Volume 26 — Wisconsin Reports

The plaintiff appealed from an order setting aside a verdict in his favor and granting a new trial. The case is stated sufficiently in the opinion. to the point that the defendant’s contract of guaranty was not within the statute of frauds, cited Brown v. Curtiss, 2 Corns. 225; Cardeíl v. McNiel, 21 N. Y. 336 ; Mallory v. Gillett, id. 412; Nelson v. Boynton, 3 Met. 396; Dyer v. Gibson, 16 Wis. 557. cited Eastwood v. Kenyon, 11 Ad. & Ell. 438 (39 Eng.

Section 44 of the charter of the City of Kenosha (approved February 8,1850) provides that no tax shall he levied, nor money or other property borrowed, for the purpose of constructing a certain harbor, mentioned in sec. 43, “ unless a majority of the voters possessed of a freehold estate, or occupying lots upon leases, on which lots they pay the taxes, who shall actually vote upon the question, shall first in each year determine to raise such a tax or authorize such loanand…

Replevin, for carpets, curtains, etc., sold by plaintiffs to defendant, and laid down or put up by them in his house. Fifty dollars were paid upon the purchase price during the time while the purchases were being made, but the balance had never been paid.

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

Action to compel the discharge of record of a certain mortgage, and the surrender of two tax certificates belonging to the estate of defendant’s decedent, and alleged to have been fully paid. The mortgage was made by Michael Page and wife, upon land which plaintiff now claims to own in fee, and the certificates covered the same land.

Action for damages upon an alleged breach of the covenants of a warranty deed executed by the defendant to the plaintiffs, and particularly of the covenant for quiet enjoyment * Pending the action, garnishee proceedings were instituted before a court commissioner against several persons.

Action to recover for injuries caused by an obstruction in one of the streets of the defendant city.

In an action by Emily C. Hardy against Isaac II. Wright, in which judgment was rendered for the plaintiff for over $4,000, the present plaintiff, upon proceedings supplementary to execution, was appointed receiver of all debts, property, etc., of said Isaac H. Wright. In that character he brought this action to set aside, as fraudulent, a conveyance of land from -said Isaac H. to Aaron B. Wright, and a subsequent conveyance by the latter to one Libby, and for other purposes.

Count y. Action to recover for personal injuries caused by a defective sidewalk. All the material facts appear in the opinion. Yerdict for the plaintiff, assessing her damages at $1,300.

The plaintiff in error was also plaintiff below. The facts are stated in the opinion, and in the former report of the same cause, 24 Wis. 488.

Action to recover for services rendered, etc. The complaint alleged, in substance, that the defendant was a corporation formed under chap. 151, Laws of 1858, and acts amendatory thereof; that the plaintiff had been employed by the defendant as its attorney in conducting, arguing and defending various actions and proceedings before the several branches of the United States Land Department, and recovering and preserving to the defendant a considerable quantity of public lands;…

Block 29, in the city of Appleton, was bounded south by College avenue, north by Edwards street, east by Durkee street, and west by Morrison street.

Action against the county board of supervisors, the clerk of the board, and one Shaylor, to restrain the clerk from issuing a deed upon certain tax certificates, and have them declared void.

Action to recover possession of certain pine logs. Verdict for plaintiff; motion for new trial overruled, and judgment on the verdict; from which the defendants appealed.

Burlander obtained judgment before a justice of the peace, in June, 1868, against McKenzie, having also summoned as garnishee the Milwaukee $• St. Paul Railway Company, which answered that it was indebted to McKenzie, as an employee, in the sum of $48.07, wages for the month of May and part of the month of June, payable monthly. It was admitted that McKenzie was not a married person, or a person who had to provide for the entire support of a family in the state of Wisconsin.

