is ber husband), entered into an agreement with tbe defendant, whereby plaintiff, by ber said agent, was to go to Cleveland, Ohio, and there inspect the baric “ Red, White and Blue,” and if tbe same was satisfactory to tbe agent, agree with tbe owner for tbe purchase thereof — defendant to pay tbe traveling expenses of said agent, and…

In 1859, tbe Walworth County Bank brought an action in said circuit court, to recover tbe value of certain railroad ties alleged to belong to it, and to bave been taken from its possession and converted by tbe Farmers’ Loan & Trust Oompany. Judgment was rendered for tbe plaintiff, which, on appeal, was reversed by this court, and a new trial ordered. 14 Wis. 325-31.

The executors of the estate of William Potts (whose will was admitted to probate in said county) having deceased, and an administrator de bonis non having been appointed, he brought this action, in the name of the county judge, and by his permission (R. S. ch. 104, §§ 4-7), against Littlejohn as one of the sureties on the executors’ bond, for alleged breaches of the conditions thereof, in that the executors did not make a true and perfect inventory, did not administer the…

On tbe 10th of October, 1866, the parties to this action executed an indenture, whereby Wood leased to the defendants for five years “ the manufactory, shops, buildings, offices and structures of every description, with the tools and fixtures, implements and machinery therein,” and the land on which they were situate, known as the “ Badger State Agricultural ’Works,” excepting from the lease certain tools and materials which defendants were to purchase at a valuation to be…

Tbe plaintiffs, in each of these cases, appealed from an order of tbe circuit court modifying a judgment in their favor which had been entered by the clerk. The case will appear from the opinion. . , .. I 1. Tbe judgments were properly entered. (1.) It was the clerk’s duty to enter such a judgment in each case as tbe plaintiffs were entitled to under tbe pleadings and verdict. R. S. cbap. 132, §§ 16, 35.

This action was founded upon claims against the defendant and in favor of the plaintiff, which arose in 1856, and the nature of which will appear from the decision upon a former appeal herein, reported in 18 Wis. pp. 17-21, and 19 id. 326-33-The defendant answered by various allegations designed to show that it had never been liable by reason of any facts alleged in the complaint.

; APPEAL from the Circuit Court for Milwaukee County. On the 8th of May, 1866, the common council of the city of Milwaukee passed “An ordinance to establish a city slaughterhouse, and to regulate the management of slaughter-houses and packing-houses ” in said city.

Tbe defendant received in store from one White, a pork packer in Milwaukee, fifty-four barrels, wbicb were marked lC mess pork,” and were branded witb tbe name of said White as packer, but wbicb, in fact, as was discovered sometime after, were packed witb salt only.

Ejectment. Defendant claimed the land under the plaintiff, through several mesne conveyances; and the dispute was as to the proper boundaries. Reference is m ade to a report of the decision of this court upon a former appeal (20 Wis. 425-437), where the terms of Gove’s deed are described, and the boundaries of the strips of land here in dispute are stated.

The plaintiff appealed from a judgment of nonsuit. The case is stated in the opinion. cited subd. 1, § 15, chap. 122, E. S.; Nomad v. Bice, 2 Wis. 22, 31-33 ; 18 id. 275; 29 Barb. 512; 31 id. 121, 138; 33 id. 596; 34' N. T. 293; 36 id. 639. cited 1 Washb. E. P. 277; 2 Kent, *131; 1 Pa. St. 176; 1 Green]. 6; 9 Yt. 326; Williams’ E. P. 184. 2.

The plaintiff, while being conveyed in a buggy along Third street, in the city of Milwaukee, toward the south, met the defendant and his servant driving a horse and wagon toward the north; and she alleges that they negligently and wrongfully drove ,said horse and wagon to the left and west of the middle of the traveled part of said street, by reason whereof, without any fault on her part, the wagon and buggy collided, and she was thrown out and injured.

