Volume 29 — Wisconsin Reports

Action against a town to recover damages for injuries to plaintiff’s cattle, caused by tbe breaking down of a defective bridge wbicb tbey were crossing. The plaintiff started from Columbus on a Friday morning with, a drove of about fifty cattle, intending to take them to Milwaukee, and sell them.

Action to enforce an alleged equitable lien upon 560 tons of coal, brought after a judgment had been rendered against the plaintiff, in an action at law against the same original defendants for the conversion of the same coal, on the ground that he had shown no title as against the defendants, and had been affirmed on appeal. The decision in that case, and the facts elicited on the trial, are reported in 21 Wis. R, 588.

Action to enjoin the Chamber of Commerce of the city of Milwaukee, from expelling the plaintiff from that association, or from suspending him or otherwise interfering with his privileges as a member.

This action was commenced to restrain the collection of taxes assessed against certain lands owned by the plaintiffs as tenants •in common, and to have the taxation and assessment annulled and set aside on the ground of gross irregularities, illegalities, favoritism and fraud on the part of the town officers in assessing the same and in reviewing the assessment.

The parties to-this action are sons of Jonathan Large, Sr., ■who died in 1862. His will, by which he bequeathed the greater share of his property to the appellant, Jonathan Large, Jr., was admitted to probate by the county court for Fond du Lae county, on the 6th of August, 1866.

Action to recover money received by tbe defendant to plaintiff’s use. . Tbe complaint alleges, in general terms, tbe receipt of $535, by tbe defendant to tbe plaintiff’s use, demand of payment, and a refusal to pay over tbe same, or any part thereof. The answer is a general denial.

■ Action to recover tbe statutory penalty for an alleged encroachment upon a highway, brought in the police court of the city of Eond du Lac, and removed to the circuit court on plea of title to land.

Action to recover possession of land, tried by the court without a jury, June 23, 1870. The evidence consisted principally of the deeds under which the parties claimed, the dates and character of which sufficiently appear in the findings of the circuit judge, and in the opinion of Judge Cole. The findings of the court are as follows : 1. That the land described in the complaint was sold for the non payment of taxes, by the county of Brown, in the year 1840. 2.

Tbis was an application by a former county treasurer of She-boygan county, for a peremptory writ of mandamus, to compel the county board of supervisors to audit and allow certain portions of his accounts as such treasurer, which they had, at two annual sessions, refused to allow.

Action under the mill-dam act, against the owners of a mill and dam, to recover damages for flowing lands. The complaint alleges the plaintiff’s title to certain lands, the maintenance of a mill-dam by the defendants across Onion river, and the flowing and damage to plaintiff’s lands by reason thereof; and also that such dam is raised to an unreasonable height; and asks to have the damages assessed and judgment entered therefor. The answer raises two issues: 1.

Action to recover tlie contract price for a quantity of timber for bridge piles furnisbed and delivered, or offered to be delivered, by tbe plaintiff to tbe defendants, under a verbal contract.

The complaint states that the plaintiff purchased of the defendant, four hundred acres of land in LaFayette county, for the consideration of $40,000, paid $15,000 in'cash, and gave notes and a mortgage for the Balance, three'of which, fór the sum of $5,000 each and interest at ten per cent., were still' outstanding and Belonged to defendant.

Action by husband and wife for a breach of the covenant of seizin in defendant’s deed to the wife. The complaint alleges the execution and delivery to the plaintiff, Mary Hilmert, of a deed of land, containing the usual covenants of seizin and warranty, and that at the time of its execution and delivery, the defendant was not seized of one third part of the premises, and demands judgment for the damages. Answer, a general denial.

This action was brought by tbe appellants as trustees of tbe Cbureb of St. Joseph in tbe town of Sharon in said county, to restrain tbe defendant from forcibly removing tbe church buildings and other temporalities of tbe church.

The complaint sets forth that the plaintiff is a railroad company, organized under the laws of this state, and engaged in operating a railroad from Milwaukee to Prairie du Chien; that it paid its state tax or license for the years 1868 and 1869, and in all things complied with the law ; that it owned the lots and premises in question; and that they were and constituted a part of its depot grounds adjoining its track; and that its tracks extend across said grounds; that the…

Action to recover the amount due upon a life policy issued by the defendant on the life of the plaintiff’s deceased son. The complaint, among other things, alleges the assignment of the policy to the plaintiff by her son on the day it was delivered to Mm, and tbe advancement by ber of all tbe money paid for premiums; wbicb are tbe only allegations denied by tbe answer.