Action upon a parol contract of marine insurance. The averments of the complaint will be found in the report of a former appeal in the same case.. 23 Wis. R., pp. 160-164. The answer denied the making of the alleged contract by defendant. Upon the ■ new trial, plaintiff having stated that it would not produce in evidence, nor claim under, a written policy, the defendant objected to the introduction of any evidence under the complaint; hut the objection was overruled.

Ejectment for the west sixty feet of lot 6, block 41, in the second ward of the city of Milwaukee. Plaintiff claims under a judgment sale made in December, 1858, in the suit of one Carney against the La Crosse & Milwaukee Railroad Company. (See 15 Wis. 303.) Defendant claims under a judgment sale subsequently made in a suit of one Cleveland against the same railroad company; and also. claims that plaintiff is estopped from setting up his title under the Carney judgment.

In 1859, Ely filed a bill against Nathaniel Greene Wilcox and Timothy Dwight Wilcox, for the purpose of having a conveyance of land from one Matson to said Nathaniel Greene Wilcox, and a subsequent conveyance thereof from the latter to the other defendant, declared to be void as against plaintiff’s title to the land.

Tbe defendant appealed from a judgment against bim. The nature of the action, and the questions presented by the appeal, will appear from the opinion.

Hiram Jackman appealed to said circuit court from the decision of the county court admitting to probate a certain paper-writing purporting to be the last will of Timothy Jackman, deceased.

After the circuit court had rendered judgment in favor of the contestant of the will in this case, it made an order, on motion of said contestant, directing the special administrators (who had been appointed by the county court to take charge of the estate pending the litigation) to pay the contestant, from the moneys of the estate, the sum of $113.28, “ for his necessary disbursements made and expended ” in the matter of said estate, and also the further sum of $2,000, “…

The case is sufficiently stated in the opinion. argued that the allega tion in the complaint that plaintiff’s horses, etc., “ casually '* * strayed” upon defendant’s track, shows that they were trespassing upon the track (T. R. R. Co. v. Munger, 5 Denio, 255; Same Case, 4 Corns. 349 ; R. R. Co. v. Rehman, 5 Law Reg.

A paper writing, dated August 3, 1868, and purporting to be the last will of James Amory, deceased, was presented for probate to the county court of said county by Samuel B. Amory and John Amory, who were named as executors therein.

On the trial of this action, the plaintiff offered in evidence what purported to be a promissory note for $120, dated June 20, 1865, and signed by defendants. Held: by respectable authorities, that even under that act the bare omission to stamp, regardless of the intent, made the instrument invalid. Maynard v. Johnson, 2 Nev. 25; Myers v. Smith, 48 Barb. 614; 30 How. 120; 19 Iowa, 414, 515, 553.

APPEAL.from the Circuit Court for Kenosha County. Action to foreclose a mortgage given to secure payment of a note. The facts will appear from the opinion.

This action was brought by Mrs. Dierolff, in 1868, 1. Upon a promissory note for $600, with interest at seven per cent., alleged to have been given by defendant to plaintiff, for moneys loaned by her to him, May 23d, 1865. 2. Eor $858 alleged to be due for food, attendance, washing and other necessaries furnished by plaintiff to defendant at his request. 3.

The action was brought upon an instrument in the words following: “ $600. Central City, November 4th, 1861. Nine months after date, for value received, I promise to pay Orrin B. Houghton, or bearer, six hundred dollars in good retorted dust, at $16 per oz., at the office of Lyon, Rillman & Co., with ten per cent, per annum interest from date. Thomas Carter.” On the back of this instrument were written the following words: “Kenosha Quartz Company, by C. L. Ely, President.”.

This action was brought by Calvin Truesdell and Sarah Truesdell, his wife, against James Ozanne, Jr., Jonas W. Rhodes, Charles D. Rhodes, and “ the unknown heirs of Wm. Rhodes, deceased, and the unknown owners” of certain described lands. The facts alleged in the complaint are substantially as follows : 1.

