Volume 42 — Wisconsin Reports

Action for damages alleged to have accrued to the plaintiff from defendant’s gross and willful breach of its contract and duty, in neglecting to furnish the plaintiff and other members of an excursion party with a train for their return from Water-town to Madison at P. M. on Sunday the 14th of September, 1873, as it had agreed to do, and in detaining them at Watertown, under special circumstances set forth in the complaint, until 1:30 A. M. on the next day, before furnishing…

The complaint alleges, in substance, that on the 23d of August, 1873, the defendants, Goldthorp, Kroll, Topp and Nondorf, were partners, doing business in the city of Mineral. Point, in this state, under the name of Geo.

Under date October 24, 1871, jRichardson and Single, the parties to this action, entered into a contract under seal with one Goodhue, whereby the latter, after reciting that he owned the timber on certain lands, agreed to sell, transfer and convey to the two former all the pine timber on said lands fit for lumber, or so much thereof as they should cut, haul and put in during the then coming winter, at $1.50 per thousand feet.

The case is sufficiently stated in the opinion. As to the admissibility of parol evidence to vary the legal effect of a blank indorsement, appellant’s counsel cited Wilson v. Black, 6 Blackf., 509; Campbell v. Bobbins, 29 Ind., 271; Lee v. Pile, 37 id., 107; Barry v. Morse, 3 N. H., 132; Barnstable Savings Bank v. Ballou, 119 Mass., 487; Fassi/n v. Hubbad'd, 55 N. Y., 465; Bank of Albion v. Smith, 27 Barb., 489.

This action was brought in August, 1875, against Richard L. Hall and his wife, and Ben. JR. Ilall, to foreclose two mortgages, both executed April 2, 1873, to secure payment of four promissory notes of the same date, made by Richard L. Ilall, and running, as do the mortgages, to “the supervisors of Oconto county, state of Wisconsin, or their successors in office.” One of these mortgages was executed by Richard L. ITall and wife, and the other by Ben.

An instrument in writing, purporting to be the last will and testament of Timothy C. Downie, deceased, was presented for probate to the county court, and probate thereof was refused on the sole ground that the instrument was not attested and subscribed in the presence of the testator by two witnesses. Halen D. Hevendorf, who is named therein as a legatee, appealed to the circuit court from the order of the county court refusing to admit the instrument to probate.

This action was brought in tbe circuit court for Milwaukee county, in 1870, by Gaspar Grede against Adam Grede and bis wife and Frederick Dannenfelser, to foreclose a mortgage given by tbe first two defendants named. On tbe 13tb of November, 1871, tbe cause having been sent to tbe county court of tbe same county, judgment was there ordered dismissing tbe complaint as to Dannenfelser, with costs.

This action was brought in March, 1873, by Upham and Bussell, partners in business, against Hewitt, Jr., Hyde, Hedges, Garfield and Warwick, who are alleged to have been, for more than two years… Held: That by the above described contract between them, the defendants became partners. 2. That plaintiffs were entitled to judgment against defendants for $2,453. Hewitt and Hyde excepted to all the above findings of fact except the fifth, and also to the conclusions of law.

Action to recover certain -moneys paid by plaintiff, under protest, to the treasurer of the defendant county, as delinquent taxes assessed upon plaintiff’s personal property in the city of Oshkosh, in said county, for the years 1871 and 1872.

Tbe complaint in tbis action alleges: 1. That now and at all tbe times hereinafter mentioned, plaintiff is and was seized in fee and possessed of tbe south half of a certain lot in tbe city of Milwaukee, on tbe northwest corner of East Water and Buffalo streets, having a frontage of twenty feet on East Water street (the principal business street of said city), and of one hundred and fifty feet on Buffalo street, and extending from East Water street to tbe Milwaukee river;…

The pleadings in this action are here stated in the language employed for that purpose by Mr. Justice Cole in his opinion as originally prepared: “The complaint alleges, in substance, that the plaintiff has, for upwards of seven years last past, been the owner of a certain mineral spring in the village of Waukesha, known by the name of, and generally called, the £ Bethesda Mineral Spring,’ the waters of which are of great virtue in the cure of diseases, and are widely known…

This action was brought to recover a penalty wbicb tbe complaint alleges tbe defendant became liable to pay under sec. 106, cb. 152, Laws of 1869, for failing to remove encroachments from a highway in tbe town of Troy, in Walworth county, within thirty days after the filing with the proper town clerk of the certificate of a jury finding such encroachment.

