Volume 30 — Wisconsin Reports

Tbe plaintiff in error was also plaintiff below. Tbe facts appear in tbe opinion and in tbe former reports of tbe same cause in 24 Wis., 438; 26 Wis., 61; 28 Wis.

Action against defendants, together with the sheriff and former sheriff of Waupaca county, to restrain said officers from executing a deed of certain mortgaged premises sold under a judgment of foreclosure to the defendants, and to compel defendants to convey to respondent their title acquired under such sale.

The action was brought by the Wisconsin River Improvement Company in the Circuit Court of Wood county, to restrain the defendant Lyons from erecting and maintaining a dam across tbe main channel of the Wisconsin river, at a point known as Grand Eapids, where the plaintiff company was engaged in improving the navigation of the river by piers, wing dams and excavations, operating under a charter authorizing it to enter upon any lands within the banks of said river, and to…

Action to recover upon a bond by tbe assignees thereof. Demurrer to the answer as not stating a defense or counterclaim. The bond, the construction of which was the sole point involved in the controversy, is sufficiently stated in the opinion.

Croix County. Plaintiff appealed from a judgment dismissing Ms action. The nature of the action and the question presented by the appeal sufficiently appear from the opinion.

Action by Henderson, by his guardian, to set aside an assignment of lease and a conveyance of certain real estate by plaintiff to defendants, on the ground of mental incapacity on the part of Henderson at the time of executing the conveyance and assigning the lease, and fraudulent conduct on the part of defendants.

Morrow brought his action to recover of the defendants the value of certain logs alleged to have been unlawfully taken from his possession by defendants and converted to their use.

The facts of this case, in all essential particulars, with a single exception, are substantially the same as in another case between, the same parties, argued and decided at the present term. They will be found fully stated in the report of that case, page 81, ante, and it is unnecessary to repeat them here.

The plaintiff, Lamb, brought Ms action to recover the price of sMngles sold and delivered under a written agreement with tbe defendant. Tbe answer set up as a counterclaim a mistake in tbe execution of tbe agreement, whereby a stipulation that defendant was to receive ten per cent, interest on all advances made on tbe contract until repaid, was omitted, and asked that tbe agreement might be reformed in this respect.

Action of ejectment, complaint in tbe usual form, defense a counter claim.

Action for an injunction to restrain tlie Oreen Bay and Lake Pepin Bailway Company and its agents, from appropriating plaintiff’s land in the construction of a railway track, and for damages.

Action' by Spaulding against the Chicago and Northwestern Railway Company to recover damages for injuries to plaintiff’s woodlands by two fires alleged to have originated on defendant’s right of way,… Held: that those statutes did not materially, if at all, modify the common law. Vaughan v. Menlove, 3 Bing., N. C., 468; S. C., 4 Scott, 244; Filliter v. Phippard, 12 Q. B., 347; Barnard v. Poor, 21 Pick, 378. The fact that the statute of Geo.

Action of ejectment. Complaint in the usual form. The answer alleged title and possession in defendant under a tax deed. It appeared in evidence that the land in controversy was located at the Mineral Point land office, by one Ansley, July 24, 1854, and that on the 16th of January, 1856, the certificate of location was assigned to the plaintiff Calder as trustee of Mary Jane Bramwell.

The plaintiff in error was convicted of manslaughter in the first degree, at the August term, 1871, of the Municipal Court of Milwaukee County, upon the following information: “ I, C. K. Martin, District Attorney for said county, hereby inform the court, that on the twenty-eighth day of April, in the year one thousand eight hundred and seventy-one, at said county, James Rowan did wilfully, feloniously, and of his malice aforethought, kill and murder Charles McKenzie, against…

Motion by plaintiff and respondent to strike from tbe files tbe bill of exceptions, on tbe ground that it was not served within tbe time required by law.

