Volume 24 — Wisconsin Reports

' APPEAL from the Circuit Court for La Fayette County. Action upon a promissory note for $100, -with interest, dated at Darlington, July 17, 1865, payable in three months, executed by defendant to plaintiff.

Action upon a policy of insurance against personal injury arising from accident and causing death. The plaintiff appealed from a judgment of nonsuit, the grounds of which will appear from the opinion. to the point that the injury was not caused by accident, cited Jones on Bailments, 8 ; Theobald v. Railway Passengers’ Assurance Co., 26 Eng. Law & E<p 432. 2.

, On the 21st of September, 1858, Graham and Scott recovered a judgment in the circuit court for Milwaukee county, against the La Crosse & Milwaukee Railroad Company, for $29,000. In August, 1868, said judgment remaining wholly unpaid, an execution was issued against the company, and O' Neil was garnished as a debtor thereof, and notified to appear for examination before a court commissioner on the 4th of September.

The facts in this case are the same as in the preceding case of Graham, and another v. O' Neil, except that Chappell, the garnishee in this case, appeared before the court commissioner, and his examination was duly certified and returned to the clerk of the circuit court; and thereafter the court made an order dismissing the proceedings in garnishment; 'from which the plaintiffs appealed.

<p>APPEAL from the Circuit Court for Hacine County.</p> <p>Ejectment. The case is stated in the opinion.</p> <p>The defendants appealed from a judgment in favor of the plaintiff.</p>

McJBhitee was indicted in said court, the indictment charging, with specification of time and place, that he, “upon one Peter Coleman, feloniously did make an assault, and the said Peter Coleman then and there felo-niously did put in fear, and one wallet of the value of seventy-five cents; one United States note, commonly called greenback, of tke value of ten dollars, and one United States note, commonly called greenback, of tke valne of two dollars; two United States notes,…

A mandamus was sought in this case to compel the respondents to proceed to erect county buildings for their county in the village of Stevens’ Point, in accordance with the requirements of ch. 280, Private and Local Laws of 1868. The petition alleged that all the conditions precedent mentioned in that act had been fully performed. The provisions of the act will sufficiently appear from the opinion. The respondents moved to quash the alternative writ.

<p>Blight of trial in county where offense committed — Section 6, eh. 178, B. 8. invalid.— Waivm\</p> <p>1. The defendant, in a criminal action in a court in this state, is entitled to a trial in the county where the offense was committed; and the provision of ch. 178, R. S., for a change of venue in such cases on the motion of the district attorney, is invalid.</p> <p>2. After a change of venue in a criminal action, on a motion of the district attorney, the accused obtained a further change on the ground of prejudice in the judge; and was afterward convicted. Held, that she had not waived her right to a trial in the county where the offense was committed, and the proceedings were void.</p> <p>3. The cause and the accused will, in such a case, be remanded to the proper county for trial.</p>

<p> Costs on appeal. </p> <p>In the taxation of costs on appeal to this court, only the actual expenses for printing, etc., are to he allowed the appellant, if successful; and the fact that the printer charged less than the usual price because tire appellant’s attorneys agreed to pay, and did pay, as soon as the work was done, furnishes no reason why the usual pnce should he allowed in the taxation.</p>

<p>JVeto trial in criminal action. — Grand jurors on petit jury. — Bemew on exceptions properly certified, <&c., tohere writ of error did not lie.</p> <p>1. Where the names of the grand jurors do not appear in the indictment, the fact (not actually known at the time to the accused or his counsel) that one of them was on the petit jury by which the accused was convicted, is ground for a new trial.</p> <p>2. Where a writ of error was issued hefore judgment in a criminal action, and the record containing the exceptions was certified as a return to such writ: Held, that although the writ would not lie, yet the exceptions, being properly certified and returned, would be reviewed.</p>

CERTIFIED from tRe Circuit Court for Vernon County. Hartfiel was indicted for selling spirituous liquors to one Pennell, a minor, in violation of cRapter 36, Laws of 1866, and cRapter 128, Laws of 1867. TRe evidence for tRe prosecution sRowed tRat Re inquired of Pennell, before letting Rim Rave tRe liquor, wRetRer Re was of age, and received an answer in tRe affirmative, and also sRowed tRat Pennell was six feet and one incR in ReigRt.

<p>Pleading in quo warranto, before the new rule. — Relator need not be entitled to the office.</p> <p>1. Under tlie statutes and tlie rules oí court heretofore in force in tliis state, it was not necessary in quo warranto, where the complaint alleged that a certain number of illegal votes had been cast for the defendant, to state the names of the alleged illegal voters.</p> <p>2. Where the relator in such action joins with the state as plaintiff, and the complaint states a good cause of action in favor of the state, a demurrer on the ground that it does not show the other plaintiff entitled to the office, is bad.</p>

KEPOKTED by the Circuit Court for Boole Couuty. The defendant was found guilty upon an indictment for arson, and the cause was reported to this court by the circuit judge for an opinion upon three questions: 1. Whether there was a variance between the indictment and the facts proven; 2. Whether' the indictment properly set out the ownership of the building to which the accused was charged with setting fire; 8.

Trespass guare clausum, commenced by Murray before a justice of the peace. A judgment for the plaintiff rendered by the justice was reversed on certiorari by the circuit court; and he took his writ of error to reverse that decision. The question involved will sufficiently appear from the opinion.

