Volume 33 — Wisconsin Reports

Action to establish, in plaintiff’s favor, an equity of redemption in certain lands alleged by him to have been purchased for Ms benefit, of the Chicago & Northwestern Railway Company, but in the name of the defendant Clark, under a verbal agreement between them, that the latter should sell to the plaintiff certain land scrip issued by that company and which they were bound to receive in payment for land, to be used in the purchase of such lands as plaintiff should select,…

<p>(1-3) Eekor must be shown affirmatively. (4, 8) Evidence. (4^8) Taxes — Tax proceedings — Tax deed. (7-10) Breach of covenant against incum-brances.</p> <p>1. The party who asserts that error has been committed in the trial of a cause, must see that the record shows that fact affirmatively.</p> <p>2. Plaintiff, to show a breach of defendant’s covenant against incum-brances, in a deed of land, “ offered a deed from B. county and state of Wisconsin to H. E., of said land, founded on the sale of 1840, and dated December 31,1867.” The record shows nothing further con cerning this tax deed, except that it was rejected. Held, that upon such a record this court cannot say that the rejection of the deed was error.</p> <p>3. The land in question being in the Broth ertown Reservation, plaintiff “ offered a certified copy of the report of the commissioners elected under the act of congress approved March 3,1839, to subdivide and apportion the lands of the Brothertown Reservation to the different members of the tribe; but the court ruled out such report as incompetent and immaterial.” The report is not made a part of the bill of exceptions. Held, that it is impossible to say upon this record whether it was error to reject the report.</p> <p>4. The record contains a patent of said land, from the United States, hearing date in 1843. Held, that this shows, prima facie, that the land was not subject to taxation in 1840.</p> <p>5. Where the notice of a sale of lands for taxes was required by law to be published, “ once in each week for four successive weeks prior to the sale,” and the first publication was only twenty-six days before the sale: Held, that the sale was invalid.</p> <p>6. A tax deed which fails to state the name of the purchaser at the tax sale, is void. North v. Wendell, 33 Wis., 431.</p> <p>7. To show that the land, when conveyed by defendant with covenant against incumbrances, was incumbered by unpaid taxes, plaintiff must show the levy of a valid tax.</p> <p>8. The sale book kept by the clerk of the county hoard of supervisors, showing the sales of land for taxes is prima facie evidence of the facts therein stated, but is not evidence of the validity of the taxes.</p> <p>9. Where defendant was not bound by a judgment under which his cov-enantee in a deed of land was evicted, and in an action on his covenants plaintiff failed to show that such eviction was by paramount title, and also failed to show by competent evidence any incumbrance existing at the date of defendant’s deed: Held, that the court properly directed a verdict for defendant.</p> <p>10.Drsoit, C. J. (adhering to the view expressed in his dissenting opinion in 30 Wis., 41, 46), is of opinion that, even if plaintiff had shown a breach of the covenant against incumbrances, he would not have been entitled to any recovery without proof of actual damages, the covenant being held by this court to run with the land.</p>

This is an action to recover for personal injuries. On tbe evening of November 5, 1870, Conner Howard, Matbew Dunn and bis wife, Mrs. Lucas and ber son Michael, the plaintiff, who was then a little more than eight years of age, being desirous to go from Madison (where they then were), to McFarland, on tbe line of tbe defendant’s railway, and having ascertained that a train was to leave Madison (which would pass through the latter place) at about eleven o’clock on that…

Action to recover for injuries sustained by plaintiff, by reason of the alleged negligence of defendant’s employees.

