Volume 28 — Wisconsin Reports

On the 12th of May, 1859, at Madison, Wisconsin, Bowen and Parker made and delivered to the Dane County Bank their promissory note for $150, at sixty days, with interest at ten per cent. This note was made as security for the separate indebtedness of Bowen, and Parker signed it only as surety. Together with the note they also executed and delivered their warrant of attorney for the confession of judgment thereon, in the usual form.

Action to foreclose a mortgage purporting to bave been executed by ThroncV Evenson and Anna Maria, bis wife, to secare a note made at tbe same time by one Hegg and said Thrond Evenson.

Action for tie alleged wrongful taking and conversion by defendants, Peter and Christina Lasatiette, in January, 1869, of certain personal property, alleged to be the property of tbe plaintiff. The defendants (who were husband and wife) justified the taking under a chattel mortgage given by the plaintiff to the defendant Christina Lasatiette. Reply, that the chattel mortgage had been paid before such taking.

Chapter 28, R. S. 1858, provides that all school and university lands, not already sold at the time of the passage of the act, shall from time to time be offered for sale at public auction (sec. 19); that all of snob lands which have once been offered at public sale and remain unsold, and all forfeited school and university lands, after being re-offered at public sale and remaining unsold, shall be subject to private sale on certain specified terms (sec. 82); that persons…

Replevin, by Charles B. High against Augustus Johnson, for five horses and five halters. Answer, a general denial, an averment of property in the defendant, and a demand of judgment for .a return thereof. Defendant claimed to own the horses by purchase from one Lyman T. High. The court gave the following among other instructions, at the plaintiff’s request: “1.

<p>APPEAL from tbe Circuit Court for Milwaukee County.</p> <p>cited Burrnll v. Bowen, 21 How. Pr. R., 378; Adams v. Holley, 12 id., 330; White v. Brown, 14 id., 285; Thomas v. Desmond, 12 id., 321; Holstein v. Bice, 15 id., 4; Billings v. Jane, 11 Barb., 620; Buffalo v. Holloway, 7 N. Y., 498; Morse v. Gilman, 16 Wis., 508; Olark v. Langworthy, 12 id., 446.</p> <p>cited Whittaker’s Pr. (3d ed.), 567, and cases there cited; Bateman v. Johnson, 10 Wis., 1.</p>

Ejectment. Tbe plaintiff appeals from a judgment dismissing tbe complaint. Tbe case is stated in tbe opinion. argued, among other things, that tbe premises conveyed being tbe homestead, tbe deed of Paul Bingenheimer, without tbe signature of tbe wife, was void. E. S. 1849, cb. 102, sec. 52.

Ejectment, for an undivided balf of certain lands. Tbe' grounds upon which tbe parties severally claimed title, are fully stated in tbe opinion. Tbe defendant appealed from a judgment in plaintiff's favor. argued that tbe first five subdivisions of section 1, cb. 92, R. S., regulate tbe descent of tbe real estate of tbe intestate to bis issue, widow, father, mother, brother and sister, and prescribe tbe circumstances under which tbe estate shall go to them respectively.

Action in tbe nature of a quo warranto, commenced - in this court. Tbe respondent demurred to tbe complaint.

Tbe defendant appealed from a judgment for plaintiff. Tbe case is stated in tbe opinion. contended tbat tbe plaintiff could not take judgment in bis favor individually, because tbe complaint avers tbat tbe note sued on was transferred to tbe deceased, Wbipple, in his life time, and came into plaintiff’s bands as administrator of tbe estate of said Wbipple, and tbat tbe amount due thereon was due to bim as sucb administrator. Till. & Shear. Pr., 84, and cases cited. 2.

The plaintiff and the father of defendants were tenants in common of a lot in the city of Milwaukee, each owning an undivided half.

Action before a justice, to recover damages for alleged injuries to a carriage hired of the plaintiffs by the defendants.

Action on certain alleged breaches- of covenants in deeds of conveyance, The plaintiff appeals from an order sustaining a demurrer to the complaint.

Action commenced in a justice’s court, against Ledyard, upon a contract for services.

Slander. Tbe plaintiff appeals from an order sustaining a demurrer to tbe complaint, as not stating a cause of action.

