Volume 34 — Wisconsin Reports

Action in the nature of a quo warranto, commenced in this court, in August, 1873, to try the title of the defendant, Conk-lin, to the office of treasurer of the St. Raphael’s Benevolent Society, a corporation in this state existing under an act approved March 3, 1870.

Harrison Price brought this action against Pamela Price, his wife, Amasa Osborn, and John Metcalf and his wife, for the purpose of setting aside a deed of certain property, made by Metcalf to Pamela Price, and a subsequent conveyance by her of the same property to Osborn, and to compel Metcalf and wife to execute a conveyance of the land to plaintiff.

Smith brought suit against Schulenberg, Boeckler and Hospes, partners under tbe firm name of Schulenberg, Bceekler & Co., to recover a balance due on account of said logs sold to defendants by Gilmore & Smith, partners, the claim being now owned by Smith, individually.

APPEAR from tbe Circuit Court for Columbia County. Action for an unpaid balance of $264.88, upon a promissory note of defendant, given for part of tbe purchase price of certain cattle sold to him by plaintiff and one Ingalsbe. Defendant, by bis answer, sought to recoup damages which he claims to have sustained by reason of false and deceptive representations of plaintiff and Ingalsbe as to the weight of the cattle.

The charter of the city of Milwaukee of 1852, ch. 10, sec. 18, provides that where the grade of a street has once been established and is afterwards changed, “ all damages, costs and charges arising therefrom shall be paid by the city to the owner of any lot or parcel of land, or tenement, which may be affected or injured in consequence of the alteration of such grade.” Under this section Ohurch brought an action against the City of Milwaukee, in the county court of…

Tbe defendant Lockwood became surety for costs in an action instituted in a justice’s court by one Bruch against Smith, tbe plaintiff in this action. Bruch recovered judgment against Smith, from which the latter appealed to the circuit court, where the judgment was reversed, and judgment was rendered in favor of Smith and against Bruch for $104.97, costs of defendant as taxed. Execution was issued against Bruch, and returned unsatisfied.

Action to recover damages for tbe breach of an alleged executory contract between tbe parties, for tbe sale by tbe defendant to tbe plaintiffs of about 500,000 feet of logs at eight dollars per thousand feet. No note or memorandum in writing of such contract, subscribed by tbe defendant, was made; none of the logs were delivered to tbe plaintiffs; and no part of tbe purchase money therefor was paid at tbe time such contract was made.

This action was brought by Maria, B. Dayton, to quiet title to certain real estate described in the complaint, and to perpetually enjoin the defendants Annette Eelf, Richard Eelf and Thomas Clark from prosecuting an action previously begun by Annette Self as plaintiff against Maria B. Dayton, defendant, under chapter 22, Laws of 1859, to bar the claim of Mrs. Day-ion to the land in question, which had been conveyed to Annette Self under certain tax deeds.

The action was originally brought by William F. Flkins, to enjoin the negotiation of certain promissory notes given to the defendant Kenyon as the purchase price for an interest in certain territory in a patented screw-fork for elevating hay, and to have the notes declared void and cancelled because of fraudulent representations as to the value of the fork and its capability to do the work intended.

This was one of several similar actions brought against the City of Milwaukee, under section 18, chapter 10 of the city charter, to recover damages alleged to have been done to plaintiffs’ property by reason of a change of grade in the street on which the premises were situated. Plaintiffs owned the lot in question, on which they had erected and were operating a barley mill.

Action to set aside a sale of plaintiffs’ interest in a patent right. The case is stated in the opinion. argued that the circuit court had jurisdiction of the action, which relates only to the title of the patent as an article of property, and involves no question as to the validity, construction or infringement of the patent in question.

The plaintiff brought this action as administrator of the estate of William Poster, deceased, to recover $7,196 alleged to be due on a promissory note made by defendant May 8, 1854, for the sum of $4,982.90, payable to said William Poster or bearer, in certain installments falling due on the first of March in each of the years 1857,1858,1860 and 1863, with interest payable annually.

On Sunday, May 3d, 1868, tbe tug-boat Winneoonne, having in tow a barge belonging to tbe plaintiff, and bound for Portage City, approached tbe lower lock in tbe canal of the defendant, which connects tbe waters of tbe Fox and Wisconsin rivers, for tbe purpose of passing through the lock into tbe canal.

