Volume 3 — Pinney's Wisconsin Reports

This was an action of ejectment brought b}r the defendant in error against the plaintiffs in error, to recover the possession of certain premises and the buildings erected thereon, consisting of a store and dwelling house.

The case showed that letters of administration were granted upon the estate of William H. Johnson, to the defendants in error, by the judge of probate of .Portage county, on the 27th day of November, 1848, on the petition of the defendants in error, and they became invested with that office. On the 19th day of March, 1849, the plaintiff in error perfected an appeal from the appointment aforesaid, to the circuit court for Portage county.

■ This was an action of slander brought ■ by the defendants in error against the plaintiff in error, for slanderous words spoken, and published of and to the plaintiff’s wife. On the trial below it appeared in evidence that the words charged in the declaration were spoken in the German language. The declaration set forth the words in English. It was proved that the words spoken by the defendant were understood by the persons who were present at the time they were uttered.

This was an action of assumpsit, originally commenced in a justice’s court in Columbia county, by the defendant in error. The declaration was founded upon the naked promise of the plaintiff in error, to the defendant in error, for certain board bills of various persons, to various amounts, due to him, but for which the plaintiff in error was not indebted, and including several bills against some of those persons, for horse keeping, etc., in the whole amounting to $27.03.

Rogers, the appellant, filed his bill in the court below against Cross, respondent, and others, to whom he had sold the premises in question, and to whom he had executed deeds of warranty and seizin ; and setting forth that his grantor was well seized of the premises in question; that appellant derived title to the lands in question by conveyances made to him ; but that a deed of a portion of the premises given to a former grantee had not been recorded; that the grantor in…

This was an action of debt, brought in the name of James II. Lockwood, late judge of probate for that county, who sued for the use of “the American Fur Company,” in his official capacity. The action was in debt, founded on a bond executed by Hmilie Hooe, one of the plaintiffs in error, and her sureties in a bond, given in her behalf as executrix of the estate of Joseph Rolette, the testator.

The plaintiff, Merrill, complained against the defendants, Geo.

Action of assumpsit on a promissory note a copy of which will be found in the opinion of the court. Trial by the court and judgment for the plaintiff for the amount of the note.

Oroix County. The plaintiff in error, Oshoga, an Indian of the Chippewa nation, was indicted and tried for the murder of Alexander Livingston, and was convicted and sentenced by the court.

Bracken brought ejectment against Jeremiah Bridge, George, Bridge and Donald Johnson, to recover certain real estate in G-reen county, and the place of trial was changed to Rock county. At the trial the plaintiff produced in evidence a patent from the United States to William Madden for the premises in question, and a conveyance from said Madden and his wife to himself of the same lands.

The case was that Fisher and Robinson filed their bill in equity against Otis and others to foreclose a mortgage executed by Otis and wife to James S. Wiggin, securing the payment of a promissory note, given by Otis to Wiggin, for $15,000, payable one year after date, with interest after due at the rate of twelve per cent., payable semi-annually 'at the city of Boston, Mass.

EBEOE to the Circuit Court for Grant County. The plaintiff in error, Keene, was indicted for manslaughter under the statutes of 1839, before the revised statutes of 1849 went into effect, and it was assigned for error that the court refused an instruction asked for by the counsel for the accused to the effect that the jury must find him guilty of manslaughter in the first degree, or not guilty.

The complainants, Aaron and Amos Putnam, filed their bill against the defendant, Hazelton, alleging that they owned a certain mill and water power used in running it, on certain premises therein described, and that they had expended $2,500 in building said mill and improving said privilege, the full and ■undisturbed enjoyment of which they had had from 1841 to 1844; that the water which propelled said mill was conducted in two races which joined before entering the flume,…

EEEOE to the Circuit Court for Dane County. Action of assumpsit 'brought by Albert Catlin against Moses M. Strong. The summons by which the action was commenced was not sealed with the seal of the court. It was served personally on the defendant.

Action of covenant for tbe recovery of rent upon a lease made by Larkin, the plaintiff, to the defendants, Kellogg and Webb, dated January 7, 1850, by which the plaintiff leased to the defendants a certain warehouse in the city of Milwaukee, for the purpose of the storage of wheat and no other, subject to certain restrictions therein contained, until the first of August next thereafter, and said plaintiff was not, during the continuance of the lease, for himself or in the…

EEEOE to the County Court for Rock County. This was an action of replevin brought in justice’s court by Gower against Inman, for the wrongful taking of four bogs. The property was taken by the officer by virtue of tbe writ, and a trial was had before the justice and a jury, and the verdict was that Gower was entitled to the hogs; that they were of the value of $15, and the damages for the wrongful taking of the property were assessed at six cents.

