Volume 37 — Wisconsin Reports

Action upon a policy of insurance upon a flour and grist mill, issued to one Tietgen and the plaintiff. Blaeser was part owner of the mill, and had a mortgage on Tietgen’s interest; and the insurance was, in case of loss, made payable, by the terms of the policy, to him. The complaint sets forth the contract of insurance, alleges the total loss by fire of the insured property, due notice and proof of loss, and demands judgment for $3,000, the sum insured.

The action is for the use of a steam wrecking pump of the plaintiffs, which the defendant hired for use in and about the repairing of his mill in Milwaukee, at an agreed price of twenty dollars per day. The defendant retained the pump seven and one-half days, which included one Sunday, on which day it was not used. The only controverted question is, whether the defendant is bound by his contract to pay the agreed per diem for that Sunday.

After tbe decision of this case upon a former appeal (32 Wis., 233), tbe plaintiff amended his complaint, the substance of which is there given, so as to allege that said Ludington, in his official capacity as marshal, etc., claiming to have a writ of replevin duly issued by a justice of the peace of said county, seized and took the property, etc., as such marshal, claiming to act under and by virtue of such writ of replevin.

Action for breach of promise of marriage. The complaint alleges the making of the promise in November, 1869; an agreement thereupon that the plaintiff should give up the business of millinery, which she then carried on, by March 1,1870, with a view to the marriage at that time ; that in pursuance of such agreement she gave up the business; her readiness and defendant’s refusal.

Action brought by the plaintiff against Vandusen & Taft, L. L. Tucker, H. Kelchum, J. F. Jacobus, and J. Oardinier, sheriff of Waupaca county, to enjoin the collection of a judgment. Held: the note till judgment was entered upon it.

Action upon a promissory note in the following form: “ $200. Ssielseb, May 4, 1869. Eighteen months after date, value received, I promise to pay Gr. Ensign or bearer, two hundred dollars, with interest at ten per cent, until paid, it being the profit of eight machines. A. Carns. “ Witness, J. EwsiGN.” The complaint is in the usual form of complaints in actions by the holders of promissory notes against the makers thereof.

This is a proceeding originally commenced in the Iowa county court, by one Pierce P. Owens, to probate an alleged nuncupative will of one Hugh Pritchard, deceased. After a hearing, that court made an order refusing to admit the same to probate; whereupon Pilis Owens (one of the legatees therein) appealed to the circuit court from such order.

argued at length the question of practice which the court deemed it unnecessary to decide; and contended that the answer denied all the material allegations of the complaint, and displaced its equities, and therefore the injunction should have been dissolved. High on Injunctions, 518, § 883 ; Smith v. Appleton, 19 Wis., 468; Moore v. Barclay, 23 Ala., 739; Rogers v. Bradford, 29 id., 474 ; Tainter v. Lucas, 29 Wis., 375.

. Action by I M. Warren, as administrator of the' estate of Marcus Warren, deceased, upon a negotiable promissory note, executed by defendants to. one. Ward and, assigned, to the deceased in his lifetime. The defendants pleaded payment. On the trial, defendants produced as a witness Horace Miller, who testified:. “ Some five or six years ago, Cummings came to my house; I went with him to Lower Sauk, to Warren’s (the deceased) office.

The action is to recover damages for an alleged trespass by the defendants in entering upon the lands of the plaintiff and taking down and removing a fence.

The order was entered November 25, 1868. No notice of entry was given. The appeal was taken in August, 1874. [No brief on file.] argued that an appeal would not lie to an interlocutory order, after the expiration of two years from the entry of judgment. Parker v. McAvoy, 86 Wis., 322; Codman v. Rogers, 10 Pick., 112, 119; Stafford v. Richardson, 15 Wend., 302. Whether judgments should be set off is a matter of discretion, not legal right. Taylor v. Williams, 14 Wis., 155.

This action was brought by Emily 0. Ela, her husband joining with her as coplaintiff, for the recovery of possession of certain crops, grown upon certain premises, which crops she claimed to own as her separate estate, and of which she charged that the defendant unlawfully withheld the possession from her; alleging in her complaint due demand, and praying judgment for the property or its value and damages for detention.