This is a certiorari to remove into this court the proceedings of the board of review of the city of Janesville in the matter of •the assessment for taxation, in the year 1873, of certain lots of the plaintiff in error, situated therein. Eor satisfactory reasons, the writ was allowed to be issued from this court.

Chapter 365, General Laws of L864, incorporated the Sturgeon Bay and Lalte Michigan Ship Canal and Harbor Company, with power “ to locate, construct and build a canal * * for all classes of shipping on the lakes, between the head of Sturgeon Bay, in the county of Door, and Lake Michigan, so as to connect the waters of said bay with said lake, and to construct a breakwater and harbor on the lake shore, at the mouth of said canal, and to dredge and improve the said bay so as…

On tbe lltli of December, 1873, tbe relator applied to this court for an alternative writ of mandamus directed to the Supervisors of the Tovm of Elba (naming them), commanding them forthwith to order the town clerk to put into the tax roll of said town for the year 1873, the amount of a certain judgment recovered against such town and in favor of the relator, rendered in the circuit court for Dodge county, and affirmed by this court on appeal (see 32 Wis., 605); or to show…

CERTIORARI go tbe Judge of tbe Eleventh Judicial Circuit. The case is’stated in tbe opinion. 1. The common law certiorari is tbe proper remedy in this case. The proceeding sought to be reviewed is one of a summary character, out of the course of the common law, and there can be no direct review of the determination of the circuit judge except upon this writ.

The petition of Walter C. Crandall to this court stated that he was unlawfully imprisoned by the sheriff of Rock county, in the county… Held: etc., said GrandaU was in due form of law convicted of the crime of “an assault and battery,” and that upon such conviction, said court, on the 29th of May, 1873, passed sentence upon him as follows : “ That you, Walter G. GrandaU, be imprisoned in the county jail for the term of six months, and pay a fine of five hundred dollars,…

While the above entitled canse was pending in the circuit court for Iowa county, the plaintiff applied to this court for a writ of injunction against the defendants, basing such application upon the original complaint supported by certain affidavits. The defendants, upon the answer filed in the court below, supported by affidavits, resisted the application.

The complaint alleges, in substance, that, pursuant to a single contract and at the request of the defendant, the plaintiffs furnished a specified quantity of earth and gravel and performed a specified amount of labor, which were used and performed'in and about the filling, grading, gravelling and paving of a street and gutter in front of certain lots belonging to the defendant, * at stipulated prices for such materials and labor; that the contract provided that the same…

This action was here on a former appeal, and was remanded to the circuit court for trial: 82 Wis., 269. By reference to the report, it will be seen that it was brought to recover for personal injuries received by the plaintiff in consequence of the alleged negligence of the servants and employees of the defendant in running a locomotive and train of cars.

Action in the nature of a quo warranto, commenced in tbis court, by tbe attorney general, on the 29th of August, 1878, on leave granted by the court, to have a forfeiture of defendant’s charter adjudged, and the corporation dissolved.

Tbe plaintiff in error, Max Mindslcopf was brought before a justice of the peace in Washington county, in September, 1872, on a complaint against him under the bastardy act, charging him with being the father of a child of the complaining witness, which child was then living and was about one year old.

The petition of JE. M. Danforih to this court stated, in substance, that on the third Wednesday of October, 1878, at the annual meeting of the… Held: etc., duly appointed said T. D. Grimmer as treasurer thereof, in the place of the relator, and said Grimmer duly filed his bond and qualified as such treasurer, etc. (of ■which the petitioner had due notice); that respondent was informed and believed that said Grimmer, and not the petitioner, was entitled to the moneys in his…

Ejectment. Plaintiff claimed under a sale of the land (as forfeited mortgage land), made by the commissioners of school and university lands. The defendant Appleyard answered separately, and appealed from so much of the judgment in plaintiff’s favor as was against himself. The case is more fully stated in the opinion. Proceedings by the commissioners under the statutes for the sale of forfeited mortgage lands, are strictissimi juris. Parlcer v. Overman, 18 How.

APPEAR from the County Court of Milwaukee County. The action being upon á written contract, and the answer, in addition to certain matters alleged as a defense, having set up an equitable counterclaim for a reformation of the contract, and also a counterclaim for alleged breaches by plaintiff, of the contract, the plaintiff entered a side-bar order for the discontinuance of the action on payment of defendant’s costs, and notified defendant of such discontinuance and of his…

The plaintiff, being the owner of a house and lot in Milwaukee,- of the value of $2,200, ’ purchased of the defendant Von Lillienthal a farm in Marquette county, represented by the latter to be worth $5,000, giving his house and lot in exchange therefor, and executing notes secured by mortgage on the farm for the balance of the purchase money.

