Volume 3 — Wisconsin Reports

On the 27th day of May, A. D. 1854, in vacation, the petitioner, Sherman M. Booth/ made application to Mr. Justice Smith, of the Supreme Court, for a writ of Habeas Corpus, and to be… Held: commencing the 15th day of May, at either of which times the petitioner might have presented his application, and obtained the opinion and judgment of the whole court; and I am at a loss to conceive the motive which may have induced him or Ins advisers to forego such opportunities.

This was an. application made on tlie 21st day of ■ July*-1854, to tlie Supreme Court in term time for a writ of Habeas Corpus. The petitioner sets forth that he is restrained of his liberty, and imprisoned in the county jail of Milwaukee county ¡by S. V. K. Ableman, United States ■marshal ; rad that he is not committed or detained by virtue • >“ my process, judgment or decree specified in the ..•■mnd section of chapter 124 of the Ilev. Slat of this State.

[These two applications are the same in all respects, and were made to the court January 26,1855, during the December Term, and were then heard and determined.

This was an action of assumpsit brought in the Rock County Court to recover eight equal monthly payments with interest thereon, upon an alleged subscription of five shares of one hundred dollars each to the capital stock of the Milwaukee & Mississippi Railroad Company, payable in eighteen equal monthly payments, commencing on the first day of September, 1852.

This was an action of trover, commenced by the defendants in error against the plaintiffs in error, for the conversion of certain goods specified in the plain-declaration. The issue joined between the parties came on to be tried by a jury at the September Term, 18oB.

This suit was commenced by the defendant in error against the plaintiff in error, before a justice of the peace of Walworth county. The plaintiff declared in assumpsit upon a promissory note and book account. The defendant pleaded the general issue and gave notice of set off, and also filed bill of particulars.

<p>ERROR TO THE COUNTY COURT OP ROOK COUNTY.</p> <p>An. ordinance by law or regulation, passed by the city of Janesville, and signed by the Mayor, and1 twenty days alter its passago published in the official paper, and the foreman or publisher of said paper at any time within fifteen days after the said publication, making proof by affidavit of such publication, is a compliance with the charter; and the clerk is authorized to record the ordinance by law or regulation so passed and published, and the same will be valid.</p> <p>The resolution of the Common Council of the city of Janesville, adopted Oct. 15, 1853, and approved by the Mayor, which empowers the marshal to provide a city pound, was a sufficient exercise of the power vested in the Common Council, by the second section of ordinance No. 1, passed May 2,1853,</p>

This was an action of debt, commenced by the plaintiff in error against the defendant in error, in the Circuit Court of Rock county. The declaration contained five counts. The first was a special count, predicated upon several agreements to submit submission and award. The second, was a common count in debt on award. Third, for money laid out ¿sc. Fourth, upon an account stated, and fifth a count for interest.

This case comes here by writ of error to the Green Circuit Court on a judgment rendered therein, in a case originally commenced before a justice of the peace.

This was an action of trespass brought by the de fendant in error against the plaintiffs in error before a justice of the peace of Green county.

This was a bill of foreclosure filed in the Circuit Court of Rock county, August 3,1852, of a mortgage on certain lands in Rock county, made by Beck and wife to one Chas. H. Dudley, on the 20th Aug. 1851, to secure the payment of a promissory note of the same date for $110, with twelve percent, interest per annum, within nine months after the date thereof; which mortgage was duly assigned to the complainant.

This was an action of debt brought by the defendant in error against the plaintiff in error, originally before a justice of the peace of Milwaukee county, to recover the penalty prescribed by the statute for taking illegal toll. The justice gave judgment in favor of the plaintiff below, for the penalty, with cos^s 5 from which the defendant below appealed to the County Court. In the County Court, the defendant obtained leave and filed a general issue, nihil debet.

Cecil sued Barber before a justice of the peace in Dane county, and obtained judgment for $1,72 damages, and $5,50 costs. Barber applied for and obtained a writ of certiorari, setting out in Iris affidavit therefor, the proceedings before the j ustice, &c. Judg-naent was rendered June 11, 1853, and the' certiorari issued on the 24th day of June, 1853.