<p>Practice — Undertaking on Appeal — Costs.</p> <p>1. Sec. 17, ch. 264, laws of 1860 (2 Tay. Sts. 1640, s. 23) — by which the court from which an appeal is taken (or a judge thereof in vacation) may permit an amendment of the proceedings on appeal, so as to supply an act (omitted by accident or mistake) that is necessary to make the appeal effectual — is merely a cumulative remedy, and does not deprive this court of its previous power to allow such amendments.</p> <p>2. Where the undertaking on appeal is defective (as where one of the sureties therein is a practicing attorney in one of the circuit courts of this state) this court allows a new undertaking to he filed, on motion.</p> <p>3. Respondent’s motion previously made to dismiss the appeal for such defect in the undertaking is denied without costs, except that appellant is required to pay the costs of the clerk of this court; and the motion for leave to file the new undertaking is granted, with $10 costs to respondent’s attorney, and the clerk’s fees on the motion.</p>

Motion by plaintiff and respondent to dismiss defendant’s appeal. Tbe grounds of tbe motion and tbe nature of tbe objections are stated in tbe opinion.

<p>APPEAL from the Circuit Court for Jefferson County.</p> <p>Motion by plaintiff and respondent to dismiss appeal because of defective abstract.</p>

This is a motion to strike out the bill of exceptions herein, for two reasons; 1. Because it was not filed within ten days after it was settled as required by circuit court rule 14; and 2. Because it purports to contain all the testimony, while it appears bj tbe bill itself, that various written instruments, wbicb are not set out therein, were read in evidence on tbe trial.

This is an action to recover the penalty imposed by sec. 46, ch. 86 of the Revised Statutes, for refusing and neglecting to discharge a mortgage.

Ejectment. The complaint was entitled “County Court, Milwaukee County,” and alleged that the plaintiff had an estate in fee and was entitled to the possession of certain premises, described as follows: “ commencing in the east line of the southwest quarter of section thirty in township No. 7 north, of range twenty-two west in said county, at a point nine chains and forty links south of the northeast corner of said quarter section, running thence south along said east line of…

This is an action to recover tbe value of certain personal property, wbicb tbe plaintiff alleges was wrongfully taken from bis possession by tbe defendants. Tbe defendants answered separately, and subsequently, and before tbe trial, tbe action was .dismissed as to tbe defendant Bailey.

This action was brought to recover the amount due on a promissory note executed by tbe defendant to tbe plaintiffs.

Tbe object of this action is to compel tbe defendant to convey to tbe plaintiff, certain lands described in tbe complaint, situated in tbe county of Oconto.

Replevin for tbe recovery of a cow. Tbe action was begun by tbe appellant under chapter 120 of tbe revised statutes, before a justice of tbe peace, and judgment was rendered for tbe respondent, from wbicb an appeal was taken to tlie circuit court, where the cause was tried, and a verdict found and judgment rendered for respondent, from which judgment an appeal was taken to this court.

Action for divorce on tbe ground of cruel treatment. Tbe action was originally begun in tbe Circuit Court of tbe county of Eond du Lac, and was removed to Outagamie County, on tbe defendant’s affidavit alleging prejudice of tbe judge. Finding for plaintiff witb decree of divorce and alimony, from wbicb defendant appeals to this court. Tbe facts are sufficiently stated in tbe opinion.

Ejectment. Complaint in the usual form. Original answer a general denial. Defendant afterward moved for- leave to amend its answer by adding a plea of the statute of limitations in support of a tax deed under which it claimed, and which had been of record more than three years before the commencement of the action.

Action of ejectment for the recovery of certain real estate set forth in the complaint. Complaint in the usual form. Answer, general denial and averment that defendants were owners in fee of the premises. The action was tried before the-court without a jury, the court finding for plaintiff, from which defendants appealed. The facts are sufficiently stated in the opinion.

Action upon a promissory note payable to ¥m. J. Hoare or order, and transferred by him to the plaintiff after the same became due. The defendant set up in Ms answer a counter claim for the rent of a farm in Canada, which he alleged was leased by Mm to Wm. J. Hoare, the payee of the note, and to one Walter W. Hoare, and occupied by them for three years, and that the yearly rental thereof was of the value of three hundred dollars.

REPORTED from tbe Circuit Court for Walworth County, by tbe judge of tbe first circuit. ‘ Tbe case is fully stated in tbe opinion of tbe court.

Action for the foreclosure of a farm mortgage, complaint in the ordinary form.

This was an appeal from an order of the circuit court of Bane county sustaining defendant’s demurrer to the complaint.

Action to recover damages for tbe loss of a borse alleged to bave been caused by reason of defective highway.

Plaintiff in error brought Ms action in said court to recover the amount of interest coupons originally attached to and forming a part of bonds issued by the city of Watertown, in aid of the construction of certain railways.