EBBOB to the Circuit Court for Iowa county. Ripley brought trespass against Sterling for taking and carrying away a quantity of goods and merchandise.

MANDAMUS against Hon. - Chas. Ii. Larrabee, judge of the third judicial circuit, setting forth that at a circuit court for the county of Washington, in which he was holding a term, an application was made by the counsel for the relator for the dismissal of a bill in chancery in which he, Kane, was one of the defendants, on the ground that no one appeared on the part of the complainants in the cause, when it was called on the calendar for hearing.

EEEOE to the County Court for Marquette County An action by attachment was commenced by the defendant Bowen, before the defendant Plaits, a justice of the peace of Marquette county, against Selby. The writ of attachment, issued by Platts as such justice, was not returned by the officer to whom it was delivered at the time it was made returnable.

EBBOB to the County Court for Fond du Lac County. Walter JET. Nichols brought an action of trespass, quare claus-um fregit, against John Nichols, who pleaded bj way of justification, title to the locus in quo in himself.

Eastman and others instituted a proceeding under the statute in relation to forcible entries and unlawful detainers against White, before a justice of the peace.

• Action of assumpsit brought by Bell against Hibbard and Smith, in justice’s court, on an account filed with the justice and the defendants pleaded non assumpsit, and the cause was adjourned. On the adjourned day, the plaintiff added the common counts in assumpsit and a special count against the defendants for two buffalo robes which they had received of the plaintiff as innkeeper, and which they refused to deliver.

<p>ERROR to tbe Circuit Court for Sheboygan County.</p> <p>Tbe case is fully stated in the opinion of the court.</p>

This was an action of slander brought by Conyne and his wife against Benaway for stating he had had criminal intercourse with Mrs. Conyne, one of the plaintiffs.

EEEOE to tbe County Court for Sauk County. Action on tbe case for flowing certain lands owned by the plaintiff through which there passed a running stream, by means of a mill dam erected thereon by the defendant. Plea not guilty. At the trial before the court without a jury, it appeared that about twenty-five acres of plaintiff’s lands were overflowed by means of the dam in question, and that the damages were from $25 to $500.

<p>1. Contract — Measure or Damages. — M. &'H. agreed to furnish S. for transportation from Milwaukee to Buffalo, during the first trip around of his line of steamers, 2,200 barrels of flour, and to pay for transporting the same thirty-five cents per barrel; S. was ready and offered to perform his part of the contract at the proper time, but M. <& H. refused to furnish the said flour for transportation by the steamboat America, which had a very light freight on her first trip down: Held, that the contract was not in the nature of a charter party, but as a contract to furnish a given amount of freight for a particular trip at a stipulated price, and that the proper measure of damages for breach of the contract was the contract price of the freight, thirty-five cents per barrel.</p> <p>2. Same. — The amount of damages in such case, or where in the case of a charter party it is sought to recover for dead freight, damages for the breach of contract, may be reduced or mitigated by showing that other freight was or might have been procured.</p>

This was an action of assumpsit brought in justice’s court by Hodson against Carter to recover damages for the nondelivery of four hundred bushels of barley, as specified in the written agreement set out in the opinion of this court, and the plaintiff had judgment for damages, from which the defendant appealed to the circuit court.

Wiersom brought an action of assumpsit against Zonne, alleging that the defendant claimed to be the- owner of a certain tract of land, with the crops thereon, which the plaintiff purchased of him for $350 ; that the defendant at the time aforesaid was not the owner thereof, but that the title thereto was vested in the United States, and the”declaration also contained the common money counts.

Action of. assumpsit brought by Stowell against Mann for the value of a wagon. The defendant pleaded the general issue, and under this plea, gave evidence to prove that the wagon was paid for at the time of the purchase by delivering to the plaintiff the note of one Langley.

<p>ERROR to the County Court of Milwaulcee County.</p> <p>The case is stated in the opinion of the court.</p>

The appellant Drhlce commenced an action of ejectment against Ciarle to recover the premises in controversy, and thereupon he brought his bill in equity against Dralce for an injunction against the suit at law, and for relief upon grounds which are sufficiently stated in the opinion of the court. Drake demurred to the bill for want of equity, and from an order overruling his demurrer, he took this appeal. 1.