This is a proceeding commenced in the Walworth county court in probate by James Archer, as administrator of the estate of Hannah Holden, late of said county, deceased, to vacate and set aside the probate, granted by that court, of an instrument in writing purporting to be the last will and testament of Simeon Holden deceased, and to revoke and annul such instrument.

The complaint in this action alleges, .that in December, 1873, the plaintiff, as sheriff, levied on certain cases of boots and shoes, by virtue of an attachment issued in an action by Wright and others against one Beekman; that judgment was obtained in the action, March 23, 1874, and on the 30th of March, 1874, execution was issued thereon and placed in his hands; that on the same day a judgment was entered on cognovit against said Beekman in favor of Alfred Allen for…

The facts in this case sufficiently appear from the report of the former appeal herein (33 Wis., 617), and from the opinion. On a second trial the verdict was for the plaintiff; and from a judgment thereon the defendant appealed.

Since 1866 the plaintiff has been the owner of certain lands in Sauk county, adjoining the Baraboo river, and the defendants are the owners of a mill dam across said river, located several miles below such lands. The water power created by the dam is used to propel the mills of the defendants there situa-ated.

Motion to vacate an order of this court, entered ex parte, fixing tbe amount of an undertaking to stay proceedings on appeal, upon refusal of the circuit judge to fix such amount. The action was brought by ‘the Northwestern Mutual Life Insurance Company against The Dark Hotel Company and others, its trustees and- stockholders, Samuel Marshall, trustee, and Mark H. Irish, to foreclose a mortgage executed by said Hotel Company to the plaintiff, November 1, 1870.

Action upon two promissory notes, one executed to Knapp by Runals, May 15th, 1865, for $400, due in sixty days, of which the complaint alleged-that, no- part had been paid ; the other executed by one Jenison, March 11, 1865, payable six months from date, to the order of Runals, for $400, on which was indorsed by defendant Runals, Nov. 9, 1865, “ I hereby waive protest and demand.” The ■ complaint alleged that defendant indorsed and delivered the note to plaintiff for value ;…

In November, 1872, Matthias B. Miller died at Delavan, in the eounty of Walworth, probably intestate. Proceedings were thereupon instituted in the county court of that county to settle his estate, and James Aram, the appellant, was appointed administrator of the estate, and duly qualified as such; Commissioners were also appointed to receive and adjust claims against the estate.

Action for work, labor and services, and materials furnished in and about moving a building, for which the plaintiff alleges that defendant became indebted to him in the sum of $100. The bill of particulars amounted to $95.50. Answer, that the work was done under a special agreement that the price should be $80, and that plaintiff had_ not fully performed the agreement; and counterclaim of damages for nonperformance.

Action brought by the administrator of John Koenig, deceased, against Katz. The complaint alleged that Katz on, etc., “ became indebted to * * deceased, for cattle, sheep, and hogs and other chattels, sold by * * deceased * *. to defendant, at his request, and for which he promised and agreed to pay, to the amount of $320, over and above all payments made.” Demand of judgment for $320, with interest from Sept. 1, 1873.

The plaintiff furnished materials for, and erected, a bouse for tbe defendant in Oconomowoc, at a price stipulated in a contract between the parties; and tbe defendant accepted the house, and paid the plaintiff the contract price therefor. This action is for materials and work, of the value of $679.66, alleged to have been furnished for and performed on said house, outside of the contract.

<p>APPEAL from tbe Circuit Court for Green Lake County.</p>

Action brought by Ncesen and several others, taxpayers of the town of Port Washington, in behalf of themselves and other taxpayers, against… Held: their acceptance of the' proposition by a large majority of the legal voters, etc. The'answer denies, that since the election, under which the bonds were claimed, “anything whatever has been doné by change of name, extension of road, acquisition of another line, or in any way-or manner, increasing the liability of said town as a…

' Action to compel the specific performance by the town of Port Washington of its agreement to issue bonds to the amount of $30,000 in payment of the subscription, alleged to have been made; the facts in relation to which are fully stated in the preceding report of the case of Ncesen and others against said town. Ón e defense set up was that the town was released from its obligations by the change of line and objects of the railroad company, in its purchasing and undertaking…

Action of ejectment. The answer set up as a defense, that the lands mentioned in the complaint were, on the 14th of May, 1861, duly sold by the county treasurer of Oconto county for nonpayment of taxes, and tax certificates duly issued ; that a tax deed was duly issued Nov. 23, 1868, upon such certificates to one H. O. Fairchild, then owner and holder of the certificates, and on that day duly recorded; that at the time of issuing the tax deed the lands were and always…

Action for partition by F. 0. Foster against C. F. Hammond and Mary A. Foster. The complaint alleged that Hammond was a minor, and resided in Michigan with his father, who was his general guardian appointed by the probate court of Outaga-mie county.