By an act approved February 21, and published February 27, 1862, and subsequently published as chapter 48 in the supplement to the Private and Local Laws of 1862, the clerk of the city of Janesville was required, on or before the third Monday in March of that year, to make out a separate tax list for each of the years 1854, 1855, 1856 and 1857, each of such lists to contain a schedule of all the property in said city, which was included (and liable by law to be included) in…

In July, 1872, the relator filed a petition in this court, which stated, in substance, that he left the -city of Oshkosh, in this state, on the 23d of January, 1871, to reside in the city of Chicago, in the state of Illinois; that on that day he removed his personal property to the last named city, and became, and for a long time thereafter was, a citizen thereof; that since said date he has not resided in the city of Oshkosh, nor in the state of Wisconsin; that the assessor…

The petition of the relator alleged, in substance, that Harrison Ludington, as mayor of the city of Milwaukee, had granted license to certain named persons, and to numerous persons not named, to sell spirituous and intoxicating liquors in said city, such persons not having filed with the proper authorities the bond required by sec. 1, ch. 127, Laws of 1872 ; and it prayed this court for a writ of mandamus commanding the said Lud-ington, as mayor, and the respondents Mahoney…

<p>A criminal action (in this case an indictment against a town for maintaining a nuisance) cannot be brought to this - court by appeal, but by-writ of error.</p>

CERTIFIED from the Circuit Court for Green County. Held: that this was error, as the first verdict was an acquittal upon all but the first count, and he should have been tried upon that alone.

The case will sufficiently appear from the opinion. contended that, conceding that the act of congress under which it is sought to remove the cause here in question from the state court is valid, still it is the right and duty of the state court to decide whether its jurisdiction has been lost, i. e., whether the cause falls within the act, so that it is lawfully removed; and this is so, although the federal courts have the power to decide that question finally.

This is an action to recover tbe possession of 1,446 pine saw logs, which the complaint alleges were unlawfully detained by the defendant from the plaintiff. The complaint is in the usual form, alleging that the plaintiff is the owner and entitled to the possession of the logs. The answer is the general denial. The further facts in the case are stated in the opinion. contended, 1.

The action is upon a promissory note in tbe following form. “ MARSHALL, Nov. 1, 1869. — On or before ninety days after date, for value received, I promise to pay to Widman & Co., or bearer, fifty dollars, with interest at ten per cent, after due, at Marshall [for two mills, remit as soon as sold'].

The parties were husband and wife for many years, and until February, 1871, when they were divorced at the suit of the plaintiff. On the 3d day of September, 1870, the defendant caused to be recorded in the office of the register of deeds of Dane county, a deed of certain lands in that county, executed September 21, 1865, by Parker Rowley and Mary, his wife, in which deed the defendant is named as the grantee of such lands.

CEETIEIED from the Circuit Court for Racine County. The defendant was convicted in the circuit court on a complaint which charged him with having sold intoxicating liquor on the 10th day of December, 1872, “ without first having obtained a license therefor, and executing a bond as now required by law.” Such sale is charged to have been made in the city of Eacine.

This action was brought to recover compensation for legal services alleged to have been rendered by the plaintiffs, who are attorneys, for the defendant. The complaint contains the following clause : “ That such services were rendered and performed for the said defendant in the supreme court of the state of Wisconsin, in the circuit court for Eacine county, and in the circuit court for Kenosha county, within six years last past. The answer is a general denial and a set-off.

The plaintiff appealed from an order sustaining the demurrer of the defendants to the complaint, on the ground, among others, that the court had no jurisdiction of the subject of the action. The character of the action will appear from the opinion, and from the report of the former appeal, Holden v. Meadows and others, 31 Wis., 284. argued, 1.

<p>APPEAL from the County Court of Milwaukee County.</p>

Plaintiffs brought their action to recover the price of certain whisky alleged to have been sold by them to defendant.

The plaintiffs appealed from a judgment in defendant’s favor. The case is stated in the opinion. 1. Improvements made on lands used for agricultural purposes, by a tenant, under a verbal lease, are presumed to be made for his own convenience. The improvements made in this case were merely temporary ones, made for defendant’s own comfort and benefit; and he cannot recover therefor. Fdgerton v. Page, 1 Hilt., 320; Yates v. Martin, 1 Chand., 118. 2.

Ourtis brought his action in attachment against the Detroit & Milwaukee Railroad Company, a corporation of the state of Michigan, for damages sustained by personal injuries done to his wife while entering defendant’s cars at a station in Michigan. Plaintiff’s affidavit alleged that defendant had no officer or managing agent in Wisconsin, but that it had property within the state, and that Bradford was defendant’s ticket agent at Milwaukee.