Action to enforce specific performance of an alleged agreement by the defendant to convey to the plaintiffs certain lands in Oconto county.

Action upon a sheriff’s bond, against that officer and his sureties. The breach alleged is the failure of the sheriff, the defendant Hall, to collect an execution issued on a judgment recovered (in a justice’s court) by the plaintiff against one Whitley. The judgment was made a specific lien upon certain timber upon which the plaintiff had performed labor, and' which had been attached by the sheriff in that action.

The circuit court having made an order in this cause, August 23, 1875, after judgment, awarding issues to determine the proper disposition to be made of certain moneys collected on execution upon such judgment, and paid into court by tbe sheriff {McDonald v. Alim, 37 Wis., 108), and such issues having been determined, apparently without a jury trial, and an order made pursuant to sncb determination, directing the sheriff to pay oyer said money in the sums and to the persons…

Action for the destruction of plaintiffs’ barn, by fire, alleged to have been caused by sparks from a locomotive on defendant’s road, by reason of the improper and negligent construction and management of such locomotive, to plaintiff’s damage -$1,200. The plaintiffs were the widow and the children and heirs-at-law of Robert K'.

Action for damages alleged to have been sustained by the plaintiff hy reason of defendant’s obstructing the waters of Levis creek by a dam therein about six miles above the mouth of the creek, and thus preventing plaintiff from floating logs, from a point about two miles higher up said creek, to his mill at the mouth thereof.

The case as stated in the complaint was this: Plaintiffs were the owners of a parcel of land in the city of Madison, bounded on one side by Lake Monona, a navigable body of fresh water, about nine miles in circumference.

In the government survey and plat of sections 33 and 34, in town 9, range 11 east, in the county of Dane, a certain pond, four or five feet deep, and covering about 160 acres of land (the same being within the limits of those sections), was meandered, and fractional lots were laid out abutting upon the pond. These lots were patented by the United States, in 1840 and 1843, to different grantees, by their respective numbers on the plat.

Juneau and Martin’s plat of Milwaukee, recorded in 1837, is tlms described in Emmons v. Milwaukee, 32 Wis., p. 436: “ Such plat is hounded on the west by the Milwaukee river; on the east by Lake Michigan; and is thirteen blocks in length from north to south, extending from Division street to Me-nomonee street. Along the whole east side of the plat there is a vacant strip of land adjacent to the lake, and varying greatly in width.

Action for injuries to tbe person sustained by tbe plaintiff, Mi/nnie A. Hall, in consequence of the defective condition of a sidewalk of tbe defendant city.

The plaintiffs, John A. Holmes and. Esther Holmes, his wife, brought this action to recover for' injuries received by the wife in consequence of her stepping into a hole in a defective sidewalk. In addition to the personal injuries suffered by the wife, the c'oniplaint alleges the loss of her services on the part of the husband, and the expense to which he was put in procuring for her medical attendance, etc., as grounds of recovery.

On the petition of Robert Flint, a writ of certiorari was issued from the circuit court, addressed to the common council of the city of Fond du Lao, to bring up for review the acts and proceedings of that body touching the laying out of a new street between Forest and Second streets in said city, and all resolutions, ordinances, orders, votes, notices and other acts of said council, and of all other officers or agents of said city, relating in any way to said improvement,…

<p> Appealable orders. </p> <p>An order of the circuit court, after judgment, granting or refusing an extension of the time for settling a bid of exceptions, and a stay of proceedings on execution, does not affect any substantial right, and is not appeal-able; and therefore an order of such court vacating an order of that kind made by a court commissioner, is not appealable. Sec. 10, ch. 264 of 1860 (Tay. Stats., 1635, § 11).</p>

On a former appeal in this action (which was for the foreclosure of a mortgage), an order of the circuit court directing judgment to be entered for the defendants (upon the ground that the mortgage appeared to have been paid), this court reversed the order and remanded the cause with a suggestion that a new tidal should be granted in case the defendant Mrs. Bannister should satisfy the circuit court, by affidavit or other proper proof, that on another trial she would…

Action to recover tbe value of plaintiff’s horse, run over and killed by a train of cars on defendant’s railroad.

During tbe year 1875, plaintiff was employed by defendant to superintend tbe lumber yard of the latter at Hew Cassel in Pond du Lac coiinty. At that yard defendant also carried on the business of purchasing wood arid shipping it to the city of Pond du Lac, to he there sold. Plaintiff also had charge of this branch of defendant’s business at Hew Cassel. In June, 1875, defendant discharged plaintiff from his service, and paid him to the time of such discharge.