Action for damages alleged to have been caused by the negligence of the déf endant company in transporting a wagon for the plaintiffs, on its cars from Janesville to Chicago. The answer denied negligence, and alleged a special contract that the , wagon should be transported wholly at the owners’ risk in respect to the cause from which the damage resulted.

REPORTED from the Circuit Court for Trempealeau County. An information was filed charging that on, etc., at, etc., the defendants “ did willfully and maliciously and knowingly resist James Hopkins, a constable in said town, then and there being duly elected and qualified, while he, the said James Hopkins, was engaged in the lawful execution of a civil process, to wit: a warrant for the recovery of the possession of personal property, issued out of a justice court of said…

<p>Wbit op Ebbob. Lies only from final judgment.</p> <p>Exceptions. In criminal ease, under S. S., ch. 180, sea. 7, reviewed, disregarding writ.</p> <p>Constitutional Law. Power of legislature to limit tolls of railway company chartered by territorial act. Oh. 273, Lwws of 1874 (“Potter Law ”), how fas’ valid.</p> <p>1. A writ of error will not lie until a final judgment has been pronounced.</p> <p>2. But where, in a criminal prosecution, exceptions were allowed and signed by the judge before judgment rendered, and proceedings were stayed as provided by sec. 7, ch. 180, R. S., and the record sent up, this court, disregarding a writ of error improperly issued, disposes of the case upon the exceptions.</p> <p>3. In a criminal prosecution of an agent of the Chicago, Milwaukee & St. Paul Railway Company, under ch. 273, Laws of 1874 (commonly known as the Potter Law), for exacting and receiving from a passenger on the railway of that company, between Janesville and Madison, more than the maximum fare allowed by that act, it being shown that said road between the points named was built under an act of the territorial legislature of 1847, the court did not err in refusing to instruct the jury that said ch. 273, so far a? it related to that piece of road, was unconstitutional and void. See the second opinion in At-tm'ney General v. Railway Companies, 35 Wis., 425.</p>

argued, inter alia, that sec. 24, ch. Ill, R. S. 1858, contained all the authority of the court to adjudge alimony to the wife in any case; that it could only he out of his estate, not out of his future earnings, nor acquisitions. Questions of alimony are only discretionary within the statutory bound. The judgment for alimony must be based upon facts existing at the time of divorce and be carved out of the estate then owned.

The plaintiff, as sheriff of Winnebago county, seized a quantity of logs by virtue of a writ of attachment issued in a suit brought by one Brei against William Smith and Frederick H. Smith, to enforce a specific lien upon such logs, pursuant to the statute.

Action for damages for the alleged erection of a dam across a brook or watercourse, whereby it was alleged, that the defendant had caused the water to set back and overflow the plaintiff’s land. Answer, a general denial.

One Luther Butts instituted proceedings supplementary to execution, before a court commissioner, on a judgment recovered by him against Margaret Fenelon and another. The said Margaret appeared before the commissioner for examination pursuant to the statute, and was duly sworn in that behalf, but refused to make answer to proper and pertinent questions propounded to her on behalf of the judgment creditor.

The complaint in this action alleged, in one count, that the defendant offering to sell plaintiff a horse, warranted and fraudulently represented said horse to be kind, sound and gentle, and not over nine years of age; that, at the time, the horse was not sound, but unsound to the knowledge of defendant, and was lame and diseased, which was well known to defendant; and that he intentionally, falsely and fraudulently concealed said facts from the plaintiff, etc. The answer…

The complaint alleges that the defendant in 1860 executed in writing under seal to one Schrceling, a lease of certain premises at a stipulated annual rent; that soon after defendant assigned for value to the plaintiff’s testate the rent for the third year, and one half the rent for the fifth year ; that the lessee had no notice of such assignment, and that the defendant in 1861 accepted a surrender of the premises and the lease from the lessee; alleges the death of the…

This case was here on a former appeal, and a sufficient statement thereof is contained in the report. 83 Wis., 309. On the second trial, the only question which the court submitted to the jury was, whether the city had fully paid the plaintiffs for building the bridge; or whether it was agreed by the parties that the balance of the $300 retained by the city, after deducting therefrom the expense of painting the bridge, should be paid to the', plaintiffs.