The action was against Shephard and one Willis, upon promissory notes. The summons filed was in the form usual in such actions. The sheriff's original return showed service upon Shephard by leaving a copy of the summons and complaint at his residence, with a person of suitable age and discretion, but did not show that Shephard himself could not he found in the county.

This action was brought to recover damages for the destruction, by fire, of stacks of hay and straw, sheds, stable, etc., belonging to the plaintiff.

Action by Fredendall against Taylor, Kreiss, Leitch and Spencer, to recover pay for making a well or tank for the use of the State Firemen’s Association. The complaint alleged that plaintiff agreed with defendants to make the well or tank for $500, to be paid by them; that he did make it, and defendants accepted it, and promised to pay him therefor. Spencer made no defense. The other defendants answered by a general denial.

The plaintiff sought in this action to recover $197.57, paid bj him to the treasurer of the defendant city (under protest and to avoid a collection by sale of his property), as a tax upon shares owned by him in the Rock County National Bank.

Action by Chapman and Danforth against the Chicago and Northwestern Railway Company, Barron and Campbell, to recover damages for lumber belonging to the plaintiffs destroyed by fire, which is alleged to have originated from sparks or coals from defendants’ locomotive upon the track of the Oshkosh City Railway, in consequence of the negligent management of such locomotive by the defendants’ servants.

The plaintiff presented two separate accounts against said county to the county board; and these were acted upon at the same time, and both disallowed in, part. He then took an appeal to the circuit court under the statute, but on the trial of the action the court refused to permit him to testify in his own behalf, on the ground that he had not given any notice of his intended examination to the defendant corporation.

Action by Amandus Roebke against George R. Andrews, for an amount alleged to be due on the purchase money of a yoke of oxen which the plaintiff avers that he sold and delivered to defendant, January 15, 1868. The defense was, that the plaintiff never owned the oxen, and that the defendant never purchased them.

Francis A. Ryan brought his action in said circuit court, against Morse, alleging that said Morse, about the 25th of April, 1867,.received the appointment of receiver of public moneys in the United States land office, at Menasha, in this state, and afterwards qualified and entered upon the duties of said office; that Morse was inexperienced and entirely unqualified to perform the duties of the office, and plaintiff was well informed and experienced therein; that accordingly…

After service of what purported to he a copy of a verified answer in this action had been served upon the plaintiffs, and after the time for answering had expired, upon proof that the verification of the original answer, which purported to be made by the defendant, was not in fact sworn to or signed by him, but by some other person in his name,' the court ordered the answer to be disregarded, and judgment to be entered against the defendant.

<p> Probate of Will: Costs on Appeal. </p> <p>1. It is usual for the estate to pay the costs of proving a will, including those of the contestants.</p> <p>2. Sec. 36, ch. 264, Laws of 1860, which provides that the party prevailing in this court on any appeal “ may have taxed in his favor the costs and disbursements consequent on such appeal,” does not require the court in every case to make the unsuccessful party pay costs.</p> <p>3. The will in this case having been contested in good faith, with probable cause, although the judgment of the circuit court in favor of the contestants was reversed, their costs and disbursements on the appeal are ordered to be paid out of the estate.</p>

The action below was ejectment, by Finney and Platt against Boyd, for lots numbered from 13 to 16, and from 29 to 32, in block 62,… Held: that the relief provided by said ch. 22 did not apply to tax deeds issued by the city; and they reversed the judgment appealed from, and remanded the cause, with directions that the complaint be dismissed as to the two counts upon the tax deeds executed by the city treasurer, and that the plaintiff have judgment upon the other three…

The action below was brought by George Bromme against Charles Klopfer, for wickedly and maliciously debauching, and carnally and criminally knowing, a daughter of the plaintiff, without said plaintiff’s consent, privity or knowledge; by reason whereof, it is alleged, the daughter became pregnant and sick, and plaintiff was deprived of her services during and after the period of pregnancy, and was obliged to expend fifty dollars in nursing and taking care of her, and was…

Action to recover the consideration money paid by plaintiff to defendant for certain land. In 1855, defendant conveyed the land by warranty deed to one Hays; Hays conveyed it in like manner to one Mary-gold, and he to Wendel, in 1858. In 1863, one Eaton commenced an action of ejectment against Wendel, to recover possession of the land, and obtained a judgment therefor during the following year. The judgment record was put in evidence for Wendel in this action.