. Ejectment. The jury, by direction of the court, found for the defendants; and the plaintiff appealed from the judgment. The case is stated in the opinion.

cited Burr. Law Die. sub verbo; Hobart, 9; 2 Shower, 51; and argued that in section 46, chap. 86, E. S., it should be understood as denoting not merely the immediate but the remote assignee, since this interpretation alone harmonizes with the context, and will promote the apparent policy of the legislature. Secs. 41, 42, 44, ch. 86, E. S.; TT.

Action to abate a private nuisance, and to recover damages for the maintenance of the same. The defendant appealed from an order refusing to strike out certain portions of the complaint as irrelevant and redundant.

<p>APPEAL from the Circuit Court for Milwaukee County.</p> <p>The defendants, Sigmund Wise and Marie, his' wife, appealed from a judgment in favor of the plaintiff.</p> <p>cited Laws of 1859, ch. 195, § 2; Jones v. Oilman, 14 Wis. 450; Yam Wostrand <o. Mansfield, 16 id. 224; Carberry v. Benson, 18 id. 489.</p>

Replevin. The defendant, as sheriff, levied upon the goods in dispute (being certain domestic animals and grain), under an execution, as the property of the plaintiff’s husband. The case will appear from the opinion. The court rejected evidence offered by the defendant to show that the husband carried on the farm, and with his wife and minor children did all the work on it, and at his expense produced the grain levied on.

<p>APPEAL from the County Court of Milwaukee County.</p> <p>The defendant appealed from a judgment for the plaintiff.</p> <p>The case will appear from the opinion.</p>

An alternative mandamus issued from said court to the defendant Olin, as sheriff of Green Lalce county, requiring him to remove his office to the village of Princeton., in said county, or show cause, etc. The relator alleged that at an election held in said county in April, 1866, pursuant to chapter 148, Laws of 1866, there were one hundred and five more votes east in favor of the removal of the county seat to said village of Princeton than were cast against such removal.

In November, 1853, the defendants entered into a written agreement with the plaintiffs, by which the former leased to the latter a certain saw-mill for one year, .and which contained the following among other provisions: “ The first [defendants] are to furnish one good saw besides tbe one now in use in tbe mill, and when tbe belts commence to fail, tbe second [plaintiffs] are to furnish leather, and tbe first are to make them.

Defendants were sued as indorsers of a sight draft upon New Tort, which was protested; and, upon a trial before the com-t alone, judgment was rendered against Dart, from which he appealed.

The will of Clarke J. Towle, deceased, after directing that his funeral expenses and debts be paid out of his personal estate, devised and bequeathed all his real and personal estate to his mother, Anna Towle, “ to have and to hold during her natural life, with the right to sell and convey the same ;” and the following provision was added: “Should my brother, Jackson Towle, outlive my said mother, Anna Towle, it is my will that any residue or remainder of my estate, or the…

Action upon a mortgage executed by the defendants to secure the note of the defendant Peter Pith, running to the Milwaukee & Superior Railroad Company. Demurrer to the complaint, as not stating a cause of action, and also for the omission to make said railroad company a party defendant. From an order sustaining the demurrer the plaintiff appealed. contended that section 23 of the railroad company’s charter (Pr.

Action upon a mortgage executed by tbe defendant Judd, in June, 1855, to tbe La Crosse and Milwaukee Railroad Company, as security for his note of the same date. The note and mortgage were attached to the bond of the company, and, by the terms of said bond, were assigned to the holder thereof as security for its payment; and plaintiff claimed as owner of the bond.

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

EBBOB to the Circuit Court for Fond dw Lao County. Trespass qua/re clausum, for the removal of a fence. Answer, highway. The case is stated in the opinion. The action below was brought by Scribner cmd another against Blute and others. Verdict and judgment against the defendants below, and they bring this suit to reverse the judgment.