Action to recover money paid by plaintiff to the defendant city for certain tax certificates alleged to be illegal and void. The circuit court sustained a demurrer to the complaint, one of the grounds of demurrer assigned being, that the complaint fails to state facts sufficient to constitute a cause of action.

<p>Notice of Appeal. (1) When it must he signed, shoio as to service. (2) What record must</p> <p>1. A notice which the statute requires to he in uniting, is insufficient where it is not signed by the appellant, nor by any one for lnm, and the record fails to show that it was served by Mm in person.</p> <p>2. It is necessary to jurisdiction in this court of an appeal, that the record sent here should show notice of appeal served both upon the respondent and the clerk of the court below, as well as the filing of an undertaldng, such as the statute requires, where that is not waived. Moyer v. Strahl, 10 Wis., 83, not applicable to the present statute; and Grantv. C. M. L. I. Co., 28 id., 387, distmgMshed.</p>

On the 15th of September, 1874, the defendant executed and delivered to the - plaintiff, Juliana JLuébner, a chattel mortgage to secure payment of a promissory note of the same date, and the mortgage contained the following clause: “In case the said Juliana shall at any time deem herself insecure, it shall be lawful for her to take possession of said property, and sell the same at public or private sale.” Before said note fell due, the plaintiff, “deeming herself insecure,”…

Action for tbe killing of plaintiff’s ox by a train on tbe defendant’s railroad, on tbe 30tb of December, 1875. Tbe complaint avers that on account of defendant’s failure to build or maintain good and suitable fences, or any fences at all, as required by secs. 34 and 35, cb. 76, Tay.

Ejectment. The case is stated in the opinion. Defendant had a verdict and judgment; and plaintiff appealed. argued, among other things, that as the tax deed under which defendant claims was based upon a sale made in September, 1858, which could only be for taxes levied in 1857 (E. S. 1849, cb. 15, sec. 85), and as the patent under which plaintiff claims is dated February 22, 1858, and there was no proof of an earlier entry, the presumption arising from the tax deed that the…

Ejectment. The case is sufficiently stated in tbe opinion. Tbe plaintiff bad a judgment; from which tbe defendants appealed.

This was an appeal by tbe plaintiff from an order staying proceedings in tbe cause, made at tbe July term, 1876. Tbe nature of tbe action, and the grounds upon which tbe stay was granted, will sufficiently appear from tbe opinion.

This appeal was taken by tbe plaintiff from an order staying proceedings. Tbe case was argued together with tbe foregoing one, and by tbe same counsel.

In 1863, congress granted to tbe state of Wisconsin certain lands to aid in tbe construction of a military road from Green Bay or Port Howard to tbe Michigan state line. 12 U. S. Stats, at Large, 797. The proceedings under that grant, down to and including a part of the year 1867, are fully stated in Winslow v. Crowell, 32 Wis., 639. That case disposed of the lands earned by the construction of thirty miles of such road by Jackson Hadley.

Croix County. Secs. 26, 27 and 30, ch. 22, Laws of 1859, contain the - following provisions relating to the sale of lands for taxes: “ See. 26.

The plaintiff brought his action in this court to recover upon a contract alleged to have been made with him pursuant to law, by the building commissioners of the “Additional Institution for the Insane,” now known in law as the Northern Hospital for the Insane.* The complaint avers, in substance, tbe following facts: In pursuance of cb. 39, Laws of 1870, the ‘ building commissioners, duly appointed and qualified under that act, employed the plaintiff during that year to…

Ejectment. The plaintiff’s evidence tended to show that the land was entered by one Gerster in August, 1855, and conveyed by him to the plaintiff in 1874. Defendant’s evidence tended to show, 1.

EEEOE to the Circuit Court for Kewaunee County. This action was brought on the 8th of February, 1876, under ch. 150, Laws of 1873, against school district No. 1 of the town of Ahnapee, in said county, and one Eoss.

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

Beuben Farnsworth died intestate, leaving a widow and four children. At the time of his death he was the owner of certain real property, in which the dower of his widow has not been assigned. The estate is in process of settlement, and is solvent. The administrator, the defendant herein, received certain rents of such real property accruing since the death of the intestate, and rendered his account thereof to the county court.

Ch. 78, P. & L. Laws of 1871, contained the following provisions: 1. That whenever the Sheboygan & Pond du Lac Eailroad Company should desire any town to aid it under the act, it should make a definite proposition for such aid, and file it with the town clerk, who was required to immediately indorse thereon the time of its receipt by him. 2.