The record in this action, after reciting the verdict of the jury, proceeds : “ Therefore it is considered and adjudged by the court that the plaintiff in this action have judgment against Wm.

Ejectment, commenced in 1855 against one Emil Woydt, and, after his death, revived against his infant son, Edward M. Woydt. The premises in dispute were part of lot 40 in the village of Calumet, and there was a store thereon. The court refused to set aside a verdict for the defendant; and the plaintiff appealed. This was a second verdict for the defendant, and it will not be set aside unless clearly against all the evidence. Edmistonv.

Foreclosure of a mortgage executed by one Cooper, in 1864, to secure his note payable in 1867. Cooper died in December, 1864, testate, and in February, 1865, letters testamentary were issued to his executor, and an order was made by the probate court, and duly published, limiting the time within which claims should be presented against the estate, to six months from the date of the order.

Ejectment. Judgment having been entered against the defendant as for a default in answering, he moved to set it aside on the ground that no summons had ever been served in the manner required by the statute. It appeared that the copy summons served did not contain any indorsement stating the date of service, and that the same was a true copy of the original, as required by ch. 68, Laws of 1869. There was no affidavit of merits.

In 1869, Dunham was clerk, and his co-defendant, Fredericks, was chairman of the board of supervisors of the town of Eldorado in said county, and the plaintiff was owner of real estate in said town.

Action to recover $210.70, with interest, as balance due the plaintiff on account of barley sold and delivered to the defendant. The answer sets up a special agreement between the parties, by which plaintiff was to deliver to defendant barley not then cleaned, and the same was to be cleaned at defendant’s elevator, the refuse returned to plaintiff, and payment made to him for the balance, at $1.55 for each fifty pounds.

In March, 1869, the plaintiff presented to the defendant board a claim to have refunded to him, with interest, as prescribed by the statute, certain sums of money paid by him, from 1852 to 1859, inclusive, as taxes upon certain land sold to him at a sale as for delinquent taxes of 1848, and conveyed to him by tax deed in 1851. The board rejected the claim; and plaintiff appealed to the circuit court.

CERTIFIED from the Circuit Court for Calumet County. An indictment was found against the defendant in said circuit court, in the following form (omitting the venue:) “ The jurors of the grand inquest of the state of Wisconsin, now sitting and Inquiring for the body of the county aforesaid, being duly impanneled, tried, charged, sworn and affirmed, upon their oaths and affirmations do present that Sidney McBride, on the twenty-fourth day of March, A. D. 1868, in the county of…

<p>CONSTITUTIONAL Law : Fwictions of sheriff cannot he transferred by law to officer appointed by comity supervisors.</p> <p>1. Under our state constitution (which provides for the election of sheriffs by the electors of the county), the legislature cannot transfer to other officers, elected by the board of supervisors, important powers and functions which from time immemorial have belonged to the office of sheriff.</p> <p>2. Oh. 332, Pr. & L. Laws of 1870, which provides for transferring to the inspector of the house of correction in Milwaukee county, the custody of prisoners confined in the common jail of that county under legal process, is invalid.</p>

REPORTED from the Circuit Court for Rock County. The case is stated in the opinion. to the point that it was necessary at common law .to charge in terms that the killing was done “ with malice aforethought,” cited 4 Blacks. Com. 194, 198; 1 Russ, on Crimes, 482^ 662, 663; 3 Chitty’s Cr. Law, 723, 727; 1 id. 243; Wharton on Homicide, 33 ; Sarah v. The State, 28 Miss. 278; 1 Arch. Cr. Pr. 301, 881, note; 1 Wharton’s Cr.