<p>Chattel mortgage — when fraudulent as to creditors.</p> <p>1. Whether a chattel mortgage for a greater amount than is due, even though designed to secure future advances, is not void as against creditors, if such design does not appear on its face, qume. ,</p> <p>2. The fact that such a mortgage was taken from one known hy the mortgagee to he in failing circumstances, and pressed hy his creditors, is conclusive evidence of fraud; and so the jury should ho instructed in.a proper case.</p>

Action to recover bounty money alleged to have been voted by the defendant town in 1864, for volunteers and drafted men. The plaintiff claimed as one of the men drafted out of the town at that time, and also as assignee of other drafted men, whose claims, of a like nature, he had purchased for a valuable consideration.

<p>Collection of taxes — seizure of property.</p> <p>1 One cannot resist payment of taxes upon lands assessed in his name, on the ground tliat lie is merely an occupant, and not tlie owner, of the lands.</p> <p>2. A tax warrant, regular on its face, protects the officer who executes its mandate.</p>

Trespass qua/re clausum. The questions here arose upon the instructions of the court, and its rulings as to evidence, which _ will sufficiently appear from the opinion. Yerdict and judgment for the plaintiff; and the defendant appealed.

Ejectment. The defendant claimed under a tax deed executed in 1861, upon a sale made in 185Y, and under two other tax deeds; and upon the trial he offered in evidence said deeds, and also the judgment record in an action of foreclosure instituted in 1861, upon the deed of that year, against the former unknown owners of the premises (ch. 22, Laws of 1859). The evidence was received against plaintiff’s objections.

Action to recover $2,000, alleged to be due on a certain judgment rendered in favor of the plaintiff and against the defendant, in March, 1865, by the district court of Nevada county, in the state of California. The summons in the present action was issued in January, 1866, and in February the plaintiff sued out a writ of attachment, under which certain lands in the county of Iowa were seized by the sheriff as the property of the defendant.

Action to recover the contract price for the erection, of a school-house, which, before completion, was burned to the ground. The essential facts proved on the trial are stated in the opinion. Yerdict and judgment for the plaintiff. Defendant moved for a new trial on the ground that the verdict was contrary to the- evidence; and appealed from an order denying his motion.

This action is explained by the following facts proved on the trial.

Action against Augustine, McKenzie and Ga/mieJe, upon a promissory note, dated November 3,1855, arid executed on that day, in the state of Illinois, by McKenzie, under the firm name of “ McKenzie,… Held: that in the absence of direct proof it would presume the laws of other states to be the same as our own {Rape v. Heaton, 9 Wis. 341); and the cases in New York to the effect that every man is presumed innocent until the contrary is proved, do not apply here.

Action to recover the value of eight bundles of bags, which had been in use for two seasons in transporting grain from Lake City, Minnesota, to Genoa, Wisconsin, by way of the river and the defendant’s railway.

Action on a note, which, with a warrant of attorney'in the usual form and under seal, was executed by the defendants February 12, 1856, and made payable September 1, 1858. In April, 1867, judgment was entered in the circuit court for the amount due on the note at that date; and at the following March term, Manson moved, upon grounds stated in the opinion, that the judgment as to him be set aside.

Grom County. This action was commenced originally before a justice of the peace. The plaintiff having recovered judgment, the defendant served on the justice a notice of appeal.

This action was commenced in a justice’s court, by Hubbard and Bennett, copartners, on a promissory note executed by the defendant to Bennett, or bearer. The nature of the defense relied on appears from the opinion. The case was tried by a jury before the justice, and a verdict found for the plaintiffs, for $7.44, damages.

This was an action commenced in Rock county by Edmund E. Woodward, administrator, under sections 12 and 13, chapter 135, R. S., to recover damages resulting from the death of his intestate, Julia B. Woodward, charged by the complaint to have been killed in December, 1864, by the negligence of the defendant.