Trespass guare clausum. Answer, highway. The action was commenced in 1867. The defendant’s evidence tended to show that the town supervisors made an order in 1855, laying out a road through the' premises ; that the lines were determined by a survey, and included the place where the alleged trespass was committed; and that a road between these, lines had in fact been traveled and worked since that time.

Replevin by Albert M. Knapp, for a piano alleged to be Ms property, wMch defendant, as sheriff, seized on an execution against the property of Horace Knapp, plaintiff’s father. The defendant appealed from a judgment in plaintiff’s favor. The errors alleged will sufficiently appear from the opinion. to the point that the court erred in admitting the questions objected to on cross-examination, cited 1 Gf-reenl.

In June, 1865, Stephenson, tlie defendant, sold to one Eaucett certain land in said county, for which Faucett executed two notes of $300 each, payable in one and two years respectively to one… Held: that “there was no fraud on the part of defendant, either in fact or in law,” and dismissed the complaint. The plaintiff appealed from the judgment. The concealment of the existence of the Metcalf mortgage, and of the agreement that it should be a prior lien, was fraudulent.

Action (commenced in 1864) to restrain the defendant Fox, as sheriff of said county, from issuing a deed for certain land sold on a judgment against the Kenosha & Rockford Railroad Company, to annul the sale and certificate, and to have a conveyance of said land, previously executed by the plaintiff to said railroad company, adjudged to be void.

On petition of Osborn and another, the circuit court issued a certiorari to Hart and others, supervisors of a certain town in said county, to bring before it for review the proceedings of said supervisors in laying out and establishing a private road through the land of said petitioners, on the application of one Smith.

Chapter 117, Private and Local Acts of 1853, provides that it shall be lawful for any county through which the Mineral Point railroad shall run, “or any town or incorporated city or village in such county, to issue and deliver to said company its bonds, payable to such person or persons, trustees or corporation, or to said company, * * as may be agreed upon by and between the directors of said railroad company and the proper officers of such county; * * to receive in…

Replevin, for two barrels of bops, commenced in a justice’s court. After verdict for defendant, the justice ordered and adjudged that the officer deliver the property to defendant, and that defendant recover from plaintiff $1.50 damages, and costs of the action.

Action for injuries to the plaintiff’s person, received in consequence of his being thrown from a wagon upon a highway in the defendant town. The injury is alleged to have been caused by obstructions which defendant had negligently permitted to remain in the highway. The court refused to set aside a verdict for the plaintiff, and rendered a judgment thereon; from which defendant appealed. A.'Durnford (with Wm.

The plaintiff, Henrietta Dierolf j obtained a writ of attachment against the goods of the defendant in this cause, upon an affidavit that he was justly indebted, etc., and that she had good reason to believe that he was “about to assign, dispose of, and conceal his property, with intent to defraud his creditors.” Property of the defendant having been seized upon the writ, he gave the undertaking required by the statute, and the property was released to him.

Griswold was indicted for stealing a “two year old mare colt,” the property of one Oakleaf. Said Oakleaf, as a witness for the prosecution, testified, among other things, as follows: “I saw the defendant in jail before the trial, and asked him about my colt. He said he did n’t take it. I said: £ I can prove that you did, by Mrs. Hare.’ I gave him a description of my colt, and he said he did n’t get it.

Section 1, cb.. 401, Local Laws of 1869, entitled “An act establishing a board of public works in the city of Milwaukee,” provides, inter alia, that “the members of the first board shall be appointed by the mayor of said city, with the approval of a majority of both boards of the common council.

The plaintiffs shipped, by defendant’s road, trees and other nursery stock from Whitewater, in this state, directed to “Iuka, Iowa,” the consignees being resident in a Tillage of that name in Tama county, Iowa. At Chicago, the goods were shipped by defendant’s agents, by the Chicago, Burlington and Quincy Railroad company, and, at Quincy, were transferred to the Quincy and Missouri railway, by which they were transported to Iuka, in Keokuk county, Iowa.

Trespass, for breaking plaintiff’s close, and carrying away and converting certain wheat. Defendant made default; and on tbe 30thjff October, 1867, plaintiff, having filed due proof of service of summons and of the non-appearance of defendant, had the damages assessed, and judgment perfected in due form against defendant for damages and costs.

After the decision of this cause, on appeal from a judgment against Vilds, as reported in 23 Wis. 207-223, and after it had been remitted for a new trial, the circuit court, on plaintiff’s motion, made an order transferring it to the United States circuit court for the district ol Wisconsin; and from this order Vilas appealed. to the point that this court had ho jurisdiction to hear or determine this appeal, and that all proceedings in the cause in any state court, after the…

The plaintiff Mrs. Morely, being engaged in picking blackberries in a grove upon defendant’s premises, was ordered off the premises by defendant, who kicked lier and struck lrer with a stick, besides pursuing ker with oaths, and with threatening and indecent language.

Action for tlie specific performance of an oral agreement to sell and convey land, etc. Tlie complaint avers, in substance, that, on… Held: that the contract for the sale and conveyance of the premises by Gibney to plaintiff was void by the statute of frauds ; that there was no such part performance as took it out of the statute; that the contract as claimed by the plaintiff was not clearly established by the evidence ; and that the complaint must therefore be dismissed.

