Volume 32 — Wisconsin Reports

Foreclosure of a mortgage. ' In 1857, John H. Koehler, then owning tbe premises afterwards covered by tbe mortgage in suit, conveyed tbem to one Kritzner (his… Held: That the mortgage in suit, and that of the same date for $3,600, were void as against Dibblee and his copartners. 2. That the mortgage executed by Peter F. Kaehler and wife to Dibblee, June 2, 1862, (par. F.) ought to be adjudged a lien upon the premises prior to that of the two mortgages aforesaid. 8.

The complaint, after alleging the death of Walter Buchanan, the appointment of plaintiff as administrator of his estate, and the corporate character of the defendant, is as follows: “That on or about the 20th day of August [1865], the said Walter Buchanan deposited with defendant, The Union Banlc of Columbus, twenty-five hundred dollars, and left the same with the defendant, and that the said Walter Buchanan left the said sum of money in the said bank and with the said…

Tbis action was commenced before a justice of the peace. The complaint charges that in November, 1871, and at divers times afterwards, the defendant broke and entered into the enclosure of the plaintiff (describing the same), and cut down and carried away certain trees and timber therefrom, to the damage of the plaintiff, etc. The defendant interposed an answer in writing, which, in addition to a general denial, set forth as a defense to the action, that on the fourth day of…

Section 51 of chapter 120, R. S., provides that in all actions before justices of the peace “ where the title to lands shall in any wise come in question, the defendant, at the time when he .is required to join issue, and not after, may in bis answer state facts showing that the title of lands will come in question, which answer must be in writing, signed by the defendant, or 'his attorney, and delivered to the justice, who shall file the same among the papers in the case.”…

The action was brought by the plaintiff as a judgment creditor of the defendant Mrastus B. Wolcott, to enforce the collection of his judgment out of property alleged to have been conveyed by tbe judgment debtor, in fraud of bis creditors, to tbe defendants Douglas D. Wolcott and Marion J. Yates. Tbe defendant Theodore Yates is tbe husband of tbe said Marion.

' Rockwell brought bis action against Lucio and Hathaway to recover rent of premises held over by defendants after tbe expiration of their lease. The premises demised were tbe property of plaintiff and defendants as tenants in common, defendants having leased plaintiff’s interest and held over after the expiration of their term. The evidence is sufficiently stated in the opinion.

Action for the specific performance of a parol contract to convey real estate. The defendant Ludington demurred to the complaint as not stating a cause of action, and also upon the ground that the complaint itself showed upon its face that plaintiff had a perfect remedy at law. The allegations of the complaint are fully stated in the' opinion. The court sustained the demurrer; and plaintiff appealed. argued, 1.

' Action upon a promissory note. The complaint alleged that the defendants Tibbitts and Dowe were partners in business in Milwaukee, under the firm name of Dówe & Tibbitts, and executed the note in suit to Young, in their said firm name, on the 6th of February, 1865.

Gleason, a commercial traveler, brought his action against the defendant company to recover the value of a valise and its contents, lost by him while a passenger upon defendant’s boat. The complaint alleged payment of fare, delivery of baggage to defendant, and its loss. Answer, a general denial. Plaintiff testified that on purchasing his ticket he asked for a room, which was assigned him, and demanded a key, but was told by the clerk that no keys were given.

The defendant Riemer appealed from a judgment in favor of Kempf, against Riemer and Schrader as copartners. The opinion states the case. argued, inter alia, that to charge a person with the debts of a firm, on the ground that he held himself out to the world as a partner, plaintiff must show affirmatively that the defendant so represented to him, or that it came to his knowledge that defendant so held himself out. Irwin v. Conklin, 36 Barb., 64.

The copy to be served not to be a press copy. By the court.” [Dated July 22, 1872, and signed by the county judge.] The alleged ground of the motion was that the complaint served was illegible.

Noonan brought bis action against Orton for slander, the complaint also containing a count in libel.

On the first Tuesday in April, 1872, two town meetings were held in the town of Suamico, Brown county, one at the school house in district No. 1, and the other at Elintville in said town. Held: or at such other place therein as shall have been ordered at a previous meeting.

Action by the plaintiff to recover his salary as a professor in the state university from July 1 to October 1, 1866. The following are the material facts : On the 29th of July, 1858, the board of regents of the university appointed the plaintiff professor of ancient languages and literature in that institution. He commenced service under such appointment on the fourth Wenesday in September following, at which date his salary commenced.