In January, 1857, Ledyard, Farnham & Co. made and delivered to the defendant Brockway, their six promissory notes, three for $1,000 each, one for $2,000, and two for $5,000 each, payable at different dates, and gave a mortgage for $15,000 to secure the same. Prior to this, Brockway had' bought of one Cram a half interest in a steamboat, and given his notes to secure payment.

The nature of the case, and the material points raised on the appeal, will appear from the opinion. The defendant appealed from a judgment in favor of the plaintiff. contended, among other things, that the evidence proved that the Oconto river is not at all times a navigable stream.

The Oity of Appleton brought an action against Barteau before a justice of the peace, for obstructing a street in violation of a city ordinance. Answer, no highway; and a general denial. The evidence for the city tended to show that the land in question had been dedicated and opened as a street, and used as such for a long time.

Trespass guare olcmsvm. Answer, that the bous w, guo was within the limits of a street, and that the acts constituting the alleged trespass were necessary to the clearing of the street, and were done under the authority of the common council of the city of Appleton.

<p>Quo Warranto — Blectime office: Poll-list as evidence — Oral evidence —Bight of voter to refuse to testify for whom he voted — Proof of his voluntary declarations.</p> <p>1. In quo wa/rranto, a book produced in evidence by plaintiff from tbe office of tbe city clerk, called in tbe bill of exceptions a poll-list or register, contained, after tbe list of names written in ink, other names written in pencil, after eacb of wbicb was, also in pencil, tbe word “ sworn.” Held, that tbe book showed upon its face that tbe names thus written were not registered within tbe time fixed by law, but were added at tbe polls.</p> <p>2. Tbe names thus written correspond with those attached to affidavits filed on tbe day of election to entitle affiants to vote under tbe registry law, as non-registered electors. A witness for plaintiff, being one of said affiants, who bad verified bis own signature to bis affidavit, was asked for whom be voted at said election. Held, that tbe question was not objectionable on tbe ground that tbe witness appeared to be a duly registered elector; since in fact tbe contrary appeared.</p> <p>8. It was competent for plaintiff to prove farther by tbe testimony of such witness, if be knew tbe fact, that bis name was not on tbe list of electors bad at tbe place where tbe election was held.</p> <p>4. Oral evidence for plaintiff of tbe time when certain of said names were written in tbe list, was not inadmissible on tbe ground that tbe list, purporting to be a register, and being offered in evidence by tbe plaintiff, could not be explained or contradicted by him; it appearing that be offered it merely to show tbe names and number of those who voted at tbe election without having been previously registered.</p> <p>5. Tbe privilege on tbe part of witnesses, of refusing to testify for whom they voted at an election, is strictly confined to those who were legally entitled to vote at such election, and does not extend to those whose votes where received in violation of tbe registry law.</p> <p>6. Tbe declaration 'of a voter, voluntarily made, may be given in evidence to show for whom be voted.</p>

In a suit in the circuit court for MilwcntTcee county by' Orton md another against Noonan and mother, tbe parties stipulated that it should be referred to certain persons to ascertain certain facts wbicb were in controversy, and to report thereon; and that “ the facts, estimates and measurements reported by said referees should, when so reported, be the finding of the court upon the same, md he signed hy the judge and filed with the papers in the cause, and be a perpetual…

Tierney and one Noyes were elected, in 1865, justices oí tbe peace in tbe town of Westport in Dane county, for the term of two years. In 1866, two other persons were elected justices for that town, one of whom did not qualify. In 1867 there were two justices to be elected for the full term to succeed Tierney and Noyes, and one to fill the vacancy created by said failure to qualify. One Kniffin was elected to fill said vacancy.

Action to recover damages for the loss of goods destroyed by fire at tbe city of Beloit, through the alleged negligence of the defendant.