Section 1, chapter 113, Laws of 1867, provides, that ‘ £ whenever any lot or tract of land which has been, or shall hereafter be, sold for taxes, shall have been in the actual occupancy or possession of any person for the period of thirty days or more, at any time within the six months immediately preceding the expiration of the time of redemption, or the six months immediately preceding the time when the deed shall be applied for, such deed shall not be issued unless a…

Ejectment. Plaintiff claimed under a tax deed executed June 30, 1866, and recorded, but not stamped; and the land was described therein as “lot No. fourteen (14), in block No. nineteen (19), to the village of Theresa, in said county. ’ ’ The court held the deed void on its face for uncertainty in said description, and dismissed the complaint; and plaintiff appealed from the judgment. contended, among other things, that section 1, chapter 159, Laws of 1863, did not require…

Action to recover bounty money alleged to be due the plaintiff as a volunteer in the military service of the United States, credited to the defendant city, in 1863. The defendant appealed from a judgment in plaintiff’s favor.

Ejectment, for lots 207 and 251, “in the Stockbridge Beservation (so-called), according to tbe recorded plat thereof, in the town of Stockbridge, county of Calumet.” Plaintiff introduced proof that the premises were a part of the lands granted to the state of Wisconsin by several acts of congress.

Ejectment, for two undivided halves of the south half of a certain lot four, in said county, brought by Eaton against Tallmadge and Pomeroy. Plaintiff’s evidence included the following deeds : 1. A tax deed of the whole land to one Loomis, dated April 24,1862, upon a sale for taxes of 1859. 2. A deed of the same from Loomis to one Knapp, June 24, 1862. 3.

In 1855, North conveyed certain land to one Hays, whose title passed by mesne conveyances to the plaintiff. ■In 1864, plaintiff was evicted from the premises by the judgment of the court in an action brought against him by one Eaton; and thereupon he brought this action upon the covenants in defendant’s deed to Hays. The breach alleged is, that Eaton, on, etc., “did, with lawful process, enter on and evict the plaintiff,” with averments as to damages.

Ejectment, for lot 124 of the Stockbridge reservation in said county. The plaintiff introduced in evidence a certificate under the act of congress of March 3, 1865, for the land in controversy, to Henry Moon, dated September 1,1865, and numbered 26,636 ; and a 'deed of the land, dated the same day, from Moon to plaintiff. Defendant testified that he had been in possession from May, 1850, until the commencement of this snit.

The defendant appealed from an order refusing to set aside an assessment of damages, and a judgment entered thereon, against him and in favor of the plaintiff, and denying him leave to file an answer in the action. The cause of action on which the judgment was rendered, and the character of the proposed answer, will appear from the opinion.

<p> Bill of exceptions. </p> <p>An order granting or refusing a new trial will not be reversed where the motion was based “ on the judge’s minutes,” unless the bill of exceptions states that it contains all the minutes on which the motion was heard; and a statement at the close of the bill that “ the foregoing is a copy of the minutes,” etc., is insufficient.</p>

Replevin, for a stallion colt, alleged to be worth $200. The defense was, that defendant was in possession of the colt under an agreement between him and plaintiff, by which defendant was to break the colt, and use bim as a stallion and racer, and, after the races at the state fair in 1867, was to sell him and retain one-half the proceeds, and as much more as might be necessary to pay for his time, care and expenses bestowed upon the colt.

Foreclosure of a mortgage of the east half of the northwest quarter of a certain section of land, executed -to plaintiff by one Adams, and alleged to have been recorded July 29, 1847.

Action for the value of a gold watch and chain, belonging to plaintiff, and alleged to have been, through defendant’s negligence, lost and stolen from plaintiff’s room, while he was occupying his sleeping room in defendant’s inn.

Ejectment. On the 27th of February, 1850, a certain property in the village of Clinton, town of Christiana, in said county, commonly known as “The Mill Property,” consisted of certain land indicated on the plat of said village as a reservation for hydraulic purposes, together with a portion of two lots numbered 1 and 2 in block 74 in said village, which were occupied by a saw and grist-mill, and by a dam and flume appurtenant to said mill.

Action to.enforce a mechanic’s lien, etc. The complaint avers, 1. That plaintiff is an architect and contractor. 2.

The plaintiff, Anna Maria Fuss, was married to John W. Fuss, in Prussia, some time prior to November 14, 1841, both of them being residents and citizens… Held: That the said post-nuptial contract, on the part of said John W. Puss, “was fully and lawfully revoked by him, by his last will and testament.”* 2. That the moneys owned by plaintiff at or before the time she left Prussia, on hex-arrival in this state, became the property of her husband by the laws of this state. 3.

On tlie 10th. of June, 1868, tlie parties to tliis action entered into a written agreement, under seal, for tlie sale and purchase of certain land then belonging to defendant. Held: in Ganson v. Mccdigan, 15 Wis. 144, to admit parol evidence of the circumstances under which the deed was made; and the question upon the evidence should have been left to the jury. 2. 'The deed shows the consideration to have been $8,000.

On the 28th of March, 1867, while walking on the crosswalk over Mason street, in the defendant city, along the western side of Water street, plaintiff slipped and fell, receiving personal injuries. This action was brought to recover for these injuries, on the ground that the accident was caused by the unsafe condition in which said cross-walk was permitted to be and remain through defendant’s negligence.

The relief sought in this action was, that certain bonds and coupons issued by the plaintiff town might be adjudged void ; that the defendants Carpenter and Mur-phey might be ordered to surrender said bonds and coupons to plaintiff to be canceled, and that Lamson and Alward (who are named as defendants), their agents and attorneys, might be enjoined from further prosecuting . certain suits on said coupons, etc. Upon the complaint, an injunctional order was granted, for the…

The plaintiff presented to the board of supervisors of said county a claim for a reward of $500 offered by the the sheriff of the county (duly authorized thereunto by a resolution of said board), “for the arrest and conviction of the person or persons who committed the murder of August Tesch, near the city of Milwaukee, on,” etc. The board rejected the claim, having already paid over the reward to the chief of police of the city of Milwaukee.