The plaintiff commenced an action against the appellants and others, and alleged in his complaint that he leased to the defendants certain premises and a certain mill thereon, situated in. the city of Milwaukee, for one year from March 1, 1872; that it was provided in such lease “that all improvements which might be put on said premises by said lessees during the said term, should, by said lessees, be left upon said premises, and should be and become the property of the…

Ortcn brought his action against McCord to recover upon an alleged contract for a money demand, assigned to plaintiff by one Robinson.

Action of ejectment for tbe possession of lot 2, block 68, in tbe 7tb ward of Milwaukee. Upon the trial tbe plaintiff offered in evidence a tax deed of tbe premises in question, sold for the taxes of 1862, under which deed he claimed title. In behalf of defendant it was proven that the lot was sold for general tax $27.82, special tax 45 cents, but that by the tax list the general tax was $27.72, the increase of ten cents being the fee for sale and certificate.

This is an action to restrain the defendant from entering upon and permanently appropriating to its use, for the purposes of its road bed, certain real estate in the city of Milwaukee belonging to the plaintiff, until the defendant shall have made compensation therefor.

Commissioners of appraisal having awarded, the compensation to be paid to Caroline J. Lee, by reason of the taking by defendant of a portion of a certain lot owned by her, the company appealed from the award of the commissioners to the circuit court. A motion to dismiss the appeal in that court was made upon the following grounds: First, that the statutes under which the railway company proceeded to condemn the land, did not authorize an appeal by the company.

The facts appear in the opinion. argued that at common law an action would lie on a judgment rendered by a justice of the peace, immediately upon its rendition. Smith v. Mur^ford, 9 Cow., 26; Thomas v. Eobinson, 8 Wend., 267; Andrews v. Montgomery,19 Johns., 162. An action upon a judgment is the same as an action on any other money demand, using the judgment only as evidence of the amount due. 12 How. Pr. R., 540. [No brief on file.]

Ejectment, for a tract of land in the county of Milwaukee containing about twenty-nine acres. The action was tried by the court without a jury, and resulted in a judgment dismissing the complaint with costs. The plaintiffs appeal. The pleadings, proofs and findings of the court disclose the following facts: The defendants are, and for many years have been, husband and wife.

Dodge brought his action against Barden upon a promissory note, complaint in the usual form. Personal service was had August 15th; and on September 20th, the county judge, as court commissioner, made an order, upon an ex parte application of defendant, extending the time to answer to October 10th.

Action for the foreclosure of a mortgage. Defense, usury. The opinion states the case. argued that the circuit court erred in refusing to permit defendants to show other usurious transactions on the part of plaintiff, at or about the time of making the loan in question. Such transactions were circumstances tending to strengthen defendants’ proofs as to the receipt by plaintiff of the $100 bonus. In Brinlc&rhoof v. Fool, 1 Hoff. Ch., 291, such evidence was received.

<p> Implied contract to pay for attorney's services. </p> <p>Defendant held liable for services rendered hy plaintiffs as attorneys in collecting and securing the demands of defendant and all other creditors against a debtor who had made a fraudulent conveyance of his property; such services having been rendered with defendant’s knowledge and consent, and pursuant to an implied (if not an express) request.</p>

Ejectment. The facts are fully stated in the opinion. argued that the words “ meander line,” as used in the west, had a well-defined meaning. Railroad Company v. Schurmeir, 7 Wal., 272; Yates v. Judd, 18 Wis., 118 ; Walker v. Shepardson, 4 Wis., 486 ; Wisconsin River Improvement Co. v. Lyons, 30 Wis., 61. The parties must be presumed to have used these words in this well-defined sense. See 1 Tay.

This action was commenced on the 7th of February, 1870, to enforce a lien upon certain premises for the price of lumber furnished by the plaintiffs and used in the erection and repair of certain buildings thereon. The pleadings and evidence show the following facts: 1.

Harder brought his action to enforce his lien for services rendered in getting out certain saw logs and lumber for the defendant Smith. The facts necessary to an understanding of the opinion are fully stated by the court.

Action for injuries to the plaintiff’s person alleged to have been caused by a defect in a highway of the defendant town. 1. Could the judge have excused all the panel, and substituted talesmen for the jury in this case ? If twelve could be excused, all could be.