Action upon a promisory note, dated September 21, 1867, executed by tbe defendants and payable to tbe order of S. P., in one year after date.

Action to recover tbe value of a warehouse and its contents, which had been destroyed by a fire alleged to have occurred through the negligence of the defendant. The plaintiffs were the owners of a warehouse standing upon the depot grounds of the defendant, at Helena, in the county of Iowa, adjoining to and south of the side tract of the railroad, which is south of the main track.

This action was brought by Morris D. Cutler against Edwin and Hiram HurTbut, to recover possession of certain real estate in Waukesha county, to which the plaintiff claimed title in fee. The defendant, Edwin HurTbut, answered, claiming title to the premises under a tax deed, and also averring that the plaintiff is not the true owner of the land or the real party in interest. The defendant, Hiram HurTbut, disclaimed any interest in the land except as tenant under Edwin.

Action by tbe two beirs of a deceased person to recover possession of tbe undivided one-balf of certain lands formerly owned by sucb deceased, with damages, and mesne profits. Tbe defendant claims title under an administrator’s sale and conveyance, and as mortgagee in possession under a mortgage executed by tbe deceased. Tbe pleadings, evidence and charges to tbe jury sufficiently appear in tbe opinion of tbe court.

Action on a promissory note, by a bolder, who claims to have purchased it for full value, before maturity.

The action below was commenced before a police justice of the city of Fond du Lac, to recover a penalty, under R. S., ch. 19, secs. 102 and 103, for an alleged encroachment upon a highway.

Action to charge the defendant as indorser of a promissory note made by one Coffeen and payable to defendant's order, of which the plaintiff claimed to be the lawful owner and holder. The complaint was in the usual form in such cases.

This action was commenced in June, 1866, to recover between 600 and 700 distinct articles of personal property, consisting of furniture, tools and materials, such as are commonly used about railroads, depots and machine shops. The complaint alleged title in the plaintiffs, possession by the defendant, a demand for its return, and defendants’ refusal to give it up, and demanded judgment for the property or its value, and for damages for its detention.

The action was commenced in January, 1867, and. was originally brought against Palmer, alone, but the Phoenix Lead Mining and Smelting Co.,, under whom Palmer held as tenant, was subsequently admitted as a party defendant on its own application.

Action by a mill-owner to recover damages alleged to have been sustained by him by reason of the defendant’s erecting a new dam to supply bis own mill, called the Cascade Mill, above on the same stream, with water, and thereby detaining the water, or letting it off in a manner different from its previous use.

This was an action against an insurance company incorporated by the state of New York, to recover the amount insured by it on a building which had been totally destroyed by fire, with twenty-five per cent, damages for its neglect to pay the insurance money within the time specified by the policy.

The respondent in September, 1868, presented a claim to the commissioners on the estate of her deceased brother for allow anee as follows, viz.: “ The Estate, etc., Db. “ To services as housekeeper for said F., from April, 1846, to October, 1855; and from September, 1857, to April, 1865— 17 at $100 $1,700 00 “ To money had and received to her use by said F., being percentage on collection on taxes in the town of Kosh-for the 1856. 180 00 “ To money borrowed ($3) in February,…

.APPEAL from tbe Circuit Court for Rode County. The plaintiffs commenced two actions against the defendant, one upon six and the otter upon three hills of exchange drawn on them by the defendant, which actions were, by order of the court and by consent of parties, consolidated and tried as one.

Action to recover damages for injuries sustained by tbe appellant by reason of defects in a bridge over Rock river in tbe town of Eulton.

Action to recover damages from tbe defendants for forcibly assaulting and arresting tbe plaintiff without warrant, and taking him before a justice of tbe peace, and bolding him in custody until discharged by such justice.

This was an action to recover back money wbicb plaintiff bad paid as accommodation indorser for defendant.

In an action under the mill-dam act, to recover damages for the flowage of lands caused by defendants’ dam, which-was tried at the .circuit court for Richland county, before the respondent as judge of the fifth circuit, the jury returned a verdict in favor of the relator for the gross sum of $800, as a just and reasonable compensation to him for all damages to be thereafter occasioned by the use of the defendants’ dam, and for the right to maintain and use the same forever.

S., as amended by chapter 147, laws of 1862, before a justice of-the peace of Winnebago county, and also by tbe county court of tbat county, on appeal; and bis motion to quasb tbe complaint, and bis subsequent motion in arrest of judgment, having both been overruled, be seeks bere to reverse tbe judgment of tbe latter court.