Trespass, for destroying fences on plaintiff’s close, leaving portions of the land uninclosed, and injuring the growing grass. The answer denies that the premises belonged to the plaintiff. The facts proven at the trial will sufficiently appear from the opinion.

The defendants, supervisors of the town of Williams-town, in said county, made an order (August 11, 1868), vacating a certain highway in said town.

<p>Exemplary damages — Instructions.</p> <p>It is not error to instruct the jury that they not only may, hut ought to, give exemplary damages, if they find the facts which are held to justify such damages.</p>

The plaintiff appealed from a judgment for the defendant. The case is stated in the opinion. [No brief.] cited Doe ex dem. Upton v. Wetherwicke, 3 Bing. 11-; Hodgson v. Gascoigne, 5 B. & A. 88 ; 8 Wend. 584; Adams on Ejectment, 416.

A judgment for $33.60 having been rendered against the plaintiff, in May, 1861, in an action before a justice of the peace, he undertook to appeal, filed his appeal bond, which was approved, and the justice, in July, 1861, returned the testimony, proceedings and judgment to the circuit court, certifying that “plaintiff filed bond and perfected his appeal June 5th, 1861; ” and further, that his fees and the suit tax were paid on the same day.

Replevin for lumber. The facts are stated in the opinion. The defendants regained possession of the property from the officer, in the manner provided by the statute. Verdict for the plaintiff; and defendants moved to set it aside, as against the law and the evidence; but the motion was denied. On plaintiff’s motion, judgment was rendered in Ms favor for the value of the property, as found by the verdict.

The plaintiff was a resident tax payer in the defendant town; and in June, 1867, the town assessors left with him a notice and blank tax list to be filled up.

The county court of said county having made an order July 27, 1868, appointing Hiram B. Betts administrator of the estate of G-eorge Betts, deceased, Ann Sholton immediately filed a written notice of appeal from said order, together with an appeal bond; and on the same day the county judge made an order requiring her to give due notice, with her reasons for the appeal, to said Hiram B. Betts, at least fourteen days before entering such .appeal in the circuit court.

This action was commenced in a police court against Matthew Houston and John A. Houston, and the complaint was then dismissed as to the latter, and judgment rendered against the former, November 9,1867, for forty-five dollars damages.

This action was brought against tbe town treasurer and bis sureties, for an alleged default of said town treasurer to pay over'to'the plaintiff, as county treasurer, a sum of $1,152.55, entered upon tbe assessment roll and collected as county taxes. Tbe grounds of defense will sufficiently appear from tbe opinion. Tbe circuit court rendered judgment for the plaintiff, and defendants appealed.

This action was commenced in a justice’s court. The complaint alleges that defendants, on the 12th of July, 1866, with force and arms, broke and entered plaintiff’s close in his possession, situate in the town of Middleton, etc., and there broke down, destroyed and carried away his property, consisting of a pew or seat in the German Lutheran church in said town; also, that, on the same day, defendants broke and entered plaintiff’s close in said town, and trampled down and…

The complaint alleges that, on, etc., plaintiff borrowed of defendant $200, and deposited with him, as collateral security for its repayment, three notes, for $317, $275 and $400 respectively, with a mortgage securing the note last mentioned; and also a United States bond for $500 ; that plaintiff has since paid said $200, and has demanded said securities, which defendant has failed to deliver, but has converted to his own use.

Decisions of this court upon two appeals in a former action between these parties, growing out of the same subject-matter, will be found in 22 Wisconsin Reports, pp. 696-700, and 23 id., pp. 197,198. The present action was commenced in 1868.

The complaint alleges that on the 2d of November, 1865, and thereafter until after the 4th of Jannary, 1866, the defendants, Smith and Dean, were “copartners in trade in the sutlership business, and doing business under the name and style of George O. Smith, Sutler of the 50th U. S. Colored Infantryand the action is for goods alleged to have been sold to said firm by the plaintiffs at the dates aforesaid.

Ejectment, against Rape and Gilbert. Gilbert alone answered. The facts, as found by the court, were substantially as follows: In April, 1865, Ott, having a judgment against Rape for about $66, had the land here in dispute, wMcli then belonged to Rape, sold under an execution upon said judgment, and himself bid it off for the amount of the execution debt, and received the usual certificate of sale.

A judgment in favor of defendant, upon the report of a referee, was entered in this cause in March, 1867 ; and, on appeal to this court, one of the grounds relied upon to reverse it was, that no notice of the motion for judgment had been served on the plaintiff. This court held that such notice should have been given, but that plaintiff should have taken advantage of the irregularity by applying to the circuit court to set aside the judgment; and it affirmed the judgment.

Action for injuries received by plaintiff in traveling upon a highway in the defendant town, in consequence of the highway being left in an unsafe condition. The proof showed that a stump was left standing in the middle of the highway, as laid out; that there was a traveled track on each side of, but very close to, the stump ; and that, while plaintiff was driving a buggy along the road after dark, one of the wheels struck the' stump, causing the injuries complained of.