Judgment of foreclosure and sale was entered in tbis action, ordering the sale of the undivided half of certain premises consisting of a grist mill property, and of four other lots in the village of Port Washington, and directing the sale of the lots separately.

<p>Appeal. Practice on. Where no HU of exceptions showing evidence, order refusing to confirm report of referee presumed correct.</p> <p>An order of tlie circuit court refuses to confirm a referee’s report (showing the evidence taken by him, and his findings of fact thereon, etc.}, and gives plaintiff leave to' amend his complaint and bring in new parties. On appeal from this order, there being no Hit of exceptions : Held, that the referee’s report is not before the court, and in its absence the order appealed from must be presumed correct.</p>

This is an action commenced in 1871, to foreclose a mortgage executed by the defendant George Pygall, and his wife (now deceased), to the plaintiff, on a certain quarter section of land in the county of Fond du Lac.

Action to recover the sum of $61.17, which plaintiff claimed had been illegally collected of him by the treasurer of the defendant town, as a school district tax.

. argued that the complaint sets out three causes of action ; ejectment, trespass, and waste. Ejectment and trespass can not be joined. To maintain ejectment, the party must be out of, and to maintain trespass, must, be in, possession. Budd v. Bingham, 18 Barb., 494; Frost v. Duncan, 19 id., 561; Bracken v. Preston, 1 Pin., Wis., 584. The relief demanded is inconsistent. Linden v. Hepburn, 5 How. N. Y., 188 ; Lamport v. Abbott, 12 id., 340 ; N. Y. Life Ins.

.. The.plaintiff, as grantee in certain tax deeds, brought this action pursuant to ch. 22, Laws of 1859; to bar and foreclose the right, title and interest of the former owners thereof, in the lands conveyed by such deeds. Judgment for the plaintiff for the relief demanded, and awarding costs against the defendants, was rendered at the December term of the circuit court, in 1873.

Action for foreclosure of a mortgage, alleged to have become due May 6, 1878. Tbe answer alleges that on the 18th of April, 1878, the plaintiff for a valuable consideration duly extended the time of payment of. the note and .mortgage unti-l May 5, 1874, and that the action was commenced April 29, 1874.

to the point, that the sheriff could not serve process on his own under-sheriff in such action, cited 2 Hilliard on Torts, 3 ed., 208; Shaiu v. Baldwin, 33 Yt., 447; Dooley v. Boot, 23 Gray, 303; Krum v. King, 12 Cal., 412 ; Crocker on Sheriffs, § 850; 2 Greenl.

Tbe action was commenced in a justice’s court, and tbe plaintiff recovered. Tbe defendant appealed to tbe circuit court, where the cause was tried, and the plaintiff again recovered. Judgment against tbe defendant was entered at tbe December term, 1873. At the next term of tbe circuit court (June term, 1874), a motion was made on behalf of the defendant that tbe judgment be set aside, and for a new trial.

Mandamus to compel the county clerk of Manitowoc county to sign, issue and deliver to Treat, the relator, an order on the treasurer of said county for the sum of $325.90, in payment for the balance of a claim against said county for printing, which had been audited and allowed in relator's favor by the county board of supervisors, and the clerk directed to draw orders for the amount.

Action of trespass. The complaint charges that the defendant broke and entered the premises of the plaintiff, therein described, situated in the county of Iowa, and cut and hauled! away the grass there growing, to the damage of the plaintiff, etc. The answer avers that at the date of the alleged trespass-the defendant was the owner and entitled to the possession of an undivided one-half of the premises; and that the heirs of one-Shewell Lorrain, deceased, were then the…

The action was commenced November 4, 1871, before the police justice of Janesville.