A complaint was made, on oath, before a justice of the peace of said county, which charges that the party complaining “ is credibly informed, and has good reason to believe, that E. P., a resident of the village of Omro, in said county, is a minor, under the age of twenty-one years, and that on the 12th day of March, 1870, in the said village of Omro,' in the said county, he, the said E. P., did play a game of billiards on a billiard table kept in the village of Omro, in…

This was an action, under the statute, in the nature of a quo warranto (commenced in this court), to determine the rights of the parties, respectively, to the office of supervisor of Milwaukee county. The allega--tions of the complaint will sufficiently appear from the opinion.

The alternative writ described in the opinion issued out of this court, September 9, 1870. The respondent demurred. [No briefs on file.]

Action for the seduction of plaintiff’s daughter. The defendant was arrested by order of a court commissioner, and appealed from an order of the ■ court refusing to set aside such order of arrest.

Action to recover the value of goods alleged to have been lost while in the custody of defendant as a common carrier.

In an action hy Buffham against one Cover, proceedings in garnishment were had against the defendant city; and after plaintiff had recovered a judgment against Cover, he moved for judgment against the city as garnishee ; but the court denied the motion, on the ground that a municipal corporation in this state is not liable to garnishment. Erom this decision the plaintiff appealed. 1. The city may sue and be sued by its corporate name.

Action against Allen C. Bates and George Harvey and their wives, to redeem two hundred acres of land, consisting of the S. E. J of sec. 12, and the S. E. of the S. E. | of sec. 13, in the vicinity of the city of Janesville.

Foreclosure of a mortgage of certain lands in Racine county, executed December 1, 1854, by the defendants Orville W. Barnes and wife to the plaintiff, Latham Cornell, securing the bond of said Orville W. Barnes, of same date, for $15,000, payable December 1, 1859, with interest at ten per cent, per annum, payable annually, “ the interest and principal to be payable at the office of Strong & Fuller in the city of Racine, with the rate of exchange which shall [should] be…

Chapter 150 of the Revised Statutes provides (section 1) that “ every boat or vessel used in navigating the waters of this state shall be liable: — 1. Held: in Hay v. Steamboat Winnebago, 10 Wis. 428, that the act confers some sort of a lien; but it is submitted that such decision is in conflict with the general current of authority, and cannot be sustained, either upon principle or upon the language of the act.

The case is stated in the opinion. contended that the order of the court performed at once the office of a subpoena and a notice, and was all the notice required by ch. 137, R. S.; that by sec. 55 of that chapter the party may be “ compelled to attend in the same manner as other witnesses,” and other witnesses may be compelled'to attend by service of a subpoena and payment of the legal fees, as in this case (R. S. ch. 137, secs. 1, 2,.3); that if the order and proceedings…

The defendant Anson Eldred appealed from an order sustaining a demurrer to the answer. argued that a judgment which it is unconscionable to enforce, will be enjoined in equity, where the injured party could not avail himself of the facts in the suit at law. Dobson v. Pearce, 12 N. Y. 165; Reigal v. Wood, 1 Johns. Ch. 402 ; Duncan v. Lyon, 3 id 356; Pearce v. Olney, 20 Conn. 554; Story’s Conflict of Laws, § 609; Borden v. Fitch, 15 Johns. 121; Foster v. Wood, 6 Johns.

Action upon defendant’s note executed to plaintiffs May 29, 1868, for $375, at six months. The facts set up in the answer were these: In November, 1867, defendant agreed to sell to plaintiffs, and they agreed to purchase of him, two thousand bushels of wheat at $1.80 per bushel, to be delivered during the December or January following.