Action to recover personal property. The complaint alleges that the plaintiff is the owner and entitled to the possession, of the property, and that the same was wrongfully taken and is unjustly detained by the defendant.

Action for an unlawful and forcible entry and detainer. Tbe plaintiff appealed from a judgment of nonsuit. The evidence is sufficiently stated in the opinion.

The action was commenced by Thomas Davis and Mary N. Davis, his wife, to recover damages for injuries received by the wife upon a highway in the defendant town, caused, as is alleged, by defects in such highway. The damages resulting from such injuries, accruing to each of the plaintiffs, were claimed in the complaint, pursuant to ch. 96, Laws of 1873.

The notice of appeal in this case states that the appeal is “from the order and judgment in this action, dismissing the complaint therein, made the 2d day of February, 1877.” Among the papers sent up with the appeal, was one dated February 2,1877, and signed by the judge, which recites that, the cause having come on in its order to be tried before the court, etc., defendant objected to the admission of any evidence under the complaint, for the reason that said complaint does…

The case, stated most favorably to the plaintiff, is briefly as follows: The plaintiff and Thomas entered into a parol agreement for the sale by the latter to the former of certain land, at a stipulated price, to be secured and paid as hereinafter mentioned.

Ejectment, commenced in 1873, and tried by tbe court alone. Tbe facts were substantially as follows: In 1840, Alvin Willard, being then seized in fee simple of an undivided half of a certaiu half-quarter section of land in said county, died unmarried, intestate and without issue, leaving bim surviving bis mother, then Eoxy Moore, a brother, and six sisters, one of whom is the plaintiff Sophronia Westcott.

Foreclosure of a mortgage. The case made by the complaint was this: In 1873, the plaintiff and his wife sold and conveyed to the defendant John O. Bishop certain lands for $13,000, and, as part payment therefor, the defendants sold and conveyed to the plaintiff' certain other lands, including lands specifically described in the complaint, then incumbered by a mortgage made by the defendants to one Arch Bishop and then held by him, dated February 11,1869, for $2,236, payable…

This action was commenced by attachment, defendant being a nonresident, and was founded upon two promissory notes of the defendant, one for $3,500, dated October 4, 1872, and one for $1,000, dated February 7, 1873. Plaintiffs took a judgment as for default of an answer, February 26, 1876, for $5,335. A motion by defendant to vacate the judgment for various irregularities, and for lack of jurisdiction, was granted at a subsequent term, but was reversed by tbis court.

Replevin, commenced in justice’s court by the issue of the writ upon an affidavit in the usual form. The answer contained, among other things, a general denial, and an averment that the property was worth $300; and demanded judgment for its return and damages for its detention.

Action by the plaintiff as indorsee and holder of a promissory note, dated at Manitowoc, October 2, 1874, and payable one year after date, made by one Philip Hamilton to' the defendant, and by him indorsed in blank to the plaintiff before maturity.

Action brought January 15, 1876, upon a joint promissory note executed by the defendants to the plaintiff coinpany (a corporation under the laws of Ohio), dated at Platteville, Wisconsin, September 1, 1874, for $156.68, payable January 1, 1875, with interest at seven per cent, per annum; the same being one of four notes, amounting in the aggregate to the sum of $620, given for the price of a threshing machine sold by the plaintiff to defendants, and being the first of said…

Action to recover damages for an alleged malicious prosecution of the plaintiff, by the defendant, for perjury. The testimony on the trial tended to show the following facts: A son of the plaintiff brought an action against a school district of which the defendant was an officer, on a contract to make certain repairs on the district school-house. On the trial of that action, this plaintiff and a son of the defendant were witnesses.

This action was brought by John J. Marsh and another, as administrators of the estate of Samuel Marsh, deceased, together with other… Held: in said year, and the pretended assessment rolls aforesaid were not reviewed; that neither of the assessors of said towns took and subscribed the oath annexed to said pretended assessment rolls, as required by law, or took and subscribed any oath of like effect or substance; and that no oath taken and subscribed by either of said…

While plaintiff, who was a brakeman on one of defendant’s trains, was engaged in tbe performance of bis duty as such by putting on tbe brake upon one of tbe cars of a “ wood train,” tbe brake-staff, as be alleges, “ broke in twain just below tbe wheel, near tbe top of tbe car, commonly called a cogwheel, on account of an old crack or seam in tbe same, unknown to tbe plaintiff and which be bad no opportunity of knowing.” In consequence of tbe breaking of this staff or rod,…

The plaintiff, claiming title under four tax deeds issued in 1876, brought this action against the original owners of the land for the purpose of barring their title, under sec. 35, ch. 22, Laws of 1859, as amended by subsequent statutes (Tay. Stats., 448, § 199). After the time for answering had expired, the defendant George Biles and two other defendants severally asked leave to file amended answers.