REPORTED from tbe Circuit Court for Walworth, County. The complaint charged that Frederick Gumber “did on or about the 11th day of September, 1873, at etc., keep a saloon in (describing the building and premises) in the village of Rrodhead, and that said saloon then and there was a place of public resort, where intoxicating liquors were then and there sold by Gumber in violation of law, and without having first obtained a license therefor, against, etc.” The case is fully…

<p>Criminal Law. (1) Exceptions at trial must be presented for allowance before end of term, (2) And record so show. (3) Case stated, and ex cep- * Uons dismissed because not presented in time for allowance. .</p> <p>1. To give this court jurisdiction of a criminal action upon exceptions (under secs. 7 and 9, ch. 180, R. S.), the record here must show affirmatively that the exceptions were reduced to writing and presented to the trial court before the end of the term at which, defendant was convicted, and were allowed and signed by the judge.</p> <p>2. Where the exceptions relied on in such a case are contained in a hill 1 of exceptions signed by the judge, this is probably a sufficient allowance and signing; but the record must still show that this was done in due time.</p> <p>S. Where, between the term of the circuit court at which defendant was convicted, and the date of the bill of exceptions, terms of the court for that circuit were by law appointed to be held in several other counties, there is a strong presumption that the trial term was adjourned before the date of the certificate, and, in the absence of anything in the record to show that the exceptions were presented to the judge before that date, they must be dismissed.</p>

' This action was before this court on a former appeal from an order overruling a demurrer to the complaint. 27 Wis., 214' The substance of the complaint is fully given in the former report.

<p>Appeal. (1) Not valid, unless notice of, served on clerk of circuit court. (2) When notice of, not returned, will be dismissed.</p> <p>1. Causes can be brought by appeal to this court only in the manner prescribed by the statute (sec. 3, ch. 264 of 1860), which provides that a notice of appeal must be served on the adverse party, and on the clerk of the proper court; and rule 3 requires the clerk to return the notice of appeal with the record.</p> <p>2. “Where, therefore, the return of the clerk does not include any notice .of appeal, nor any evidence that one had been served upon him, but contains a stipulation signed by the respective counsel, each admitting due service of a notice of appeal by the other party, from the judgment: Held, that no jurisdiction is shown in this court to review the judgment, and the appeal must be dismissed.</p>

The complaint alleged that the plaintiff was, prior to April 29, 1859, and still is, tbe owner of certain described lands in the city of Sheboygan; that prior to that day the Sheboygan & Mississippi Railroad Company, under the provisions of its charter, entered upon, took possession of, and appropriated to its own use, for tbe purposes of its road, the said lands; that said company, its successors and assigns, have since continued in such use and occupancy; that nothing has…

The complaint alleges that the plaintiff was an employee of the defendant, and in the course of his service, suffered personal injuries in the state of Iowa, through the negligence of another employee of the defendant company; that the law of the state of Iowa at the time of the injury was, since has been, and is, as follows: “ Every railroad company shall be liable for all damages sustained by any person, including employees of the company, in consequence of any neglect of…

The complaint alleges, in substance, that on, etc., at Clayton county in the state of Iowa, the cattle of the plaintiff, without his fault, strayed upon the track of the defendant, at a point where the track crosses plaintiff’s farm, through the carelessness of the defendant, in not maintaining proper fences, and were run over and killed by a train of cars; that the law of the state of Iowa was at the time and still is as follows : (Acts of the 9th general assembly of the…

Action for damages for personal injuries alleged to have been sustained by Oleson through the negligence of the defendants, while he was a passenger on their stage coach. The complaint alleged that the injury was caused by the stage coach being overturned, by the negligence of the driver.

<p>APPEAR from the Circuit Court for Clark County.</p>

The complaint alleges that the plaintiff is the owner in fee of the premises in suit, hut contains no allegation that she is in possession. Her title is alleged to haye been derived from a conveyance by quit claim deed, executed August 27, 1872, by. one James Whalen, of the premises, “ then in the seizin and possession of the said James Whalen,” to the plaintiff.

The action was commenced before the police justice of the city of Wausau. The pleadings were oral, and were entered by the justice in his docket, as follows: “ Plaintiff complains for money had and received by the defendant, from the plaintiff, and interest thereon, for balance due him, to the amount of two hundred and thirty dollars, and asks judgment for two hundred dollars, with costs of action.

