Volume 45 — Wisconsin Reports

Ejectment, commenced in 1875, for a strip of land about three rods in width, north and south, and twenty-four rods in length, east and west, a part of the southeast quarter of a certain section 28.

The plaintiff, being the indorsee and holder of a promissory note given by one Powers to Margaret J. Worden, and the as-signee of a mortgage on certain real estate, executed by Powers and wife to Mrs. Worden to secure the payment of such note, brought his action against Powers and his wife, and a subsequent incumbrancer, to foreclose such mortgage. Judgment of foreclosure was rendered in that action, and the mortgaged premises sold pursuant thereto.

Groix County. This action was founded upon a contract under seal, entered into in August, 1875, of which the following are the essential provisions: “ The party of the second part [Bellew] hereby covenants and agrees with the parties of the first part [stating a nominal consideration] to build and maintain a good, substantial steam saw-mill upon certain lands hereinafter described, the mill to be of the value of at least nine thousand dollars.

In February, 1858, Cornelius and Abram Helms, being seized in undivided moieties, as tenants in common in fee, of a large tract of land in this state, and being indebted to the firm of Gross & March, of the city of Hew York, in the sum of $2,750, executed and delivered to said firm their joint and several promissory note for that sum, payable in eight months, with 'interest, together with a mortgage on said land, as security for the payment of such note.

Plaintiff, as grantee of Abram Helms, by deed dated October 20, 1874, of his interest in the lands described in the foregoing case, brought this action to redeem from the deed to Gross & March of October, 1859, with oral defeasance, described in that case. The facts found by the court as to service of summons upon Abram ITelms and wife in the foreclosure action brought by Gross & March against them and others, are sufficiently stated in the opinion.

This action was brought by the infant heirs of P. E. Dietrich (suing by guardian acl litem) to recover the sum of $550 alleged to be due them upon an agreement of insurance upon the life of said F. E. Dietrich, made, during his lifetime, between him and the defendant company.

OEETIEIED from the Circuit Court for Brown County. Defendant was tried upon an information, which alleged that on the 12th of December, 1877, at, etc., he “ did violently and feloniously make an assault upon the body of one Philo-mela White, a female under the age of ten years, and her, the said Philomela White, with force and against her will, did then and there ravish and carnally know, contrary,” etc. The verdict-declares that the jury “ find the defendant guilty of the…

<p>APPEALS from the Circuit Court for Outagamie County.</p>

Separate appeals from two orders made after verdict for the plaintiff, viz: an order granting a new trial on defendant’s motion, and an order denying plaintiff’s motion for judgment pursuant to the verdict. The action was to recover damages for injuries received by plaintiff when in defendant’s service, at Escanaba, in the state of Michigan, in the year 1872.

The case is thus stated by Mr. Justice Taylob: This action was brought to enforce a mechanic’s Ken, in favor of the plaintiffs against the defendants Turner and Morgan., who were the owners of the “Waverly House,” a hotel in the city of Appleton, for a balance due them for the value of a gas-manufacturing machine and fixtures, and labor in putting the same in position, for the purpose of furnishing gas for lighting said hotel.

Tbe case is thus stated by Mr. Justice Cole: This was an action to foreclose a mortgage originally given upon lot number 30, and tbe south 34 feet of lot number 29, in Fort Howard.

Action to recover damages for the alleged conversion of a quantity of saw-logs.

Action to foreclose a mortgage. The answer set up a counterclaim or set-off. Plaintiff replied that he had paid the demand alleged in such counterclaim or set-off, before action brought. On these issues, without any order of the court, a jury was called and sworn, and the case proceeded as though it were a strictly legal action.

Action on the official bond of Tronson as sheriff of said county.

Replevin, for a span of horses. Plaintiffs purchased the horses of one E. Allen, who purchased them of one Mahoney. Defendants' took them from plaintiffs by virtue of a chattel mortgage on them, executed by Saul & Daily to the defendant Martin. When the mortgage was executed, Saul & Dally owned the team; and they had made default in the payment of the debt secured by the mortgage when the defendants took possession thereof.