Ejectment, to recover certain land in Wood county. The complaint is in the form prescribed by statute, and alleges that plaintiff is the owner in fee simple of the premises claimed.

Tbe plaintiffs are husband and wife. In 1872, tbe defendant company constructed its railroad over lands belonging to tbe plaintiff Esther J. Lyon, without procuring a condemnation of tbe same to its use. On July 1, 1875, certain commissioners, who bad been theretofore duly appointed for that purpose, made an award of tbe damages caused by tbe taking of such land by tbe railroad company. The sum awarded was $100. Tbe plaintiffs appealed from such award to tbe circuit court.

In 1872, the defendant company located and built its railroad through inclosed land to which the plaintiff held title by patent from the state issued in 1859, and has fever since operated such railroad without procuring a condemnation to its use of the land thus occupied. The fences, where they were crossed by the railroad, were thrown down by the company in 1872, and have since remained down; and the railroad has not been fenced.

The record in Lem v. Grant having been remitted to the circuit court after the decision of tbe former appeal therein (37 Wis., 548-568), defendant applied for a new trial upon affidavits of P. A. Orton, Escp (one of his attorneys), James H. Flanigan and John Anderson. The affidavits of Mr. Or-ton and Mr. Anderson need not be here stated.

Action to foreclose a mortgage. Tbe description of tbe premises in the mortgage was as follows: “All that piece or parcel of land lying in tbe city of Grand Rapids, county of Wood, and state of Wisconsin, known and described as follows, to wit: that certain lot, in said city of Grand Rapids, owned by and upon which is situated the building now by me occupied as and for a jewelry store, together with the said store building.” The complaint, after setting out the above…

The plaintiff brought this action before a justice of the peace to enforce a lien upon certain logs, upon which he, and. certain others who had previously assigned, their claims to him, had performed labor. The labor was performed for the defendants Andrews and Towle, and the defendant Clifford was the owner of the logs. The plaintiff recovered against Andrews and Towle, and had judgment, also, that the amount of his recovery be a lien upon the logs.

The plaintiffs are creditors of Parks and Bigler, and brought an action against them to recover their demand. Pending the action, Parks and Bigler made a voluntary assignment of their property, for the benefit of creditors, to the respondent, McCul-loch, who accepted the trust, took possession of the property assigned, and converted a considerable portion of it into money.

. Tbe complaint alleges, in substance, that, during tbe sawing season of 1874, and prior to September 1st of that year, plaintiffs sawed and piled for defendants, at their request, 400,000 feet of logs, at tbe agreed price of $3 per thousand for the sawing'; and that the sum of $260.35 became due therefor at the date last mentioned, which defendants have refused to pay on demand, etc. The answer contains a general denial, and alleges that on the 6 th of February, 1874, the…

Ejectment. The complaint alleges that one Weston is the owner in fee simple of the land, describing it; that on the 5th of March, 1874, Weston let the premises to one Owens, for five years from April 1, 1874, with privilege of five years more; that on the 15th of April, 1875, Owens duly assigned said lease to the Portage Lumber Company, who entered into possession of the premises and erected thereon a steam shingle-mill; that on the 1st of May, 1876, said Portage Lumber…

Wheeler brought bis action against Ball before a justice of tbe peace, by whom the action was tried without a jury, and judgment rendered in the plaintiff’s favor for tbe sum demanded, with costs. Tbe cause was removed to tbe circuit court by a common-law writ of certiorari; and, upon tbe bearing there, that court reversed tbe judgment of tbe justice, on the ground that tbe latter bad. lost jurisdiction of tbe cause before rendering such judgment.

Action to recover damages for wrongfully cutting and carrying away from tbe lands of tbe plaintiffs, described in tbe complaint, a certain qirantity of pine timber. Tbe answer denies that the plaintiffs are tbe owners of tbe lands from which the timber was taken, and alleges that the same were and are owned by one Lancaster, and that tbe timber was taken therefrom by tbe defendants, pursuant to a license from Lancaster.