Slander. Tbe defendant appealed from an order overruling bis demurrer to one count of tbe complaint. Tbe averments of said count are sufficiently stated in tbe opinion. 1. It must appear from tbe words used (wben tbey are not uttered ironically or by way of insinuation), tbat plaintiff is charged with a crime, unless special damages are alleged, or tbe words refer to bis profession or trade. Kinney v. Nash, 3 Corns., 177; Caldwell v. Raymond, 2 Abb. Pr.

Action commenced in justice’s court, for a trespass to plaintiff’s close. Defendant first answered by a general denial, and procured an adjournment for one week On tbe adjourned day, be amended bis answer by setting up an express license from plaintiff to do tbe acts complained of, and also alleging that be and plaintiff were tenante in common of said close at tbe time laid. On defendant’s application and affidavit, a further adj oumment for eight days was granted.

Tbe case is stated in tbe opinion. contended, upon tbe Language of tbe garnishee’s answers, that be was bound to pay tbe $250 in question whenever demanded by tbe principal debtor; citing Allen v. Megguire, 15 Mass., 490; Breioer v. Pillán, 11 Pick., 298; Ridley v. Severance, 5 Pick., 474.

Trespass quare clausum; answer, highway. The facts are stated in the opinion of Mr. Justice LyON, which also recites the second and third instructions asked by the defendants and refused by the court.

Tbe complaint alleges that tbe plaintiff is tbe owner in fee of certain described lands, and bas owned and been in possession of them for more than three years next prior to tbe filing of tbe complaint; that tbe lands are situate near Eock river, a public highway and navigable stream, across which, below these lands, tbe defendants, during said period of three years, have kept and used a water-mill and mill-dam, and have so kept and maintained tbe same by virtue of an act of…

Action upon a guaranty of a promissory note. Tbe facts are stated in tbe opinion.

The defendant appealed from an order granting a new trial. The facts, so far as they are necessary to explain the points of . practice decided,, will appear from the opinion. It has not been thought worth while to give here the affidavits upon which the order appealed from was founded. to tbe point tbat a motion for a new trial on tbe ground of newly discovered evidence, cannot be beard on affidavits alone, cited Eule 84, S. C. Eules, and 7 Wend., 331.

Tbe complaint avers, in substance, tbat tbe Bock Eiver Yal-ley Union Railroad Company, from wbom tbe defendant derived title, in tbe construction of its railroad, in 1858, across tbe plaintiff’s land, obstructed and diverted tbe course of a brook flowing tbereon; tbat when the railroad was building, tbe first design of tbe company was to construct a culvert so tbat tbe stream could keep its natural course, and stone was drawn there for tbat purpose, and was still lying…

Ejectment. Tbe facts will sufficiently appear from tbe opinion. Tbe form of tbe tax-deed under wbicb plaintiffs claimed' will be seen by reference to tbe report of a former appeal in tbe same cause, in 25 Wis., page 460.

Foreclosure of a .mortgage executed in 1857, by Henry Kruse and wife to the Milwaukee and Fond du Lac Air Line Railroad Company, to secure the note o£ said Henry Kruse, of tbe same date, running to said company or order for $2,400, payable in ten years, with, interest payable annually.

Action to foreclose a mortgage executed by tbe defendants Oliver Pettibone and wife, in 1858, to tbe La Crosse and Milwaukee Railroad Company, upon three certain tracts of land in Dodge county. Tbe action was brought by tbe plaintiffs as executors of David L. Barton, deceased, to whom tbe note and mortgage bad been lawfully assigned, before maturity, for a valuable consideration. None of tbe defendants answered except JBabcocIc.

Action on two promissory notes. Defense, usury. The facts are stated in the opinion. The defendant appeals from a judgment in favor of the plaintiff. 1. The two original actions having been consolidated by an order of court, the established practice required the amendment of the pleadings, or else a trial of one of the actions, the other to abide the decision in the one tried. 4 Cow., 78 ; 5 Sandf., 665; 17 How. Pr. R., 228; 2 Paine & Duer’s Pr., sec. 4. 2.

Tbe facts upon wbicb tbe plaintiffs sought to recover in tbis action will appear from tbe opinion.