This action was brought to recover damages for the alleged malicious abuse of legal process by the defendant in certain garnishee proceedings instituted by him in aid of and collateral to an action on contract theretofore brought by defendant against the firm of Noonan & McNab, of which firm the plaintiff in this action was a member.

Action upon a promissory note for $42, made by Williams in favor of .Punch.

From 1860 to 1869 inclusive, a large number of blocks and lots in the city of Milwaukee, owned during all that time by the plaintiff or by certain other railroad corporations to whose franchises and property the plaintiff has succeeded, were assessed and taxed in each of said years for state, county, city, ward and school purposes. For nonpayment of such taxes said blocks and lots were sold, each year, and the city holds all the certificates of such sales.

The action was tjrought by George Colby and. Olive R. Colby, bis wife, to recover damages for injuries to the latter caused by the de-fectivé condition of a sidewalk in the City of Beaver Darn.

Action for slander. The complaint alleges, in substance, that the plaintiff was a dealer in and manufacturer of boots and shoes, in the city of Eond du Lac, doing a large and prosperous business, and having buildings to rent, and receiving large rentals, etc., at the time when the words hereinafter recited were spoken; that he was a member in good standing of the Roman Catholic Church; that a large proportion of the population of Eond du Lac and vicinity are members of…

<p>ERROR to the Circuit Court for Fond du Lac County.</p>

<p>Practice. (1) Taxation of costs: objections must be taken before taxing officer. (2) Continuance: payment of a gross sum may be required, as a condition.</p> <p>1. Objections to the taxation of costs at the circuit must in all eases be first taken before tlie taxing officer, or they cannot be heard here.</p> <p>2. On granting defendant a continuance (for the absence of witnesses), it was within the sound discretion of the circuit court- to require, as a condition thereof, payment of a gross sum as costs and disbursements incident to the preparation of the cause for trial at the pending term, such sum not being exorbitant or unreasonable; and on appeal from such order ; defendant cannot object to specific items allowed' and taxed by the clerk for attendance and mileage of witnesses, on-the ground that the plaintiffs’ affidavits in relation thereto were defective. ;</p>

Trespass, hy Quinlan, for the alleged digging and taking away of sand and gravel from a gravel bed on plaintiff’s premises by F. 0. Pierce, overseer of highways in district 29, town of Omro, and by the other defendants, who were engaged in graveling the highway under the direction of Pierce.

Action against Chambers and Whitlock as partners. The plaintiff appealed from an order of tbe county court, granting a change of venue to Waupaca county, upon the affidavit of Chambers alone. The opinion states the case. argued that, since Chambers’ affidavit stated that he resided in Waupaca county, but was silent as to WMilocJc’s residence, the fair inference was that Whitlock resided in Winnebago county, or at least that he did not reside in Waupaca.

The plaintiff was the owner of a mill in the city of Oshkosh, which stood near Eox River in that city, and the defendants were the owners of a tug boat propelled by steam and used in the navigation of that river. On the 3d day of May, 1872, and soon after such tug boat, then commanded by the defendant Morley, had been engaged in placing a raft of logs near the mill of the plaintiff, the mill was discovered to be on fire, and the same was entirely consumed.

Action to foreclose a mortgage on certain real estate in tbe city of Oshkosh, dated August 29, 1868, and executed by tbe defendants to tbe plaintiff to secure tbe performance of tbe condition of a bond of tbe same date, executed by the defendant Hiram to tbe plaintiff, in tbe sum of four thousand dollars. The condition of tbe bond is for the performance by tbe obligor of the following contract: “ First.

This was an action for an injunction to restrain the defendants from further interfering with or molesting the plaintiff, the Lutheran Evangelical Church of Schleisingerville, in the possession and enjoyment of its church property, records and tempo-ralities.

APPE ML from the Circuit Court for Dodge County. The plaintiff, Alice A. Montgomery, brought her action to recover of the defendant town damages for injuries to her person alleged to have been caused by the insufficiency of defendant’s highway.