It appears from tlie bill of exceptions that a writ of attachment was issued out of the Milwaukee County Court, on the 11th day of May 1853, at the suit of William Pawlette against John Davis. The sheriff' made return to the writ that he could, not attach and get possession of any property of the said John Davis, but that he had garnisheed the said Richard Gf. Owens and Rebecca Davis.

This was an action of assumpsit commenced by the defendant in error against the plaintiff in error before a justice of the peace. Judgment was rendered in favor of the plaintiff below for the sum of 176.15 damages, and costs. From this judgment, rendered October 25th, 1851, the defendant below appealed to the County Court.

This was an action commenced before a justice of the peace for Dane County against the defendant in error, to recover for alleged services as town clerk, and also for medical services, where the plaintiff recovered judgment for $26.00 and costs, on the 10th day of August, 1853.

<p>The facts in this case fully appear in the opinion of the court.</p>

The facts in this case, so far as they are necessary for the appreciation of the opinion of the court, are contained therein.

This was an action of assumpsit for work and labor, brought by the defendant in error against the plain tiffs in error, in the County Court of Jefferson county. The declaration was in common counts; plea, the general issue. Tile case liad been twice tried in the $ County Court, and once before brought before the Supreme Court. On the trial below, numerous exceptions were taken to the rulings of the judge, both as to the admission of evidence, and his instructions to the jury.

The plaintiff in error commenced a suit against the defendant in error before a justice of the peace of Sauk county, for the amount due from the defendant in error, as their proportion of the value of the school house and other property justly due to the plaintiff on f°1‘mat1on of district No. 2 by the town super-of the town of Prairie du Sac.

This was a proceeding under chapter ten of the Revised Statutes, allowing an appeal from the decision of the County Board of Supervisors to the Circuit Court of the same county.

<p>ERROR TO THE COLUMBIA COUNTY COURT.</p> <p>When a deposition, is taken under the provision of the statute, the parties may and ought to make all their objections to the testimony of the witness, and have them noted by the officer, when this is done these objections become ,as available as though the witness were upon oral examination at the trial.</p> <p>'Objections taken to the testimony of a witness, at the taking of his deposition must be renewed when the deposition is offered in evidence, so that the court may exclude whatever is improper; but if the whole deposition is permitted to be read without question, the party will be deemed to have waived his ob„ jections noted at the taking.</p> <p>A contract or agreement made on Sunday will not be enforced in a court of law.</p>

The appellant in this case filed his bill in the Circuit Court of the county of Dane, on the chancery side thereof, on the 6th day of June, A, D. 1851, for the foreclosure of a mortgage, executed by the said defendants to the said complainant on the 16th day of September, A. D. 1848, to secure the performance on the part of the said defendant, Geo.

This was an action of trover, originally commenced by the defendant in error, before a justice of the peace, against the plaintiff in error, by warrant issued upon the following affidavit: “ Columbia Cownty, Town of Leeds, State of Wisconsin. “ Otis B. Scott deposeth and says, that Hiram K Wheeler did on the 28th day of February, A. D. 1853, sell the said Scott a yoke of red oxen with white faces, four years old this spring, also a yoke, staple and ring and bows, and a black…

This is a bill filed by the complainants, to remove the defendant Beall, as trustee under an assignment executed by Charles Geisse to said Beall, in trust for the benefit of the creditors of the said Charles Geisse, for an account, injunction and other relief. The bill was filed by William Geisse, Edward C. Geisse, Herman C. Geisse and. Theodore Geisse, partners under the name of Wm.

This was ail action of trover commenced before a justice of the peace, by the plaintiff in error, against the defendant in error. The plaintiff obtained judgment and the defendant attempted to appeal to the County Court. The affidavit for appeal states that the “application for appeal is made in good faith and not for the purpose of delay.