<p>Pbacticb — Filins Papers. — Though a plea is deposited with the clerk, it will not, under rule 2, art. 2 of rules of practice, he considered in the case unless marked “ filed ” hy the clerk; and the defendant declining to put in any further plea: Held, that judgment against him hy default was regular.</p>

The complainant, Pratt, filed his hill November 14, 1846, stating in substance, among other things, that at and prior to the land sale in the Milwaukee land district in October, 1839, one Isaac C. Owen was in possession of the east half of section 33, town 6, range 19, then being United States land, in Milwaukee county; that Owen had made improvements on it, and wanted to purchase it of government at the sale, but had not the money to make the purchase; and that he applied…

Action on the case brought by Codner against the town of Bradford to recover damages sustained by reason of the insufficiency of a bridge in that town over a creek; he having attempted to pass over it in a careful manner, the bridge broke down and his team was precipitated into the gulf below and one of his oxen was killed and his wagon broken, etc. After proving the insufficient and unsafe condition of the bridge at the time the injury occurred, and for a considerable time…

Action of covenant upon a lease made by Blossom to the plaintiff Knox, by which the former leased to the latter certain premises in the city of Milwaukee for the term of five years, at $200 per annum.

This was an action of replevin brought by Henry Oorwith against one Palmer, to recover two horses and harness and two wagons, alleged to have been by Palmer unjustly taken and detained from the plaintiff.

Samuel A. & John H. Martin sued John Martin for work and labor in threshing wheat, claiming $6.25. The defendant pleaded the general issue, and gave notice of setoff to the amount of $7.50. The justice rendered judgment against the plaintiffs for the reason that they did not aver and had not proved that they were partners. They removed the case to the county court by certiorari, where the judgment of the justice was affirmed, and thereupon brought a writ of error.

<p>ERROR to tbe Circuit Court for Green County.</p> <p>The case is stated in tbe opinion of tbe court.</p>

EBROR to the County Court of Walworth County. Meacham brought an action of assumpsit against Geo. Batch-elder., Amplias Ghamberlain and Henry Bradley, upon an order drawn on them in favor of the plaintiff by one Lewis, which is set out in the opinion of the court. The material facts are contained in the opinion of the court.

Streeter brought an action of trespass against Frank and Allen for taking and carrying certain of his goods and chattels, and the defendants pleaded the general issue ; Allen giving notice that he took the property in question as a constable by virtue of a writ of execution, in an action of re-plevin between Streeter and Frank, which commanded him to take the same and deliver it to said Frank.

This was an action of ejectment brought against Rosalip & Thiers for certain lands in Grant County by Caroline V. Atchi-son, John 8. Atchison and Charles B. Atchison, claiming as heirs at law of John Atchison, deceased, in whom it was proved that the legal title was vested March 10, 1848.

Kennedy brought an action of replevin' against Baker & Haselton for certain of bis goods and chattels, and they justified the seizure and detention for that they were seized and held under process of law to satisfy a debt due from Kennedy to Baker, and that Haselton was an officer having such process to execute and duly authorized to execute it.

Kitson brought an action on tbe case against Kail, alleging that he, the plaintiff, before and at the time, etc., was and still is seized of certain premises with the appurtenances, situated on the Menomonee river, a public navigable river; that the defendant had placed and raised a dam across the same, below the plaintiff’s premises, and had for a long time kept and maintained the same, “ whereby the said plaintiff was, and still is, obstructed, hindered and prevented from…

EEEOE to the County Court of Marquette County. An action of assumpsit was brought by Rector against Drury in justice’s court, on a note or agreement given by the latter to tbe former for tbe delivery of fifty-one bushels of corn at Drury's barn on demand; tbe corn having been demanded and delivery refused.

<p>1. Contract — UNCERTAINTY in.— Where one party contracted with another in writing to put two water wheels, each to drive one run of stone, in the flouring mill of the other, and to “ warrant the same with two hundred inches of water to each wheel, to grind fifteen bushels per hour; ” for $500. Reid, that such contract was too indefinite and uncertain to admit of interpretation as a matter of law, it being impossible to say whether the terms of the contract required one or both wheels to grind 15 bushels an hour, and that the ambiguity, being a patent one, could not be aided by parol proof.</p> <p>2. Same.— Where a contract for doing certain work is void for uncertain- . ty, the party rendering service under it may recover as on a quantum, meruit.</p>

Action on tbe case before a justice of tbe peace, and tbe plaintiff bad a verdict and judgment for one hundred dollars, and costs. Tbe defendants appealed to the county court for Sauk county, and upon trial a verdict was found for the defendants, which was set aside and a new trial granted.