<p>ERROR to the Circuit Court for Fond du Lao County.</p>

<p>Appeal bond in unlawful detainer — Extent of obligation.</p> <p>The appeal bond given under seo. 17, ch. 151, R. S., in an action of unlawful detainer, does not cover the treble damages which plaintiff may recover under section 14.</p>

Tbe nature of tbe complaint in this action will appear from tbe opinion. Subsequently to tbe procuring of an order granting an extension of time to answer, tbe defendant obtained at chambers a further order, directing the plaintiff to elect on which of the counts in his complaint he would rely at the trial, and that the other be stricken out.

<p>APPEAL from the Circuit Court for Sheboygan, County.</p> <p>The plaintiff appealed from a judgment for the defendant.</p>

Ejectment, for a lot in the city of Appleton. The plaintiff appealed from a judgment in favor of the defendant; and the only question considered here arose upon an instruction given to the jury relative to the effect of a former action by the same plaintiff, involving the title to the same land, the record of which was read in evidence hy the plaintiff. The nature of this record, and the instruction given relative thereto, will sufficiently appear from the opinion.

Action to have a judgment of divorce declared void, The complaint sets forth the marriage of the plaintiff to one Charles Johnson in 1856: a voluntary separation by written articles between herself and husband in 1863, and her subsequent removal to Grand Haven in Michigan; that while she was residing at Grand Haven, the said Charles.

contended that but one bill of costs can be taxed where several defendants appear by the same attorney, unless it clearly appears that it was necessary to interpose separate answers setting up different defenses; and in such case costs can only be taxed for drawing sueb answers and copies.

The plaintiff appealed from a judgment in 'favor of the defendant. The case is stated in the opinion. The proceeding under which the defendant justifies the taking and detention of the colt in'question is purely statutory, and he must show a strict compliance with the law, or the proceedings will be void. 13 Johns. 414; 5 Wend. 506 ; 19 id. 498 ; 4 Denio, 319; Co wen’s Treatise, 704. 2.

The parties to this action agreed by written articles to submit to the determination of arbitrators all their matters of difference, including the subject matter of a suit then pending between them in the circuit .court, and all claims against each other growing out of their mutual transactions, either as individuals, or as copartners in business, and that for the amount awarded by the arbitrators to either party judgment might be entered in the circuit court.

Action to foreclose a mortgage. The complaint charged the defendant W'augh with claiming title to the mortgaged premises under a tax deed, hut that said tax deed was taken and held by him for the benefit of and in collusion with the mortgagor, for the purpose of cutting off the plaintiff’s mortgage.

■ This action was commenced by Klauber against Otto to recover a balance due on an account for groceries, etc., furnished to the defendant.

Action' for the conversion of' $600 in government bonds. Judgment having been rendered in the court below in favor of the defendant, the plaintiff sued out his writ of error. The essential facts in the case, as well as the principal points raised on the argument, are stated in the opinion.

The plaintiff was a member of the firm of Lenz & Co., merchants in the city of Madison, and one of the sureties on the bond executed in 1867 by George Memhard, treasurer of said city, to the treasurer of Dane county, for the payment to said county treasurer of all moneys received by Memhard for state and county taxes.

Action to compel an account, and payment of an alleged excess of partnership profits in defendant’s hands. A writ of ne exeat was obtained against the defendant, and from an order of court, refusing to vacate the writ, the defendant appealed. insisted that this was an action simply to ascertain and collect a debt arising out of a partnership, and therefore founded upon contract.

Tbe complaint in tbis action states, in substance, that, on, etc., upon a settlement of accounts between tbe parties, tbe plaintiffs executed to tbe defendant Hyde, certain notes and mortgages, to tbe amount of some $15,000, and tbat at the time of the execution and delivery of said notes, and as a part of the inducement therefor, said defendant agreed that if certain pine lands theretofore conveyed by him to the plaintiffs, and in part consideration of which the said notes…

This appeal was taken by the plaintiff from a judgment of the county court affirming an order of a justice’s court, dismissing the action because the plaintiff, through inability, failed to give security for costs as required by the justice.