On the 23d day of October, 1871, the plaintiff recovered a judgment in justice’s court against the defendant, and after-wards procured from the justice, and filed in the office of the clerk of the circuit court for the proper county, a transcript thereof, and caused execution to be issued out of the circuit court upon such judgment. The transcript shows that the judgment was rendered for $153.50 damages, and $12.75 costs.

The plaintiff, George F. Pellage, brought his action against his father, John H. Pellage, to recover compensation for services rendered in managing and working defendant’s farm after plaintiff became of age. The case is fully stated in the opinion.

Timp brought bis action of replevin in a justice’s court, tbe affidavit, which was the complaint in the cause, alleging that he was the owner and lawfully entitled to the possession of certain horses, which were unjustly detained from him by Dockham. Plaintiff obtained possession of the property, under the statute.

Hardwick presented his claim against the estate of Duchaine to the commissioners appointed by the county court to examine and adjust claims against the estate. The claim was disallowed, and Hardwick appealed to the circuit court, which dismissed the appeal on the ground that it had never acquired jurisdiction of the matter.

This is an action brought by the plaintiffs to recover the possession of certain liquors, to wit, two barrels and one keg of whiskey, and one keg of brandy, of the alleged value of $109. The answer is a general denial of the material allegations of the complaint.

Section 17, chapter 73 of the Revised Statutes, entitled “ Of Joint Stock Companies,” provides that before any corporation, organized thereunder, shall commence business, the president and directors shall cause the articles of association to be published in the papers, make a certificate of the purposes for which the corporation is formed, the amount of capital stock, the amount actually paid in, the names of the shareholders, the number of shares by each respectively owned,…

The complaint alleges that the plaintiff is a resident and taxpayer of the city of Appleton, and brings this action on behalf of himself and all persons having a common interest in the questions involved therein.

Balliet, having obtained a judgment against Doton and Bennett, instituted garnishee proceedings against Scott, the first garnishee process being served on the 26th of June, 1871. Scott, a railroad contractor, entered into a contract with Doton and Bennett, whereby the latter agreed to construct a certain portion of a railway.

This action was brought to recover tbe value of a quantity of rope which tbe plaintiff alleges he delivered to the defendant for shipment to Chicago. The answer is a general denial. The justice rendered judgment for the plaintiff for the value of the rope, and the defendant appealed to the circuit court. The action was tried by the latter court, without a jury, upon the testimony taken before the justice and returned by him.

Action upon promissory notes. Complaint in the usual form. The answer, after alleging certain facts by way of defense, alleged substantially the same facts by way of counterclaim to plaintiff’s demand.

Whitman sued Lake for money paid at bis request, tbe complaint alleging that the plaintiff, as trustee of the defendant and at his request, paid Hudd & Wigman the sum of $100 as a part of the purchase money of certain land, to which they held a title adverse to defendant’s claims thereon, and that defendant agreed to refund the money to plaintiff in a short time, or on demand thereof, but that he had refused so to do. Answer, a general denial.

While this cause was pending in this court and before it was decided, the plaintiff presented an affidavit to the court setting forth that the 'judgment debtor is a nonresident of this state and is utterly insolvent; that the garnishee is in greatly embarrassed circumstances, and is disposing of his property preparatory to removing from the state; and that he will, unless restrained by the court, take with him the specific money in controversy, and leave the plaintiff…

Action for injuries to the person of Mrs. McMaugh alleged to have been caused by the defective condition of a crosswalk, etc., in the defendant city. The city appealed from an order overruling its demurrer to the complaint as not stating a cause of action. The substance of the complaint is stated in the opinion. contended, 1.

This action was brought to recover an alleged unpaid balance due from the defendant to the plaintiff for a steam engine and fixtures furnished by the plaintiff to defendant, pursuant to a written… Held: however, no obstacle to tbe discontinuance (18 Barb., 595; 25 How. Pr. R., 859); as also tbe fact that defendant would be deprived of tbe benefit of certain testimony already taken. 2 Till. & Sb. Pr., 880 ; 2 Whit. Pr., 189 ; Yoorhies’ Code, 521; Waite’s Ann.

This appeal was taken by Ludington from an order granting plaintiff leave to examine him under oath, before a commissioner, on a notice of five days, upon written interrogatories to be proposed by the plaintiff and settled and allowed by the court.