PETITION for Habeas Corpus. Petition in this court for habeas corpus, 'writ issued and demurrer to sheriff's return. The facts are fully stated in the opinion.

Defendants in error, wbo were defendants below, moved to strike the cause from the calendar on the grounds set forth in the opinion.

<p>Pabtnebship : (1, 2.) Effect of stipulation against sale of partner's interest. (3.) Effect of assignment of interest of former partner. (4.)Inter-ference with receirm' not allowed.</p> <p>1. A stipulation in articles of copartnership that neither party shall, without the other’s written consent, sell or assign his interest in the copartnership, or in any property thereof — held, to restrict the jus disponendi only during the continuance of the copartnership, and not after its dissolution and the appointment by the court of a receiver of the partnership property.</p> <p>2. The articles not providing for the continuance of the partnership for any specified time, it must be presumed that the object of the stipulation was to prevent a dissolution by such a sale or assignment by one partner without the other’s consent.</p> <p>3. The fact that an assignment of the interest of one of the fomier partners was made to a person with whom the firm had been engaged up to that time in a protracted litigation, will not justify a different construction of said stipulation, or an interference by the court to prevent the sale; especially as the stipulation was made long before such litigation was commenced.</p> <p>4. Neither of the former partners can interfere with the recéiver in winding up the partnership business; nor can the assignee of one of them do so.</p>

<p>APPEAL from tbe Circuit Court for Milwaukee County. Appeal from an order sustaining defendant’s demurrer to the complaint. Tbe case is identical with Noonan vs. McNah, ante, defendants having demurred separately to tbe same complaint.</p>

This case was once before tbis court on appeal from an order fixing tbe terms upon wbicb tbe defendants, Zeimet, Knapp and Brereton, should be allowed to answer, and set up a defense of usury after default. Weber v. Zeimet, unreported.

Action for damages resulting from an alleged breach of contract on the part of defendants, in refusing to receive certain lumber sold them by the plaintiffs. The opinion states the case.

Action for the foreclosure of a mortgage, instituted originally in Walworth county, and removed by stipulation to Eacine county, where the trial was had. The complaint was upon a mortgage executed by the defendants Dunning to the EoxEiver Yalley Eailroad Company, on the 5th day of June, 1854, to secure the payment of a note of fifteen hundred dollars, of the same date, due ten years thereafter, said note being given in subscription to the capital stock of said railway.

Tbe plaintiff, Mien Mans, brought an action of replevin in justice court, to recover from tbe defendant tbe possession of two colts, mortgaged to plaintiff by ber father, James Dougal. Judgment for plaintiff, from which defendant appealed to tbe cbcuit court.

Judgment in foreclosure having been rendered against defendant, be moved to set aside tbe sale thereunder and to vacate said judgment, upon the ground that tbe Circuit Court bad failed to comply with tbe provisions of tbe statute (R. S. cb. 145, sec. 1, as amended by cb. 188, laws of 1870), in not causing an inquiry to be made as to whether that part of tbe mortgaged premises not included in tbe homestead, could be sold .separately without injury to tbe owner.

Plaintiff sued for tbe value of Ms improvements upon land which, had been recovered from him by defendant in an action of ejectment, the parties being tenants in common of the premises. The answer alleged several defenses and counter-claims, and plaintiff demurred both generally and specially thereto.

The action was brought by the defendant in error, to recover of Clason the penalty for violating an ordinance of the City of Milwaukee, for tbe protection of tbe beach or shore of Lake Michigan, in the third ward of said city. The case is fully stated in the opinion.

<p>APPEAL from the County Court of Milwaukee County.</p> <p>Motion to dismiss an appeal from an order denying a motion to strike the cause from the calendar.</p>

<p>APPEAL from tbe Cb’cuit Court for Washington County.</p> <p>Motion to re-instate appeal. The grounds of the motion appear in the opinion.</p>

Tbe complaint sets out two causes of action. Tbe first is that tbe defendant is indebted to tbe plaintiffs in tbe sum of three thousand dollars, for moneys paid and advanced for him, and at bis request, in tbe purchase by tbe plaintiffs, for tbe defendant, of a quantity of wheat.