The defendants appealed from an order overruling a demurrer to the complaint. argued that the complaint herein was a creditor’s bill; that chapter 305, Laws of 1860, revived the creditor’s bill only in favor of the judgment creditor; that the object of the supplementary proceedings (which the complaint shows to be still pending) was the same as that here sought; and that it is the intention of section 96, chapter 134, R. S., to authorize the receiver to bring an action…

The plaintiff, as administratrix of the estate of her deceased hirsband, brought this action under the statute to recover damages, alleging that his death was caused by the negligent and wrongful act of the defendant. Upon the summons and complaint, and an affidavit of the plaintiff an order of arrest was obtained, and the defendant, in default of bail, was committed for trial. A motion to vacate the order of arrest was denied, and from this order defendant appealed.

-APPEAL from the Circuit Court for Winnebago County. Action for the wrongful talcing and conversion by defendants of a quantity of logs. On the 9th of May, 1867, one Cunningham, being indebted to plaintiffs, executed to them a bill of sale of said logs, valued at $6,000. This sum exceeding the amount of plaintiffs’ demands against Cunningham by $833.33, they gave him their note for $800, and the remainder, $33.33, was left standing on account.

<p>APPEAL from the Circuit Court for Winnebago County.</p> <p>The defendant Duchman appealed from an order overruling his demurrer to the complaint.</p>

Action upon contract. Tbe ease is sufficiently stated in tbe opinion.

<p>1. Forging an instrument which is invalid upon its face, does not constitute the crime of forgery.</p> <p>2. Where an indictment for forging an indorsement upon a draft, purported to set out the draft in full, and it did not appear to he stamped: Held (on motion in arrest of judgment), that the indictment was had.</p>

<p>APPEALS from tbe Circuit Court for Fond dv, Lao County.</p>

This was an application to compel JETundhausen, as treasurer of the city of Milwaukee, to issue a tax deed to the relator for land in said city struck off to the city at a sale for city taxes made by the treasurer thereof in October, 1863; the certificate of sale having been' indorsed and transferred to the relator in January, 1868.

Tbe judgment of this court, reversing a judgment of tbe circuit court in favor of tbe plaintiff, was rendered on tbe 28th of February, 1868, and tbe opinion filed on tbe same day. See 22- Wis. 476. On tbe 13th of April following,, tbe clerk of this court remitted to tbe circuit court tbe record and papers in tbe cause.

<p>APPEAL from the Circuit Oourt for Rook County.</p> <p>This was a motion to set aside a judgment by default. The grounds of the motion are stated in the opinion.</p>

<p>Where exceptions are taken to the conclusions of law only, and not to the facts found by the judge, the finding of facts cannot be reviewed in this court.</p>

The plaintiffs appealed from an order dismissing an attachment which had been issued in the action. The grounds on which the attachment was claimed will appear from the opinion. Temporary absence is never a ground for an attachment. 8 Wis. 860; Drake on Attachments, 39.

The material facts are stated in the opinion, infra. The sixth defense pleaded by Jane Oxley set np the trust deed from Christopher Oxley, her late husband, to C. E. Jenkins, referred to' in the opinion, and bearing date April 1, 1848.

The complaint in this case stated, that between the 2d of November, 1867, and 20th of April, 1868, the plaintiff delivered certain flour and barley to the defendant, who was a commission merchant, to be sold at an agreed rate of commission; that the same were sold by defendant for $4,908.71; that, on, etc., there remained in defendant’s hands, after deducting- commissions, the sum of $4,785.99, “received by him in a fiduciary capacity as such commission merchant, the…

Foreclosure of a mortgage. The defendant Coleman appealed from a personal judgment against him for a deficiency in the proceeds of the mortgage sale. The case is stated in the opinion.