The action is upon a promissory note. At the time of commencing tbe action, tbe plaintiff sued out a writ of attachment therein, by virtue of which the property of the defendant was seized.

The plaintiff brought this action in behalf of himself and of all other owners of taxable property in the town of Menasha, similarly interested, against the chairman, supervisors and clerk of said town, and the Wisconsin Central Railroad Company.

Action to procure the cancellation of a deed. The case, stated most strongly for the defendant, is as follows: The plaintiff lived in Appleton, and owned three lots in Oshkosh. He received information at his residence, by a letter from one Stewar, that a friend of the latter wished to purchase such lots. Not knowing the name of the friend, the plaintiff and his wife executed a deed of the lots, leaving the name of the grantee blank.

The defendant, as a common carrier, in the fall of 1869, agreed to tow for plaintiff a crib of pine logs., from a boom in Winnebago county to the city of Oshlcosh, and there deliver them to plaintiff’s order. This action was brought to recover the value of said logs, plaintiff alleging that they had never been delivered to him. The answer alleges that defendant did tow the logs to Oshkosh and deliver them to plaintiff.

In April, 1871, the common council of the city of Oshkosh, the defendant, by resolution, authorized a committee of' that body to perfect plans and receive proposals for building a new bridge across Fox river in the fifth ward of .that city.

■ APPEAL from the Circuit Court for Winnebago County. A stock of goods belonging to the plaintiff in the city of Oshkosh was damaged in consequence of the burning of the building in which they were contained, and in consequence of the throwing of water upon said building to extinguish the flames.

Action by judgment creditors of the defendant W. H. Soyer, to set aside a conveyance of land made by said debtor to one Phipps, and a conveyance by said Phipps to Lealini E. Soyer, and one from her to Amelia Soyer (the two last named being respectively the wife and mother of said debtor). The complaint alleges that these conveyances were without consideration and in fraud of plaintiff’s rights. Amelia Soyer answered by a general denial; the other defendants made default. 1.

The complaint alleges “ that on or about the 20th day of June, 1870, the defendant, by the town board of supervisors of said town, employed this plaintiff to dig a ditch in said town for the purpose of draining and reclaiming the swamp and overflowed land in said town, and agreed to pay this plaintiff therefor the sum of sixty dollars; that this plaintiff has dug said ditch under the direction of said supervisors, and that there is now due him therefor the sum of $60.” It…

In April, 1870, plaintiffs entered into a written contract with defendant, to do all the brick and stone work (except, etc.), and furnish mortar therefor, and all the lathing and plastering and furnish materials for the same (with certain exceptions) required in the erection of a dwelling house for defendant, “ as described in the specifications and shown on the plans for said dwelling, and at the time mentioned therein,” which plans and specifications were declared to be a…

The plaintiff was the owner of certain land in Dodge county, and conveyed the same to one William Hobkirk as security for a loan of money. Afterwards the defendants Frank and John Johnston advanced the money to pay the indebtedness of the plaintiff to Hobkirk, and the latter signed, sealed and acknowledged a conveyance of the land to the Johnstons. This conveyance is absolute on its face.

Action on a promissory note in the following form : “ Sept. 2, 1871. On or before the first day of January next, we promise to pay to B. E. Carter, or bearer, the sum of one hundred and seventy-five dollars. Nugent & Collins.” The answer was, 1. That the note was without consideration. 2.

The complaint, which is duly verified, states that the mortgage therein-mentioned, which bears date March 16, 1872, was given to secure the purchase monéy of the mortgaged premises to the amount of $3,400, payable in unequal annual installments, the, first of which falls due October 1, 1873, and the last October 1, 1879, with interest at ten per cent., payable annually.

Ejectment, by Emmeline S. Whitney, widow and devisee of Daniel Whitney, James S. BaTcer, and Louis B. Porlier; commenced in October, 1870, and tried at the December term, 1873, of said court. The complaint avers that plaintiffs, on the second of June, 1870, were, and ever since have been, seized in fee simple, and entitled to the possession of certain premises, situate in the borough of Fort Howard in said county, particularly described as “ bounded on the north by lot.