This was an action brought by Ferdinand Scheer and Alhertine Sheer, his wife, to recover damages for an alleged false arrest and imprisonment of the plaintiff Alhertine Scheer by the defendant Keown, upon a charge of larceny.

Action for damages alleged to Rave been sustained by tbe plaintiff by falling through an open hatchway in a sidewalk of the defendant city.

Action by insured to recover on an insurance policy. The complaint alleges, among other things, that the defendant issued its policy to Frank L. Parker and Betsy L. Smith, members of the firm of Parker & Smith, under their firm name; that they were the owners of the property insured; that A. B. Smith (who is made a party to the suit) was and is the husband of Betsy L. Smith) and that due proofs of loss were made. The answer set up as defenses: 1.

Action to set aside and cancel a conveyance of certain real estate on account of the age and incapacity of plaintiffs at the time of executing it, and alleged fraud on the part of defendant in procuring it to be executed. The complaint is set forth in the opinion.

.APPEAL from fhe Circuit Court for Kewaunee County. This case bas been twice before this court on appeal, and is reported in 28 Wis., p. 669, and 30 Wis., p. 624; and a statement of the action as originally brought appears in the volume first named.

Action brought to restrain the clerk of the board of supervisors of said county from issuing a tax deed upon a tax certificate on the sale of the plaintiff’s lots for a street improvement tax; said… Held: as matter of law, that the common council had no authority to order the paving of the street, for the reason that no such petition had been presented as was required by the charter, and that the plaintiff was entitled to the relief prayed for.

APPE ML from the Circuit Court for Fond du Lac County. The action was brought by Adelaide A. Pierce, to recover upon a policy of life insurance issued by the defendant to plaintiff’s husband, M. P. Pierce, for the benefit of plaintiff, •during the existence of which policy Pierce died in St. Louis, December 23, 1871.

This action was commenced in February, 1870, in justice’s court; was appealed to the circuit court, and tried before a referee; and the plaintiff recovered judgment, from which the defendant appealed to this court.

In 1872, F. P. Brook, one of the appellants and one of the executors named in the last will and testament of Wm.

The defendant Isaac appealed from a judgment of foreclosure of a mortgage. The case is stated in the opinion. to the point that notice of Us pendens was not properly filed twenty days before judgment, cited Waring v. Waring, 7 Abb. Pr. R., 472, note; Burroughs v. Beiger, 12 How. Pr. R., 171Farmers' I. & T. Co. v. Dickson, 17 id., 477.

The action was for the foreclosure of an equity of redemption in certain lands in Calumet county. The complaint sets up the making and delivery of a deed by one of the defendants, Sampson, to the plaintiff, August 19,1851, upon the lands in controversy, as security for a debt; the delivery back, at the same time, to the grantor, of a defeasance in the form of a bond under seal for a reconveyance, the grantor remaining in possession.

Action for injuries to plaintiff’s person alleged to have been caused by the defective condition of a sidewalk in the defendant city.' After plaintiff’s evidence was in, the court refused a nonsuit asked by defendant. The plaintiff had a verdict and judgment; and the defendant appealed. The essential facts upon which the questions determined by this court arose, are stated in the opinion.

Action commenced in justice’s court and removed by appeal to the circuit court, where a trial by jury was waived. The complaint is in the usual form for trespass in breaking and entering plaintiff’s close and removing his fence.

■ An ordinance of the village of Waupun prohibits the erection of wooden buildings within certain specified limits therein, and imposes a penalty of fifty dollars for a violation thereof.

The plaintiff, having an application pending before the commissioner of patents for letters patent on a certain machine for harvesting grain, called “The Farmer’s Pride,” of which he claimed to be the inventor, by an instrument in writing dated September 16, 1871 (and duly recorded in the patent office at Washington September 20th of that year), assigned an undivided one-half interest in such machine and invention, to the defendant, and authorized the commissioner to, issue…

<p>Frivolous Appeal — Double costs, etc.</p> <p>The power given to this court (Tay. Stats, 1644,1646, §§ 42 and 47), upon affirming a judgment appealed from, to impose damages upon the appellant exceeding seven per cent., and also double costs, can properly he exercised only where the appeal is clearly frivolous and taken to hinder and oppress the respondent. Morse v. Ins. Go., 30 Wis., 534. And upon the record in this appeal, this court cannot hold it to he of that character.</p>

Action for damages alleged to have been sustained by defendant’s failure to deliver a “ nigbt message ” within a reasonable time. Answer, a general denial, and a separate defense alleging that tbe message was sent under a special contract. Tbe action was tried by tbe court without a jury.