The case is thus stated by Mr. Justice Taylob : “Action to recover money due upon a contract under seal, made by one II. S. Allen with the defendants, by which the said Allen agrees to convey and assure to defendants, in fee simple, clear of all incumbrances, certain real estate described in the contract, upon defendants’ first making the payments and performing the covenants mentioned in such contract.

<p>Yendor AND Pukchaseb of land. Vendor’8 lien, after receipt of vendee's check for price.</p> <p>Where a vendor of land receives the vendee’s hank check for the amount of a cash payment, a withdrawal by the vendee of his funds from the bank before presentation of the check, leaving nothing to pay it, is a fraud upon the vendor; and he will retain his equitable lien upon the land for the amount of such check. So held where the vendee’s funds were withdrawn about two weeks, and the check presented nearly four weeks, after its date.</p>

Action against Allen G. Bates and George Harvey ancl their wives, to redeem two hundred acres of land.

The relator is a resident of the city of Janesville, and the defendant is the principal in charge of the high school (so called) in that city.

Defendants appealed from a decision of the court in the form of an order, the character of which will sufficiently appear from the opinion. Plaintiff moved to dismiss the appeal.

Action to recover compensation for purchasing for tbe defendant certain real estate in tbe city of Milwaukee. Tbe complaint alleges that plaintiff was employed to purchase certain real estate for defendant, known as tbe European Hotel, in tbe city of Milwaukee; that, pursuant to such employment, he purchased tbe same for tbe sum of $20,000; and that tbe same was duly conveyed to defendant, and be accepted a deed thereof.

The plaintiff appealed from a judgment in favor of the above named railroad company; in certain proceedings in garnishment.

Action for injuries to the plaintiff’s person, alleged to have been caused by negligence of defendant’s Servants in running the train by which plaintiff was struck while he was crossing a public street in the city of Milwaukee. Plaintiff appealed from a judgment of nonsuit. The evidence in his favor is sufficiently stated in the opinion.

' Action for the wrongful conversion by the defendant of certain moneys of the plaintiff.

The case is tlius stated by Mr. Justice Taylob: Action upon a promissory note given by the defendant to the plaintiffs, dated September 9, 1875, for $80, due ten days after date, payable at the office of O. M. Tyler & Co.’s bank in Waukesha, with interest at the rate of ten per cent, after due.

The case is thus stated by Mr. Justice Orton: “ This action was brought before a justice of the peace, by the bearer or holder, and against the drawer, of the following check: “ ‘ $35.00. Milwaukee, Sept. 9th, 1875. “£ O. M. Tyler, Pank of Milwaukee. Pay to-Willets or bearer thirty-five dollars.

The case is thus stated by Mr. Justice Cole: “This is an appeal by the defendants from an order setting-aside a special verdict and granting a new trial. Both parties moved for judgment on the special verdict. Both parties excepted to the ruling of the court denying their respective motions; but the defendants alone appealed from the order setting aside the verdict and directing a new trial.

Action upon the official bond of the defendant Hichcox as clerk of the circuit court for Milwaukee county. The other defendants are the sureties in such bond. Iliekoox ceased to be such clerk before the action was brought.

The case is thus stated by Mr. Justice Cole: “ This is an action upon the statutory bond or instrument required to be given by a justice of the peace before entering upon the duties of his office.

The case is thus stated by Mr. Justice Obton: “ This action was commenced by attachment and summons. The affidavit for the attachment was made November 1, 1877, and charged the defendant with having assigned, disposed of and concealed, and with being about to assign, dispose of and conceal, his property, with intent to defraud his creditors.