<p>ERROR TO THE WINNEBAGO COUNTY COURT.</p> <p>A verdict of no cause of action in replevin is not in conformity with the requisitions o the Statute, and no judgment can he rendered thereon.</p> <p>The plea of “not guilty” to a declaration or complaint in the cepü and deiinet puts in issue both the right of the plaintiff to the possession of the property, and the wrongful taking and detention thereof by the defendant.</p> <p>In all actions of Replevin before a justice upon the general issue, the verdict must show a finding of the value of the property and of the title or right of possession.</p> <p>A motion for a new trial is addressed to the sound legal discretion of the court> and it is only in cases of manifest abuse of such discretion that the supreme court will interfere, but when the verdict is so defective that a proper judgment cannot be rendered thereon, it is the duty of the court to set it aside, and order a venire de novo.</p> <p>See. 5, of Chap. 36, of the Revised Statutes gives a lien upon an estray to the taker up xor his lawful charges, upon his compliance with the requirements of the Statute.</p>

<p>ERROR TO THE POSH DTJ LAO CIRCUIT COURT.</p> <p>Proof that property was “taken on [an attachment issued on an indebtedness which accrued the day of ” is no justification for the taking without showing the official character of the person serving the writ, and tlio court or magistrate from which it issued.</p> <p>A sheriff or other officer is not authorized to serve a writ of attachment on property unless the affidavit be made, which is provided by chapter 112, § 2 of the Revised Statutes, and annexed to the writ.</p>

TMs case comes liere by writ of error to the Circuit Court of Fond du Lac county. The declaration contained three counts.

This suit was brought by the defendant in error against the plaintiffs in error. The declaration was upon a recognizance, to which the defendant demurred. After the demurrer had been argued and submitted, the judge remarked that he knew not how he could render judgment for the plaintiff, for the want of any evidence before him of the amount due on the recognizance mentioned in the declaration.

This was an action brought by the plaintiff in error against the defendant in error, in an action on the case, for mal-practice as a physician and surgeon.

This was an action of trespass for assault and battery, commenced by the defendant in error against the plaintiff in error, in the Circuit Court of Fond du Lac County, from which the venue was changed to Sheboygan County. The declaration was in the usual form. Plea, general issue, with notice of justification-The cause was tried at the March Term, 1852, of the Sheboygan circuit, where the plaintiff below had verdict and judgment.

The bill was filed on the 12th day of September, A. D. 1853. It is a mortgage foreclosure bill, upon land in Fond du Lac County.

The appellee hied his bill in the Racine Circuit Court for the foreclosure of a mortgage executed by the appellant Truesdell, to A. Hyatt Smith, and assigned by said Smith to the appellee Tallman.

On the 16th day of November 1852, Brayton sued Chase by summons in an' action of trespass on the case upon promises in the Columbia County Court. The writ was returnable to the Feb. Term 1853, and such proceedings were subsequently had, that at the November Term 1853, the cause was tried, and the plaintiff nonsuited. The declaration contained two special counts and one common count. Plea the general issue.

This was a special action on the case brought in the Circuit Court for Washington county by Grotthelf Voegtlander, plaintiff, against Henry Thien, defendant, to recover damages for the flooding of plaintiff’s land by a mill dam constructed and maintained by the defendant in and upon the Milwaukee river in said county.

On the 29th day of August, 1843, the complainant, Jane F; Eolette (now Jane F. Dousman,) filedher bill of complaint in the District Court of the United States of the Territory of Wisconsin, in Crawford county, against Emilie Hooe and others, the purpose and nature of which, together with the proceedings thereon, and the determination thereof in said court will appear by the petition hereinafter set forth. • The cause proceeded to a final decree, after which a petition for…

This is an appeal by the appellants severally from the decision of the Circuit Court of Columbia county, on an appeal taken to that court from the dicision of the register of the State land office, touching the right of several claimants to enter the south west quarter of section five, in town twelve north, of range nine east, At the .time of the passage of the act of Congress which was approved Aug. 8, 1846, by which the lands aforesaid were granted to the State, a greater…

On the 4th-day of November, 1853, John W.Free-love filed Lis petition in the Racine Circuit Court, for a re-hearing in a ■ certain canse in the late District Court in the territory of Wisconsin, for said county, in chancery, between Hillard 3. Hurlburd and Obid Hurlburd, plaintiffs, and John W.Freelove, defendant. At the April term of said Circuit Court, 1854, the said Hillard 3.