Tbe complaint is upon a promissory note, made by tbe defendant Herbst, payable to tbe order of tbe defendant Shakman, at tbe bank of tbe plaintiff, and endorsed by tbe payee, and it contains tbe usual averments of protest, non-payment, and of tbe ownership of tbe note, by tbe plaintiff. ~ Tbe defendants, in'their answers, do not deny any of the material allegations of the complaint, but they allege that Shahman was an accommodation indorser; that before the note came into…

Pursuant to tbe provisions of chapter 141, Private and Local .Laws, 1868, tbe common council of Milwaukee established a ■park, or public grounds within the limits therein prescribed, ¿and the damages… Held: substantially, that the same constituted a valid dedication of the lands included within the red lines to the public use as streets or alleys.

On tie 5th. of April, 1861, William Potts, of Walworth county, died, leaving Ids last will and testament duly executed, in and by which, he appointed his wife, Mary Potts, and one Edson Kellogg, executrix and executor thereof. After directing that his just debts, funeral charges, and the expense of settling the estate, should be paid out of the estate of the testator, the will contains the following clause: Item.

The defendant having brought an action against the plaintiff and one Peter McNab, to recover a large sum for water rents alleged to be due him from the defendants in that action, instituted several garnishee proceedings against different debtors of the present plaintiff. This action was brought to recover damages for the alleged malicious abuse of the process of the court in commencing and prosecuting such garnishee proceedings.

Action upon a promissory note for tbe sum of $1,700, witb interest at ten per cent., alleged to bave been executed by defendants, McCullough and Jung, to tbe plaintiff. Tbe separate answer of tbe defendant, McCullough, alleged tbat be bad agreed witb tbe payee for an extension of six months upon payment of fifty dollars, wbicb sum be paid as agreed; and wbicb be alleged to be usurious.

The complaint is to the effect that in July, 1870, the defendant was engaged hy its agents and servants, in laying a sewer in and through Oneida street, one of the public streets and highways therein; that it conducted the work so carelessly and neg: ligently that it totally obstructed the gutter on the north side of said street by quantities of earth and other materials placed in said gutter and street; that by the negligence and gross carelessness of the defendant and its…

Action of trespass for the recovery of the value of a stock of goods seized by defendant, Langton, as sheriff, under certain writs of attachment, the defendant, Van Dyhe, being plaintiff in one of the attachment suits.

Tbe respondent petitioned tbe county judge of Eacine county to appoint three commissioners to appraise tbe damages wbicb be claims to bave sustained by reason of tbe occupancy of certain lots in tbe city of Eacine, by tbe appellant, tbe railroad company, and of wbicb lots be claims to be tbe owner. Tbe petition purports to be made pursuant to the statutes oí 1861, cb. 175, and to cb. 16, Pr. and Local Laws of 1854, sec. 1.

Action for damages resulting from injuries sustained by reason of (defective highway. The complaint alleged, that defendant, the Town of Westport, was a duly organized town, whose duty it was, at all times, to keep its highways in repair.

REPORTED from tbe Circuit Court for Columbia County.* Tbe opinion states tbe case. argued, among other things, that tbe record did not sustain tbe conviction, in that tbe verdict was defective and incomplete. Tbe accused, having pleaded not guilty to all tbe counts, and having gone to trial, was entitled to a verdict or deliverance on all tbe matters charged.

. Motion to modify the judgment entered in this court upon the former hearing. The facts are fully stated in the former report of the ease. Smith, Sheriff, etc., v. Carter and another, 25 Wis., 288.

Tbe plaintiff in error was convicted in tbe Circuit Court of Manitowoc County, of tbe crime of murder, and was sentenced to imprisonment for life. He sues out a writ of error to review tbe judgment below. The opinion states tbe case.

APPEAL irom the Circuit Court for Outagamie County. Action for the foreclosure of a mortgage. On the 28th day of March, 1859, the defendant, William H. Pierce, mortgaged the lands in controversy, to the defendant Blanchard, the mortgages being recorded upon the same day. On the 2d day of April, in the same year, Blanchard assigned the mortgages to Rice, but the assignments were not recorded until June 21, 1861.

Action for tbe enforcement of a mechanic’s lien. Tbe plaintiffs, Owens and Waldo, filed tbeir petition for a lien upon tbe lot of Northrup, tbe defendant, for labor performed by plaintiffs, as carpenters and joiners upon defendant’s building. Tbe case comes up solely upon exceptions to rulings of tbe court on questions of evidence.