Action to quiet title to land. Tbe complaint, as a first cause of action, sets forth a mortgage from tbe defendants Simpson to tbe defendants Bogan, made in 1855 ; a suit commenced to foreclose it, wbicb went to judgment, was appealed, and settled pending tbe appeal, tbe first named defendants giving another mortgage tberefor, dated November 4, 1861, by wbicb they agreed to pay 1,600 bushels of wheat to the Ragans; that a suit was commenced to foreclose that mortgage, which…

The case sufficiently appears in the opinion of the court. contended that the railroad company had no right, without good cause shown, to discontinue the proceedings for the appraisal of damages instituted by it, after an appeal had been taken therefrom and the appellants had given notice of trial, and been at great trouble and expense to prepare; that to allow the company to do so after it had by the provisions of its charter acquired a vested right and interest in the…

Replevin, for logs cut and removed by defendants from plaintiffs unoccupied land. Tbe plaintiff attempted to prove title to tbe land through several conveyances, but did not trace it back-to any original source of title, nor show possession at any time in himself or any of bis grantors.

Croix county. Action by the holder of a tax deed to quiet the title to a large number of parcels of' land described therein. These lands were a portion of a large body of lands granted by congress to this state, 'to aid in the improvement of the navigation of the Fox and Wisconsin rivers.

Croix County. The plaintiff, as assignee of a judgment in favor of Lester Sexton and otters, brought this action in behalf of himself and other judgment creditors, who might choose to join, against B. Dore, P. Dwyer and B. Joyce, co-partners, under the firm name of Dore & Go., and P. Wetherby and J. M. Whaley, to set aside a deed, absolute in form, of a store and lot alleged to be partnership property, given by such co-partners to said Wetherby as security for a debt of the…

This action was brought against tbe county treasurer of tbe county of Dunn, tbe board of supervisors of that county, and tbe town of Menomonie, to restrain tbe sale of tbe plaintiff’s lands for taxes assessed tbereon in tbe town of Menomonie for tbe year 1870, and to have tbe assessment and proceedings to collect declared void and set aside, on tbe ground of fraudulent discrimination against tbe plaintiff, and over valuation of bis property by tbe assessor and tbe majority…

Action for tbe recovery of real estate situated in that county, to wbicb tbe plaintiff claims title in fee. Tbe defendants deny generally tbe allegations of tbe complaint, and claim title in themselves.

This action was brought to perpetually restrain tbe sale of certain lots in tbe city of Madison for certain special assessments to pay for a Nicholson pavement on and along tbe same.

Action against tbe town of Dane to recover tbe damages awarded to tbe plaintiff for tbe laying out of .a highway through bis land in said town.

CERTIFIED from tlie .Circuit Court for Outagamie County. Indictment for keeping a house of ill-fame. Exceptions were taken at the trial to the allowance of an amendment to the indictment by inserting the name of “ Henry ” instead of the initial “H”; to the admission of evidence as to.the character of the defendant; and to several of the instructions given to the jury.

MOTION to strike out the bill of exceptions. The defendant failed to serve a bill of exceptions within sixty days after notice of the judgment; but, upon satisfactory excuse shown, the court allowed the bill to be served and settled afterward.

This was an action by a mortgagor of chattels to recover them back from the holder of the mortgage, who had taken possession thereof after condition broken. Before commencing his suit, the plaintiff tendered to the defendant the sum of $45.00, as the amount then remaining due and unpaid on the mortgage.

MOTION to quash a writ of certiorari. Upon petition of the Milwaulcee Iron Company, setting forth the action of the board of review of the town of Hubbard in Dodge county, in relation to the assessment of the real estate of the company in that town, this court, in October, 1871, issued its common law writ of certiorari to iSchubel, the town clerk of that town, in the form stated in the opinion of the court.

MOTION to strikeout certain portions.of. defendants’ answer as sbam, false and immaterial. Action in tbe nature of quo warranto, to try tbe defendants’ right to exercise tbe exclusive franebise of manufacturing and furnisbing gas for lighting tbe city of Milwaukee, and laying pipes for that purpose under tbe streets.

Action of replevin, to recover a large quantity of pine lumber, wbicb tbe plaintiffs claim as general owners. The defendant justifies as sheriff, claiming tbe right to bold the property .by virtue of an execution against tbe same, and denies generally tbe allegations of tbe complaint.

