Volume 4 — Wisconsin Reports

(1) The appellant filed his bill in the Milwaukee Circuit Court, in equity, January 10, 1851, against Charles I. Kane, James S. Brown, John H. Tweedy, Peter Martineau, and George Dunbar, Mary A. Dunbar and Caroline E. Dunbar, infant heirs of William E. Dunbar, deceased, Bela Shaw and Rebecca Shaw, his wife, Carl Becman and Richard Montague, setting forth in said bill, in substance, that in the year 1885, said Montague made an agreement with Wm.

<p>ERROR TO THE OIRODIT COURT OE WALWORTH COUNTY.</p>

The bill in this cause was filed August 21st., 1852, to foreclose two certain mortgages executed by Joseph 0. Babcock, and Jane, his wife. Deborah 0. Babcock was a subsequent incum-brancer, and John A. Perry, a subsequent purchaser of a part of the mortgaged premises. All the defendants were personally served with- process, but none of them appeared, and the bill was taken as confessed by all the defendants prior to the October term, A. D. 1852.

This was an action of debt on judgment, commenced in tbe Circuit Court of Racine county by the plaintiffs in error against tbe defendants in error. The declaration was upon a judgment recovered in tbe Circuit Court of Ottawa county, in tbe state of Michigan, July 29, 1852, for $1,000. Pie a — General issue.

This was a bill for specific performance, to wbicb Alexander Bell, Lemuel B. Miller, Seth S. Norris, and Nancy Norris, bis wife, were made parties.

APPEAL IN EQUITT HIOM THE OIBCtlT COtFKT OP KENOSHA COUNTY, Bill for divorce filed in the Circuit Court of Kenosha county by the complainant against the respondent.

This was an action of trespass for assault and battery, com* menced originally in the County Court of Milwaukee county, by the defendant in error, against the plaintiff in error, and removed to the Circuit Court of Rock county. The suit was commenced on the 27th day of April, 1854, the same day of the assault complained. Plea general issue, with notice of special matter.

APPEAL 1ST EQUITY PKOM KOOK CIRCUIT COURT. This was a bill for specific performance filed in the Rock Circuit Court, by school districts Nos. 8, 9,10 and 11, of the city of Janesville. The bill states that in the month of March, 1845, A. Hyatt Smith, Wm.

This was an action of debt brought by Iluntley, the plaintiff in error, upon an agreement under seal, executed by him and' Stone, the defendant in error, in June, 1853, wherein and whereby Stone, in consideration that Huntley would give up and relinquish all claims he might have upon a certain lady by the name of Miss S. A. B., and would release the same from all previous engagements, and would also give up all notes and letters written to him by her, and would remain quiet…

This was an action of debt brought in tbe County Court of Milwaukee county, by tbe defendants in error against tbe plain» tiff in error, on an injunction bond to stay the collection of a judgment at law.

This was an action of assumpsit brought by Albert Fuller, tbe defendant in error, against tbe plaintiff in error, to recover the amount of certain accounts for thrashing done by Fuller, and Simon Shields in bis lifetime, as partners, and which William Shields had collected as administrator of Simon Shields, deceased.

This was an action of ejectment, commenced in tbe Waukesba Circuit Court, by tbe present defendant in error against the plaintiffs in error, to recover possession of a certain dwelling-house and lot, situate in the town of Waukesha. The land in controversy is described in the plaintiff’s declaration as a part of section three, town six north, of range nineteen east, and is set out by metes and bounds.

Appeal from the decree of the Circuit Court of Milwaukee county, sustaining demurrers to the bill of the complainant for want of equity.

Action of assumpsit commenced .before a justice of the peace of Milwaukee county, by Thomas Turton and John Sercomb, against Walter Burke, and brought by appeal to the county court of said county. ' - ' The plaintiffs declared in the common count, and filed a bill of particulars for “ Amount of fulling-mill irons for James Murray, $63.18.” The defendant pleaded the general issue. Upon the issue so framed the parties proceeded to trial in the county court.

This was a bill for partition of real estate, filed by Charles I. Kane, John H. Tweedy and James S. Brown, complainants, against Carl Beckman, Joel Parker, and Benjamin E. Adams, and the unknown owners of lots one, three and six in the northeast quarter of section 21, town 7, range 22.

This was a bill filed in tbe Waukesha, Circuit Court for a divorce and alimony.

This was a bill, in equity filed by Young, the complainant, to enforce the specific performance of a contract, alleged to have been made by the defendant, Timothy Wright, by his attorney, George E. H. Day, with the complainant, for the sale to the latter of certain lands adjoining the city of Milwaukee. The bill was filed on die ±4th day of November, 1853. The defendant filed his answer, and testimony was taken for both parties.