Summons for money demand of $350 and interest from May 1, 1866. The complaint alleges an indebtedness to that amount on account for logs, lumber, etc. Answer,' a general denial. The jury brought in a verdict for $692.12. Defendant moved the court to set aside the verdict, because: 1st. The case was tried in the absence of the defendant and his witnesses. 2d. The verdict was largely in excess of the amount claimed in the complaint.

argued that the sale was absolute and for a fixed price, and the vendor was concluded. Had a higher price been asked at the time of said sale it would have been optional with the purchaser to take the ticket, but, if the vendor may increase the price after sale, and vendee has put it out of his power to return the property, then the vendee must purchase nolens volens. insisted that in an action for money paid the equity of the transaction will be taken into consideration.

The action was commenced in a justice’s court by attachment The plaintiff, in his affidavit for the writ, states that the defendant is a corporation duly organized under the laws of this state; that it is indebted to the affiant in the sum of $80 over and above all legal setoffs, for work, labor and services done and performed by him for the defendant at its special instance and request, between certain days therein specified; and that the affiant has good reason to believe…

Action brought by Jane Kolloch to recover of the city of Stevens Point the value of services claimed by her to have been rendered in taking care of a person infected. with small pox, and for the damage sustained by her in the loss of the use of her room occupied by tbe patient, and other parts of her hotel from which guests were excluded, or which they refused to occupy ; and, also, for the destruction of property burned as infected. The summons was for money demand.

The complaint alleges that the plaintiff was sheriff of Chippewa county on the 14th day of April, 1873 ; and on that day levied on a quantity of logs in Tellow river by virtue of a writ of attachment issued in a suit wherein Edward Padden was plaintiff and John S. Smith, defendant; that after said levy and while the logs were in his possession thereunder, the defendant unlawfully took and converted them to his own use ; that judgment was afterwards entered in said suit in…

<p>APPEALS from, the Circuit; Court for Chippewa County.</p>

Action to recover real property. The complaint allegés that the plaintiff intermarried with Thomas J. Cotton in 1853, and was his wife at the time of his death, which occurred “ many years since,” and that said Thomas died seized of the lands described in the complaint, in fee simple.

The complaint of Martin alleges, that, on a day named, he was the owner and entitled to the immediate possession of certain pine logs, spiles, etc., which defendants Gilson and Severance being in possession of, unlawfully converted, etc. Answer, a general denial, etc. On the trial, to show his right to the possession and ownership of the property, the plaintiff offered in evidence a deed of certain land executed by himself and wife to Severance, one of the defendants, which…

Court for Oconto County. This action was brought by the plaintiff to recover the possession or value of certain shingles, alleged to have been seized by him on an attachment issued in certain… Held: as a conclusion of law, that the plaintiff was not entitled to recover. From a judgment against him, entered pursuant to this conclusion, the plaintiff appealed.

The complaint alleges that the plaintiff’s husband, now deceased, executed and delivered to the defendant a promissory note on the 6th of May, 1871, for $500, and secured the same by a mortgage on real estate ; that the note and mortgage were given in fact for a loan of $400 only, the defendant retaining $100 as usurious interest; that $60 had since been paid on the note; that the maker of said note has since died intestate; that no administrator of his estate has been…

Action brought by Stroud to recover tbe sum of $300 claimed as teacher’s wages, upon an agreement entered into between bimself and school district No. 1 of the city of Stevens Point, whereby it was agreed that he should teach in the principal department of one of the ward schools of the city for ten months, commencing Sept. 1,1872, for $100 per month, and be paid the amount due upon the contract on or before July 1, 1873.

Many of the facts of this case may be learned by a perusal of the reported case of Bogie v. Bogie, 35 Wis., 659. That action was to set aside a deed purporting to have been executed by Wm.

Action for breach of promise of marriage. The action was originally brought in tbe name of tbe plaintiff without guardian. On the trial it appeared in the plaintiff’s evidence that she was under the age of twenty-one years. Thereupon her counsel moved for leave to have a guardian ad litem appointed to prosecute the action for her, to which defendant’s counsel objected and moved the court to dismiss the action.