Tlie bill sets forth that on or about the 15th day of May, 1846, the complainant entered at the United States Land Office, at Green Bay, subject to any va. lid right of pre-emption, the south-west quarter and the south-west quarter of the north-east quarter of section twenty-one, town sixteen, north of range twelve east, containing two hundred acres of land, for which he paid into said land office the sum of two hundred alu] fifty dollars, and at the time of the payment of…

This suit was brought on a contract of affreightment, by declaration served and filed, by Denton, plaintiff below, against Bradley and Cutler, defendants below.

From this judgment the plaintiff in error appealed to the County Court. After the return of the justice, at the term of said court, the counsel for the defendants in error moved the court to dismiss the appeal, for the reason that the sureties in the appeal bond did not justify their responsibility, and were not by the defendants in error or their attorney

John J. Orton, the complainant in the court below, filed his bill of complaint in this cause, against David Knab, in the usual^form of a bill for specific performance, setting forth-in substance, that David Knab, on the 22d day of July, 1848, executed to one Tertullus D. Butler, his certain bond, conditioned to convey to said Butler, his heirs, cfee., a certain tract of land, described as lots 7 and 8 in section 9, town A range 22, except three acres theretofore sold, (said…

This was an action of trespass on the case, for flow ing lands by means of a mill dam. The action was commenced in the Circuit Court of Sauk county, by the plaintiff in error against the defendant in error. The declaration consisted of four counts.

This suit was in trespass, lie bonis asportatis, commenced by the defendant in error against the plaintiff in error. Held: under the statute, that the execution must be regarded as genuine. In respect to damages, in case you find the plaintiff entitled to recover,' it should be, 1st, the actual cash value of the property when and where it was taken; also such sum as will cover the injury the plaintiff Brunette has sustained by the wrongful taking.

This was a writ of common law^certiorari directed to the judge of the Circuit Court of Rock county, requiring him to certify’certain proceedings before him, wherein it was alleged certain errors had been committed in relation to the taxation of costs, The petition for the writ sets forth that on the 29th day of May, A. D. 1850, Dykeman recovered a judgment for the sum of $100, against Bndd, before a justice of the peace of Rock county, from which the defendant appealed to…

This was an action of trespass, commenced in'the Dane County Court, by the defendant in error against the plaintiff in error, and urns sent to the Circuit Court of said county, upon application of the defendant below.

This was an action of assumpsit brought before a justice of the peace of Kenosha county, by attachment, by the defendant in error against the plaintiff in error. The declaration was in the following words,: “ Plaintiff declares in assumpsit for goods had and received by the defendant to the plaintiff’s use, to plaintiff’s damage one hundred dollars.” A bill of items was also filed.

Tiie material facts in this case are set forth in the opinion of the court • sufficiently to appreciate the points decided thereby.

. This cause comes here by appeal from the decree of the Circuit Court of Hock county. The facts are sufficiently stated in the opinion of the court. 1. “ The courts have jurisdiction to dissolve the marriage contract, although the defendant may never have been a resident of this State.” 2. “ Courts have jurisdiction to grant divorces, the cause for which arose in another State.”

The appellee filed his bill in the Circuit Court of Milwaukee county, July 28, 1851, against William L. Pickering, Charles A. Spring and George Mixter, defendants, setting forth in substance, that on June 2o, 1836, he, the said Fullerton, being the owner of an undivided moiety of the southwest quarter of section seventeen, of town number seven, north of range number twenty-two east, in Milwaukee county, Wisconsin, sold the same to said defendants, in consideration of certain…

This was an action of asssumpsit, commenced in the Circuit Court of Sauk county, on the guarantee of a promissory note, of which the following is a copy: “For value received on or before the first .day of November, one thousand eight hundred and fifty-two, I promise to pay Philarman Pratt or bearer, eleven hundred dollars ; and if not paid on or before the first day of June, one thousand eight hundred and fifty: two, the said sum is to bear twelve per cent, interest from…

The bill, answers, and proofs in this case were quite volumnious, but for all the purposes of the report of ' the case it will be sufficient to state a brief abstract.

This was an action of trespass on the case for slander, brought fyy the plaintiff in error, in the Circuit Court for Waushara county. The declaration contained two counts, the second of which is substantially as follows : that the said defendant did falsely and maliciously speak, publish and declare false and scandalous words of and concerning the plaintiff’ to wit: “ He (the said plaintiff meaning) killed a man in Ireland.