Action of replevin, commenced in the Circuit Court of Milwaukee county, by the defendant in error against the plaintiff in error, for the unjust detention of one span of horses, one double wagon, and harness of the value of $165. The sheriff returned that he had replevied the property and delivered the same to the plaintiff. ' In due time the plaintiff filed his declaration in the district. The defendant pleaded, 1. The general issue; and 2.

This was an action of replevin commenced by the defendant in error against the plaintiffs in error in the County Court of Milwaukee county, when tbe plaintiff below obtained judgment. The points made by counsel which were decided by the court, as well as the facts on which they were based, are stated in the opinion.

This was an action of assumpsit for 850 barrels of salt sold bj tbe plaintiffs to the defendant in November, 1851, and shipped at Buffalo on the schooner Juniatta Patton, to bim at Milwaukee. ' Declaration, tbe common counts for goods sold, with bill of particulars. Plea, general issue. The case was tried at the term of May, 1855, and on tbe trial tbe following proceedings were had.

ACTION of assumpsit by tbe plaintiff, as bolder of a check of which the following is a copy. Milwaukee, October 15, 1852. $801.21. MARSHALL & ILLSLEY : Pay to H, Maybaum or bearer, eight hundred one 21-100 dollars. Wise & Co. The declaration contained a special count on the check in the usual form, and the common counts, with an allegation of the partnership of -the defendants, who were the drawers. A copy of the check accompanied the declaration.

This was an action of debt commenced in the Milwaukee Circuit Court by the plaintiff in error, against the defendant in error, to recover the sum of $1,250, the penalty prescribed by statute, for the re-arrest of the plaintiff for the same cause, after he had been discharged on habeas corpus.

APPEAL m EQUITY PROM THE CIRCUIT COURT OP WAUKESHA COUNTY. Both the parties took an appeal in this case, and it is understood that they were both heard together. -The pleadings and proofs are quite voluminous, but the mutual portions will be condensed as much as possible.

This suit was commenced by the defendant in error against the plaintiff in error before a justice of the peace of Sauk county, when the plaintiff obtained judgment for $100. The defendants attempted to appeal, and made their affidavit stating that their application for appeal was made in good faith, and not for delay, &c. The venue was changed to Columbia county when the cause was tried, and a verdict returned for the plaintiff.

This was an action of assumpsit brought upon a contract of guaranty for the collection of a promissory note, made by W. E. and E. P. Bassett to Hiram W. Frink and George E. H. Day, for the payment of f820, with interest from date at 25 per cent-üm per annum until paid, payable within one year, and dated March 8, 1851. The note was not paid at maturity by the makers or the guarantor.

A writ of certiorari issued from the Pond du Lac Circuit Court, to one D. C. Jones, a justice of the peace of said county,, in a certain case before bim, wherein John C. Hays was plaintiff, and Silas-Calkins was defendant. The return of the justice to the writ of certiorari, shows that the suit was commenced by summons, of which the following is a copy: “ John 0.

ACTION of assumpsit in Fond du Lao Circuit Court, brought by the defendant in error against the plaintiffs in error. The case, as well as the points of counsel, will fully appear in the opinion of the court.

Bill in equity to enforce the specific performance of a contract for the sale and conveyance of certain real estate, filed September 1, 1853, by Enos L. Crittenden, the complainant, and assignee of the contract, against Erastus W. Drury, the defendant and vendor therein named.

<p>ERROR TO THE OIROUIT COURT OP BAH AX COUNTT.</p> <p>The facts in this case are fully set forth in the opinion of tb© court.</p>

ERROR 10 THE DAME CIEODIT COURT. This was an action of assumpsit commenced by the defendant in error, against the plaintiff in error, before a justice of the peace. The summons required the plaintiff in error to appear before the justice on the 20th day of December, at one o’clock P. M., to answer unto Dorcas Johnson “ in a plea of debt.” On the return day the parties appeared. The plaintiff stated her cause of action, for work and labor, $13, and filed a bill of particulars.

This was an action of assumpsit, brought by the plaintiff in error against the defendant in error, before E. H. Lacey, a justice of the peace, to recover damages on a wheat contract on the 26th day of May, A. D. 1854. The issue was made up on the 8d of June, the case adjourned to and tried on the 10th of the same month. The justice, on the 12th, rendered judgment for costs against the plaintiff in error.

This was an action of assumpsit commenced by the Beck-withs against the Martins, before a justice of the peace of Bane county, to recover the sum of $92.70, on an account stated upon the settlement of an agreement in writing, by which the plaintiffs agreed to saw for the defendants, a quantity of lumber.