The defendants, in December, 1866, entered into a contract in writing with one Hoxie, by which they sold him a certain amount of pine logs, to be delivered at a certain point in Wolf river; and a part of the contract price was paid, the remainder being payable on delivery. In February, 1867, Hoxie assigned the contract to the plaintiff, who brought this action to recover damages for a failure on the part of defendants to deliver any part of the logs.

Slander. The defamatory words, alleged to have been spoken to and concerning the plaintiff Catharine Filber, in the German language, in the presence of the plaintiffs and of other persons who understood that language, were as follows: “ Du hast deiner Tochter Pillen eingeben, um das Kind abzutreiben which are alleged to mean in English: “You have administered to your daughter pills to drive off the child; ” and it is averred that defendant thereby charged and maliciously…

Action on a contract entered into by T. V. and J. M. Voorhees with the plaintiffs, and upon a penal bond given to secure its performance, in which said… Held: “1. That by reason of the taking of the notes as aforesaid, Boyer was absolutely released from $2,000 of plaintiffs’ claim. 2. That plaintiffs could not, in this action, recover for said amount of $2,000. 3. That plaintiffs were entitled to recover of all said defendants the sum of $293.08.” Judgment accordingly.

Acjúon for injuries to a bridge, brought against the defendant vessel under ch. 184, Laws of 1869. Judgment of nonsuit; from which the plaintiff town appealed. The case is stated in the opinion.

The action below was by Rolke against the railroad company. The complaint alleged that defendant’s servants, in running a locomotive by and through plaintiff’s land, so negligently and carelessly managed the same that sparks from the smoke-stack and coals from the ash pan. or fire-box escaped, and set fire to the combustible matter alongside the track, from whence it communicated to plaintiff’s premises, and destroyed his property, etc. Answer, a general denial.

Action by A. C. Willard and his wife Albina M. Willard against Hannah Reas and Charles E. Bingham. The complaint demanded judgment: 1. That A. C. Willard recover of Mrs. Reas $1,500, with interest, being the value of a certain land contract which Mrs. Willard had assigned to Mrs. Reas in payment for certain lands conveyed by Mrs. Reas to A. C. Willard by warranty deed, to which lands, it is alleged, Mrs. Reas had no title. 2.

* After the complaint, verified in the manner described in the opinion, had been served, the defendants served an unverified answer containing a general denial, which the plaintiffs’ attorney, for that reason, returned the same day.

Trespass quare clausum, for the removal of plaintiff’s fence. Defense, that the locus was part of a well-known and long traveled highway, upon which plaintiff had willfully built his fence ; and that defendants removed it by direction of the town board of supervisors, doing no unnecessary damage. An act of congress, approved February 11,1805, provides as follows : “ Sec. 2.

Action on an account for fifty washing machines, alleged to have been manufactured and delivered by the plaintiffs to the defendant upon his order. * The plaintiffs were doing business in the town of Mineral Point, and the defendant in the town of Dodgeville, both in Iowa county.

Action against William Sturges, Rowland Ellis, Henry P. George and J. D. Kinkhead, to remove a cloud upon plaintiff’s title to land. The defendant Kinkhead claimed under a deed from William Sturges, dated January 14,1857. The plaintiff claimed under a sale upon execution, made in December, 1857, to satisfy a judgment in favor of Henry P. George against William Sturges and Rowland* Ellis.

The plaintiff, having recovered a judgment against one Boddilly, garnisheed Joseph Bennett, Joseph George, C. C. Cholvin and Samuel Hoskins, partners doing business under the name of Bennett, George & Co., alleging that they were indebted to Boddilly for mineral or lead ore sold and delivered by him to them. The answer of the garnishees is sufficiently stated in the opinion.

Foreclosure of a mortgage of land, executed by the defendants Josiah Ward and J. P. Butterfield to secure their note. Besides the mortgagors, one Lockman, who claimed under them by deed subsequent to the mortgage, was made defendant, with his wife.