A court commissioner made an order in this cause, requiring the defendant to appear before him at a specified time and place, to make discovery under oath concerning his property, etc. This order was based on an affidavit, in which the affiant states that he is one of the attorneys for the plaintiffs in said cause; that judgment was rendered in the county court of Milwaukee county in favor of said plaintiffs and against James P. Pierce, on the 13th of December, 1872, for…

EEEOE to tbe Circuit Court for Winnebago County. This action below was brought by Lombard to recover the undivided one-half of an eighty acre lot situated in the county' of Eond du Lac. The complaint is in the usual form of complaints in actions of ejectment. The answer is, 1st. A general denial; 2d. The statute of limitations; and Sd. An estoppel.

Ejectment, for a strip of land, part of a public street in front of plaintiff’s lot, in the city of Fond du Lac.

The following statement of tbe case was originally prepared by Mr. Justice Cole as a part of bis opinion: “ The plaintiff is tbe keeper of a saloon in tbe city of Eond du Lac, and states in bis complaint that in May, 1873, tbe common council granted him a license to sell spirituous liquors in that city, for which he paid the license fee required by that body; and that in June following, at a meeting of the common council, upon a petition or communication made by the police.…

This appeal is from an order of the circuit court affirming an order of the county court of Grant county construing a clause in the last will of the testator relating to the disposition of the surplus of his estate over and above certain legacies and devises.

The preliminary transactions out of which this action arose are sufficiently stated in the report of the case of Morgan v. Hammett and others, 23 Wis., 30, and such statement will not be repeated here.

This action was originally brought in a justice’s court, against Hall and. Martin, on a note purporting to have been executed by Hall, and by Martin as surety, payable six months after date to the plaintiff or his order. In making the note a printed form was used, which, after the specification of the principal sum, contained originally the following printed words: “ Interest'at ten per cent, per annum after due.

The appellant, the railway company, claims to be a corporation organized under the general railroad law of this state, Laws of 1872, ch. 119. The patent issued to it pursuant to section one of that law, is as follows: . “State of Wisconsin.

This action was brought to set aside a deed from the West Wisconsin Railway Company to the defendant Henry G. Starring, or to compel a conveyance of the premises by Starring to plaintiff.

Action on an award. By an instrument in writing and under seal, dated and executed September 20th, 1870, the parties submitted “ all controversies and matters of difference existing between them, of every kind and nature whatsoever,” to the decision of three arbitrators, Hill, Cordon and Smith, and mutually agreed therein “to abide by the decision and judgment of such three arbitrators, or of a majority of them, and to pay or do whatsoever said arbitrators, or any two of…

The complaiut alleges that the defendant McLaughlin was indebted to the plaintiff in the sum of $1,000 and interest, on a note and mortgage for that amount executed by him to one Lucy A. Sage; that, being so indebted, and in consideration that the plaintiff had agreed to pay for McLaughlin a certain other note and mortgage for $800 and interest, executed by the latter to one Templeton and then over due, and to take up the same (both of said mortgages being upon the lands…

. The plaintiff, being the owner of certain void tax certificates on lands in Adams county, presented to the board of supervisors of that county her account, or claim, duly verified, for the sums paid for such certificates at the tax sales, and interest thereon. The board disallowed her claim, and she appealed therefrom to the circuit court.

Chapter 210, P. & L. Laws of 1870, provided that the proper officers of Wood county might issue the bonds of that-county, on certain conditions, for the purpose of aiding in the construction of a certain railroad into the city of Grand Rapids or village of Centraba; appointed the respondents in this action commissioners, to be known as the board of railroad commissioners of Wood county; made it their duty to take charge of the fund to be created; provided that a majority…

Tbe action is in tbe nature of trover for a quantity of bops which tbe defendants bad caused to be seized by virtue of a writ of attachment which they sued out of the circuit court against the goods and chattels, etc., of one Travis. It is unnecessary to set out the particulars of the plaintiff’s claim to the hops, because it is not disputed that if they could not legally be held under the writ of attachment, the plaintiff was entitled to recover the value thereof.

Plaintiffs appealed from an order of the circuit court setting aside a writ of attachment, under which they had levied upon ■the property of the defendants in the action. Held: in Lathrop v. Snyder, 16 Wis., 293, that the words “ as near as deponent can now ascertain the same ” were not sufficient, because the affidavit did not state the amount with certainty.