Action to recover the possession of an undivided one-fourth of about 21 acres of land, being a' portion of the W. £ of the 1ST. W. J of section 26, in township 4 north, of range 13 east, in the county of Rock. About 50 acres of the eighty-acre lot, being the north portion of it, except between two and three acres in the northwest corner, was owned by one James Sowle and was occupied by him for many years, and until his death in 1873. The whole tract was called his homestead.

A statement of the case was made in the opinion of Mr, Justice Taylor, substantially as follovrs: This action was brought to recoyer of defendant the value of a-small shop or warehouse and a large barn and contents alleged to have been burned by defendant’s negligence.

The case is thus stated by Mi-. Justice Cole: “ The facts upon which the question in this case arises, as contained in the stipulation of the parties, stated in a concise form, are these: On the 20th day of May, 1875, a vacancy existed in the office of cleric of the circuit court for Walworth county, occasioned by the resignation on that day of the office by Judge Wentworth, who was then holding the office and acting as cleric under his election thereto at the general…

Eeplevin, for a “mower ” levied upon and seized by the defendant as sheriff, and held by him by virtue of two writs of attachment issued by a justice of the peace against the plaintiff, and by virtue of two executions issued upon judgments against the plaintiff in the attachment suits. Before this action was commenced, plaintiff demanded the mower of the defendant, claiming it as exempt property, but defendant refused to deliver it to him.

Court for Walworth County. The case is thus stated by Mr. Justice Tatloe: “Action, commenced in December, 1877, to enforce the specific performance of an alleged oral agreement between the parties, in relation to real estate. Plaintiff alleges that he furnished defendant with money to buy some real estate, upon the agreement that he should purchase the same on the joint account of himself and the plaintiff, each to own an undivided half of the real estate so purchased.

Action to reform a lease. Tbe case is sufficiently stated in tbe opinion. Defendant appealed from a judgment for plaintiff'.

Action to recover damages for the unlawful conversion by the defendant, at Ludington in the state of Michigan, of 345 tons of ice, the property of the plaintiffs, of the alleged value of $3.50 per ton. The complaint is in the usual form of complaints in actions of trover. The 'answer is a general denial.

<p>APPEAL from tbe County Court of Milwaukee County.</p> <p>The ease is sufficiently stated in the'opinion.</p>

<p>Constitutional Law. Court Commissioners: Jurisdiction or Circuit Court. (1, 2) Poioer of court commissioner to take examination of offenders. (3, 4) Jurisdiction of circuit court over certain offenses.</p> <p>Criminal Law. (5) When costs not imposable on convicted- offender.</p> <p>1. The power of arrest and examination of offenders under process issued by fudges of courts of record in vacation existed in this state at the time of the adoption of the state constitution; and the right to continue this power, not being expressly taken away by the constitution, remains in the legislature; and, under sec. 23, art. YII, a like power may be conferred upon court commissioners.</p> <p>2. Under sec. 1, ch. 176, R. S. 1858, court commissioners, as well as judges of courts of record in vacation, and justices of the peace, may take examinations in all cases of crimes or misdemeanors, including those created by subsequent statutes, unless the act creating a new offense expressly prohibits them from so doing; and they may take such examinations in cases arising under sec. 19, ch. 179, Laws of 1874 (R. S., sec. 1563).</p> <p>3. Sec. 8, art. VII of the state constitution, gives the circuit courts “ original jurisdiction of all matters civil and criminal within this state, not excepted in this constitution, and not hereafter prohibited by law.” Sec. 4, ch. 95, R. S. 1858, provides that said courts shall have power “ to hear and determine all cases of crimes and misdemeanors of whatever kind, not exclusively cognizable by a justice of the peace,” committed within their respective circuits. Held, that nothing but a clear declaration that an offense created by statute shall be cognizable only by some inferior court, can deprive the circuit courts of jurisdiction thereof.</p> <p>4. As ch. 179 of 1874, while it gives justices’ courts power to try all offenses arising thereunder, does not expressly exclude the jurisdiction of other courts, the circuit courts have jurisdiction of such offenses.</p> <p>'5. In prosecutions under sec. 19 of said ch. 179, commenced in the circuit court, payment of costs could not be imposed upon the defendant on Ms conviction, there being no statute authorizing such a judgment. Taylor v. The State, 35 Wis., 298, followed; and State 'o. Gumber, 37 id., 298, distinguished.</p>

BEPOBTED by the Judge of the Municipal Court of Milwaukee County.