Action to recover damages for removing a bouse from a lot in tbe town of “ Tbé Island,” Winnebago county. One Sperry, tbe owner of tbe lot, executed a contract in 1866 to Sorrenson, agreeing therein to convey bim tbe lot upon payment of tbe purchase price in instalments at tbe times stipulated.

Ejectment. The defendant appeals from a judgment for the plaintiff. The case is stated in the opinion. argued, 1. That there was no mistake, but the deed conveyed just the land which the parties intended to buy and sell, respectively. 2. That at least the mistake was not mutual, but the land conveyed was that which the defendant understood to be the land sold; and under such circumstances the deed would not be reformed. 33 N. Y., 676, 680; 24 Wis., 496. 3.

Ejectment, commenced in 1869. Judgment for the defendants ; from which tire plaintiff appealed.' The facts are sufficiently stated in the opinion. The only question in the case is, whether the action is barred either by sec. 50, ch. 65, R. S. 1849 (sec. 60, ch. 94, R. S. 1858), or by the general statute of limitations. 1.

Ejectment. Tbe court found, inter alia, that tbe county, assigned to one Bierly, “ by an endorsement by tbe county treasurer in blank, January 8, 1868, two tax certificates, one of tbe sale of 1858,… Held: that “ tbe tax deeds might lawfully issue to tbe bolder of a tax certificate endorsed in blank only, even though it appeared that tbe certificate was originally assigned to another person.” Tbe other facts will sufficiently appear from tbe opinion.

Action against Walter Guile as maker, and Jesse Armstrong as guarantor, of two promissory notes. Judgment against botb defendants ; and appeal tberefrom by Armstrong. Tbe facts are stated in tbe opinion. contended tbat “ it is tbe duty of a circuit judge to grant a new trial when tbe verdict is manifestly against tbe weight of testimony and tbe clear justice of tbe case” (Van Vallcenburg v. Hoskins, 7 Wis., 497; 1 Gra. & Wat. N. T., 367); and tbat sucb was tbe fact bere.

Tbe defendant appealed from a judgment in fayor of tbe plaintiff. Tbe case is stated in tbe opinion. relied on sec. 2, cb. 58, Laws of 1861, and to tbe point tbat tbe “ day” mentioned in tbat section includes 24 hours, beginning and ending with midnight, they cited 2 Black. Comm., 141; 1 Burr. Law Die., 422, “Day,” and 2 id., 281, “Night;” Hiller v. English, 4 Strobb, 493; Fox v. Abel, 2 Conn., 541; Shaw v. Dodge, 5 N. H., 462.

Tbe action below was by Jacob P. Bonesteel against Belinda B. and Augustus D. Bonesteel; and a judgment baying been rendered in favor of tbe defendants, tbe plaintiff sued out bis writ of error.

<p>APPEAL from the Circuit Court for Fond du Lac County.</p> <p>The defendant appealed from a judgment in favor of the plaintiff. The case is stated in the opinion.</p>

The action below (commenced January 4, 1870), was by Salina Swineford against the above named company, to recover $1,000, upon a policy of insurance against loss by fire.

Action against Joseph A. Lyman and Mary 0. Lyman, bis wife, to foreclose a mortgage executed by tbem to secure payment of certain notes given by Joseph A. Lyman for tbe purchase money of tbe land mortgaged.

EBBOB to tbe Circuit Court for Fond du Lao County. to tbe point tbat a writ of certiorari cannot be allowed by tbe circuit judge in vacation, cited E. S., cb. 116, sec. 4, and Appendix, p. 1041, sec. 9; Oomstoclc v. Porter, 5 Wend., 98; Starr v. Bochester, 6 id., 564; Caledonian Company v. Trustees, etc., 7 id., 508; Bradner v. Supervisors, etc., 9 id., 433; The People v. Supervisors, etc, 15 id., 198; Cardner v. The Com-en’rs, etc., 10 How. Pr. B., 181.

Tbe complaint alleges that plaintiff is tbe owner in fee and in possession of certain described real estate, and derived bis title thereto from one Joban Gretman, late of said county, deceased; that defendant, as administrator of tbe estate of said' Gretman, bas advertised to sell said real estate at public ven.-due, at a place and time designated, and will so sell it and will-convey it, unless restrained, etc.; and it aslrs fora judgment permanently restraining sucb sale,…

Replevin, for a certain bureau and its contents, described as follows : “Articles of bedding, table clothes, towels, one suit of men’s clothes, eight yards of woolen cloth, one revolver, twenty-five dollars in gold, two dollars in silver, one gold ring, one silver watch, one cupping instrument, one dozen new shirts, two boxes containing bed-clothing and books.” The value is stated at $818.