The plaintiff commenced an action against tbe defendants for malicious prosecution and false imprisonment, and obtained from a court commissioner, upon affidavit, an order for tbe arrest of tbe defendants. Tbe county court, upon defendants’ motion, vacated tbe order of arrest, on tbe ground that tbe affidavit therefor was insufficient; and tbe plaintiff appealed from this order of tbe county court.

This appeal was taken by the plaintiff from an order of the court vacating its judgment rendered in favor of the plaintiff, and awarding a new trial. The following statement of facts was. prepared by Mr. Justice Cole, as a part of his opinion: This is an appeal from an order granting a new trial. The action is in equity, brought by Moll to rescind a contract for the purchase of real estate and to recover back what he has paid on the contract.

The complaint avers that on the 11th of April, 1870, one Ludington was, and from that day up to and including the times hereinafter mentioned continued to be, marshal of the village of Oconomowoc, in said county, and as such marshal had all the powers and rights, and was subject to the liabilities, of a constable of this state, by virtue of the provisions of the charter of said village, ch. 327, P. & L. Laws of 1869.

This action was brought before a justice of the peace. The complaint alleges that as deputy sheriff of Winnebago county the plaintiff served a writ of attachment in the suit of one Parker against Harwood and Fry; that his fees for such service were $26.25; that afterwards the defendant purchased the judgment obtained by Parker in such attachment suit, and assumed and agreed to pay such fees; and that the same have not been paid.

The defendant Fralcer appealed from an order overruling a demurrer to the complaint as not stating a cause of action in favor of the plaintiffs. The averments of the complaint -are sufficiently stated in the opinion. The complaint shows title out of plaintiffs, and they must connect themselves with the title by suitable allegations before they can recover. 12 Wis., 376. The allegation that they are “ the lawful owners and holders,” is of a mere conclusion of law.

The defendants purchased of the Aultman and Taylor Manufacturing Company a threshing machine and power, for the price of which they gave nine promissory notes executed by them jointly ; and to secure the payment of said notes the defendant Christoph executed to said company a mortgage on certain real estate; and the defendant Dunn executed a mortgage on certain personal property, for the same purpose.

This action was pending in the circuit court for Sheboygan county when the plaintiff filed a written application for a change of venue, as follows : [Title, etc.] “ The above named plaintiff hereby respectfully makes application for a change oE the place of trial of this action on account of the prejudice of the judge of said circuit court against the applicant and in favor of the said defendant.” [Signed by the plaintiff.] To this application was subjoined an affidavit…

Action to foreclose a mortgage on certain mill property in the county of Dodge, executed by the defendants John F. Koch and Erank Koenig to Laura A. Hustis, to secure the payment of part of the purchase money for the mortgaged premises. The premises were conveyed to the mortgagors by John Hus-tis and his wife, the said Laura A. Hustis. The mortgage was assigned by Mrs. Hustis to one Ludington, and by bim to the plaintiff.

This is an action, for the recovery of certain Lands in the county of Outagamie. The complaint is in the usual form.

Action for injuries to plaintiff’s person, alleged to have been caused by defendant’s negligence in the running of a train, and in leaving the approach to a certain crossing of its road in the city of Watertown in an improper condition. The character of such crossing, and of the approaches thereto, is sufficiently stated in the opinion.

Action to foreclose a mortgage executed by tbe defendant Crow to one White, December 1, 1869, to secure tbe payment of a part of the purchase money for tbe mortgaged premises. Tbe mortgage was duly assigned to the plaintiff. On tbe 21st day of tbe same month, and before the mortgage was recorded, Crow conveyed tbe mortgaged premises to one Aclcerman, who recorded bis mortgage on tbe same day.

The plaintiff appealed from a judgment in favor of the defendant. The material question involved is stated in the opinion. in person, cited 18 Wis., 188; 18 id., 485. It appearing from the Eevised Statutes of New York, adopted in 1827-28, that the officer who took the acknowledgment of the power of attorney under which plaintiff claims, had no authority to do so, the presumption was that the law was the same in 1835, until the contrary was shown. 1 C. & H.’s Notes, 295.

Ejectment. The defendant appealed from a judgment in favor of the plaintiff. The case is stated in the opinion. The plaintiff was barred from bringing this action by sec. 32, ch. 22, Laws of 1859. We hold that this section applies to the tax deed given in evidence here, although it was issued on a tax roll made previous to 1859.