The plaintiffs, Potter and Dutchman, brought their action to restrain defendants from the erection of a pile bridge over the north branch of Eox river, in front of plaintiff’s mill, in the village of Menasha. Plaintiff's saw and sbingle mill was located just below a dam bnilt across said branch, upon wbicb dam a bridge bad been erected and in use for many years.

Action b j Morse and Paige to recover upon a policy of insurance issued by tbe defendant company upon tbe steamboat “Piamond,” running upon tbe Fox and Wolf rivers, between Osbkosb and Winneconne.

Tbe plaintiff, Servatius, brought bis action against defendant in tbe Circuit Court for Fond du Lac county. Application being made to said court to change tbe place of trial, an order was made changing it to Dodge county. The judge afterwards, but at the same term, erased the word “ Dodge ” in the order, and inserted in lieu thereof the word “Winnebago,” and the papers were sent to the Circuit Court for Winnebago county.

Action to recover damages for an alleged false imprisonment. Defendants, by their answer, admitted the arrest of plaintiff under a writ of ne exeat, issued upon an affidavit subscribed by one of defendants, but justified on the ground that they had acted solely on the advice of counsel, and without malice. The facts appear in the opinion, and in the former report of the same case, 28 Wis., 248.

APPEALS from tbe. Circuit Court for Dodge. County. Tbe case presents two cross appeals from different parts of one' and tbe same judgment. Tbe plaintiff, Belinda B. Bone-sleel, brought ber action against tbe defendant, Jacob P. Bone-steel, upon a promissory note executed by defendant to plaintiff. Tbe answer admitted tbe making of tbe note, but alleged that it was without consideration, having been given under threats, and to avoid trouble and annoyance.

This action was brought to recover real estate in tbe incorporated village of Juneau, in Dodge county, wbicb is alleged to be unlawfully withheld by the defendants from the possession of the plaintiff.

This action was commenced before W. W. Yale, Esq., a justice of the peace of the county of Milwaukee, to recover a balance of four dollars, which the plaintiff alleges was found due bfm from the defendant upon a settlement of divers accounts between them, and which balance the defendant promised to pay.

Action upon a policy of insurance to recover for tbe destruction by fire of tbe steamer Berlin City. Tbe opinion states tbe case. Verdict for plaintiffs, and a new trial being refused, defendant appealed.

Action upon a promissory note executed jointly and severally by the defendant and one William Berland to E. W. Manegold & Co., or order, and indorsed by that firm to the plaintiff. Tbe complaint is in tbe nsnal form of a complaint by tbe indorsee of a promissory note against tbe maker.

Action of ejectment; finding and judgment for plaintiff, from which defendant appealed. The case is fully stated in the opinion.

<p>Sureties, Justification of : Bun® of Court. Bight of defendant to CHANGE PLACE OF TRIAL. PRACTICE.</p> <p>1. The statute (B. S., ch. 139, see. 23, Tay. Stats., 1644,) permits the sureties in an appeal bond to justify before “ a county judge,” without specifying the county; and the justification in this case, though not made before the county judge of the county in which either the defendant or the sureties resided, nor that in which the action was pending, is held, sufficient.</p> <p>2. This court has power to establish a rule further defining the place where sureties shall justify, and it has now established the following rule:</p> <p>Bule of Court: Justification of Bail and of Sureties on Appeals, &c. "Whenever bail are required to justify, they shall justify within the county where the defendant shall have been arrested,or where the action is pending, or where the bail reside. This rule shall apply to the justification of sureties in an undertaking on appeal, or otherwise.</p> <p>3. Defendant in an action commenced against him in a different county from that of his residence, on due application before issue joined and before tbe time for answering has expired, has a right to have the place of trial changed to his own county; and a cross-motion by plaintiff to the court in which the action was commenced, to retain the cause for trial for the convenience of his witnesses, cannot properly be heard by such court, the nature of the issue and the evidence required being only matter of conjecture.</p>

. ' Action of trespass guare clausum, brought before a justice of the peace.

Tbe action was instituted before a justice of tbe peace by tbe plaintiff, HunKns. to recover for labor and services, and was appealed to the Circuit court. The nature of the defense and the facts of the case appear in the opinion. Verdict and judgment for plaintiff, Rom which defendant appealed.