Eeplevin, commenced in justice’s court, where tbe plaintiff bad judgment. No affidavit and notice of an intention to appeal was filed by defendant with tbe justice within twenty-four hours, as provided by sec. 2, ch. 112, Laws of 1859; but within twenty days after judgment rendered, he gave the notice and filed the affidavit required by see. 205, ch. 120, E. S.; the plaintiff having the possession of the goods, pursuant to the judgment.

Ejectment, for an undivided fralf of certain premises. Plaintiff claimed tmder a judgment Rendered in 1867, in an action lor divorce brought by ber against Wilhelm Wilke; by .which judgment a divorce was granted, and title to an undivided hall of the premises described in the complaint in this -action was awarded to -her by way of alimony.

Action for injuries to tbe person of tbe plaintiff, Soffhronia R. Goodno, caused by defects in a sidewalk witbin tbe corporate limits of tbe defendant city. Tbe report of a former appeal in tbe same action will be found in*24 Wis., 549. Tbe facts shown at tbe second trial are sufficiently stated in tbe opinion, infra.

EEEOE to tbe Circuit Court for Dodge County. The action below was brought by Converse, as administrator of the estate of JohnP. Converse, deceased, to recover damages for the unlawful taking and conversion of certain chattels, including five hundred bushels of wheat, two hundred bushels of oats, etc., etc., alleged to belong to said estate, and to have been unlawfully taken by Dunham from the possession of said administrator. Answer, a general denial.

Ejectment, commenced in 1870, for tbe undivided balf of a lot in tbe city of Osbkosb. Plaintiff showed title in fee to tbe lot in A. E. David and Henry A. Callup, as tenants in common, and a conveyance to bimself from David of an undivided balf thereof. Defendant put in evidence, (1.) A tax deed dated May 15, 1866, from tbe state and county to S. B. and J. A. Paige, assignees of tbe ■ treasurer of said county, upon tbe sale of 1863, for taxes due upon tbe whole lot for 1862.

Action to foreclose a mortgage given to secure a note upori wbicb certain payments bad been made. Complaint in tbe usual form. Answer, payment. Tbe court beld tbat defendant bad tbe affirmative of tbe issue.

Action upon tbe covenants in a deed, tbe plaintiff claiming under an assignment from one Erickles, defendant’s grantee in tbe deed. Held: in one of tbe former appeals (.Eaton v. Lyman, 24 Wis., 438), that Lyman was bound because be was connected with that eviction by taking part in tbe trial — independently of whether Frickles was evicted by a paramount title. 2. Tbe charge of the judge below was erroneous.

Action bj John Oliver against Hiram 8. Town and James L. Watson, for tbe unlawful taking and conversion of goods. Plaintiff claimed tbe goods under a mortgage from Frank S. Oliver; and defendants under an attachment issued from justice’s court, in an action by Watson against Frank S. Oliver. Tbe attachment was subsequent in date to the chattel mortgage, and was levied b j Town as sheriff.

The court overruled a demurrer to the complaint as not' stat-mg a cause of action; and tbe defendant appealed. Tbe substance of tbe complaint is stated in tbe opinion. to tbe point tbat tbe averment of authority in tbe board of public worts, derived from tbe defendant city, to make tbe contract sued on, was an averment merely of a conclusion of law, and insufficient, cited Myers v. Machado, 6 Duer, 678; and Supervisors of Franklin v. Kirby, 25 Wis., 498.

<p>APPEAL from the Circuit Court for Outagamie county.</p>

Chapter 299, P. and L. Laws of 1855, incorporates certain persons therein named, and their successors and associates, as the “Sugar Eiver Yalley Eailroad Company;”… Held: signing a petition requesting such election to be held, and presenting the same to the clerk, or two of the members of the town board of supervisors, whose duty it shall be to immediately thereafter give the required notice for such election as provided in the fifth section of this act. “ Section 7.