<p>APPEAL from the Municipal Court of the City of Bipon.</p>

The court below rendered a judgment in this action, in accordance with the prayer of the complaint, perpetually restraining the issue of a tax deed of a certain lot belonging to the plaintiff in the city of Fond du Lac, upon a tax certificate described in the complaint; and adjudging the tax certificate and sale to be void, etc. The grounds upon which this relief was granted will sufficiently appear from the opinion.

This is an action brought by the plaintiff as assignee of the grantee named in a certain tax deed, to foreclose the right, title and interest of the defendant, who was the former owner of the lands described in such deed, in and to the same. The complaint sets forth a copy of such tax deed, in which H. Eugene Eastman is named as grantee. It bears date December 31, 1867, and seems to be in the form prescribed by the statute. Laws of 1859, ch. 22 (Tay. Stats., 487, § 166).

This action was brought in said county to foreclose a mortgage given by tbe defendants John and Grace White to secure tbe payment of theij: note.

By a contract in writing and under seal, tbe defendant Strachan sold and transferred to the plaintiffs Noble and Hildreth, and to one Curry, who is tbe assignor of tbe plaintiff Webber, bis farming machine business, which be bad theretofore carried on in tbe city of Mineral Point, together with tbe good will of such business, and certain contracts with other parties connected therewith.

Action to foreclose a mortgage executed 'by the defendants Neugent and wife to the plaintiff, to secure the payment of $130, and dated and recorded September 22,. 1869. The following facts appear by the pleadings and proofs: On the 18th of November, 1867, Neugent and wife executed to.one Kennedy a mortgage on the same lands to secure the payment of $900 and interest.

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

Action for slander. Tbe complaint alleges that tbe defendant, in tbe presence and bearing of several other persons, maliciously spoke to tbe plaintiff, and of and concerning him, tbe following false and defamatory words: “ You are a Gfod damned thief, and I can prove it.

The action was brought to recover $577.16 for moneys laid out and expended by plaintiff for the use and benefit of the defendant, at his request. The complaint was verified. Within the time required by law, defendant demanded in writing a bill of particulars of plaintiff’s account; and plaintiff served a bill of particulars, which was not verified, on the 8th of August, 1868.

The complaint of the plaintiff alleges that “the above named defendant is indebted to him for work, labor and services done and performed by the plaintiff for the defendant at his request, from the 4th day of December, 1869, to the 28th day of January, 1871, in the sum of $793.52, and interest thereon ” from the last mentioned date. Judgment is demanded for said sum, interest and costs. The complaint was not verified.

The action was brought to recover $1,000 alleged to be due the plaintiff for services rendered by him to the defendants at their request, in 1868 and 1869, in and about the sale of certain real estate, known as “ The Ranch,” for which services defendants promised to pay, etc. The answer, among other things, alleges that in the autumn of 1868, the defendants and one Kimball, being “ joint owners and tenants in common ” of said tract of land, contracted to sell and did sell…

Croix County. A difference having arisen between the city and county as to which is entitled to the moneys received in the city for licenses to sell liquor granted by the city authorities, the treasurers of the city and county respectively submitted the controversy, without action, to the circuit court, pursuant to the statute. Tay. Stats., 1651, § 9.