Oroix County. Action for money had and received by the defendant from the town of Hudson, as bounty money,- for plaintiff's use; for money received by him for a horse sold for'plaintiff; and for work and labor done by plaintiff for defendant.- The defendant alleges that he has fully paid for the work and labor, and denies all the other allegations of the complaint.

Action by tbe patentee of certain swamp lands, to recover damages for trespasses committed tbereon previous to tbe date of Ms patent, brought under tbe provisions of chapter 520, Laws of 1865. The case sufficiently appears in the opinion of the court. From a judgment for the plaintiff the defendants appeal. Previous to the passage of chap. 520, Laws of 1865, the plaintiff’s'patent would not have been competent evidence in an action for a trespass committed prior to its date.

Action upon four warehouse receipts, executed by the defendant, in form as follows: “ Received in store from McLaren on account of bearer 54 bbls. mess pork, deliverable on return of this receipt and payment of storage,” which the plaintiffs allege that they received, in the usual course of business, as security for moneys advanced by them on the faith thereof to a third party, who obtained them for a valuable consideration.

Action of ejectment The case, so far as is necessary to a full understanding of the points raised, is stated in the opinion. as to what constitutes champerty or maintenance, cite 4 Black. Com.,. 134; Baclcus v. Byron, 4 Mich., 535, 538, 539; Lathrop v. Amherst BanJc, 9 Met., 489. 2.

This is an appeal from an order of the circuit court dissolving an injunction which had been previously granted to restrain the defendant from filling a ditch upon his own land, through which the water flows from the land of the plaintiff Mrs. Fryer.

This action is for a divorce, on tbe ground of cruel and inhuman treatment, and was commenced April 1st, 1869.

This action was brought before a justice of tbe peace to recover a quantity of oats, hay and wheat, which, with a greater quantity of each, had been seized by the defendant Howe, a constable, by virtue of a writ of attachment against the property of the plaintiff:, issued in due form of law, at the suit of the defendant Drury. The property is claimed to be exempt from seizure upon attachment or execution. The complaint is in the form prescribed by the statute.

Tbe plaintiff alleges, in bis complaint, that on tbe 7tb day of February, 1870, be bargained and sold to tbe defendants, eight hundred and fifty-frye and fifty-three-sixtieths bushels of wheat, at tbe agreed price of ten cents per bushel less than tbe Milwaukee price on any day thereafter which he, the said plaintiff, should name; and that, within a few days after the said 7th day of February, he delivered said wheat to the defendants, at their mill in the city of Berlin,…

This action was brought in 1865, to recover the rents due from November, 1852, to January 8, 1865, for water furnished the defendants from plaintiff’s water-power, under a lease or contract executed January 8, 1851, between the defendants and the plaintiff’s assignors.

. Action for the breach of a warranty on a sale of hams. The complaint alleges that about the 7th of November, 1868, at Milwaukee, the defendants undertook to furnish to plaintiffs “ cured and pickled hams,” of their own curing and packing, properly preserved and packed' for the mining region of Lake Superior; and to pack them properly for the voyage there, and to remain and keep sound and fit for use and sale a reasonable time;” that the hams furnished under such contract…

16 costs (the items of which are stated in the return of the justice), the circuit court modified the judgment by striking out certain items and parts of items of costs taxed against the defendant, and affirmed it as to the damages and the balance of the costs; and the defendant appeals to this court.

Action to. restrain proceedings for tbe collection of an assessment on plaintiff’s lots in tbe city of Osbbosb, to pay for a Nicholson pavement. Tbe city of Oshkosh,- and tbe county treasurer and' board of supervisors of Winnebago county, are joined as defendants witb William Sharp, one of tbe contractors wbo laid tbe pavement.

APPEALS from tbe Circuit Court for Winnebago County. Action for the foreclosure of a mortgage executed by James M. Hawkins and Abeline, his wife, to the plaintiff.

- • Action for personal injuries caused by tbe negligence of tbe defendants and tbeir servants. Tbe case, and tbe evidence and instructions toucbing tbe question of damages, are fully stated in tbe opinion' of 'tbe court. Yerdict for tbe plaintiff of $2,500 damages. A motion for a new trial on tbe ground that tbe verdict was contrary to law and tbe evidence, and tbe damages excessive, was overruled, and judgment entered against tbe defendants; from wbicb they appeal.