Anson, the defendant in error, sued Cady, the plaintiff in error, before a justice of the peace of the city of Watertown, in an action of trover, and obtained judgment for $100.

<p>APPEAL IN EQUITY PROM THE HOOK CIRCUIT COURT.</p> <p>The substance of the bill, answer and proofs, are fully stated in the opinion of the court.</p>

This was an appeal in equity from an order of the court below, denying a motion made by the defendants to suppress a deposition taken in the cause under a commission issued out of said court. • • Several objections were taken to the commission and the deposition as returned.

This was an action on the case for libel, brought by the defendant in error against the plaintiff in error, and tried at the Racine Circuit, where the plaintiff below recovered a judgment for $200 damages and costs. The declaration contained three counts.

APPEAL IN EQUITY EROM WALWORTH CIRCUIT COURT, The bill in this canse was filed February 14, 1851, to foreclose a mortgage executed October 18, 1849, by Almy and wife to the complainant, to secure tbe payment of $400 and interest, in five years at the rate of 15 per cent, per annum, payable semiannually. Peck and Keep were subsequent incumbrancers by a judgment lien of about $150, and were made parties defendant.

ACTION of assumpsit brought in tbe Circuit Court of Rock county on two promissory notes, whereupon judgment was rendered in favor of the defendant in error, for the sum of one hundred and ninety-two dollars. This writ of error is brought to reverse the judgment of the court below. The full statement of the facts in the case, in the opinion of the court, makes a repetition of the same superfluous.

This proceeding arose out of certain proceedings in the County Court of Dane county in relation to the probate of the last will and testament of Edward Eisher, deceased, taken by appeal to the Circuit Court, and thence by certiorari to this court.

This was an action of assumpsit brought by Seeger, tbe defendant in error, against tbe La Crosse and Milwaukee Railroad Company, plaintiff in error, in tbe County Court of Milwaukee county, and tried at tbe December term, 1854-, when tbe plaintiff below obtained a verdict and judgment.

Action of assumpsit commenced by attachment in the Milwaukee County Court, returnable to the June term, 1855. The sheriff returned that he had attached certain.property of the defendants, but was unable to find either of them. On the 4th day of June, the first day of the term, the plaintiff below filed his declaration, together with security for costs.

HEROE TO imWATJKEE~ CIRCUIT OOUET. This was an action of. assumpsit commenced in the County Court of Milwaukee county, by thé defendant in error against the plaintiff in error. The declaration was in the common counts, with a bill of particulars for work and labor, as clerk in the store of the defendant, claiming a balance of $44.85.

<p>■APPBAIi Hi EQUITY PROM THE CIRCUIT COURT OP MILWAUKEE COUNTY.</p>

This was an action of assumpsit commenced before a justice of the peace by Lavina Brownell against Abraham Shiff, upon a promissory note, wherein judgment was rendered against Shiff for $32 damages and $2.56 costs, and from which judgment Shiff appealed to the Circuit Court of Iowa county.

This was an action of ejectment, brought by the plaintiffs in error, against the defendant in error, in the Circuit Court for Lafayette county, for the recovery of three parcels of land, which had been sold on an execution issued on a judgment rendered in favor of Jacob Eouke, against the defendant, Ray, and one S. E. M. Eretwell, in the late District Court of the United States for Iowa county. The judgment was rendered on the 17th day of September, 1844.

ERROR 10 GRANT CIRCUIT COURT. - This was an aotion of assumpsit, originally commenced by John Woolley, in his lifetime, against Elizabeth N. Woolley, former administratrix of the estate of. Joseph Woolley, deceased, July 31, 1849. The record shows the decease of the plaintiff, and also a change of administration, in due form, as the title of the cause now appears.

This was an action of assumpsit commenced by the defendant in error against the plaintiff in error, the alleged cause of action being the contract in writing set forth in the opinion of the court. Though other questions were raised and considered, the determination of the case and the rights of the parties, rested solely upon the proper construction of the said contract.

This was an action of assumpsit, brought by the defendant in error, before O. R. Johnson, a justice of the peace of La Crosse county, in January, 1853. The declaration was upon a promissory note for $50, made by Douglass, June 12, 1852, and payable September 15, 1852. The plaintiff in error pleaded the general issue, want of consideration, and a special contract.

This was an action of assumpsit commenced by the plaintiffs in error, before P. S. Eider, a justice of the peace for the county of Dane, against the defendants in error. The declaration was upon a special contract for flouring one hundred bushels of .wheat, at a certain price per bushel, and the common counts for work and labor, &c., to which declaration the defendants pleaded the general issue.