Foreclosure of mortgage, made to Sexton by the defendants George W. Austin and wife, November 10, 1857, to secure the payment of $2,393, due the next day, with interest at ten 'per cent, until paid. Almira Piclcett and others were made defendants as having or claiming some interest in or lien upon the land, which interest or lien is alleged to have accrued subsequently to said mortgage.

By an act of the legislature, approved April 6, 1867 (published as ch. 381, Private and Local Laws of 1867), the town of Jefferson was authorized to raise by tax $5,000, to aid in the erection of buildings for the “Jefferson Liberal Institute,” in said town, in case the majority of the votes cast upon that question at a special town meeting to be held on the 14th of May, 1867, should be in favor of said tax.

The defendants appealed from a judgment of said court, by which it was adjudged, among other things, as follows: That the claim made by the defendants in their answer, that they are the owners of one half of the water raised by the dam therein mentioned, is not the correct construction of the deed described in the complaint ; that, under said deed, defendants are only entitled to draw so much water as would be discharged through an aperture of five hundred square inches, at…

Action to annul a sheriff’s certificate of sale of real property, and restrain the execution of a deed thereon.

Replevin, for a lot of staves and headings, which defendants, as sheriff and under-sheriff of said county, had seized in the spring of 1868, under a writ of attachment, as the property of Dedolph & Lipke, at the suit of one J. C. Smith, a creditor of said' last-named firm. Dedolph & Lipke had a stave factory and store at New London, Waupaca county.

In July, 1864, Mary Jane Shafer, then the wife of Peter V. Shafer, the plaintiff in this action, removed, without the knowledge of her husband, to the state of Minnesota; and, in July, 1865, brought suit, in the district court of Stearne county in that state, for a divorce a vinculo, on the grounds of cruel and inhuman treatment, and that the parties could not live in peace and happiness together, and that their welfare required a separation.*- The complaint in that suit…

Ejectment. Plaintiff showed title in one Cown in 1848 ; mortgage from Cown to him in 1859 ; foreclosure of the mortgage, and referee’s deed to him, in 1865.

Action on town orders. The issue was as to demand and refusal of payment. A witness for the plaintiff testified that, on, etc., she went to the residence of the town treasurer, and presented the orders for payment to a son of the latter, fifteen or sixteen years old, who said that he had no money to pay on the orders, and that his father was at Chicago, and when he got back, he (the son) would tell him of it. “He (the boy) was in the barn when I got there.

Action for injuries to plaintiff’s person caused by a defective sidewalk in the defendant city. The aver-ments of the pleadings in respect to the condition of such sidewalk are stated in the opinion.

Action for damages for the conversion by defendants to tlieir own nse (at Oshkosh, in June, 1866), of certain logs, alleged to have been the property of the plaintiff. The logs were cut by one Weatherby on lands belonging to plaintiff, between December 1, 1865, and March 1, 1866, and were delivered by him to defendants at Oshkosh, in pursuance of a contract into which he had entered for the sale and delivery of timber to them.

APPEAL'1 from the Circuit Court for Milwaulcee County. In November, 1868, Stauss, as guardian of Herman Dierolff, an insane person, brought an action before a justice of the peace in the city of Milwaukee, against one Boeskaar, under ch. 151, R. S., to obtain restitution of a certain tenement ; alleging that said Dierolff, on the 5th of August, 1868, was the owner and lawfully possessed of said tenement, and that Boeshaar, on that day, made unlawful entry thereupon, and that…

Action for damages for the taking and. conversion of some five hundred bushels of wheat and oats, alleged to háve been the property of the plaintiff. The defendant Germain, on the 15th of March, 1867, took the grain from the granary of one Isham, under an execution in favor of one Burdick, against the property of Isham, and by the direction of the defendant Lewis, who was the attorney for said Burdick.

Somers brings this action to reverse a judgment rendered against him. The case is stated in the opinion. cited Rawle on Cov. 244, 246, note and cases there cited; Paul v. Whitman, 3 W. & S. 407.

Action for injuries to certain lots in the city of Milwaukee, resulting from changes in the grade of East Water street, in said city, upon which said lots front.

In September, 1860, Lyman executed to one Prickles a deed of certain land, with, full covenants. In 1864, Eaton, upon a tax-deed, executed in 1868 upon a sale made in. 1851, recovered a judgment for the possession of the land against Prickles, Lyman appearing by attorney and defending the suit. The taxed costs against Prickles in this suit were about $43. Prickles was actually evicted in February, 1865.

Ejectment, by two of the four heirs of John Wilkinson, for an undivided two-fifth's of a tract of land deeded in 1846 to the widow and heirs of said Wilkinson, then deceased.* A witness for plaintiffs testified that, before service of the summons, he served a written, demand on. defendant, in the name and on behalf of the plaintiffs, for the possession of the land, and that defendant refused to deliver it.

Ejectment. Plaintiff claimed as grantee of one El-bridge Smith, and Caroline J. Smith, his wife. The defendant Armstrong, npon the* facts alleged in his answer, demanded judgment, 1. For an accounting, to determine the amount due from him as purchase-money for the premises in dispute, upon a sale thereof alleged to have been made to him by Elbridge Smith, with the full knowledge and consent of Ms wife. 2.

Action against Pfeil and. Foil, for an assault and battery. The complaint alleged various matters in aggravation, and that plaintiff bad necessarily paid out a large sum of money in endeavoring to be cured; but did not allege tbat be bad suffered any permanent injury PfeiV s answer admits tbat, at the time and place alleged, be struck plaintiff several blows with bis fists, and cast him upon the ground, but denies all other allegations of the complaint. Foil denied generally.