<p>APPEAL from the Circuit Court for Milwaukee County.</p> <p>The opinion states the case.</p>

McBride and Faulkner brought their action to recover from the defendant upon a policy of insurance. The complaint was in the usual form, setting up the policy and the destruction of the premises by fire. The answer disclosed two grounds of defense: first, that plaintiffs had made false representations with regard to the title to the realty; and, second, that they had made false representations as to the danger from incendiarism.

Replevin for lumber. The facts appear in the opinion, and in the former report of the same case, 24 Wis., 299. The jury found for the plaintiff, and found that 58,000 feet of the logs were cut by' defendants in good faith, by mistake, and 59,350 feet were cut wilfully, and not by mistake. A motion for anew trial being overruled, defendants appealed from the judgment.

<p>Pbactice; Mew Trial.</p> <p>1. A motion for a new trial on the ground of newly discovered evidence should he based upon a case or bill of exceptions, and not upon affidavits only. Jones v. Brans, 28 Wis., 168.</p> <p>2. Where the record recites that such a motion, based upon affidavits, was by consent of parties, brought to a hearing, and the affidavits were heard against it as well as in its favor; Held, that the objection that there was no case or bill of exceptions was waived.</p> <p>3. Even if this objection was taken at the hearing, the reading of affidavits in opposition to the motion, must be taken as a waiver of the obj eetion.</p> <p>i. Upon notice of such a motion, and service of the affidavits upon which it is based, good faith requires the party noticed to inform the moving party that he will object to a hearing unless a case is made.</p> <p>5. Where, it appears that previous to the former trial, a person whose testimony is now alleged to be important, had left the state, without the knowledge of the plaintiff, and gone to parts unknown; that as soon as his residence was ascertained, steps were taken to procure his testimony; that plaintiff did not know what such testimony would be, until after the former trial; aad that such testimony will in fact be very important for him: Meld, that it was not an abuse .of discretion to grant a new trial on plaintiff’s motion.</p> <p>6. A new trial should usually be granted upon terms that the mover pay the costs of the former trial; and no sufficient cause being shown for a departure from the rule in the present case, an order granting a new trial without terms is modified accordingly.</p>

In November, 1862, one Josiab A. Tryon died at tbe county of Eond du Lac, intestate, leaving no issue, or father or mother, but leaving surviving him Ellen A. Tryon, his widow, two brothers, of whom the plaintiff is one, and seventeen nephews and nieces, seven of whom are children of a deceased brother, and the remainder of whom are the children of a deceased sister of the said Josiah A. Tryon.

<p>APPEAL from tbe Circuit Court for Washington Comity.</p> <p>Tbe opinion states tbe case.</p>

This is an action to recover a dower interest in certain real estate. No formal demand that such dower be assigned was made before the action was commenced. The plaintiff claims as the widow of one Frederick Preston.

This is an action under the Mill Dam Act to recover damages for flowing lands. The answer sets up several defenses. The plaintiff interposed a demurrer to the third defense therein,, alleging as ground of demurrer, that the same does not state facts sufficient to constitute a defense to the cause of action set forth in the complaint,- The circuit court overruled such demurrer, and from tbe order' overruling tbe same tbe plaintiff has appealed.

<p>APPEAL from the Circuit Court for Winnebago County.</p> <p>The opinion states the case.</p>

The plaintiff, Wells, brought his action to recover damages alleged to have accrued to him on account of loss of profits on certain contracts for ballasting defendant’s road between Brook-field and Milwaukee, and for grading its depot grounds in Milwaukee, defendant having ordered the work discontinued.

The facts are stated in the former report of the same-case, ante, p. 356. Defendant, having amended his answer, plaintiff tnoved to strike out certain matter therein contained, as being irrelevant and redundant. The court ordered the matter Stricken out, from which order defendant appealed.

Tbe plaintiff, Orton, instituted bis action against defendants on tbe third day of June, 1865, to recover rents under a lease of a certain water-power.

The defendant in error, Biltel, brought his action to recover damages for injuries sustained by reason of a defective sidewalk. The opinion states the case.