<p>Mechanics’ Liens. (1-3) Order of priority. (3-7) Mode of enforcement. (7-9) Remedy of junior lien holders. JSquity jurisdiction.</p> <p>1. Under our statute “ Of the lien of mechanics and others ” (R. S., ch. 153), the lien for labor or materials employed in the construction of a building (where a petition is duly filed) takes precedence of liens of any other kind (as by mortgage, judgment and the like) attaching subsequently to the commencement of the building.</p> <p>2. Where there are several creditors claiming liens under said statute for labor and materials used in constructing the same building, their order of priority among themselves is determined by the dates of the filing of their respective petitions. Dolls r. Green (2 Wis., 228), and Dolls v.Dnearl (4 Wis., 451), as to this point, approved and followed.</p> <p>3. The lien first fixed by the filing of the petition remains paramount to all other similar liens, in case an action to enforce it be instituted within the time limited by the statute.</p> <p>4. Where a statute gives a new right, and provides a specific remedy, such right can be vindicated only in the way thus prescribed.</p> <p>5. The lien of a mechanic or material man, being created by the statute, can be enforced only in the manner provided by the statute, viz., by an action at law against the debtor, and a sale on execution as in other legal actions.</p> <p>6. The decision in Marsh v. Frazer (27 Wis., 696), that the action to enforce a mechanic’s lien was one “ at law on contract,” approved. The particulars, as to parties, etc., in which such action, as regulated by the statute, differs from ordinary actions at law, pointed out per Dixon, C.J.</p> <p>7. Except under special circumstances disclosing particular grounds for its interference, equity has no jurisdiction to enforce the lien thus created; nor can it enjoin the prosecution of an action at law to enforce one such lien, upon the application of a creditor having another lien of the same kind, on the ground that the latter is not made a party to such legal action; nor does the equitable doctrine of equality among lienholders apply to such a case.</p> <p>8. The remedy of junior lien creditors who have perfected their claims by judgment, is by bidding at the sale under the prior lien.</p> <p>9. It seems that a subsequent lienholder under the statute, if he can aver illegality in the claims alleged in a petition prior to his own, impeach their amount, charge fraud or collusion therein, or set up a higher equity in his own favor, may file his bill in equity to have such claims set aside or postponed in h-is favor. Per Dixon, C. J.</p>

'APPEAL from the Circuit Court for Chippewa County. The action is upon a judgment rendered in a district court of the state of Minnesota, in favor of the plaintiffs and against the defendant. The answer is a general denial.

Action by the plaintiff as administrator to recover certain lands in the county of Waukesha. In 1863 one Nicholas Nedley died seized of these lands. By his last -will, which was duly probated, he devised these lands to his children— that is, a life estate therein to one child, with remainder over to two others.

The complaint sets forth that in 1840 the plaintiff, with four others, tenants in common of a certain lot in the village (now city) of Mineral Point, executed a deed thereof, without any actual consideration, to certain trustees named in the deed, and to their successors forever, in trust for certain purposes which sufficiently appear in the opinion of the court; and it alleges an abandonment of the premises for those purposes, and their conversion to other uses, as stated…

Action commenced in justice’s court against the sheriff of Iowa county, to recover the value of certain grain taken hy his deputy from plaintiff’s possession. The plaintiff was a constable, and claimed the property by virtue of a levy under an execution against one George Levitt, in favor of one Lanyon. The defendant’s deputy took the property from the possession of the constable, upon a writ of replevin issued by a justice of the peace on complaint of one E. D. Levitt.

Action for a trespass to certain lands in said county, alleged to belong to tbe plaintiff, in entering thereon and cutting down and carrying away timber etc. Answer, that the land, at the time mentioned in the complaint, belonged to and was in the possession of the defendants. The plaintiff claimed under a tax deed dated July 26,1869.

The decision of this court upon a former appeal in this action will be found reported in 27 Wis., 541-555. The opinion of Mr. Justice Lyon as there printed, on pp. 546-548, contains a statement of the facts as they then appeared from the record. Substantially the same facts were shown upon a second trial; the plaintiff again had a verdict and judgment; and the defendant again appealed.

Proceeding under the bastardy act. Trial in tbe circuit court, and verdict of guilty.

This is an action of quo warranio, commenced in this court, to test the right to the office of superintendent of the poor in the county of Milwaukee. The plaintiffs and relators claim the office by virtue of an appointment thereto by the board of supervisors of that county, pursuant to the general law on that subject found in the R. S. of 1858, ch. 34, secs. 32 to 39.

Ejectment. The action was tried at the June term, 1870, of said court, and plaintiffs bad a verdict. Defendants, before judgment, moved for a new trial on the ground of various alleged errors; but the motion was denied, and judgment was rendered upon the verdict September 20, 1870.

A justice of the peace of said county having rendered a judgment in this cause, upon the verdict of a jury, in favor of the plaintiff, the cause was taken to the circuit court by writ of certiorari. The errors alleged were that the justice did not render judgment forthwith upon the verdict, but did render it on the next day, when he had lost jurisdiction.

Replevin. The complaint merely avers that the defendant has become possessed of and 'wrongfully detains certain chattels of the plaintiffs, describing them and stating their value; and thereupon it demands judgment in the usual form.

Action by Honora Grier to have tbe defendants adjudged to release to her all claim to certain described real estate.