Ejectment. The case turned on the question of the true boundary line between the north-east and the north-west quarters of a certain section. The facts are sufficiently stated in the opinion of the court. cited 7 Porter (Ala.) 428; 16 Ga. 141; 17 Miss. 459 ; 6 Gill, 121; 16 Pa. St. 232; 21 Ala. 66; 4 Hawks (N. C.) 64; 4 Mon. 63; 1 Dev. & Bat. 425; 1 S. & M. 428. cited 6 Wis. 14; 19 id. 429; 3 How. (U. S.) 650.

Tbe plaintiff Swift bad a chattel mortgage, given by one Page, and on tbe 18th of February, 1867, asked one Head to file it in tbe town clerk’s office.

Action by Fredendall against Taylor, Kreiss, Leitoh and /Spencer, to recover pay for making a well or tank for the use of the State Firemen’s Association. The complaint alleged that the plaintiff agreed with the defendants to make the well or tank for $500; that he did make it, and that the defendants promised to pay him that sum therefor. Leitch was not served with process, and Spencer made no defense. Taylor and Kreiss answered by a general denial.

Action to recover the possession of a piano, which had been, taken in execution on a judgment in favor of Brittan against one Franklin Darrow. The plaintiff claimed the piano under a chattel mortgage executed by Darrow to his testatrix, Mrs. Matteson, and gave in evidence, against objection, his letters testamentary signed by the county judge of Walworth county, with the seal of the court affixed.

Trespass quare clausum. Answer, highway. Yerdiet and judgment for the plaintiffs; and the defendant appealed.

Action to recover for “shortage” on an invoice of goods purchased of the defendant in June, 1863, and forwarded, as directed, to the plaintiff at Janesville.

The plaintiff in error brought this suit to reverse a judgment of the circuit court against him in a criminal action. The ease will appear sufficiently from the opinion. cited 7 Cow. 4Í4, 54; 1 Green (N. J.) 361; 2 Hawks, 98; 1 Rich. 219; 1 Met. 258; 2 id. 413; 12 Ala. 840; 4 Dana, 518; 14 Ind. 327; 10 Humph. 101; 7 Mo. 55; 29 Me. 329; 1 Scam. 172; 17 How. 204-8; 16 Ill. 380; 19 Ohio, 423; 1 Greene (Iowa), 392; Thach. Or.

Action to restrain tbe sale of certain lots in tbe city of Madison for tbe amount of a special tax assessed against them to pay for tbe construction of a “ Nicholson ” pavement in tbe adjoining street, and for grading tbe street to receive said pavement, and also to bave said tax declared illegal, etc. Section 3, chapter 526, Laws of 1865, provides, that, whenever tbe common council of said city shall determine to grade and pave any street, they shall cause certain estimates…

Ejectment. The defendant claimed under a tax deed executed in May, 18S6, and recovered judgment; from which the plaintiff appealed. Tbe only questions raised on tbe trial were concerning tbe validity of tbe tax deed; and these are sufficiently stated in tbe opinion of tbe court. 1.Tbe deed should bave been executed either by tbe clerk as clerk, or by tbe deputy as deputy, and not by one in the name of the other.

Action for wages alleged to be due plaintiff from defendant, in tbe sum of $250. Plaintiff appealed-from an order dismissing an attachment wbicb be bad sued out against defendant’s goods. While tbe appeal was pending here, defendant’s attor neys filed a stipulation signed by plaintiff, to tbe effect that tbe appeal might be dismissed at bis costs; and it was so dismissed.

WilUam Thompson and others, appealed to said circuit court from a decision of tbe county court of said county, admitting to probate a certain will, and adjudging costs against them as contestants. John Thompson cmd (mother, on whose petition said will was admitted to probate, moved to dismiss said appeal, on the-ground, among others, that tbe appellants bad not filed and served such a bond as tbe law required, to perfect tbe appeal.