Plaintiffs, having obtained judgment in the circuit court for Milwaukee county, against the defendants, Dodge and Abell, and execution having been returned nulla, bona, the court, upon the application of plaintiffs, ordered that the defendant Dodge appear before a referee, to make discovery as to his property.

Action for recovery of money alleged to belong to the county of Kewaunee, and to have been converted by defendant Decker; to his own use, he being the elerk of the plaintiff board of supervisors. The opinion states the case. Defendant having demurred to tbe complaint for insufficiency, tbe demurrer was overruled, and defendant appealed.

Tbe opinion states tbe case. Finding for defendants, and judgment tbat tbe complaint' be dismissed with costs, from wbicb plaintiff appealed.

Action against the defendant, Newton, as the indorser of a promissory note. The opinion states the case. Plaintiffs demurred to the answer for insufficiency, and the demurrer being overruled, plaintiffs appealed. argued that the defendant being an indorser, could not counter-claim for damages accruing to the maker of the note, by reason of plaintiffs’ breach of contract, citing LaFarge v. Halsey, 1 Bosw., 171; Gillespie v. Torrance, 4 Bosw., 86; Same Case, 25 N. Y., 306.

The plaintiffs and defendant were heirs-at-law of David Prutsman, who died intestate, after executing a deed of the premises in controversy to the defendant Emily J. Baher, and depositing it with one Sheardown, with instructions to deliver it to defendant in case of grantor’s death, he' retaining the right to control it while living.

APPE AL from tbe Circuit Court for La Fayette County. Action of ejectment; tbe opinion states the case; verdict and finding for defendant, and a motion for a new trial being overruled, plaintiff appealed. argued, among other things, that the certificate of the commissioner of the general land office, reciting a history, was properly excluded, since such certificate could not take the place of a deposition by the commissioner, and because no law of congress or of the state…

Action to recover the balance alleged to be due from tbe plaintiffs for a stationary steam engine and boiler, manufactured by tbe latter for tbe former, pursuant to a special contract between tbe parties. Tbe answer of tbe defendant denies tbat tbe plaintiffs performed tbeir contract in tbat bebalf, and specifies several particulars, wherein it is alleged tbat tbey failed to do so.

.APPEAL from the Circuit Court for Iowa County. Action to recover the value of certain mining stock alleged to have been sold by defendants for plaintiff’s use and benefit. Defense a counter-claim. Yerdict and judgment for plaintiff, from which defendants appealed.

This action is for a divorce. On the 28th of October, 1867, the plaintiff made an affidavit, stating, among other things, that “ the said defendant cannot, after due diligence, be found within this state; and his residence cannot, with reasonable diligence, be ascertained by this deponent, and is unknown to her.” On this affidavit a court commissioner, who was one of the plaintiffs attorneys in the action, made the usual order that the summons be served on the defendant by…

On the 16th of February, 1870, the plaintiff commenced an action by an attachment in the- circuit court, against Christian Rufener, and the same day caused the respondent to be duly summoned as a garnishee.

Tbe plaintiff was employed by tbe defendant in sinking a shaft for copper.

This action was brought by William B. Brand, tbe plaintiff’s testate, in bis life-time, to foreclose a certain mortgage owned by him and executed by tbe defendant, upon wbicb a balance is claimed to be due and unpaid.

Tbe plaintiff, Allyn, wbo bad been a partner of Wigbtman and Langwortby, brought bis action to recover of tbe receiver cf tbeir assets tbe amount of certain notes of tbe original firm, wbicb AUyn bad been compelled to pay, tbe bond or contract of dissolution providing that said notes should be paid by Wigbt-man and Langwortby. Tbe only questions involved are as to tbe admission of certain evidence upon tbe trial, wbicb are fully stated in tbe opinion.

Before August 30,1870, tbe Chicago and Northwestern Railway Company delivered to tbe defendant .company, which is a common carrier, a lot of goods and merchandise at Watertown, and another lot at Madison, consigned to the plaintiffs at Bos-cobel, for transportation to the place of consignment. .

Plaintiffs appealed from an order sustaining defendants’ demurrer to tbe ccmplaint. Tbe facts appear in tbe opinion. argued, among other things, that section 6 of tbe act of 1859, by which courts are prohibited from demanding payment of principal, was not repealed by tbe act of 1871. Tbe non-repeal of said section shows the intent of tbe legislature that tbe act of 1871 should not be retroactive.