Tbe case is stated in tbe opinion. There was a motion by tbe respondent to dismiss the appeal, which was beard at the same time as tbe argument upon tbe merits. argued that a decree in favor of tbe defendants in their equity suit in the district court of Colorado would not avail them as against Parmalee, the plaintiff in this action, because he was not a party to that suit.

By virtue of the provisions contained in cb. 141, P. & L. Laws of 1868, the common council of the city of Milwaukee established a park or public grounds within the limits prescribed by the act, and the damages and benefits to lots of individuals appropriated for that purpose were duly assessed by the board of public works, which board is charged by law with that duty. Such assessments were afterwards confirmed by the common council.

Replevin, commenced against Sullivan December 10, 1869, for one hundred and forty-three fishing nets. Plaintiff claimed as the assignee of the firm of Sullivan & Co., in trust for the payment of their debts. The answer of Sullivan was a general denial. His two codefendants became sureties on his undertaking, given on the 13th of December, 1869, to obtain his discharge from arrest. Upon the trial, the plaintiff put in evidence the assignment under wbicb be claimed.

Action for damages for a diversion by defendants of a stream of water from plaintiff’s land. A statement of tbe case will be found in tbe opinion.

In June, 1872, the plaintiff, without notice to the defendant, applied to the judge of, said court, at chambers, for a common law certiorari, addressed to the defendant, and returnable at the October term of said court, to bring up for review the acts of the board of review of the town of Menomonee in said county, relative to the valuation of certain real property of the plaintiff situate in said town.

The defendant appealed from an order of the court reversing, on a writ of certiorari, certain proceedings of the board of review of the town of Menomonee. The case is stated in the opinion.

On the 4th of August, 1870, upon the plaintiff’s oral application, the defendant’s agent at Madison in said county issued to him a policy of insurance against fire, for two years from that date, by which he was insured to the amount of $200 upon the “ log dwelling house ” situate upon certain premises of the plaintiff in the town of Cottage Grove in Dane county.

Action for the conversion of a quantity of saw logs belonging to the plaintiff, by the defendants Devilla B. Holt and Jane M Balcom, who, at tbe time of such conversion (April 1,1871), were partners in tbe business of manufacturing and dealing in lumber at the city of Oconto, in this state. TJri Balcom was also made defendant as husband of said Jane E. Balcom.

Action to recover possession of the steamer “Albany,” which the plaintiffs claim as owners, with damages for its detention. The answer contains a general denial of the allegations of the complaint, and, for a further defense, alleges that, at the commencement of the action, defendant was in possession of the steamer as agent of W. H. Leeman, who had purchased the same under a chattel mortgage executed to himself by Thomas. P. Benton.

This action was commenced in a justice’s court to recover tbe sum of $195 alleged to be due to plaintiff for materials furnished and labor performed by him, at the 'request of two supervisors of the defendant town, in repairing a bridge. From a judgment in favor of the plaintiff, defendant appealed to the circuit court.

Ejectment. The case is stated in the opinion. The defendant appealed from a judgment in favor of the plaintiff. contended that the evidence showed such acts of possession on the part of the defendant or his grantors, during the three years immediately succeeding the record of the tax deed, as would prevent the running of the statute of limitations in favor of the tax title claimant, citing Jones v. Collins, 16 Wis., 594. contended that the presumption was that plaintiff had…

Action commenced before the police justice of the village of Omro, in 1872, upon defendant’s guaranty of payment of a certain promissory note, amounting, with accrued interest, to $131. The defendant appeared and defended the action ; and judgment was rendered against him, from which he appealed to the county court.

<p>Constitutional Law. Jurisdiction of municipal courts in local and transitory actions.</p> <p>1. The act creating the municipal court of the city of Fond du Lac (ch. 474, P. & L. Laws of 1871), is invalid so far as it attempts to give those courts jurisdiction beyond the limits of that city. Atlcinsv. Vrdker (ante, p. 510), followed.</p> <p>2. An action for an unlawful and forcible entry and detainer, under the statute, is local, and not transitory; and the municipal courts of the city of Fond du Lac cannot acquire jurisdiction of such an action in respect to lands outside of the city.</p>

Action by an upper mill owner to abate and lower, to a certain extent, the dam of lower mill owners on the Michicott river, by which, it is alleged, the level of the water has been raised since April, 1866, above its previous height, and to recover damages for inj’uries to plaintiff’s mill caused thereby.