This was an action of trespass brought by Peck against Norton, before a justice of the peace of Racine county. The cause was certified to the County Court, on a plea of title.

This was an action of assumpsit, tried in the Circuit Court of Milwaukee county, brought by the plain, tiffs in error against the defendant in error as endorsor of two promissory notes for $250 each. The defendant pleaded the general issue, and in addition set up the defence of usury.

<p>CERTIORARI TO A JUSTICE OP THE PEACE OP GREEN COUNTY.</p> <p>By the 6th subdivision of section 11, of chapter 88, of the Revisad Statutes, the justice of the peace is required to enter in his docket every adjournment, stating at whose request, cmd to wliat time and place.</p> <p>By the several provisions of the statute, it is necessary that a particular hour of the day shall he designated for the appearance of the parties, as well upon adjournments, as upon the day mentioned iu the summons, as also for the attendance of witnesses and jurors, whether upon the return day of tho writ or upon an adjourned day.</p> <p>It is necessary'that the justice designate tho place where parties, witnesses and jurors are to appeal’, both by the writ requiring their appearauce, and by the entry of adjournment, when and where they are required to attend.</p> <p>The place may he designated by the “ office” of the justice, if he keep an office; if he keep no office, his place of residence may he regarded as his 11 office;" if he have no fixed residence as that-of a house-holder, the place must be suffi-cieutly designated.</p> <p>When the defendant asks for an adjournment without first requiring the issue to he made-up, he will not be permitted afterwards to objeet to such adjournment as error, on the ground that the issue was not complete, but will he deemed to have waived his rights in that behalf. It is better, however, that in all cases, issue he joined before adjournment, unless it be expressly waived.</p> <p>The issue before a justice need not be framed with technical precision; but the plaintiff may and should be required, either to declare in writing, or to make a brief verbal statement of his cause of action, and such statement should be entered on the docket.</p> <p>When suit is brought before a justice, on a promissory note, which the plaintiff files with the justice, and declares that to be his cause of action, it is sufficient.</p> <p>In case tho defendant does not appear before the justice on the trial day, the the justice may proceed to hear the cause, but in all cases he must require proof of the plaintiff’s cause of action. He cannot render judgmont for any amount of damages upon the mere default of the defendant.</p> <p>The introduction of such written instruments as by the statute are made evidence, unless the signature is denied by affidavit, like a promissory note, may be sufficient, but when any other fact except what is proved by the instrument is essential to sustain the action, it should be required, though the defendant does uot appear: such as an account, a bond the breach of which is the cause of action, See.</p> <p>But upon a mere promissory note not denied by affidavit, the justice may himself compute the amount.</p>

This was an action of assumpsit, commenced by the defendant in error against the plaintiff in error, on the 29th day of December, 1853, before O. Parsons, a justice of the peace in Milwaukee county. The plaintiff below declared for services in grading certain streets in front of the defendant’s lots by excavation and filling, to the amount of eight hundred and eighty-eight cubic yards, at 14 cents per yard.

This was an action of assumpsit commenced before a justice of the peace by the plaintiff in error, against the defendant in error. The plaintiff obtained a judgment before the justice, and the defendant appealed to the County Court of Dane county, and the case was then transferred, on the application of the defendant, to the Circuit Court for the same county. The declaration, plea, &c., were filed in the Circuit Court, April 8th, 1851.

This was an action of trespass for assault and bat tery, “ John Marygold being duly sworn and examined, makes complaint and says, that Lyman H. Baldwin did on the 2d day of May, A. D. 1853, at the town of Manchester, in said county, willfully and maliciously and with intent to vex him, the said John Marygold, cause and procure upon him, the said John Mary-gold, j°ined with, one Patrie 'Donahoe, a prosecution at law to be earned and conducted against the form 0£ g^u^e jn g^p…

The appellant in this case, a resident of the city of New York, filed his bill of complaint in the Circuit Court of Rock county, alleging that on the 6 th day of September, 1852, and for some time previous thereto, one Erastus Quivey, of the county of Rock, was the legal and equitable owner of a certain piece of land in Rock county, describing the same.