Keeler brought an action on the case against Woodward, a justice of the peace, alleging in substance that the defendant as such justice rendered a judgment against the plaintiff and in favor of one Wilkins ; that on the same day the plaintiff proposed to Wilkins to set off against such judgment one which he had obtained against said Wilkins befor’e another justice, and tendered a transcript thereof; that by the consent and agreement of Wilkins and the plaintiff a time was…

This was an action for the recovery of the price of a yoke of oxen claimed to have been sold by Wood to Hall, and in reference to which the defendant Hall claimed that they were sold by Wood, the plaintiff, to one Bullard; and that the alleged promise of Hall to pay for them was void under the statute of frauds, as being a promise to answer for the debt of Bullard.

Action of debt by StoJces against Brown on a sealed note given March 16, 1837, by the latter to the former. The defendant pleaded nil debit and infancy at the time of giving the note, and to the latter plea the plaintiff replied ratification and confirmation of the contract after the defendant became of age, which was June 3, 1837. The evidence to support the alleged confirmation is stated in the opinion of the court.

A suit was commenced, by Cowles and Bass against James Holden and De Witt Holden, by attachment, and process of garnishment was issued against James Kneeland, William Brown and Milton K Lyman-, composing the firm of James Kneeland & Co., and served with a copy of the attachment, requiring them to appear in court on the return day of the attachment, the first Monday in February, 1850, and answer, etc. The plaintiffs obtained judgment against the defendants in the attachment…

<p>EEEOE to the Circuit Court for Rock County.</p> <p>The case is stated in the opinion of the court.</p>

This was an action of assumpsit against The Board of Supervisors of Crawford County for services rendered by Le Clerc, the plaintiff, as an interpreter for parties litigant in that court and in the circuit court for that county, claiming in all the sum of $230.

<p>Payment.— A verbal agreement between the vendor and purchaser of real estate, that the latter shall pay the balance due the former therefor by paying the same to a creditor of tha vendor, and the money is paid accordingly, with the assent of the parties, it is a valid payment to the use of the vendor of the balance due on the contract.</p>

Action of replevin before a justice of the peace. The writ was executed and the persons called, by the officer executing it, to ascertain its value, certified the value of the property to be sixty dollars, exceeding the jurisdiction of the justice, and so the officer returned; whereupon the justice certified the case to the late district court.

Appeal by tbe defendant in error Eble, from tbe award of commissioners appointed to ascertain tbe value of tbe lands taken by The Milwaukee & Mississippi Railroad Company for tbe track of its road located across the lands of the defendant in error, and for tbe damages which he bad sustained by reason of the taking of the same.

Hanson Rand filed bis verified complaint under sec. 4, ch. 116, R. S-, against the boat called “The Barge” for $277.33, for work and labor done and materials furnished by him in the building and fitting it out and upon the account of the Pey-tona Steamboat Company: and pursuant to the statute a warrant was issued and the boat seized.

Hiles brought an action of replevin against McFarland and Kingsbury for certain goods and chattels, the writ having been made returnable at the September term, 1850. It was returned to the clerk’s office before term, July 27,1850, with an indorsement by the sheriff that he had replevied the property in question ; but that the defendants were not to be found, and had no place of residence in his county.

The plaintiff in error was indicted for larceny, and was convicted and sentenced, after which he sued out a writ of error upon grounds stated in the opinion of the court.

Indictment for arson. The questions involved are stated in the opinion of the court, and were certified up pursuant to the statute. The indictment cannot now be found, and so it is impossible to present the case more distinctly than in the opinion.

Action of debt brought by Owens against Kelty for the recovery of various matters of account and-for services rendered, and amongst other things, for two hundred and twelve fence rails at five dollars per hundred. The defendant pleaded nil debit and setoff.

Indictment for assault with intent to maim and disfigure, under secs. 81 and 32, ch. 133 R. S., and the third count charged that Joseph R. Moore, the accused, on etc., at etc., “ with force and arms in and upon the body of Margaret D. Moore, then and there being, did make an assault, and the said Joseph R. Moore, in and upon the private parts of her, the said Margaret D. Moore, then and there feloniously, unlawfully and maliciously did insert the hand and fingers of him the…

The complainants, Lewis Prentice and Catharine Prentice, his wife (formerly Catharine Yáughan), filed their bill against Madden, Moore, DeSeelhorst and others, stating in substance, that in the year 1837 a copartnership was entered into by the defendants for the ostensible object of purchasing a site for building a town on the Mississippi, in Wisconsin, called the Louisiana Company, and they appointed Madden one of the appellees, agent, to purchase, hold and convey real…

Action for false imprisonment brought by Pomeroy against Crocker, Turner and Parker.