Ejectment against Dennis McQarxille. Defendant claimed under a tax deed to Thomas McCarville, dated and recorded May 8, 1867, upon a sale made April 11, 1860. It was admitted that, for six months immediately prior to the date of said tax deed, plaintiff was in actual possession of the land, and that no notice was served upon Mm that application would be made for the deed.

This action was brought to the circuit court on certio-rari to a justice of the peace. The return of the justice shows that the summons was made returnable at his offi.ce July 3,1868, at 9 o’ clock A. m. ; that it was returned with service admitted by the clerk and chairman of the defendant town; that at the time above mentioned the suit was called “in Gf.

This action was brought to recover one-half the price of a wall built on each side of a line between a lot belonging to the plaintiffs and an adjoining lot which belonged at one time to the defendant, it being alleged that defendant had agreed that the wall should be so built as a party wall, and that he would pay one-half the cost thereof; and also to recover damages for a breach of an alleged agreement by defendant, that any building erected by him on his said lot should…

The defendant appealed from a judgment of said court reversing the judgment of a justice of the peace in his favor. The case is stated in the opinion. contended that the judgment of the circuit court in a former action was a complete tar to this action. 6 Barb. 515, 524; 7 id. 494, 496, 497, 226-242; 16 id. 337; Doty v. Brown, 4 Comst. 71, 74 ; Cow.

On the 15th of October, 1867, an action was commenced by Andrew Towle against one William Smith, in a justice’s court in said county, as for forcible entry and detainer of certain real property in the village of Men-asha, of which said Smith was then in possession; and, on the 31st of the same month, at five o’ clock p. m. , judgment of restitution was rendered in favor of Towle and against Smith, in said action.

Action by plaintiff, as executrix, on a note and mortgage belonging to her testator’s estate. The principal defendant, Buókstaff \ alleged that he had made payments not indorsed on tlie note nor admitted in the complaint, and had tendered the amount actually due; and he brought that amount into court.

Action to enforce a lien for labor on logs and boom timber. Answer, that plaintiff bad agreed to run from tbe-month of Maple creek on tbe Embarrass river in Outagamie county, to New London, a lot of 250,000 feet of oak logs and timber, and put tbe same into square cribs with boom timber around them, and deliver them in the Wolf river, at New London, well bitched up, as soon as there was enough water in the Embarrass river to run said logs ; for which services he was to be…

EBROE to the Circuit Court for Ozaukee County. The action below was ejectment by Zimmerman. The cause was brought to this court at the September term, 1867, on a bill of exceptions, from which it appeared that a deed to the plaintiff from the state and county, executed by the clerk of the board of supervisors of said county, and sealed with his official seal, was offered in evidence, but ruled out because not sealed with his private seal.

This was an action, under the statute, to try the title of the defendants (seven in number) to the office of member of the board of supervisors of Washington -county.* The relator is one of the three persons who constituted said* board just prior to the Tuesday succeeding the second Monday of November, 1868; they having been elected in pursuance of general laws of the state then and since in force.

<p>Where a person has been convicted of several distinct offenses, the court may proceed to give judgment upon each, and in so doing may direct that the term of imprisonment for one shall commence at the expiration of that for another, and so on until all the terms have expired.</p>

Action by plaintiff, as executor of the last will of Alexander Johnston, upon three promissory notes made by defendant; two of them (for $1,500 and $1, Ó00, respectively) running to said Johnston, and the third (for $62) running to one Chapin.

The defendant appealed from a judgment for the plaintiff. The case is stated in the opinion. [No brief filed.] cited Rowley v. The Empire Ins. Oo., 36 N. Y. 550 ; Benedict r>. The Ocean Ins. Oo., 1 Daly, 9; Beal v. Baric Ins. Oo., 16 Wis. 241; Burr r. Broadway Ins. Oo., 16 N. Y. 267; Bid-well r>. The Astor Ins. Oo., id. 263 ; Bunten v. The Oriental Ins. Oo., 8 Bosw. 448; Baptist Qhurch v. Brooklyn Ins. Oo., 28 N. Y. 161.

Trespass guare clausum, commenced in a justice’s court. The plaintiff was a married woman; and she appeals from a judgment of nonsuit rendered by the circuit court. The question- presented by the record is stated in the opinion.

Action by an administrator (commenced in 1867) to enforce a vendor’s lien upon real estate conveyed by Ms intestate to the defendant in 1850. The plaintiff proved the conveyance by a warranty deed, which acknowledged the receipt, by the grantors, of the consideration, viz., $874.

Trespass guare clausum. The plaintiif offered in evidence tlie judgment roll in a previous action, wherein lie had recovered judgment for the possession of the premises, and under which the sheriff had put him in posses sion. The court excluded this evidence, holding the judgment void, for want of sufficient proof that the summons in the action had been properly served. The grounds of this decision will appear from the opinion.

Action to recover the unpaid balance of the purchase price of a large quantity of frnit trees, sold by the plaintiff from his nursery in Ohio, to the defendants, in 1864. The plaintiff put in evidence the following: “Toledo, Ohio, October 25, 1864.

Motion to strike out a bill of exceptions. Tke grounds of tke motion are stated in tke opinion. Motion denied, and appeal taken. insisted, among otker tkings, tkat tke circuit court kad no jurisdiction to grant the motion. The cause was tried before Judge Tayloe.