The complaint sets up several causes of action: 1. For moneys expended by plaintiff at the request and for the bene- . fit of defendant, in 1867 and 1869, amounting, with interest, to $70. 2. Upon a promissory note of defendant, dated March 28, 1865, and upon which a balance of $74.30 was claimed to be due. 3. Upon an account for lumber, etc., sold by plaintiff to defendant, in 1868, upon which there is claimed to be due a balance of $161. 4.

The following statement of the case was prepared by Mr. Justice Cole as a part of his opinion : “ One of the objects of this suit is to set aside a deed executed by the defendant B. A. G hapman to his codefendant James A. Chapman, February 1, 1869, upon the ground' that such deed is fraudulent and void as to creditors. The plaintiff is a judgment creditor of the firm of N. 0. Perkins & Co., of which firm B. A. Chapman was a member.

<p>Money paid by mistake — Buie of evidence.</p> <p>i In an action to recover money alleged to bave been paid by plaintiff to defendant by mistake, upon a note, in excess of the amount due thereon, plaintiff testified to such payment, and produced a diary containing a memorandum made by him on the day of the transaction, which was in accordance with his testimony. Defendant testified positively to the contrary, and produced the note with indorsements made thereon at the time in accordance with his testimony. Held, that as there was no preponderance of evidence in plaintiff’s favor, he could not recover.</p>

. APPEAL from the Circuit Court for Fond du Lac County. This action was brought 'to foreclose a mortgage on certain lots in the city of Eond du Lac, dated October 11, 1869, and executed by the defendants William Jewsen and wife to the defendant Sophia J. Braley, to secure the payment of a note of the same date given by the said William Jewsen for $625, and ten per cent, interest, payable to such mortgagee or bearer.

The defendant is the successor of the Winnebago and Lake Superior Railroad Company, the charter of which is chapter 314 of the private and local laws of 1866. The defendant having located the line of its railroad across two forty-acre lots of the plaintiff, the value of the land proposed to be taken by the defendant for the purposes of its railroad was appraised by commissioners duly appointed for that purpose pursuant to the charter of the defendant.

1. A verdict that there was no cause of action is clearly unsupported by the evidence. Miles v. Harrington, 8 Kansas, 425; Flint v. Clarice, 18 Conn., 361. 2. When a verdict is unsupported by any evidence, and is in total disregard of instructions given by the court on material points, it should be set aside. Hayward v. Ormsbee, 7 Wis., Ill; Van Vallcenburgh v. Hoshins, id., 496; Whalon v. Blaclcburn, 14 id., 432. 3.

Action upon a promissory note. Appeal from an order overruling separate demurrers of the defendants to the complaint.

This case was before this court on a former occasion on an appeal from a judgment therein for the plaintiff; and such judgment was reversed and a new trial awarded. 29 Wis., 419.

Tbe plaintiff, Frances A. Hawes, brought ber action against tbe Town of Fox Lake to recover for injuries sustained by falling into an excayation along a public highway.

This action was brought under sec. 26, ch. 22, Laws of 1859, to recover of the county the amount paid by plaintiff on certain tax certificates, with interest. Plaintiff had filed with the clerk of the county board of supervisors, his claim for the amount paid by him at two tax sales, upon the ground, among others, that each of the sales was invalid because a five cent U. S. revenue stamp had been included in the amount for which each tract was sold.

Action to foreclose the interest of the defendants in real estate, Held under a land contract. Held: but no proceedings were had in this action during such term.

The plaintiffs brought their action against Brown, as garnishee of one Hilke, defendant in attachment. The evidence disclosed that Hilke had made a voluntary assignment to' Broiun of all his goods, chattels and choses in action for the benefit of his creditors, with certain preferences declared in the assignment. The assignment was in due form, and was-acknowledged by the assignor, and bore the indorsement of Brown as assignee, accepting the trust thereby created.

Action to set aside an award of commissioners appointed to appraise the damages sustained by plaintiff by reason of defendant’s taking certain lands of plaintiff for railway purposes, and to enjoin defendant from constructing its road over the premises. Plaintiff demurred to defendant’s answer, as not stating a defense.