The case is thus stated by Mr. Justice Tayloe: This action is brought upon the bond of Edward Elders, late treasurer of the county of Milwaukee, to recover of the sureties in said bond the sum of $10,150.80, for which sum it is alleged the late treasurer was a defaulter, and which he had failed to pay over to his successor in office. The answer is a general denial.

The case is thus stated by Mr. Justice Cole: “ This is in an action for partition of certain real estate which originally belonged to Edmund Tobin, deceased. The complaint states that Edmund died intestate, unmarried and without issue, in October, 1863, leaving him surviving his mother, Mary Tobin, a sister Betsy, brothers John, James, Michael and the plaintiff, and three nephews, children of his brother Timothy, who died in 1861.

Action for damages alleged to bave been sustained by plaintiff by reason of defendant’s wrongful and fraudulent act in conveying land by subsequent recorded deed to a bona fide purchaser, after be bad conveyed tbe same land to plaintiff’s testa-fcor (who was the original plaintiff), by deed, never recorded, under which such testator would have acquired title.

The facts stated in the complaint are as follows: Pursuant to ch. 322, Laws of- 1875, a contract in writing was entered into between one Samuel Martin and the defendant city, dated June 16, 1875, whereby Martin agreed to furnish the materials and do the work authorized by section 1 of that act, within sixty days; and the city agreed to pay therefor at the rate of $1.39 per square yard.1 One-third of the contract price was to be paid in certificates against lots assessed for…

Action on tlie special bond given by Edward Elders as treasurer of Milwaukee county, for the safe-keeping and disbursement of moneys in Ms Lands belonging to the “ courthouse fund,” created pursuant to ch. 4-00, P. &L. Laws of 1871. The complaint alleged a failure of said Elders to keep safely, disburse, and pay over according to law a certain portion of said fund. After the action was commenced, Elders died.

Action to recover moneys paid by plaintiff for the supposed interest of the defendant Wilhebnina Schmitt in certain lands, on the ground that said Wilhebnina bad in fact no interest in said lands, and that the payment was made and received'by the parties under a mutual mistake of fact. By direction of the court, the jury returned a verdict for the plaintiff; and from a judgment on the verdict, defendants took separate appeals. The case is more fully stated in the opinion.

Action on a fire insurance policy. 'Defense, that the policy was procured by false and fraudulent representations, in the written application, as to incumbrances upon the property, etc. The error on which the judgment is reversed, will sufficiently appear from the opinion. Plaintiff had a verdict; a new trial was refused; and defendant appealed from a judgment on the verdict.

The action is for the specific performance of a contract for the sale, by tbe defendant Frederick Kriesel to the plaintiffs, of a certain parcel of land.

Action for slander. The complaint alleges that at the time the alleged slanderous words were spoken by the defendant, plaintiff was, and for many years previous thereto had been, a justice of the peace, and acted as such, in the village of Hays-ville in Dodge county; that defendant, in a public speech in said village, at a public meeting, in the presence and hearing of a great number of persons, in speaking of the plaintiff as such justice of the peace, maliciously spoke the…

Ejectment, by Peter Melia against Bryan Melia and John II. Simmons. Both defendants answered a general denial; and Simmons also set up the ten-year statute of limitations. Held: under the statute, in his representative capacity (N. S. 1858, ch. 100, sec. 7); and that, if otherwise, still his possession became adverse from the moment when he acquired what he considered a good title under the judgment.