ACTION on the case commenced in the Circuit Court of Dane county by the defendant in error, to recover damages alleged to have been sustained in consequence of the upsetting or overturning of a stage coach, resulting from the carelessness of the driver.

The bill of complaint was filed on the 20th day of July, 1855. It alleges in substance, the recovery of a judgment in the Circuit Court, in Brown county, by one George Lampbear, against Amos A. Lawrence, on or about the 19th January, 1852, for $1,480.72 and costs — that at the time of such recovery, the said Lawrence was the owner in fee of lands in Brown and Outaga-mie counties.

This was an action on tbe case for obstructing the plaintiff’s way. The declaration contained four counts. Upon the two first of which a nolle prosequi was-entered, and to the third and fourth a demurrer was interposed. The first and second counts need not to be noticed; the following is a full abstract of the third and fourth: Se¿ Count.

On tbe 19th day of January, 1855, the complainants filed their bill of complaint against the-defendant, to which said bill on the 22d day of February, 1855, an amendment was filed. On the 20th day of April the defendant filed his demurrer to the amended bill of complaint, which demurrer, after argument by counsel for the parties, was overruled by the Circuit Court. This appeal is taken by the defendant from the order overruling the demurrer.

The bill alleges that some time previous to 1851, complainant Everts was seized in fee of the equal undivided one-half part of certain real estate in Milwaukee county, which had been formerly purchased by complainant and one Peter Bender of Agnes; and that being so seized, complainant made a written agreement, on the 3ist of May, 1851, with said Agnes, to convey to him complainant’s said interest in said premises, and the mill thereon, for the consideration of five hundred…

This was an action for slander tried on tbe 8th of May, 1855, in the Circuit Court of Ozaukee county. The declaration contains three counts.

APPEAL m EQUITY FROM DANE CIRCUIT COURT. The complainants filed their bill in the Circuit Court of Dane county, the object and prayer of which were to restrain the defendant from the collection of a judgment at law, recovered against them by the defendant for some $2,100.

DbmurRER to the complainant’s bill on the ground that it was illegible. Demurrer sustained, and the complainant appealed.

This was an action of replevin commenced before a justice of the peace for Dodge county, by the plaintiff in error against the defendant in error, for one yoke of oxen, where the plaintiff obtained judgment, and the defendant appealed. The cause was tried at the April term of the Circuit Court of Dodge county.

<p>APPEAR IN EQUITY EROS! THE WALWORTH CIRCUIT COURT.</p>

<p>■APPLICATION POE MANDAMUS.</p>

'ERROR 10 THE MONROE CIRCUIT COURT. At the September term, 1854, of the Circuit Court of Monroe oounty, the plaintiff in error was indicted for seduction. At the •September term, 1855, the defendant appeared and a trial was had, which resulted in.a verdict of guilty, a sentence of ten •months’ imprisonment in the-county jail.

The plaintiff in error was indicted in the Jefferson Circuit Court, for a nuisance occasioned bj the erection and maintenance of a mill dam, by which the surrounding lands were overflowed and the health of the community impaired, &c., &c. . The case has been before the court once before {See 8 Wis. Hej>. 820), on objections taken to a former trial, when the former conviction was set aside, and a venire de novo awarded.

<p>Where the caption of an indictment represents that it was found by “the grand jurors of the state of Wisconsin, to rwit, twelve good and lawful men,” the indictment is bad and a conviction thereon will be set aside.</p> <p>The statute requires that twelve of the number of at least sixteen grand jurors must agree in finding a good indictment.</p> <p>The caption to an indictment should set forth with sufficient certainty, the court in which, the jury by whom, and also the time and the place at which the indictment was found, and if instead of these requisites it shows that the indictment was found by a jury not legally constituted, it will not support a verdict and conviction.</p> <p>Where the statutes provide in addition to the punishment of imprisonment in the state prison at hard labor, solitary confinement, if the latter be omitted, the sentence is erroneous, .and will be reversed.</p>

This caso comes to the Supreme Court upon the report of the circuit judge, of questions of law which arose on the trial, and which he deemed of such importance as to require the opinion of the Supreme Court thereon. The report is set out at length' in the opinion of the court, except that a copy of the indictment was appended thereto, which charged, or intended to charge, the defendant below with an assault upon his wife, Anna K. Crane, with intent to kill and murder her.