Plaintiffs brought their action against the City of OshJcosh to recover the amount claimed by them as holders of four city orders. The orders were set out in the complaint, and, with the exception of the different amounts and numbers, were all as follows: “ $200, City Order. No. 810. “ Treasurer of the City of Oshkosh, pay to W. C. Frederick, or bearer, two hundred dollars out of the general fund not otherwise appropriated.

Poull brought his action to compel the defendant Moekley to release an alleged interest in certain land of Poull’s, known as lot 8.

The complaint, as originally filed, alleged that on or about the 3d of June, 1867, defendant was indebted to plaintiff for money had and received from her, in the sum of $200, with the further sum of $100 for interest then due plaintiff from defendant on account of money theretofore loaned defendant by plaintiff; that on the same day defendant executed and delivered to plaintiff his promissory note for $300, payable to plaintiff or her order, one year from date, with…

Action to restrain the Town of Stockbridge and D. J. Millar, the town treasurer, from enforcing the collection of a tax assessed against plaintiff's land.

Garnishee proceedings were instituted against Hamilton and another in a municipal court, and it was shown that the garnishees were indebted to the principal debtor, Kinney, in the sum of $19.93, for six days’ work of himself and team. Kinney appeared, and claimed in writing that the whole of. said sum was exempt.

The action was brought by Musgat to collect the balance of an account due bim from Wybro, together with the amount of an account due to one Lefferts from Wybro, and by Lefferts assigned to plaintiff. The defendant answered, alleging a composition agreement, by which his creditors agreed to take forty cents on the dollar in full of their claims, and that this amount had been paid.

Action to set aside a sheriff’s certificate of sale of plaintiffs’ land, sold by virtue of an execution against one Smith, from whom plaintiffs derived title. 'The complaint alleged that Smith acquired his title to the land under and by virtue of the act of congress of May 20,1862, known as the “homestead act.” It also averred that the j'udgment under which the land was sold was a debt which accrued and was contracted before the patent issued upon the land, and that by…

The plaintiff appealed from a judgment of nonsuit. The ground upon which such judgment was granted, is stated in the first paragraph of the opinion. relied upon R. S., ch. 148, secs. 3 and 11 (Tay. Stats., 1729, 1731, §§3, 11), and as to their construction, cited Conn. Mu. L. Ins.

In 1861, Louisa Welch applied to said circuit court for a decree of divorce from Thomas Welch, and to be allowed the care and custody of the infant child of said marriage.

This is an action by tbe sheriff, against the receiptors of property seized by him by virtue of a writ of attachment issued in an action then pending in the circuit court, in which one Ellen 0. Cook was plaintiff, and Stephen Crane was defendant. The cause has before been in this court, on appeal from a judgment against these defendants, and is reported in 27 Wis., 517.

<p>APPEAL from the Circuit Court for Fond du Lac County.</p> <p>moved to dismiss the appeal.</p>

The following statement of the case as set forth in the complaint, was prepared by Cole, J., as a part of his opinion : “ The plaintiff is the owner and holder of certain school land certificates described in the complaint, which were assigned to him October 27, 1870.

Action to recover damages alleged to have accrued to plaintiffs by reason of defendant’s failure to deliver a telegraphic dispatch. Trial by the court without a jury. The court held that defendant was guilty of negligence in failing to deliver such message, and became liable to plaintiffs for any damages sustained by them ; but that “ no injury had been sustained by plaintiffs which the court could compute in damages,” and judgment was accordingly entered for defendant.

The following statement of the case formed originally a part of the opinion of Mr. Justice Cole : “ This action was brought in a justice’s court to recover damages resulting from the intoxication of plaintiff’s husband by liquors sold him by the defendant.

The defendant appealed from a judgment in favor of the plaintiff.

This action was originally brought by the relator as town treasurer of the town of Berlin, in Marathon county, against the respondent as county treasurer of said county, (to compel him.by mandamus to pay over certain money in his hands. A judgment in favor of the relator was affirmed by this court, on appeal. 31 Wis., 257.