In April, 1874, plaintiff and one 33. W. Warden entered into an agreement under seal, by which said Warden agreed to purchase of plaintiff all lumber, laths, shingles, doors, sash, and blinds necessary to stock bis two lumber yards at Minnesota Junction and Horicon, respectively, and to use due diligence in selling tlie same and collecting tlie proceeds, and to pay plaintiff as soon as such collections should be made, and in any event to pay within one year from date of…

' Eeplevin, for boots. In 1872, Dr. J. W. Carhart was indebted to one Gleason in the sum of $334 on a New Tort judgment. Prior to October, 1876, he had been a minister or clergyman of the Methodist Episcopal - Church, residing at Oshtosh, and had for some time owned and used a private and professional library, of the value of $200.

Action commenced before a justice of the peace to recover for goods sold and delivered by the plaintiffs to the defendant. On the return day of the summons, the parties appeared and joined issues, and the cause was adjourned one week.

The case is stated in the opinion. contended, 1. That the petition and affidavit- were insufficient to give the court jurisdiction to make the order of removal, because there was not attached thereto a certificate of the clerk or other proper certifying officer of a court of record of the county or district within which the oath was taken, showing that the person who subscribed the jurat as notary was a notary in fact, and that his signature was genuine.

The complaint alleges that Daniel O. Sherwood, the son of the plaintiff, died in February, 1858, having previously executed his last will and testament, in and by which he devised to the plaintiff lot 10 in block 20 in the city of Oshkosh, of which lot he was the owner in fee when he made his will, and continued such owner until his death; and that in May, 1858, said will was duly admitted to probate by the proper court.

The case is thus stated by Mr. Justice Tayloe: This action was- brought to recover the value of plaintiff’s cow, which was injured on the track of the defendant’s railroad by a passing train. On the trial, the court ordered a non-suit, and the complaint was dismissed, with costs. The ground of the nonsuit was, that the evidence showed that negligence of the plaintiff contributed to the accident.

Action on a promissory note alleged to have been executed September 11, 1874, by the defendants Roberts and Sherman, together with one Semple and one Whelen, both since deceased, in their firm name of Semple, Whelen & Co., for $2000, with interest at ten per cent., payable nine months from date, to Duncan McDonald or bearer, at the Eirst National Bank of Oshkosh, and to have been indorsed by McDonald to the plaintiff. The defenses set up in the answer were, 1.

Action to recover damages for personal injuries sustained by the plaintiff Mrs. Studley, by reason of the alleged dangerous condition of a certain sidewalk in the defendant city.

Action to recover tlie purchase price of a certain lot of land which plaintiff alleges that he sold to the defendant village, and conveyed to it by a good and sufficient deed, which was accepted.

APPEALS from the Circuit Court for Winnebago County. The defendant companies appealed from judgments against them upon policies of insurance against fire.

<p>PARTITION. Rights of parties made plaintiffs ivithout their consent.</p> <p>1. The fact that some of the persons named as plaintiffs in a partition suii had not authorized it, would not sustain a dismissal of the suit as to their coplaintiffs.</p> <p>2. Where such involuntary plaintiffs are necessary parties, and there is nothing to show that their rights are at all affected by them position as plaintiffs rather than defendants, their motion to dismiss was properly denied on that ground.</p> <p>3. The proceedings in partition appear to have been conducted fairly for the interest of all parties; but if the appellant plaintiffs were not properly represented, it was their own fault in not employing counsel to represent them specially.</p>

Mrs. Pike and certain children of the testator are the legatees named in the will of Oliver Pike, the late husband of the petitioner, and Mr. Kimball is the executor of such will.

The case is thus stated by Mr. Justice Taylor: “This was an action commenced in a justice’s court, to recover a part of the consideration received by the defendant on the sale of a ‘ Threshing Machine ITorse Power ’ belonging to the plaintiff; The only real defense was a former suit in bar. “The evidence on the trial shows that, prior to the commencement of this action, the plaintiff and one O. Storle commenced a suit against the same defendant, in a justice’s court, to…

The defendants appealed from a judgment rendered against them. The instrument upon which the action was brought, and the facts relied on as a defense, will sufficiently appear from the opinion. They contended, among other things, 1. That the instrument in question was not negotiable: (1) Because it did not run to the order of any one, or to bearer. Gerard v. La Goste, 1 Dal., 194; 1 Am. L. C. (3d ed.), 321-2; Oa/rruth v. Walker, 8 Wis., 252.