<p>Writ of restitution — Must be sued out at tJie circuit.</p> <p>Where, after judgment at the circuit for plaintiff in ejectment, he was put in possession hy the officer before an appeal was perfected, and afterward the judgment was reversed and a new trial awarded, defendant cannot have a writ of restitution from this court, hut must have the cause remitted, and proceed at the circuit.</p>

<p>Printing evidence in Mil of exceptions — Taxation of costs in supreme court — Notice required.</p> <p>1. On an appeal to this court, where questions of fact are in issue, the evidence bearing’ on them should he printed in full.</p> <p>3. The fact that appellant, in making up his printed cases, used parts of printed cases prepared on a former appeal, but for the printing of which he had never before recovered any costs, will not prevent his recovering for the printing of the whole case as used on the present appeal.</p> <p>3. Taxation of costs in this court must be on notice; and in the absence of any specific provision, by statute or rule of court, as to the length of such notice, it must be a reasonable one.</p> <p>4. Taxation on notice will not be reviewed unless the objections are first taken before the clerk.</p>

<p>MOTION for judgment, upon tbe verdict of a jury, in an action brought in this court to try the respondent’s title to the office of treasurer of Portage county.</p>

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

<p>Construction of statute — Jurisdiction conferred by implication.</p> <p>1. Though an unfounded assumption by the legislature that a particular jurisdiction existed, might not alone he sufficient to create it, yet when the jurisdiction is assumed to exist and explicit provision made as to the mode of its exercise, this carries with it, by implication, jurisdiction of the pro. ceedings so regulated.</p> <p>2. A justice of the peace in the city of Eacine has jurisdiction of actions for violations of the city ordinances, including that in relation to the sale of liquors without license.</p>

Tbe affidavit filed for tbe relator shows tbe following facts: In July, 1861, tbe state sold to tbe Bank of Columbus its bonds to tbe amount of $52,000, and received seventy per cent on that amount, and tbe bond of tbe bank, conditioned for tbe payment of tbe remaining thirty per cent., in semi-annual installments of one per cent., with an agreement that the state bonds so purchased should be deposited with the bank comptroller as security for tbe circulation of tbe bank,…

* Beplevin, for wheat. In 1863 and 1864, one Wm. H. Bob-inson was employed to buy wheat for the plaintiff, to be stored in his (Bobinson’s) warehouse in Wabasha, Minn., the agreement being that it might be stored with other grain of the same quality by inspection, received about the same time for other owners.

On the 23d of May, 1867, Van Slyhe filed in this court his complaint, which alleges in substance the following-facts: On the 1st of May, 1865, at, etc., the First National Bank of Madison was a banking corporation duly organized and existing under the several acts-of congress concerning national banks, with a capital stock of $50,000, divided into 500 shares of $100 each, then and still owned in certain specified amounts by the several persons named in tbe complaint, of whom…

<p>A servant cannot recover against liis employer for injuries caused by tbe negligence of a fellow servant, without showing negligence in employing or retaining the latter, he being an unfit person; and mere proof of the particular act of negligence causing the injury is not sufficient. So held,, where a brakeman on a train was injured by the taking up of rails to repair the track, of which the train was not properly notified.</p> <p>Paine, J., dissents.</p>

The facts alleged in the' complaint are substantially as follows : On the 8th of November, 1849, Harvey Jones died at Neenah in said county, intestate, leaving no widow, but leaving as his heirs at law three minor children, Gilbert 0., Abigail W., and Willard Jones, aged respectively twelve, ten and eight years; of whom the first is made defendant, the second is the wife of James Bassett and joined with him as plaintiff herein, and the third has sold his interest to said…

This is an appeal by the plaintiff from an order of the circuit court. The case is stated in the opinion. cited Barrow v. Jones, 1 J. J. Marsh. 470; Floyd v. Jayne, 6 Johns. Ch. 479; MoFeish v. Stewart, 7 Cow. 474; Davis v. Buggies, 2 Chand. 152; 3 Gra. & Wat. on N. T. 1004; JBna Ins. Co. v. MeCormiele, 20 Wis. 265. [The printed brief does not discuss the particular point on which the cause went off in this court.] ' .