The action was originally brought by Norden before a justice of the peace, to recover on a -book account alleged to be due from Jones. Defendant filed a counterclaim, and on the trial offered to prove an item in his account of six dollars, for pasturing plaintiff’s cattle, and testified that plaintiff laid down his fence and let the cattle into the pasture.

This action was brought in a justice’s court to recover damages alleged to have resulted from defendant’s negligence in cutting and fitting a cloak for plaintiff’s wife. The facts are stated in the opinion. The justice rendered judgment for plaintiff for $4.50 damages, and $14.43 costs of suit argued that the complaint was sufficient under the statutes. Tay. Stats., 1362, sec. 5, subds. 2 and 5.

• APPEAL from the Circuit Court for Waupaca County. The action was brought by Ketchum and Hoxie, to recover damages sustained by the alleged breach of a covenant of warranty in a contract for the sale of certain saw logs by the defendant Ebert to them. The answer admitted the contract, but alleged fraud on the part of plaintiffs, and set up a counterclaim for the value of certain logs.

. APPEAL from tbe Circuit Court for Saule County. West sold and delivered to one Bishop a promissory note for $380, then past due, drawn by Noyes & Blevin to the order of Nathan Halloway, and indorsed by Halloway in blank. Bishop afterwards sold and delivered the note to the plaintiff, Giffert, who obtained judgment thereon against the makers, upon which an execution was issued and returned unsatisfied.

Plaintiffs were awarded $600 damages by commissioners, for the right of way taken by defendant for its railway over the west half of Pine Street in front of lot 10, block 0, and in front of lots 11, 12 and 13 in block A, in the western addition to the First ward in the city of Oshkosh.

The action was brought hj. Laude to recover damages sustained by the loss of two colts, which were killed by the cars on the track of defendant’s railway. The complaint alleges, in substance, that the colts were killed by reason of the negligent manner in which the defendant’s agents and employees conducted and managed the cars and locomotive of defendant.

Action to recover upon an alleged verbal contract of the defendant with one Comstock, to insure tobacco in a warehouse owned by Comstock in Janesville.

Action upon a due-bill from Childs to Scanlan for $37.59, on which was indorsed a payment of $15.10. Childs claimed a set-off of $22.50, the amount of an account for beer and ale sold the plaintiff by one Rogers, which account was assigned by Rogers to Childs, after the making.of the due-bill, but before suit brought.

Grant brought bis action against Hardy to recover the sum of $2,100 which he had paid him for a one-fourth interest in certain mining lands, originally purchased by the two jointly of one Stonebralcer for the consideration of $8,000, Grant talc-ing an undivided three-fourths by the conveyance from Stone-bralcer, and Hardy an undivided one-fourth.

Law, § 2533; 2 Starkie on Libel & Slander (ed. of 1843) *211, *212 ; Cook on Defamation, 129 ; King v. Roberts, Holt’s Dig. Law of Libel, 89); that an action for libel can never be maintained by a private corporation without showing special damage (Shoe & Leather Bank v. Thompson, 18 Abb. Pr. R., 413; Trenton Ins.

<p>Quo Warranto. M otion for judgment of oustev, for frivolousness of answer, will not be granted by a single justice of supreme court.</p> <p>1. Whether, in an action pending in this conrt, a motion for judgment against the defendant for the frivolousness of his answer can in anj-ease he made before all the justices of the court, at chambers, is not here decided.</p> <p>2. The power to “ hear and determine ” the writ of quo warranto is vested by the constitution (art. vii, sec. 3) in the supreme court, and cannot be vested by statute in a justice thereof at chambers.</p> <p>3. In quo warranto, commenced in this court to try the right of defendant to an office, a motion for judgment of ouster against the defendant, ’ on the ground that his answer is frivolous, will not be granted by one of the justices of the court; especially as there is no provision of law by which such judgment could be reviewed by the court.</p>

In part payment for a stock of goods sold hy Rains to Neff, the latter assigned to the former a judgment in his favor against one Ripley for $268.88, with a guaranty of “ the payment of said judgment” and interest thereon to the date of such assignment, making an aggregate of $423.11.