Action to restrain tire officers of Joint Scliool District No. 1, village of Sheboygan Falls, from levying a certain tax and issuing orders for the purpose of buying a site and building a school house. The district is located partly in the village of Sheboygan Falls, and partly in the town of Sheboygan Falls.

Action to recover possession of certain chattels, commenced before a justice of tbe peace.

In 1867, Sarab A. Dayton obtained a judgment of divorce a vinculo, against tbe defendant Jeremy S. Dayton, and a further judgment for $800 as alimony, and $77.41 as costs of tbe action.

<p>(Motion to dismiss Appeal.)</p> <p>APPEAL from the County Court of Milwaukee County.</p>

Tbis court having ordered a continuance of tbis cause until tbe next term, on appellant’s motion, tbe respondent now moves to vacate tbat order.

Action, under sec. 29, ch. 141, R. S., to remove a cloud upon plaintiff’s alleged title to certain lands, which cloud was created by defendant’s claim of title under a tax deed executed and recorded in 1857, based upon a sale in 1854, for taxes of 1853, and a second deed executed and recorded in 1859, based upon a sale made in 1855, for taxes of 1854.

The defendant appealed from a judgment in favor of the plaintiff. The case is stated in the opinion. argued, among other things : 1.

The action was against Fountain and. two other persons, for breaking the plaintiffs close, and taking and carrying away therefrom without his consent, a dwelling house situated thereon, the property of the plaintiff, and converting the same to their own use, to plaintiff’s damage $400.

Mortgage foreclosure, brought by David W. Austin, Thomas Ff. Austin and DberJ. Austin, against Freeman Bacon and others. In June, 1852, one John Austin, father of the plaintiffs, loaned Freeman Bacon $1,000 and took from him a note for that amount, at three years, with interest payable annually at twelve per cent, until paid, secured by a mortgage of land executed by said Freeman Bacon and wife. Said note and mortgage ran to David W. Austin.

Tbe action was brought by Mary A. Orossett against tbe City of Janesville and one Barron, to recover for injuries done to plaintiff’s lots, bounded by EranMin street in said city, in consequence of tbe removal of earth from said street adjoining said lots, to a depth of from four to six feet; which removal is averred to have been made by the defendants unlawfully and negligently.

The plaintiff appealed from a judgment dismissing the complaint, &c. The ease is stated in the opinion. relied on ch. 110, Laws of 1866; and, as to the effect of the repealing statute, he cited Stephens ■v.Marshall, 3 Chand, 222; Selsby v. Redlon, 19 Wis., 17; 1 Kent’s Comm (5th ed.), 455; Watson v. Mercer, 8 Peters, 110; 7 Johns., 477; 2 Gallia, 139; 1 Yerg., 360; 5 id., 320; 4 Yt., 37; 1 Blackf., 374, 220; 3 N. H., 473; 3 Dali., 391, 397, 386; 5 Mon., 122; 18 Johns., 138;…

Tbe defendant appealed from an order directing tbe receiver appointed in tbis action to sell tbe real estate of the firm of Noonan & McNab. Tbe circumstances under which tbe order was made will appear from tbe opinion: argued that tbe removal of tbe cause from tbe circuit to tbe county court, was in violation of secs. 2, 3 and 8 of art. .VII of tbe state constitution.

.APPEAL from tbe Circuit Court for Iowa County. At tbe March term, 1870, of said court, a stipulation was entered into between tbe defendants in this action (who are attorneys at law) and the plaintiff’s.attorney, by which “ no action ” was to be “ taken by either party ” therein until the 5th of April of that year, and notice of trial was waived by both parties.

The plaintiff, holding certain tax deeds based upon delinquent taxes of 1864, of lands described therein as lots 18 and 19 in block 81 in the second ward of the city of Oshkosh, and being in possession of the lots, brought this action to foreclose the interest of the defendants therein. The defendant Dolphin answered, setting up paramount title, and denying that the lots were subject to taxation in said year.

Doyle appealed from a judgment of the said court, reversing, on certiorari, the judgment of a justice of the peace in this action. The case is stated in the opinion. relied on sec. 47, ch. 120, R. S.; and they also contended that the venue in an affidavit is not essential to its validity, if it sufficiently appears, from the face of the affidavit, or from accompanying papers, where it was made.