Tliis case was brought before the circuit court on appeal from an order of the county court admitting the will of Bob'ert Thompson to probate. Upon cross-motions, the circuit court, on grounds stated in the opinion, refused the contestants, William and James Thompson, leave to file a new appeal bond as of the day when the first was filed, and dismissed the appeal. Prom this order the contestants appealed. [No brief on file.]

The facts are stated in the opinion. Verdict for the plaintiff, for §1,412 damages. Plaintiff’s motion to set aside the verdict, on the ground that the damages allowed him were less than he was entitled to recover, and for various alleged errors, was denied; and he appealed from a judgment on the verdict.

Action by the plaintiff to obtain a divorce from her husband.

Action for bounty money. The complaint avers, in substance, that on the 14th of February, 1865, at a special meeting of the electors of the defendant town, regularly called for that purpose, they voted to raise $6,000 to pay a bounty of $200 each to persons who should enlist in the military service of the United States, and be credited to said town, under a certain call of the President; that “more than $5,000 of said sum has been paid, and is nowin the treasury of said…

Foreclosure of a mortgage. Trial by stipulation before Hon. W. P. Lyon, judge of the first circuit, as referee. From a judgment for plaintiff, on report of the referee, defendants appealed. The grounds of the appeal will appear from the opinion.

Action for the conversion by defendants of plaintiff’s logs. Defendants demanded that the cause be tried in Milwaukee county, where they all resided and were served with the summons; and, plaintiff having refused to comply with the demand, they, after answering, moved the court for an order transferring the cause. Plaintiff having filed an affidavit showing that the convenience of his witnesses required the trial to be had in Oconto county, the court denied the motion.

An ordinance of the common council of the city of Appleton declared that no licensed auctioneer should “ sell any goods, wares or merchandise after sundown.” Hayes, who was a licensed auctioneer in that city, was found guilty in a justice’s court of a violation of this ordinance, and fined therefor.

Money demand, for sawing lumber. Plaintiff called, as his witness, William Gferry, who had done the sawing and kept the book in which the charges were entered. G-erry swore positively that the entries were correct; that they were made by his wife from memoranda furnished by him, usually every Saturday night, he reading them off to her, and looking over to see that she wrote them down, and to satisfy himself that they were correctly entered.

PETITION fox a Writ of Habeas Corpus. Hnsband and wife cannot be witness for or against each other. 3 Wis. 844; 16 id. 235. Supplementary proceedings are a substitute for a creditor’s bill. 7 Wis. 643 ; 11 id. 196. The wife of a defendant in a creditor’s bill cannot be examined as a witness in reference to his property, or any matters charged in the bill. 8 Paige, 583 ; 3 id. 36. The code has not changed the rule. 7 Abb. 3 ; 15 id. 453 ; 25 How.

Action against The City of OshTcosh, to recover damages for injuries to the plaintiff’s person, occasioned by a defect in one of the sidewalks of the city. The facts proven on the trial are sufficiently stated in the opinion. A verdict for the plaintiff was set aside, on motion, and a new trial ordered; and plaintiff appealed from the order.

On tLé first of April, 1856, the Milwaukee & Horicon Railway Company executed to one Lowry a mortgage of its road from Horicon to Berlin, the terms of which, are recited in the opinion. At that time the road was constructed in fact over certain lands belonging to the plaintiff, but the company had not acquired the right of way. In June following, the plaintiff sold and conveyed to the company a strip five rods wide across his said lands, under and on each side of said road.

Upon a final settlement of the estate of Ben. C. Eastman, the county court of said county, among other things, ordered and adjudged that the widow of the deceased had received from his real and personal estate a sum amounting, in the aggregate, to $25,000, and that, therefore, under the terms of the will of said deceased (which are recited in the opinion, infra), no further allowance should be made her out of said estate.

On the 25th of February, 1865, the plaintiffs filed their petition for a lien, for the price of certain labor and materials upon a certain mill and the interest of one Fisk in the land on which it was situate.

Action for tire value of goods shipped by plaintiff, at the village of Jefferson in said county, for Chicago, by defendant’s road, and alleged to have been lost through defendant’s negligence. The defendant appealed from a judgment for the plaintiff. The facts proven at the trial will appear from the opinion.

Replevin, commenced in Jnne, 1868, for a certain amount of corn and hay, and a mare, seized by the defendants Main and McDougal, as sheriff and under sheriff of said county, about the 26th of May, 1868, on an execution against the plaintiff herein, and in favor of the defendant Thompson.

Ou au application made to them, the supervisors of the town of Merrimac, in said county, refused to lay out a highway through plaintiff’s lands ; but on appeal to commissioners (secs. 77-82, ch. 19, R. S.) their decision was reversed. Plaintiff then brought this action to restrain the laying out of said road. On the trial, he claimed, and defendants denied, that the complaint had been amended within twenty days after the service of the answer.

Action by Elias B. Delamatyr and Anna, Ms wife, for an injury received by tlie wife in descending from a train on defendant’s road, at Hanover Junction, in tMs state, and alleged to liave been caused by defendant’s negligence in not furnisliing safe and proper means for sucb descent. On the trial, the plaintiffs were permitted to testify in their own behalf, against the objection that no notice of their intended examination had been served upon the defendant.

Trespass guare clausum. The premises were two lots in the village of Neenah.