Action by Ferdinand Scheer and Albertine, bis wife, to recover damages for tbe alleged false imprisonment, by tbe defendant, of tbé plaintiff A Ibertine Scheer. Tbe defendant made complaint in writing on oath to a justice of tbe peace, charging therein that “ Sophia Sberr (alias') and Maria Hopf (aims)” at a time and place therein named, stole a quantity of -wool of a specified value, the same being the property of the defendant.

' The plaintiff having commenced an action, on a promissory note against one Patterson, before a justice of the peace, caused the defendant, the Railway Company, to be summoned as a garnishee. Tbe affidavit upon wbicb tbe summons to tbe garnishee was issued is in tbe form prescribed by tbe Bevised Statutes, cb. 120, sec. 113, as amended by Laws of 1871, cb. 161, sec. 1.

The complaint states that on the 21st of June, 1859, at Quincy, Illinois, the defendant bargained and sold, and agreed to deliver to the plaintiff, on or about that day, and at that place, 750,000 feet of good merchantable pine lumber, at an agreed price; that the plaintiff then and there paid the defendant for such lumber the agreed price; that the defendant only delivered 625,942 feet of lumber on such contract, leaving a deficiency of 124,058 feet; and that of the…

This action is to enjoin tbe Oity of Kenosha and tbe defendants Farr and JBeclcman, wbo are respectively tbe mayor and clerk of said city, from levying and assessing a certain tax upon tbe lots of tbe plaintiff situated therein.

<p>QUO WARRANTO to try tbe respondent’s title to tbe office of county clerk.</p>

Action to recover damages from tbe Express Company for tbe alleged non-delivery of a package of seven hundred dollars in currency, wbicb bad been delivered to that company by tbe Western Union Railroad Company, to be transported to Burlington, Wisconsin, for tbe plaintiff.

It appears that in the winter of 1867-8, one Green got out a quantity of pine logs on a tributary of Wolf river, and marked them “ N. hook. hack, cross, hack, which, for convenience, will be called the “ Green logs. He was engaged, in this work from December, 1867, to about the 18th of March, 1868. The plaintiff claims to have purchased these logs from one Godwin, who purchased them of Green íd June, 1868.

County. Action upon a promissory note payable to W. S. Coffman, or bearer. The plaintiff claimed as a purchaser in good faith and for value, before maturity.

Action to recover tbe possession of certain personal property alleged in tbe complaint to be wrongfully withheld by tbe defendant, under a pretended sale or transfer from tbe wife of tbe plaintiff, her authority to make it being denied by him. Answer a general denial. Tbe greater portion of tbe property was replevied and re- • turned to tbe plaintiff.

Action of replevin for a quantity of saw logs. Answer, a general denial. The defendants gave the necessary security and retained the property. The plaintiffs contracted with one Wood to cut a specified quantity of logs for them, on land in Waupaca county conveyed by him to them as security for advances, during the winter of 1868, and raft and deliver the same at Oshkosh.

Action for slander. The complaint charges the defendant with speaking the defamatory words in the German language, which, as translated, were: “You whore! you low whore ! you have enticed Mayer from his first wife by whoring.’’ No special damages were alleged.

Action upon a guaranty of the “ collection of one-half a note given by S. Park Coon,” the obligation to become void “if said note is collectible.” The complaint alleges that the plaintiff and the defendants jointly advanced $1,000 to Coon, on the security of his note and mortgage, due in May, 1865, the plaintiff furnishing one-half, and the defendants one-half the amount; that the defendants borrowed the amount advanced by them from a bank, giving their note for it, which he…

Action of replevin, to recover a one-story frame building, 14 by 20 feet in size, alleged to Lave been unjustly taken and detained by the defendant. The defendant denied the allegations of the complaint, and claimed title and right of possession in himself, and that the building was real property.

On tbe 8tb day of September, 1864, one Lyman F. Lent, a volunteer, was mustered into tbe military service of tbe United States, and was duly credited on tbe quota of Osbkosb, Winnebago county, but wbetber to tbe town or city of Osbkosb, does not very satisfactorily appear from bis muster-in roll.

This was an appeal from the appraisal by commissioners, of damages for certain lands of the present respondent, taken for the defendant company’s road. Notice of the appeal was served on Mr. Cotzhausen, as attorney for the company, but the records of the court show that it appeared and defended by Mann & Cotzhausen, as its attorneys. The appeal was noticed for trial at the January term of the court, 1871, and was called up on the 24th day of, February.