<p>Constitutional Law : Acts exempting particular corporations from general lam as to payment of costs, irnalid.</p> <p>1. As a rule, acts of the legislature exempting particular individuals or corporations by name from the operation of general laws, are not within the proper scope of the legislative power, and are void.</p> <p>2. An act of this kind making discriminations between the rights of different suitors in courts of justice, would be in violation of sec. 9, art. I. of the state constitution, which declares that “ every person is entitled to a certain remedy in the laws for all injuries or wrongs which he may receive in his person, property or character; he ought to obtain justice freely, and without being obliged to purchase it, completely and without denial,” etc.</p> <p>3. Under sec. 36, chap. 264, laws of 1860, the party prevailing in this court on error or appeal, is absolutely entitled to costs.</p> <p>4. So much of ch. 107, P. and L. Laws of 1862, and ch. 298, P. and L. Laws of 1869, as provides that no costs shall be recovered against the city of Janesville in any action to set aside any tax, assessment, or tax deed, or to prevent the collection of taxes or assessments in that city, is void.</p>

Tbe defendant company appealed from a judgment rendered against it in an action on a fire insurance policy.

Action, under tbe statute, to recover for injuries inflicted upon tbe plaintiff’s intestate, causing bis death. In tbe village of Milton is ajarge, level square, open at tbe time of tbe accident, bounded on all sides by public streets. Tbe defendant’s railroad runs across tbe middle of tbis square, in a line nearly east and west; and tbe distance across tbe square, including tbe width of the streets on tbe east and west sides, is about 586 feet.

Tbe defendants appealed from a judgment in favor of tbe plaintiffs.

Tbe appeal was taken by tbe defendant Asenoth A. Damon, from an order overruling ber demurrer to tbe complaint as not stating a cause of action against said defendant, and for a mis-joinder of several causes of action.

Tbe defendant appealed from a judgment against bim. Tbe facts are stated in tbe opinion. cited Sturtevant v. Starin, 19 Wis.', 268; Johnson v. Williams, 8 Iowa, 97; Wing v. HurVmrt, 15 Yt., 607; Shelton v. Pendleton, 18 Conn., 417; Phillips v. Simmons, 11 Abb. Pr. R., 287 ; Morrison v. Holt, 42 N. H., 478, 480 ; Qrindell v, Oodmand, 18 Leg. Obs., 467. in person, cited Sturtevant v„ Starin, 19 W'is.', 268; Turner v. Roolces, 37 Eng.

Tbe defendant appealed from a judgment in favor of tbe plaintiff.

The plaintiff appealed from a judgment in favor of the defendants. The case is stated in the opinion. to the point that the erroneous admission in evidence of plaintiff’s deed of the land, made ’peálente lite, must be supposed to have prejudiced the plaintiff’s rights, and that the judgment should be reversed for such error, cited State Banlc v.. Dutton, 11 Wis., 371; Remington v. Bailey, 18 id., 332; Castleman v. Griffin, id., 537.

<p>CONSTITUTIONAL Law. (1-4) Uniformity of County Government— Const, Art. IV., sec. 3 — P. and L. Laws of 1869, ch. 397.</p> <p>Validity of Statute. (6,6) When the whole statute declm'ed inoperative for invalidity of apart.</p> <p>Practice. (7) Judgment on overruling demwrrer, in quo warranto.</p> <p>1. Sec. 23, art. IV., of our state constitution, which provides that “ the legislature shall establish but one system of town and counfy government,” and that this “ shall be as nearly uniform as practicable,” is mandatoi'y; and the court must declare invalid any enactment in violation thereof.</p> <p>2. A legislative act which does not impair the unity of the system of town and county government, may yet be destructive of its uniformity, and invalid for that reason.</p> <p>3. An enact,meut. which would deprive the supervisors of one county of any part of the general powers of county government vested in all .boards of supervisors by the general statutes of the state, and confer such powers on some other officer or body elected or appointed for the purpose, is in violation of said section and void. State ex rel. Peck v. Riordan (24 Wis., 484), and State ex rel. Keenan v. Supervisors (25 id., 339), as to the above points, approved and followed.</p> <p>4. Ch. 397, P. & L. Laws of 1869, so far as it restricts the power of the supervisors of Milwaukee county to act upon claims against the county and enter into contracts in its behalf, without previous action thereon by the county aniditor, whose election is therein provided for, or requires a vote of two-thirds of the members elect of such board to allow claims or enter into contracts disapproved by such auditor, is void under the principles above stated.</p> <p>5. Where the void parts of a statute were evidently designed as a compensation for or inducement to the remaining parts, so as to warrant the belief that the legislature would not have passed the valid portions alone, the whole statute will be held inoperative.</p> <p>6. Under this principle, the court holds that said ch. 397 is inoperative, and that the person who was elected auditor pursuant to its provisions is not entitled to hold such office.</p> <p>7. Where it appears, upon overruling respondent’s demurrer in quo wa/r-ranto, that he cannot be benefited by a permission to answer, judgment of ouster will go against him.</p>