<p>1. Appeal. — The amount of the recovery in justice’s court exclusive of costs is the test by which to determine whether the remedy of the defeated party is by appeal or certiorari, and in no case can a party resort to either at his election.</p> <p>2. Same — Replevin.— In an action of replevin, the amount of the recovery which is to determine whether it can be reviewed by appeal or certiorari is the value of the property and the damages found, if any, exclusive of costs. Inman v. Gower, ante, 152.</p>

Frank brought an action of replevin against Streeter for the wrongful taking and detention of certain personal property, and Streeter who was a constable, justified such taking and detention under an execution issued on a judgment rendered in justice’s court against Frank and in favor of one Cole, and in his hands as such officer.

Assumpsit on a promissory note, against the makers, Edwin and Charles Bicknell, by Tallman as indorsee thereof. After the defendant had pleaded the general issue, upon petition alleging as ground therefor, that the judge of the county court ■was prejudiced against them, etc., they applied to a court com missioner for an order transferring the cause to the circuit court of the same county for trial.

<p>1. Divorce. — Jurisdiction.— The circuit courts of this state have jurisdiction.under the revised statutes, to make decrees divorcing parties from the bonds of matrimony, although the guilty party has never resided in this state, and although the acts constituting the cause for divorce were committed within a foreign jurisdiction. HuVbell v. JTubbell, 3 Wis., 662; Gleason ®. Gleason, 4 id., 64; Shafer ». Bushnell, 24 id., 372.</p>

APPLICATIONS for writs of peremptory mandamus against Leonard J. Farwell, governor.

Mallory brought an action of assumpsit against Lyman and Grant as guarantors of the following contract: “ $135. For value received, I promise to pay Hiram Mallory, or bearer, one hundred and thirty-five dollars, in good merchantable pine boards, on or before the first day of June next, with interest. FRED. R. Curtis. “Chicago,Dec. 24, 1847.

Ford was convicted, before a justice of the peace, of larceny, and appealed to the circuit court, where he was tried and found guilty. He moved in arrest of judgment upon grounds stated in the opinion of the court, but the motion was overruled, and be having been sentenced, brought this writ of error

EBBOE to the County Court for Oreen- County. Assumpsit brought by Brown against Ten Eyck on a guaranty indorsed on a promissory note given by one Sabin payable to one May or bearer, as follows: “In consideration of one dollar received, I hereby guaranty tbe payment of tbe within note.

<p>1. Mortgage — Transfer. —A mortgage is a mere incident to the debt and whenever the debt is assigned, it carries with it the mortgage.</p> <p>2. Same. —A negotiable note secured by mortgage transferred to a bona fide holder before due, carries the security by mortgage with it, so as to preclude a defense that would have been good as against the mortgagee. Fisher v. Otis, and note, ante, 78.</p>

EEEOE to the County Court for Milwaukee County. Eeplevin in the deiinet, brought by Caroline Sleusher against Philips & Williams, who pleaded the general issue with notice that they would prove that they were executors of the last will- and testament of one Graham, deceased, duly qualified as such before the commencement of the suit; that the will had been admitted to probate, and letters testamentary granted to them, and that the goods and chattels in question were a part-…

Assumpsit brought by Woods, Jennings and Dunston against Bulger, Daley & Delaney. The first count of the declaration was upon a special contract in substance as stated in the opinion of the court, and to this were added the common counts in indebitatus assumpsit. The defendants pleaded the general issue to the common counts and demurred to the special count. Their demurrer was overruled, and as to this count, the defendants stood on the demurrer.

<p>ERROR to the Circuit Court for Rock County.</p> <p>The case is stated in the opinion of tbe court.</p> <p>cited 2 Hill, 603; 7 id., 388; 1 Bibb, 595; 2 Muni, 344; 3 Mon., 405; 10 Ala., 330; 1 Barb., 165; 2 Chitty’s Plead., 38; Whiting v. Sullivan, 7 Mass., 107; Worthen v. Stevens, 4 id., 449 ; 2 Denio, 145 ; 13 Wend., 287 ; 1 Chitty’s Plead., 329, 339, 340; 1 Saund., 33 ; 21 Pick., 318.</p> <p>cited 22 Wend., 576-585; 7 Yt., 223; Laws on Plead., 5; 5 Ohio, 349 ; 10 Mass., 287; 7 id., 329; 1 Chitty’s Plead., 346; 5 Barn. & C., 628; 6 id., 385 ; 4 Barn. & Aid., 268.</p>

Gould & Sparr brought an action of assumpsit in the county court for Portage county against Du Bay, and declared for the sum of $1,500, the price and value of logs delivered by them to the defendant, in said county. The defendant moved the court to dismiss the action for want of jurisdiction, the sum claimed therein exceeding the sum of five hundred dollars, but the court overruled the motion, and the defendant pleaded the general issue.