The complaint alleges that in 1860, plaintiff became owner of certain described lands situate on or near Rock river; that a dam had previously been erected across said river, below said lands, which caused the water to set back and overflow them; and that defendants have unlawfully and wrongfully maintained said dam, to the nuisance and injury of the plaintiff; and it demands judgment for damages, and for the abatement of the dam.

Action to recover moneys which the plaintiff had been compelled to pay as a school district tax. At an annual meeting of the defendant district, it was voted to raise taxes as follows : “ For teachers’ wages, $466 ; for fuel, $80 ; for incidental expenses, $25; for bell for school house, $50; for well, $25.” The plaintiff claimed that the tax was illegal; and appealed from a judgment of nonsuit. *

'Action against Raemisch as maker, and one Baker as indorser, of a promissory note. Baker did not answer. Raemisch answered by a general denial, and appealed from an order denying his motion for a change of venue. The case is more fully stated in the opinion.

In November, 1864, plaintiff executed and delivered to defendant his bond in the penal sum of $500, con-' ditioned for his executing and… Held: therefore, that plaintiff had not a cause of action, and rendered judgment for the defendant for his costs, etc.; from which the plaintiff appealed. cited Taft v. Kessel, 16 Wis. 278; Ludlow v. Gilman, 18 id. 552; Horton v. Arnold, id. 212; Walker v. Wilson, 13 id. 522; Hall v. Gale, 14 id 54. cited Wright v. Young, 6 Wis. 127;…

<p>Pleading. — Complaint.</p> <p>Under the Oode, the allegation in a complaint that plaintiff did work for defendant at an agreed price per day, must be held to import that the work was done after and in pursuance of the agreement.</p>

Foreclosure of a mortgage executed by one More-house to the La Crosse and Milwaukee R. R. Co. in 1854, upon the N. W. | of sec. 33, the N. E. | of the N. E. | of sec. 32, and the West half and S. E. ¿ of the S. E. J of sec. 29, in said county, to secure Morehouse’s note of same date, running to said company, for $2,000, payable in ten years, with interest payable annually.

Eeplevin for certain chattels. Answer, that defendant- owned and had a right to the possession of said chattels, and that plaintiff’s pretended ownership or right of possession was claimed by virtue of a certain chattel mortgage running to one Prothero, and given to secure the payment of defendant’s note also running to said Prothero, and that said note and mortgage were so made at the request of one Gibson, to secure the repayment to said Gibson of certain moneys borrowed…

Ejectment, commenced May 28, 1869, against John McGraw and John McGraw, Sen. The former, by his answer, 'claimed to own the land under a tax deed, which had been recorded more than three years before the commencement of the action. John McGraw, Sen. answered by a general denial. Margaret McMahon, the plaintiff, showed a chain of title from the United States to herself, the conveyance to her being dated in 1851.

The complaint avers that plaintiff is the owner in fee (1) of a certain strip of land in the S. E. | of the S. E. | of section 35, T. 7 N., R. 14 E., in said' county; and also (2) of a certain other strip described as follows: “ Commencing in the center of Catharine street, four rods south of Dooling street, in Howell’s Addition to the village of Jefferson; running thence east two rods to the north line of lot 7, thence south parallel with the center of said street six rods,…

Action on a note made July 3, 1866, by the defendant, at Adelaide, in Canada, promising to pay William J. Hoare, or order, one year from date, $600 in Canada currency, with interest at ten per cent.

Action on a joint and several note of defendants for $100, made March 28, 1855, payable to Hannah Peck (afterwards Hannah Pierce, who was plaintiff’s testatrix) or bearer, on or. before April 1, 1857, with interest at twelve per cent. The complaint alleges that no payments had been made on the note. Answer: 1. That the note was for the individual debt of the defendant Levi P. Gilbert, and that the other defendant, William T. Gilbert, signed it as surety in fact. 2.