TRe defendants appealed from a judgment in favor of the plaintiff. The case is stated in the opinion. argued, 1. That the executors had no lien upon the premises in question, under the statute -which allowed them to take possession until the debts were paid. (1.) Because the statute is merely permissive and the right lapses if not asserted.

TRe plaintiffs appealed from a judgment in favor of the defendant.

The defendants appealed from a judgment in favor of the plaintiff. The case is stated in the opinion. argued that there was no negligence shown on defendants’ part; that if there was such negligence, it was not the proximate cause of plaintiff’s injury, but plaintiff’s own act was such proximate cause; and that plaintiff was at least guilty of contributory negligence ; and to these points they cited The Oountess of Dunham, 9 Monthly Law Mag., cited in Pritchard’s Adm.

Action in justice’s court by Althouse, to recoyer for 110 feet of tubing furnished and put down for Alvord, and also for several other items of account. Defense, a general denial, and a set-off. It appeared that plaintiff was a manufacturer of pumps, tubing, &c. The only question in dispute appears to have been the value of the tubing.

<p>APPEAL from the Circuit Court for Bodge County.</p> <p>The defendants appealed from a judgment in favor of the plaintiff. The facts are stated in the opinion.</p>

At the annual town meeting of the defendant town, in April, 1870, a motion was made, and, after being put to vote, was de-dared by the chairman to be passed, and was entered by the town clerk upon the records of the meeting in the form of a resolution, as follows: “ Resolved, That there be raised by tax for gravelling State street, between the Continental Hotel and the comer of State and Spring streets, near Stoddard Judd’s house, $500.” This action was brought by…

Tbe plaintiff appealed from an order of tbe court denying bis motion to set aside an order of a court commissioner allowing defendants to amend tbeir answer.

Tbe plaintiff appealed from an order sustaining, pro forma, a demurrer to tbe complaint as not stating a cause of action. Tbe substance of tbe complaint is stated in tbe opinion.

Tbe plaintiff appealed from a judgment of nonsuit. Tbe ground upon wbicb sucb judgment was rendered, will appear from tbe opinion. argued tbat tbe agreement between tbe parties was not cbampertous (Fhallhimer v. Brinch-erhojf, 8 Cow., 648; 4 Blacks.

Defendants appealed from an order striking out their answer as frivolous. The averments of the pleadings will sufficiently appear from the opinion. contended that the allegations of the answer should be liberally construed with a view to substantial justice between the parties (Wis. Code, secs. 56-58, 65 ; 9 Abb. Pr. B., 23; 4 How. Pr.

Tbe defendants appealed from an order of tbe county court, tbe character of which is stated in the opinion. John J. Orton, one of the defendants, in person, to the point that the application should be by petition, and not by affidavit, cited Eule 6, Eules of 1857 ; Eule 55, Eules of 1849 ; 6 How., 898; 5 id., 451; 2 Sandf., 662; N. Y. Code, 735, see. 88, and cases cited. 2.

■ Ejectment, for tíre east balf of tbe west balf of a quarter section of land. Complaint in tbe usual form. Answer, 1. A general denial. 2.

Trespass guare clausum. At tbe October term of tbe court, 1870, tbe jury, by tbe direction of tbe court, found a verdict for tbe plaintiff, assessing bis damages at six cents. Tbe defendant, at tbe same term, and before judgment rendered, moved for a new trial for errors in tbe rulings of tbe court as to tbe admission of evidence, and in giving tbe jury tbe direction aforesaid. Tbe motion was denied, and judgment rendered on tbe verdict.