This is tbe case of an alternative writ of mandamus, issued by tbe Circuit Court of Milwaukee county to tbe defendants in error, wbicb, after referring to and citing an act of the legislature of tbe state of Wisconsin, entitled an act “ Of Highways and Bridges,”' of title 6 of chapter 16 of tbe Revised Statutes, and reciting tbe particular provisions of said act concerning tbe laying out of highways, set forth at large and in detail tbe petition of six or more freeholders…

The relation in this case, shows that at a sale of school and ■university lands, held in the county of La Crosse, on the 13th day of November, A. D. 1851, one John S. Peaselee became the purchaser of three several parcels of land particularly described in the relation, each parcel containing forty acres, for the sum of $50.40 for each parcel, and that he paid at the time of sale, the sum of forty-seven cents on each parcel, being the interest in advance on the purchase price…

This was an information in the nature of a quo warranto, filed by the attorney-general upon the relation of Matthew H. Carpenter against George B. Ely. Held: exercised and enjoyed said office, without any legal warrant or right, &c., and hath claimed and still does claim, &c. The information was filed the 5th day of January, 1855, whereupon the usual process was issued, served and returned.

This was an action of assumpsit, commenced in tbe name of tbe defendants in error, for the use of Jacob A. Young, against the plaintiff in error, before H. Latham, Esq., a justice of the peace for said county, to recover tbe balance alleged to be duo upon a certain subscription hereinafter set forth.

This was an action of covenant brought by the plaintiff below against the defendant below upon a contract under seal made and entered into by the said parties on the 20th day of February, 1854, at the city of Milwaukee, wherein Talbot, the defendant in error, covenanted and agreed with the two Stones, who were copartners, to manufacture and finish in good substantial and workmanlike manner, forty thrashing machines of a certain kind, to be made of the same form, style and…

This is an action of assumpsit, commenced by the defendant in error against the plaintiff in error, as administratrix, to enforce a mechanic’s lien, under chapter 120 of the Revised Statutes, for labor and materials furnished, during the lifetime of the intestate, in building a barn and fence upon premises occupied by said intestate during his lifetime.

The bill in this case was filed in the Racine Circuit Court in September, A. D. 1853, for an injunction to restrain the said defendants from building a bridge across Root River in said city. Some eight persons joined with the said Barnes as complainants,each alleging some special interest and injury. Earle was employed by the city as contractor to build the bridge.

.This was an action of covenant' brought by the defendant in error as assignee of the lessees, against the plaintiffs in error as assignees of the lessor, upon covenants contained in a demise or lease of certain premises in the city of Milwaukee, known as the “ United States Hotel,” which was afterwards destroyed by fire.

The bill in this case was originally filed in the Circuit Court of Milwaukee county, the object and prayer of wbicb was to procure a perpetual injunction, restraining the defendant from driving piles and erecting a wharf which, it was alleged would obstruct the navigation of Milwaukee Eiver at that place. Afterwards the venue of-the cause was changed to Racine county, testimony takenj' a hearing had, and a decree passed.

CIRCUIT COURT. This was an action of trover, commenced by tbe plaintiff in error against tbe defendants in error, for converting to their own nse a quantity of saw logs, the property of the plaintiff.

• This was a common law certiorari issued to Mr. Justice Smith, to review certain proceedings had before him, upon a writ of habeas corpus in vacation, which was issued by the said justice to bring up the body of the petitioner, who was imprisoned in Milwaukee couuty jail, by the sheriff of said-county (Herman L. Page), by virtue of a precept hereinafter set forth.

appbai. nr equity from the circuit court op kenosha county. This was a creditor’s bill filed by the appellants against the appellees on the 8th day of January, 1855, in the Circuit Court of Kenosha county, to recover the equitable interests of Andrew B. Jackson, one of the defendants below. An injunction was issued by N. H. Joy, Esq., commissioner for Kenosha county, according to the prayer of the bill on the same day, until the further order of the court.

The bill in this case was originally filed in the Circuit Court of Brown county, and afterwards removed to Dodge county, where the cause was brought to hearing and final decree, from which the complainants appealed. Although a great amount of testimony was taken and used at the hearing in the court below, as the case was determined in this court upon the law, as was manifest from the facts alleged in the bill and admitted in the answers, the evidence is omitted.

This was an information in the nature of a quo warranto, filed originally in this court by the attorney-general. Held: used and exercised, and still doth hold, use and exercise the office of governor of the state of Wisconsin, without any legal election, appointment, warrant or authority whatsoever therefor ; and the said attorney-general further gives the court here to understand and be informed, that at a general election for state officers of said…

This was an action of trover, commenced by the plaintiff in error, against the defendants in error, in the Milwaukee County Court, to recover the value (about $4,000) of certain goods, alleged to be the property of the plaintiff, a.nd to have been converted by the defendants.t,o their own use.

This was an action of replevin commenced in the County Court of Milwaukee county by the defendants in error, against the plaintiffs in error.