The case is stated in the opinion. conceded that before the Code the court had inherent power over the granting of new trials, but'contended that the Code superseded the previous practice, being a revision of the law upon the whole subject (T Mass. 140; 12 id. 587, 545; 5 Pick. 168; 10 id. 37; 3 Greenl. 22; 1 Ashm. 179; 5 Texas, 418); that a new trial could not properly be granted under the statute in a case of this kind — the motion not being based upon exceptions, and…

Foreclosure of a mortgage made April 18, 1866, to secure note of same date, payable in one year. Held: That said Eliza J. McGinnis had no right to bring this action; but as it was commenced in her name by consent of Robert, and as none of the parties ask it, it should not be dismissed on that ground, but the balance of the money not ordered to be paid to Wheeler should he paid over to her,. after paying costs awarded against her. 2.

, Action commenced before a justice of the peace, for an amount alleged to be due plaintiffs from defendant on a book account, for goods and merchandise.

The plaintiffs obtained a judgment, first, adjudging that they recover of the defendant $123 damages, etc., for sundry building materials furnished by them and used by him in the construction of a dwelling house; and secondly, declaring a lien in their favor upon saicl house, for the amount of the judgment, and directing a sale of the house, etc. From the second part of the judgment the defendant appealed. The plaintiffs moved to dismiss the appeal.

Action on a promissory note for $1,005.19, at two months, made by Eugene Costigan, June 23, 1869, at Pentwater, Mich., payable to the order of Wadsworth, Adams & Co., of Milwaukee in this state, at the Merchants’ National Bank in said last mentioned city, and alleged to have been indorsed by the payees to the defendant bank (located and doing business at Elk-horn in this state), and by it to one Chase, and by him to plaintiffs.

Action for the • value of a chest of tea alleged to have been sold and delivered to the defendant. The defendant appealed from a judgment in favor of the plaintiffs. The nature of the defense, and the exceptions taken, will sufficiently appear from the opinion. cited Shindler v. Houston, 1 N. Y. 261, and authorities there cited. cited Chitty on Con. (9th Am. ed.) 352; Curtis v. Pugh, 10 Q. B. Ill, 114; Boulter v. Arnott, 1 C. & M. 333; 3 Parsons on Con.

On the 1st of October, 1864, defendant executed three promissory notes, payable at three, four and five months respectively, to the order of S. C. Hall & Co., at the bank of Whitewater; the first… Held: that by making the notes payable at the bank, the defendant authorized the bank to pay them at maturity, and having done so it could hold them as security for the amount paid, and maintain an action upon them.

Prior to the 12th of June, 1861, the defendant White foreclosed a mortgage upon a tract of land owned by the plaintiff Denton; and purchased the land upon the foreclosure sale.

The plaintiff brought suit as executor of the last will and testament of Charles R. Eox, deceased, to foreclose a mortgage made in March, 1858, by John W. Foster and Maria M. Foster, his wife, on two lots in the city of Racine, to secure the note of said John W. Foster for $2,100, at twelve months.

This action was brought against the City of Janes-ville and its treasurer, to restrain the sale of the plaintiff’s lots for the purpose of collecting an assessment made upon them for grading the street in front thereof, and paving it with the Nicholson pavement; and also to have said assessment, and all the proceedings relating thereto, adjudged to be illegal and void.

Action against Holt and Ensign, as common carriers and proprietors of the Commercial Line of Propellers, for damages resulting to plaintiff from the sinking in the Erie canal of certain -bones in sacks, which the plaintiff had contracted to sell to the consignee in Providence, R. I. The defense was, that the loss happened beyond Buffalo, the end of defendants’ route, and that defendants had fully performed their contract.

for Washington County. Action for slander. Demurrer to the second and third counts of the complaint, as not stating a cause of action. The substance of those counts is stated in the opinion. Demurrer, sustained; and plaintiff appealed from the order. argued that the words charged are actionable (Herr v. Bamberg, 10 How.