■APPEAL from the Circuit Court for Portage County. On tbe 18th of December, 1873, plaintiff was in the employment of the defendant company as conductor of a freight train upon its road; and, in the course of such employment, while ascending by a side ladder to the top of a freight car in motion, was carried against a cattle chute, and received severe personal injuries; and he brought this action to recover for such injuries, alleging that the cattle chute was negligently,…

Plaintiff was a resident freeholder in a certain road district in the defendant town in 1874, and a highway tax of five dollars was levied, during that year, on the land upon which he resided. The overseer of highways in said district returned said tax to the town clerk as delinquent, and the clerk included the amount thereof in the tax list of the town for that year, and, in his warrant to the town treasurer, directed him to collect the amount from the plaintiff.

Plaintiffs appealed from a judgment in favor of the defendant. The character of the action will sufficiently appear from the opinion.

Croix County. Replevin, for a tbresking machine, engine and appurtenances. The property in controversy was sold by the defendants, who were the manufacturers thereof, to Iiissong, Oremis. and Seeley, and the purchasers executed to the defendants a chattel mortgage thereon to secure the payment of a part of the purchase money.

Action upon a contract of insurance against loss by fire upon plaintiffs building, alleged to have been entered into 'by the defendant through its agent, one Brackett, with the plaintiff, on the 4th of October, 1875.

Action to recover the amount of a note for $277, executed to the plaintiff by defendants, together with two other notes payable at a later date; the three notes being for an aggregate of $750, with interest, and having been given for the price of a threshing machine sold by the plaintiff, either to the defendant Hethermgton alone, or to him and one Gilmore. Hetherirngton’s codefendants signed the notes as sureties.

<p>The statute (sec. 8, ch. 180, R. S.) does not authorize the judge of a circuit court, upon the trial of a criminal action, to report the case to the supreme court for its decision of a question of law arising therein, unless the defendant is convicted in such action.</p>

Action to recover the contract price of a car load of apples, in barrels, sold by the plaintiffs to the defendant. The answer alleges, by way of counterclaim, that the apples were not merchantable, and that the defendant bad no opportunity to ex amine them before they were delivered to him.

Foreclosure of a mortgage, executed in 1870. The administrator of the mortgagor’s estate, his widow and heirs-at-law, the surviving partner of a firm of which he had been a member, and certain judgment creditors of the estate, including Homier, were made defendants. None of them answered, except Homier.

<p>Supreme Court: Reversal oe Judumeht: Effect of reversal for failure of counsel to appear, in certain cases.</p> <p>It having been ordered that the appeal herein (by the plaintiff below) be argued on both sides at the bar of this court, and no counsel having appeared for the respondent when the case was reached under that order, the court, on motion of appellant’s counsel, without hearing him upon the merits, and without deciding what would be the effect of a mere reversal under the rule, directed a reversal unth the same effect as if the appeal had been heard and all the questions raised by the appellant decided in his favor on the merits. And it will make that order whenever moved by counsel, where the appellant is plaintiff below, and the respondent fails to appear here according to the rules.</p>

Action for false imprisonment. Defendant appealed from a judgment in the plaintiff’s favor. The error for which the judgment is reversed, will sufficiently appear from the opinion.

The plaintiff appealed from an order sustaining a demurrer to'his complaint as not stating a cause of action. The substance of the complaint is stated in the opinion. They contended, 1.

This cause has been twice in this court on appeals from judgments for the plaintiff; and the reports thereof will be found in 36 Wis., 450, and 39 id., 636. The testimony on the three trials was substantially the same, and is sufficiently stated in reports of the case on the former appeals. On the last trial, the jury found a special verdict in the form of answers to questions submitted to them by the court. Those questions and answers are as follows: “ 1.

<p>APPEAL from tbe Circuit Court for Columbia County.</p> <p>The defendants appealed from a judgment in favor of plaintiff. The case is stated in the opinion.</p> <p>cited Jaelcsonv. Cleveland, 19 Wis., 410; Faimee v. Budlte, 16 Pa. St., 469; Easton v. P. & 0. Canal Co., IS Ohio, 79; Hennessey v. Farrell, 4 Cush., 269; Banger v. Bailway, Co., 27 Eng. L. & E., 61; 1 Nedf. on Nailways, 407.</p>

Action, upon a promissory note in tbe usual form of a joint and several note, signed by tbe defendants, James Stewart and F. H. Newell, and running to one Chapman, or bearer. Stewart made default.

Action to recover damages for injhries alleged to have been received by tbe minor children of tbe plaintiff in consequence of a defect in a highway of tbe defendant town, upon which the plaintiff was traveling with his children.