Croix County. Appeal from an order vacating a portion of a judgment. The action was to recover damages for flowing the land of plaintiff by means of a certain dam maintained by the defendant across a navigable stream, and to obtain the abatement of the dam. The defendant pleaded an act of the legislature passed after the dam was erected, which he claimed authorized him to maintain it, and which rendered the dam subject to the provisions of the mill dam law. R. S., ch. 56.

Croix County. Action to recover damages for personal injuries alleged to have been received by the plaintiff by reason of a defect in one of the public highways in°the defendant town. The defect complained of was a snow drift which rendered the track usually travelled impassable for teams; and the plaintiff was injured by the upsetting of his sleigh when he was attempting to drive around the drift. This occurred during the forenoon of Friday, February 16,1872.

In this action, by Helen T. Bacon against Ira P. Bacon, some time after a judgment for a divorce and alimony bad been rendered in plaintiff’s favor, the court, on her .petition, made a further order or decree modifying such former judgment, by requiring defendant to pay the plaintiff the sum of $2,166.74, to «enable her to remove certain incumbrances on lands transferred to her by the judgment, and also requiring him to pay the eosts of this proceeding.

Action upon promissory note. In May, 1872, the plaintiffs, residing in New York, placed in the hands of their attorneys there for collection, a claim against the defendant Parker, which was by them immediately forwarded to their correspondents at Madison, Wisconsin, where Parker resided.

Action to recover damages for injuries sustained by respondent by reason of defects in a bridge over Rock River. The decision of this court on a former appeal in the action is reported in 29 Wis., 296-307, where the facts relied on to establish the negligence of the defendant sufficiently appear.

It appears by the pleadings that on the 7th of June, 1860, the plaintiff was indebted to the defendant in the sum of one thousand dollars, and that, for the purpose of securing the same, he transferred to the defendant four promissory notes, secured by three mortgages on real estate, on which there was then unpaid over thirteen hundred dollars of principal, and some interest.

The charter of the defendant city (P. & L. Laws of 1870, ch. 436) provides that “the common council shall have the management and control of the finances, except school moneys, and all the other property in (of?) the city,” etc. (ch. 4, sec. 3); and that “ all funds in the treasury, except school, state and county funds, shall be under the control of the common council, and shall be drawn out upon the order of the mayor and clerk, duly authorized by a vote of the common…

Proceedings for contempt. In an action brought by one Evans, of the firm of Evans & Brown, against his partner, for a dissolution of the partnership and for a settlement, Benson, the complainant herein, was appointed receiver “ of all the moneys, assets and property ” of said firm; and his affidavit upon which this proceeding is based, dated March 17, 1873, charged, tbe defendant, L. J. Day, with having taken from him, on the 11th of September, 1872, without his knowledge or…

Action for waste. Tbe lands upon which the alleged acts of waste were charged to have been committed, were a portion of those confirmed to Pierre Grignon by act of congress approved June 13,1860, and patented to him on the 2nd of June, 1870.

This action was commenced before a justice of the peace in Calumet county.

This action was brought for the foreclosure of a mortgage, executed by one Nelson and wife, upon one hundred and sixty acres of land, including forty acres claimed by the mortgagor as his homestead, upon all of which defendant Edgar held a subsequent mortgage, executed by Nelson but not signed by his wife. The mortgagor defendant made no appearance in the action.

An action by Turner against Pierce, similar to the present one, was tried at the circuit in May, 1871; and the judgment there rendered for the plaintiff was reversed by this court on appeal, upon the ground that the action was prematurely brought, nothing being due the plaintiff at the time of its commencement, upon the land contract therein sought to be foreclosed. 31 Wis., 342-359.

Replevin, for a horse. Answer, 1. A general denial. 2. That the horse was taken up while running at large in the ■\ illage of Eort Atkinson, contrary to the village ordinances. 8. That it was taken as an estray. 4. That it was taken while doing damage to defendant’s premises.

Action commenced in a justice’s court, under sec. 101, ch. 19, R. S., for the obstruction of an alleged highway, in the town of Koshkonong. The answer was (1.) A general denial. (2.) That the locus was not a highway, but was the property of defendant, not burdened with any public or private easement. (3.) That this action was not brought by any person authorized by law to bring it.