Plaintiff, baying commenced an action in a justice’s court against one Proctor, delivered to a constable an affidavit stating that be bad good reason to believe that E. D. Norton had money, effects and credits in bis possession belonging to Proctor and was indebted to Proctor; and, upon plaintiff’s demand, the constable summoned Norton as garnishee in said action.

Action to enforce a lien on defendant’s land for labor done by plaintiff in removing stumps therefrom by means of a stump machine. The answer denies that the work was done for the defendant, and alleges, among other things, that it was done for one Pitz, and under contract with him.

Action to foreclose a mortgage of real estate, alleged to have been executed by the defendant Woehoska to the plaintiff to secure the payment of his promissory note, made and executed to her, for $200 and interest. Tbe defendant Shirnek is alleged to be a subsequent incumbrancer of the mortgaged premises.

The case is thus stated by Mr. Justice Tatloe: “This action was brought to recover damages for an injury sustained by the plaintiff in being bitten by a vicious horse owned by the defendant. The plaintiff claims that, at the time of receiving the injury, he was in the employ of the defendant, and was training the horse by his direction; that he was ignorant of the vicious habit of the horse; and that the plaintiff knew of the habit, and neglected to advise him of it.

The defendant Ilenry Mueller, being the owner of two lots of land separated only by a highway and containing forty acres and thirty acres, respectively, conveyed the forty acres to his son, the defendant Bruno Mueller, in March, 1875. Bruno was then about twenty-five years of age.

<p>Criminal Law. Effect of repealing statute without saving clause.</p> <p>Ch. 340 of 1876 repealed sees. 30 and 31, ch. 165, R. S. 1858, and imposed a greater penalty for the offense therein defined; and no penalty can now be inflicted for official embezzlement within the sections so repealed, though committed before the repealing act toot effect. State v. Campbell, 44 Wis., 529.</p>

Action for rent alleged to be due tbe plaintiff under a contract of lease of the third story of a building, executed by plaintiff as party of the first part, and by defendant Suelflolm as principal, with the other defendants as his sureties, parties of the second part. There was also a second cause of action for damages suffered by plaintiff from defendants’ negligence in the use of a cistern of water in the premises so let to them. Other facts are stated in the opinion.

Replevin, commenced in justice’s court, for sixty-six bushels of wheat. Plaintiff’s affidavit for warrant of seizure, which also served as a complaint, was in the usual form, and alleged, among other things, that she was the owner and lawfully entitled to the possession of the wheat, and that the same was taken and unjustly detained by defendant.

A portion of the defendants are the administrators of the estate of David Youngs, deceased, and when appointed gave bond to the judge of the county court as required by law. The other defendants are sureties in such bond.

It is alleged in the complaint that for about four years preceding September, 1874, the parties were general partners, doing business as such at Manitowoc under the firm name of Ganger & Pautz; that in 1873 an action was brought against the plaintiff by two persons named Greves, to recover damages for.the breach of an alleged contract by this plaintiff to do certain excavating for them; that this plaintiff answered in said action alleging the copartnership between himself…

Plaintiffs appealed from so much of a judgment herein, otherwise in their favor, as. denied them a lien upon certain premises belonging to the defendant Dumpke. The case is stated in the opinion.

The complaint alleges, in substance, 1. That plaintiff is an infant, etc., a resident now and at the times afterwards mentioned, of St. Lawrence county in the state of New Yorlc. 2. That on the 1st of December, 1873, Jonas Moyer (by whom she sues) was, by order of the surrogate of said county of St. Lawrence, duly appointed her general guardian. 3.