<p>Constitutional Law. Oh. 273, Laws of 1874, held valid.</p> <p>The petitioner was held in custody under a criminal warrant issued by a justice of the peace, founded upon a complaint which alleged that as agent of a railway company of this state he had charged the complainant for transportation as passenger on said company’s road, a higher rate of compensation than was allowed by ch. 273 of 1874; and upon habeas corpus he was discharged from custody, on the ground that said act was unconstitutional. Upon certiorari, this court, having heretofore affirmed the validity of the statute (Att'y Gen. v. H. JR. Cos., 35 Wis., 435), reverses the order of discharge.</p>

CEETIOB ABI to the County Court of Milwaukee County, to review proceedings bad before the county judge upon the petition of John O’Connor for a writ of habeas corpus. The case is stated in the opinion. argued, that the county court erred in holding that he could not go back of the warrant issued out of the municipal court upon which the petitioner was arrested.

ee County. The defendant railway company instituted proceedings to •condemn to its use certain land of the plaintiff in the city of Milwaukee, which resulted in an award of damages by commissioners duly appointed for that purpose. The plaintiff appealed from such award to the circuit court, and the place •of trial was afterwards changed to the county court of Milwaukee county.

<p>Cbiminal Law. Questions of law arising on trial must be reported to this court, under sec. 8, ch. 180, It. S., before judgment. Oan come after judgment only by writ of error.</p> <p>Under the statute (R. S., eh. 180, secs. 8-10), doubtful questions of law arising on the trial of a criminal action, may he reported to this court for determination; hut such report must he made before judgment. And where a case is so reported after judgment (instead of being brought here on writ of error), this court has no authority to determine the questions submitted by the trial court, or to make any order upon the report.</p>

REPORTED from the Circuit Court for Portage County. Information for murder. Verdict, guilty of manslaughter in the third degree. A motion was made to set aside the verdict, and, in support thereof, was read the affidavit of one of the jurors, that the jury had been permitted by the court to separate at meal times and go wherever they saw fit, and did so.

INFORMATION for Writ of Injunction brought by the attorney general against the Qity of .Eau Qlaire, its mayor, aider-men, the members of… Held: after full argument and thorough investigation, “ that the states within what was governed by the ordinance of 1787, cannot impede or impair the navigation of rivers so declared free ; not merely free from toll, but free from obstruction.” This subject has, however, been settled in our own supreme court, in the case-of the Milwaukee…

Action commenced in Columbia county, August 24, 1863, to foreclose a mortgage alleged to have been executed by the defendants, Andrew Dunn and wife, to the La Crosse & Milwaukee Railroad Company upon the northeast quarter of the southeast quarter of section six, township twelve north, of range nine east, in Columbia county, to secure one of the bonds of said company for $5,000 payable Jan. 1, 1864; said mortgage bearing date April 11, 1854, and alleged to have been recorded…

This is an action to foreclose a mortgage on the N. W. \ of the S. E. i of sec. 6, town 12 north, range 9 east, in Portage City, executed April 10, 1854, by the defendant Dunn and wife to the La Crosse & Milwaukee Railroad Company, and registered in the proper office on the following day. The mortgage was given to secure the payment of a promissory note for $5,000 and interest, of even date' therewith, made by the defendant Dunn, and payable to said railroad company or order.

Action for trespass quare clausum. The complaint avers the plaintiff’s ownership in fee of a quarter section of mineral land in Iowa county, and that he, his grantors and those under whom he claims, had been in possession since July, 1847, and in the usual form alleges a trespass quare. clausum thereon by the defendants, Oct. 23, 1871, their threats to continue such trespass and to dispossess the plaintiff, and to collect rents from the miners at work thereon, and demands…

The facts in the case were stipulated by the parties, and are substantially as follows: The defendant Knipfer was elected to tbe office of county treasurer of Kewaunee county at the general election in 1868, and again at the general election in 1870, and held such office for two terms, or from January, 1869, to January, 1873. The other defendants are the sureties in his official bond for the last of said terms.

Action on an insurance policy for the loss of a quantity of wheat in stacks. Held: no recovery could be had; for L. had no insurable interest in the goods, and M. being a stranger to the policy, it could not inure to his benefit.” In another case in the court of chancery of the same province, where a person bought from a wharfinger 3,500 bushels of wheat, part of a larger quantity, and paid for it, but the wheat…

Action to foreclose a mortgage. Defense, fraud in inducing tbe plaintiff to contract the debt which it was given to secure. In December, 1867, the defendant purchased of the plaintiff a tract containing 400 acres of land in La Fayette county, and agreed to pay therefor $100 per acre, or $40,000 for the whole tract.