<p>APPEAL from the Circuit Court for Winnebago County.</p> <p>The defendant appealed from a judgment against it. The case is stated in the opinion.</p> <p>cited R. S. ch. 13, §§ 27, 42, 43 ; 1 Wis. 414; 3 id. 337; 13 id. 494, 611.</p>

This action was commenced before a justice of the peace of said county, to recover for a chest of tea, belonging to the plaintiffs, and alleged to have been converted by defendant. The justice rendered a judgment for the defendant, from which the plaintiffs appealed to the county court of said county.

Action, commenced in a justice’s court, for labor performed by the plaintiff for the defendants Rich, Hoxie and Tisher, upon certain logs, and to enforce a lien upon the logs. The justice rendered a judgment against Tisher alone for the amount claimed, and adjudged that plaintiff had a lien upon the logs for that amount. Tisher appealed to the circuit court, where the cause was tried de novo.

Action upon a joint and several promissory note executed December 17,1867, by Henry Trilling, William P. Baur, Rudolpb Baur, Louisa Baur, Frederick Loescher, and Maria Loescber, all of whom were named as defendants.

The defendant moved the court below for a retaxation of the costs in this cause, basing the motion upon the records and files in the cause, and his affidavit, etc.; and appealed from an order allowing the motion as to certain items, but denying it as to the remainder of those objected to.

Action by Kavanaugli and wife for injuries to the latter, caused by a sidewalk and cross-walk being out of repair and unsafe.

Masten gave Cummings two mortgages, each for a different debt: one upon several horses and some farming implements, the other upon certain growing crops. Part of the crops were sold, under direction of the parties, and Cummings received the money, which was not enough to pay both debts.

The defendant appealed from a judgment rendered against him in the circuit court, on appeal from a justice of the peace. The facts are stated in tl\e opinion.

The defendant appealed from a judgment against him, rendered by the circuit court on appeal from a justice of the peace. The material facts are stated in the opinion. The receiver is trustee of an express trust. Sec. 14, chap. 123, R. S., and sec. 11, chap. 84; 14 Barb. 488; 15 id. 326 ; 21 id. 564; Tif. & Smith’s Pr. 689 ; 2 Johns. Ch. 240, 242. Nor was any assignment necessary, nor an order of court directing the receiver to bring the. action.

Action upon a written contract,.dated May 6th, 1867, by which the plaintiff agreed with the defendant to serve it as general agent in building up the business of its western branch office, for five years, at a salary of $3,000 per annum, to be paid monthly, besides necessary traveling and hotel expenses.

The memorandum of sale referred to in the opinion in this case was as follows: “Know all men by these presents, that I, Burgess P. Field, of, etc., in consideration of amount of lumber agreed on, being seven hundred and fifty thousand feet, warranted free from any incumbrances, and against any adverse claims, and sell and convey to B. I>. Merriam, having received payment in full for the same. Witness my hand and seal, this 21st day of June, A. D. 1859.

APPEALS from. the Circuit Court for Walworth County. These cases came into the circuit court upon appeal from an order of distribution made by the county judge, and turned upon the construction of the following clauses in the will of E. A. Mulford, deceased: ‘‘ Item 2.

Wood, having issued executions against Shattuck, caused Wall to be summoned as garnishee under chap. 249, Laws of 1862. Wall answered, that, at the time he was served with the notice, he had no property, goods, effects or credits in his possession belonging to Shattuck.

This case came to the circuit court on appeal from the county court, which had disallowed a claim presented hy Bayliss against the estate of Thomas Pricture, deceased.

Ejectment, etc. Defendants claimed title to the premises under two deeds from one George Cown, to their ancestor, William Lasley, dated June 12,1849.

Action for damages resulting to plaintiff from the alleged act of defendants in obstructing the Wolf river with logs and timber a short distance above the village of New London, for about six weeks in the summer of 1867, and so preventing plaintiff from passing up said river from his tannery at New London, and procuring bark at the “Red Banks,” about sixty miles above that village.

Action (commenced in September, 1868), by Mary Curtis, as the grantee in a tax deed, to recover possession of the land, and to bar the rights of the original owner and those claiming under him, etc. The deed was made May 12, 1868, on a.sale of May 11, 1865, for taxes of 1864; and the land is described as “the north one third of the north half of that tract among the private claims west side of Pox river, called ‘vacant strip,’ in the county of Brown and state of Wisconsin,…

Action.to remove an alleged cloud upon plaintiff’s title to land, etc. The facts alleged in the complaint are substantially as follows: On the lst'of November, 1854, John Matson, who had duly pre-empted and paid for, and was well seized in fee and in actual possession and occupancy of, the S. E. qr. of sec. 24 of a certain town in said county,, conveyed the same by warranty deed to one Ely for $3,500 to him in hand paid.* Ely immediately went into possession and occupancy…

The defendant appealed from a judgment against him rendered by a justice of the peace ; and, on the 18th of September, 1868, near the close of the second term of the court after such appeal, it was dismissed on plaintiff’s motion, for the reason that “no notice of the hearing or trial of the cause had been served upon the plaintiff or her attorney.” On motion of the defendant, based upon his own affidavit and that of his attorney, plaintiff was required to show cause why the…

The relators appealed from an order refusing then application for an alternative writ of mandamus. The case presented by the petition is stated in the opinion. The relators were entitled to the contract. Sec. 7, ch. 18 of the charter of Fond du Lac (ch. 59, Pr. & L. Laws of 1868); 20 How. Pr. 206 ; 27 N. Y. 383. The awarding of the contract to any other person would be an illegal act, and the city would not he bound by such contract.