This action was commenced before a justice of the peace, on a note and book account against the defendant. The summons was made returnable on a day therein named, at 10 o’clock, A. M., and was duly served on the defendant. At the hour named in the summons, the justice called the case, and the plaintiff appeared by his attorney.

<p>Practice. (1) When plaintiff has affirmative.</p> <p>Guaranty. (2) When consideration sufficiently expressed. (3) What constitutes a valid consideration.</p> <p>1. The question which party holds the affirmative, is to be determined by the pleadings; and in an action upon a guaranty of promissory notes, where the answer denied any indebtedness of the makers to the payees at the time of the giving of the notes, plaintiff had the affirmative of that issue, and was properly allowed to open and close.</p> <p>'¿. The words “for value received," in a guaranty, sufficiently express the consideration within the statute of frauds. Day v. Elmore, 4 Wis., 190.</p> <p>3. The consideration of a guaranty need not pass between the parties to it, but it is enough if a benefit arises to the party for whom the guaranty is given; and forbearance or extension of credit on a previous indebtedness is sufficient. Eastman v. Bennett, 6 Wis., 232.</p>

Spencer E. Carrier died intestate November 13, 1854, and in January following bis widow, tbe defendant, was appointed administratrix of tbe estate and duly qualified as such. The estate of tbe intestate consisted of land appraised at $2,750, and personal property appraised at $1,450. He left surviving him four young children, the issue of bis marriage with tbe defendant.

APPE A.L from tbe Circuit Court for Fond du Lao County. Action to establish and enforce a mechanic’s lien.

Action to recover damages for an injury sustained by plaintiff wliile in the employ of the defendant.

The action was brought by Frank J. Klcety to recover the possession of certain personal property of which he claims to be the owner. On the undertaking required by the statute, in which Peter Klcety was surety, the property was delivered by the officer seizing it, to the plaintiff. The complaint is in the usual form of complaints in like actions.

This is the third appeal in this action. The decisions upon the two former appeals are reported in 31 Wis., 638, and 37 id., 238, where sufficient statements of the case as made by the pleadings will be found. Tlie last trial was by the court without a jury, and resulted in a general finding that the allegations of the complaint are true.

This action was commenced in a justice’s court; and, upon the trial there, judgment was rendered in favor of the defendant. Plaintiff appealed from that judgment to the county court of Fond du Lac county. No affidavit was made by him to entitle him to a new trial in that court, and it does not appear that the justice ever returned to that court the proceedings had before him.

. Plaintiff appealed from a judgment of nonsuit herein. The pleadings and evidence are sufficiently stated in the opinion.

Action to recover from defendant, as warehouseman, the value of certain goods belonging to the firm of Parker, Hildebrand & Go., which were stored in defendant’s depot or warehouse at Boscobel, and were destroyed by the burning of such depot or warehouse on the night of August 31, 1870. It is alleged in the complaint that the fire was caused by defendant’s negligence.

Action to recover the price of four sewing machines, which, it is alleged in the complaint, were sold and delivered by the plaintiff to the defendants. The answer was a general denial.

Replevin, to recover the possession of certain goods and chattels which the plaintiff claimed under five chattel mortgages executed to him, four by Joseph H. Cartwright, and one by Joseph H. Cartwright and Charles H. James. The defendant justified the talcing of said goods, as a constable, under and by virtue of three writs of attachment issued by a justice of the peace against the goods and chattels of said Joseph II. Cartwright and Charles H. James.

This action was brought to restrain the collection of taxes assessed in the year 1874 against certain real estate of the plaintiff in the city of Fort Howard.

The defendants appealed from an order overruling their demurrer to the complaint. The case is sufficiently stated in the opinion.