Action for continuing trespass upon certain mining lands. Tbe acts charged were the entering upon, digging and mining upon tbe premises, and carrying away large quantities of lead and zinc ores. Injunction was prayed, and a temporary injunction was allowed. The defendants answered, alleging that their mining operations were not carried on upon lands included in the plaintiffs’ lease, nor in a mine to which plaintiffs bad any right or claim.

Action by the Seeleys, heirs of David J. Seeley, deceased, for the recovery of the west half of the southeast quarter of section number twenty-nine, town number seven north, range one, in Iowa county.

The complaint alleges that the plaintiff, being then the owner of the premises therein described, and the defendant, on or •about the 1st day of February, 1872, entered into a written •contract of which the following is a copy: “Know all men by these presents, that I, John Hutchinson, of the county of Juneau and state of Wisconsin, in consideration of the probable location of the Chicago and Northwestern Railway over the premises hereinafter described, and of the sum of one…

Action on money demand on contract. The issue, involving the examination of a long account, was referred to a referee. On the trial before the referee, numerous exceptions were taken to his rulings, in admitting and excluding evidence.

<p>APPEAL from the Circuit Court for Pierce County.</p>

<p>Appeal erosi Order. (1) How return should he made and certified. (2) Dismissed for want of proper corrected return.</p> <p>1. A notice of appeal from an order, with affidavit of service, and the undertaking on appeal with an affidavit of justification, were attached together, with a certificate of the clerk of the court below annexed, dated in December, 1874, stating that the papers to which it was annexed were the papers in the cause, and all of them, and were transmitted to this court in pursuance of the appeal. In the same envelop were » a number of loose papers apparently in the cause below. Held, that the certificate was incorrect on its face, and not a compliance with the statute.</p> <p>2. This court made an order in May, 1875, that the appeal in said cause be dismissed unless- the appellant should cause a proper return to be made within a time specified. Thereupon the papers were all sent down; hut the clerk below merely attached them all together with the old certificate annexed, and again returned them to this court. Held, that such certificate cannot be accepted as verifying a return to an order oflat&r date, or as authenticating papers which, as this court has judicial knowledge, were not attached to it when it was made; and the appeal must be dismissed for lack of a proper return.</p>

Action upon a promissory note made by tbe defendant, payable to the order of Robert Patten, dated June 8, 1865, and transferred by the payee, after maturity, to the plaintiff, in payment of a debt due from such payee to the plaintiff’s testator.

argued, among other things, that the oral agreement proved was to be terminated by the issue of the policy, or by notice. The question of time is not involved in it. That was at the will of the defendant. Kelley v. Com. Ins. Go. of Pa., 10 Bosw.; 82; Perkins v. Washington Ins. Go., 4 Cow., 664; Baxter v. Massasoit Ins. Go., 13 Allen, 320; Hew Eng. Ins. Go. v. Robinson, 25 Ind., 536 ; Davenport v. Peoria Ins. Co., 37 Me., 157; Ellis v. Albany City Fire Ins.

Ejectment to recover possession of eighty acres of land. Held: adversely to the plaintiff for more than twenty years prior to the commencement of this action; that he has not been seized or possessed of any part thereof within twenty years next preceding the commencement of this suit, or ever; (2) that the consideration for the property was paid by Alexander McPherson and the deed taken in the…

Action brought by the plaintiff, Christine Massing, against the county treasurer of Dane county and the City of Madison, to restrain said treasurer from selling about 300 lots of the plaintiff for the general tax assessed upon them for the year 1871, and for five special taxes assessed on a portion of them ; and to restrain defendants from enforcing the collection of the taxes ; to set aside the assessment and levy thereof, as illegal and void, and for other relief.

The complaint alleges that the plaintiff is, and since May 1, 1870, and before, has been, a corporation created and organized pursuant to the laws of the state of Iowa, and is, and ever since its organization has been, engaged in the business of a common earner on the Mississippi river and its tributaries, and also in the business of purchasing, selling and dealing in wheat and other kinds of grain and produce; that at Lansing, in the state of Iowa, in June, 1870, the…

Pursuant to an act of congress, entitled “ an act to grant a quantity of land to the territory of Wisconsin for the purpose of aiding in opening a canal to connect the waters of lake Michigan with… Held: therefore, to have extended to the lake. 2. The acts of congress are in accordance with these views.