Action to recover damages for injuries alleged to have been, sustained by plaintiff (in May, 1871), by reason of the negligence of the defendant. Answer, a general denial, and an averment of contributory negligence on the part of the plaintiff. The case was tried at the November term of said court in-1871.

Replevin for logs seized by defendant, as sheriff, under certain writs of attachment. The defendant bad judgment for a return of the property (of which plaintiffs had obtained possession under the statute), and in case such return could not be had, then that he recover of the plaintiffs and the sureties on their replevin bond a specified sum as the value of said defendant’s special interest in the logs.

On tbe 15th day of December, 1870, Ephraim Bradley Chafin executed an instrument in writing purporting to be his last will and testament, and on the 18th of the same month he died. It is understood that by such instrument he attempted to give his personal property to his wife Nancy Chafin, together with the use of his real estate during her life.

Chapter 16, P. & L. Laws of 1854, .entitled “ An act to amend the charter of the Racine, Janesville & Mississippi Railroad Company,” contained the following provisions: “It shall be lawful for said company * * * to enter upon any land for the purpose of exploring, surveying and locating the route of said road, doing thereto no unnecessary damage; and when said route shall be determined by the said company, it shall be lawful for them * * * at any time to enter upon, tahe…

Action (commenced in 1871) for money bad and received by defendant for tbe use of plaintiff.

Tbe defendant appealed from a judgment against bim. Tbe case is sufficiently stated in tbe opinion. argued, inter alia, tbat tbe motion for a nonsuit on tbe ground of tbe pendency of a former action should have been granted. Tbe'common law rule is, tbat if the first action is pending and undetermined when tbe second action is commenced, tbe second must abate. 1 Cbitty’s PL, 454 and note.

<p>Printed Case — “Brief abstract” of evidence.— Rule 8.</p> <p>The court refuses to look into the oral testimony contained in the printed case on this appeal, until furnished with a “ brief abstract ” thereof, as required by Rule 8; but defers the decision of the cause for a reasonable time to enable the parties (or one of them, both being appellants) to furnish such abstract.</p>

As John Burns, tbe plaintiff’s intestate, was driving Ms team and wagon along a public highway in the defendant town, on the evening of July 5th, 1869, the wagon 'was turned' over, and Burns was thereby hilled. The plaintiff, who is the widow, and the administratrix of the estate of the deceased, brought this action to recover damages therefor, alleging that the accident was caused by the insufficiency of the highway at the point where her intestate was killed.

Tbe defendant Colter, being the administrator de bonis non of tbe estate of Green VV.

The following statement of the case was originally prepared by DixoN, 0. J., as a part of bis opinion therein. This is an action of unlawful detainer, instituted before a justice of the peace, and carried thence by appeal to the circuit court for Racine county, where, upon trial in that court, judgment of nonsuit was rendered against the plaintiff, from which judgment this appeal is taken.

By an act of congress approved March 3, 1863, the United States granted to the state of Wisconsin certain lands to aid in the construction of a military road from Fort Howard, Green Bay, to the Michigan state line. 12 Statutes at Large, 797.

Action, commenced in justice’s court, to recover the statutory penalty for obstructing a highway. Held: both in England and in this country, to be civil and not criminal. 1 Bish. Cr. L., § 32 and cases their cited; Lynch v. Steamer Economy, 27 Wis., 71; State ■v. Doane, 14 id., 483. But, however that may be, the legislature may declare that they shall be treated as civil cases for all purposes ; and it has so declared.

This action was brought by David Kimball waft. Reeder Smith against TheodoreW. Morse, Lorenzo K Darling, A. Morse, F. 0. Foster, George Putney, Francis H. Moon, AdeThert BabcocTc, Herschel S. Babcock, W.Whorton and J. Whorion. The complaint avers that on the 17th of July, 1869, the plaintiffs and the two defendants first named entered into a contract, which is set out in hcec verba, and is in substance as follows: 1.

This cause was commenced in a justice’s court to recover the possession of a lamb, under sec. 182, cb. 120, E. S. The substance of the plaintiff’s affidavit (constituting his complaint under sec. 141, ch. 120, E. S.), and of the defendant’s answer, and also the verdict and judgment, are stated in the opinion. The judgment in plaintiff’s favor having been affirmed on an appeal to the circuit court, defendant then appealed to this court.

This action was brought against Justus Blakley to recover damages for alleged trespasses upon lot 1 in Warden & Brunner's Addition to Darlington, of which plaintiffs claimed to be the owners in fee.