Action by Louise F. Maxon to remove an alleged cloud upon ber title to land.

On tbe 30tb of January, 1864, tbe defendant town voted to “raise a tax of $200 to be paid to eacb volunteer that should thereafter enlist and be accepted into tbe United States service, and be credited to ” said town; “ and that to eacb volunteer so enlisting town orders might be issued, payable after tbe [then] next annual tax was collected; tbe number of volunteers to be paid being limited to twelve.” Tbe plaintiff and three other persons, Jacobson, Paraisb and Gates,…

Tbe plaintiffs, copartners as macbinists, brought this action to recover $892.60, alleged to be due them on an account against defendant for work and labor done and materials furnished in putting up a “ stationary steam engine and shafting, two lard tanks, one condenser, and one steam hoisting machine,” and also to enforce a lien for tbe amount upon tbe machinery and upon defendant’s interest in tbe premises upon which tbe same was erected. Tbe answer was, 1.

Tbe National Insurance Company of Boston, paid to tbe defendants herein, as its agents in Milwaukee, tbe sum of $5,000, for tbe use of tbe persons entitled thereto under a policy of insurance upon tbe propeller “ Belle.” Tbe plaintiffs, each owning one undivided fourth of said propeller at tbe time of tbe loss, brought this suit to recover $2,500 of said sum. Tbe defense was, in substance, that one Engelmann was entitled to tbe amount so claimed.

This action was commenced in July, 1869. The original complaint, under which the trial was had, alleged, in substance, the following facts: 1.

Tbe defendant Matthews appealed from a judgment against bimself and bis co-deféndant Jackson.

Tbe plaintiff, Orlin W. Powers, appealed from an order sustaining a demurrer of tbe defendant, .Enos B. Powers, to his complaint.

Tbe -plaintiffs in error seek to reverse a judgment rendered against them in tbe court below, where tbey were defendants.

Tbe following statement of tbe case was prepared by Mr. Justice LYON as a part of bis opinion. These are cross appeals from tbe same order made by tbe circuit court.

Tbe defendant appealed from a judgment in favor of tbe plaintiff.

Ejectment. The defendants appealed from a judgment in favor of the plaintiff. The case is stated in the opinion. cited Baton v. Tail-madge, 24 Wis., 217; 1 Lomax’s Big., 501; 1 Wash. C. C., 438; 12 Mass., 474; and to the point that plaintiff was estopped, by his warranty deed of fifteen acres in severalty, from denying partition, they cited 4 Kent’s Comm., 368; Primmv.

Tbe following statement of tbe case was prepared by Mr. Justice LyoN as a part of bis opinion. On tbe trial of tbis action in tbe circuit court, tbe depositions of Tbomas Bailey and Alfred Bailey, wbicb bad been taken before a justice of tbe peace, at tbe instance of tbe defendant, for tbe alleged reason tbat tbe deponents were about to leave tbe state, were offered as evidence on bebalf of tbe defendant.

Ejectment. Tbe plaintiff appealed from a judgment in fayor of tbe defendant. Tbe case is stated in tbe opinion. contended that tbe certificate of tbe acknowledgment of tbe deed from Daniel Webster and wife to Cope and Taylor, was in substantial compliance with tbe pro-yisions of tbe statute, and tbat tbis was sufficient, citing Alexander v. Merry, 9 Mo., 514; Merriam v. Harsen, 2 Barb. Cb.

Ejectment, against Bavid Brothers and Amanda T. Brothers.. Complaint in tbe usual form. Tbe answer admits that defendants are in possession of tbe premises,' and denies tbe other averments of tbe complaint. Tbe nature of tbe conveyance under wbicb defendants claimed to bave derived title from tbe plaintiff, will sufficiently appear from tbe opinion.

Tbe judgment sought in tbis action was, tbat a certain contract between tbe parties, for tbe sale by defendant to plaintiff of a one-fourtb interest in a certain patent right for “ an improved method of working iron and steel,” be rescinded and declared of no effect, and be delivered up to plaintiff to be cancelled; tbat defendant be required to deliver up to tbe plaintiff all notes and orders and all personal property received from plaintiff in fulfilment of bis part of…