This was an action brought by the defendant in error against the plaintiff in error for money had and received, The material facts appear in the opinion of the court. On the trial of the case below, various exceptions were taken to the ruling of the judge, all of which important to be noticed, are stated in the opinion. The plaintiff below had judgment, which is removed here by writ of error.

<p>ERROR TO THE DODOE CIRCUIT COURT.</p> <p>The object of publication of notices in attachment as required by the Tillt sac-lion of 112 of the Revised Statutes, is not to give the court jurisdiction of the writ and subject matter, but to inform the defendant, if possible, that pro. ceodings havo been taken against, him.</p> <p>The appearance of the defendant to traverse the affidavit, is a waiver ol‘ all effects in the notice and publication theroof.</p> <p>Such appearance by the defendant and traverse, gives the court jurisdiction of his person: if the issue be found for him, liia property is released, but lie is bound to defend as in ordinary summons.</p> <p>An order of the court dismissing the suit is a final determination of the pro' coedings, and is «0 much in the nature of a final judgment that a writ of error lies.</p>

<p>MOTION TO DISMISS APPEAL.</p> <p>An appeal líos from an order of the circuit, denying a motion to set aside a de- : fault, and permit an answer to bo filed.</p> <p>Our statute of appeals in chancery, would seem to 'extend to all orders which essentially affect the substantial rights of the parties, or the merits of the crse.</p>

This was an application for a mandamus to compel the respondent to settle and sign a bill of exceptions. The facts as they were disclosed by the return to the alternative writ, are stated in the opinion.

This was a criminal prosecution against the plaintiffs in error, before a justice of the peace for Dane county, for an assault and battery.

This was an information in the nature of a quo war-ranto, filed by the Attorney General against the respondent, Gustavus Brunst, requiring him to appear and show by what warrant, <fcc., he assumed to hold and perform the duties and functions of the office of sheriff of Washington county. The facts are all set forth in the opinion of the court.

■ This case was reported from the Circuit Court of Green county. The defendant had been'prosecuted for violation of the act of 1851, in relation to the sale of intoxicating liquors, before a justice of the peace, taken by appeal, to the Circuit Court, where the defendant was convicted ; whereupon a motion in arrest of judgment was made on the ground of the insufficiency of the complaint.

The defendants were indicted for a riot, at the April term, 1853, of the Columbia Circuit Court. On the trial, exception was taken to the ruling of the court; the defendants were convicted, and have prosecuted a writ of error. All the facts and exceptions fully appear in the opinion of the court.

This was an information in the nature of a quo wmranto, filed by the Attorney General in the Circuit Court of Racine county, against David McDonald, at the October term, A. D. 1854.

This was an alternative writ of mandamus directed to the judge of the Circuit Court of Kenosha county requiring Mm to enter an order that one Peter Reas pay the costs in a certain suit pending in said court, entitled Peter PI.

The defendant was iudioted in the Dodge Circuit Court, for an assault with intent to kill and murder, and was convicted. The counsel for the defendant moved in arrest of judgment, on the ground that the indictment does not charge an assault with intent to kill any particular person'.

[In the statement of this case, it has not been deemed necessary or proper to give the statement of the whole case in full, as the application for the writ, and the alternative mandamus exhibited the same in detail.

<p>ERROR 'i’O THE JEFFERSON CIUOUIT OOÜR.T.</p> <p>Tt is this duty of tin: prosecuting’ officer of f.lio government to move on tlio trial of all criminal cases, and to see Hint the proper issue is made up, by arraignment.</p> <p>It is the office of arraignment to inform the accused of the nature of the offence with which ho is charged, and to obtain his answer, defence or jilea.</p> <p>An arraignment may, in minor offences be waived by the defendant, but a plea is necessary to form an issue.</p> <p>An issue in a criminal ease, caunol be supplie d so as to correspond with tho verdict whore there has no issue been joined.</p> <p>A verdict in a criminal case, where there has been neither arraignment or iffea is a nullity, and no judgment can be rendered thereon.</p>

This case was elaborately argued, and the case fully stated, but all the points discussed and decided are set forth in the opinion of the court, as well as the facts on which they were predicated. It is not necessary to give more, unless the briefs and arguments of the counsel on the respective sides should also be reported; but as the space prescribed will not admit of this, the syllabus and opinion are alone reported.