Action, commenced in October, 1871, to foreclose a mortgage given by tbe defendant Thomas H. Austin in October, 1864, to secure payment of bis note of tbe same date for $4,000, payable two years from date, with, interest at seven per cent. This note (with another for $500), and tbe mortgage, were for purchase money of tbe mortgaged premises. The complaint set out the note, and alleged that no part of the debt bad been paid except $200 paid June 19,1868.

This was a writ of error to bring up the record in the case of the information against Peterson, convicted in said circuit court of murder in the second degree. The facts are sufficiently stated in the opinion. It was argued, among other things, 1. That the record shows that no preliminary examination was ever had prior to the filing of the information.

This action was brought by the plaintiff in his own behalf, and in behalf of all others in like interest, against The Wis- About January 8, 1872, the defendant railroad company submitted to the Town of Plainfield the following proposition: “ The Wisconsin Central Railroad Compamj proposes to construct a line of railroad from Stevens Point, in the county of Portage, to Portage, in the county of Columbia, a distance of about seventy-six miles, provided the municipal…

INFORMATION in the nature of Quo Wcvrranto. The object of this information (filed in this court) was to have a forfeiture of defendant’s charter adjudged. The grounds upon which the judgment was asked, will appear from the opinion. Defendant demurred, to the jurisdiction of the court; for defect, of parties plaintiff; for misjoinder of several causes of action; and for insufficiency of facts. Upon the point that no cause of action was stated in the complaint, they argued, 1.

In February, 1878, Bernard liohner, being insolvent, executed to Isaac Hlauber a general assignment, in the usual form, for the benefit of his creditors; and the assignee executed bis bond as such, with sureties, etc., also in the usual form, except that it ran to Bernard Esser as cleric of the circuit court for Dane county, and not to the county judge or a court commissioner of such county.

Action in the nature of quo warranto, to determine the right of the relator to the office of county clerk of Ashland county.

The executor of the will of Carl Schseffner having appealed to the circuit court for Milwaukee county, from an order of the county court construing the will of Carl Schseffner and determining the rights of the parties interested under it, Edward Schmffner, upon an affidavit of prejudice of the circuit judge, obtained a change of venue to the circuit court for Walworth county.

This was an action on contract, and' was tried before a referee. Plaintiff moved that the referee’s report be modified, and that judgment be entered upon it when so modified; and, after hearing plaintiff in support of such motion, and defendant in opposition thereto, the court confirmed the report, and rendered judgment pursuant thereto. Prom such judgment the defendant appealed. The facts upon which the judgment.of this court rests, will sufficiently appear from the opinion.

<p>APPEAL from the Circuit Court for Mcmitowoo County.</p> <p>Defendant appealed from an order for judgment.</p>

Action on a .policy of insurance against loss by fire, issued by the defendant company to the plaintiff Blumer, on his flouring mill and the machinery therein. By the terms of the policy, the loss, if any, was made payable to the plaintiff Bliss (who held a mortgage on the insured property), to the extent of his mortgage claim.

<p>APPEAL from the Circuit Court for Bayfield County.</p> <p>The plaintiff appealed from an order denying his motion for a new trial. The case is stated in the opinion.</p>

Eeplevin, commenced July 14-, 1876. The complaint alleges, in substance, that plaintiff was the owner and lawfully possessed of the personal property ¿escribed, of the value, etc., which defendant, on the 12th of July, 1876, wrongfully took from his possession, and unjustly detained, to his damage, etc. Defendant answered, denying all the allegations of the complaint, and, as sheriff, justified the talcing by virtue of an execution issued upon a judgment against one…

Action for the taking and conversion of goods. Defendant had seized the goods on an execution against the property of Masse & Besnah; and plaintiff claimed them as mortgagee.

Action on the official bond of Van Stralen as treasurer of Brown county. “ In the original complaint, the plaintiff assigned, for breach of the county treasurer’s bond, tlie nonpayment of one sum of some eight thousand and odd dollars only. Afterwards the complaint was amended, assigning additional breaches for tlie nonpayment of several other large sums. The court below gave leave to the defendants to file an amended answer to the complaint so amended.