Volume 47 — Wisconsin Reports

In October, 1873, the circuit court for Sullivan county, Indiana, appointed James L. Berry administrator of the estate of Eussel Atkins, then recently deceased in said county.

Defendant appealed from a judgment rendered against him as surety in an undertaking on appeal from a justice’s court to the circuit court.

Plaintiff filed with the hoard of supervisors of Iowa county his account, duly verified, against said county, for the hoard and support of Ann Clayton, a pauper.of said county, for a period of fifteen weeks ending July 6, 1875. The total debit was $75; and there were credits for cash payments by James and Joseph Conley, respectively, amounting together to $25; leaving a balance of $50.

Replevin, commenced before a justice of the peace-, for a pair of horses valued in the affidavit for the writ at $90. The defense is, that the defendant seized the horses as the agent of one Haines, by virtue of a chattel mortgage upon them executed by the plaintiff to Haines. Erom a judgment of the justice in favor of the defendant, plaintiff appealed to the circuit court.

The case is thus stated by Mr. Justice Tatloe: “ This action was brought to recover the value of twenty-one promissory notes of one hundred dollars each, given by one T. C. Hartford to the plaintiff, bearing date the 5th day of September, 1877; payable, the first in forty days after date, the second in forty days after the first became due, and the third in forty days after the maturity of the second, and so fin, one of said notes maturing at the end of each succeeding forty…

The action was commenced in the circuit court by personal service of the summons and complaint on the defendant. The complaint is the common count for goods sold and delivered by the plaintiffs to the defendant, to the value of $162.18. It admits the payment thereon of $72.18, and demands judgment for $90, with interest and costs.

Action for injuries to the plaintiffs person and to his horses and wagon, from a train of cars on defendant’s road. At the time of the accident, plaintiff was driving his team across said road upon a public highway, and the complaint alleges that the accident was caused by defendant’s failure to give a reasonable and proper signal of the approach of the train.

Action on two promissory notes, for $1,073 and $1,500 respectively, both dated December 5, 1871, and payable eight months after date, in gold, with interest in gold at ten per cent, per annum. The complaint alleges demand at maturity and on subsequent occasions; and that at the maturity of the note gold was worth a premium of about fifteen per cent., while at the commencement of the action the premium was only one per cent.

A. O. Kasson and F. W. Noyes filed; in the county court of Fond du Lac county, a claim against the estate of Brocker, for $619.88. No commissioners having been appointed to determine claims against said estate, the county judge considered and disallowed the claim in question. An appeal was allowed and taken from this decision, a bond given, and the papers certified to the circuit court.

Action on a policy of insurance issued by the defendant on certain machinery of the plaintiffs in their flouring mill in the city of Prescott. A written and printed application for the insurance, signed by the plaintiffs, preceded the policy. This application is in the usual form, of questions by the insurer, relating to numerous matters supposed to affect the risk, and the answers of the plaintiffs thereto.

Action for damages accruing from the defendant’s fraud in a sale to plaintiff of a mortgage of land. The case is sufficiently stated in the opinion.

Action on a promissory note for $250, dated July 1, 1870, and payable one year from date, with interest at seven per cent. No part of the note had been paid.

ER.B.OB. to the Circuit Court for Iowa County. This was a proceeding in the court below against Baker as the.father of the bastard child of one Anna E. Swagger. Yerdict and judgment having gone against Baker, he brought the case here by writ of error.

Groix County. Action for the wrongful taking and detention of chattels, consisting of grain and an agricultural machine. The facts are sufficiently stated in the opinion. Held: in a contest of this character, to belong to the husband. See, beside the authorities already cited, Fitzpatrick v. Borbridge, 2 Brews. (Pa.), 559; Bucher v. Ream, 68 Pa.

This is an action to foreclose a mortgage on certain lands in Dane county, executed by the defendant Ingebretson alias Erdalil to his father and mother, Ingebret Peterson (now deceased) and the plaintiff.

Foreclosure of a mortgage. The defendant Welch appealed from an order refusing to stay the sale of the premises upon the judgment. The ground upon which the stay was sought will appear from the opinion.

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

■ APPEAL from the Circuit Court for Columbia County. The plaintiff was a section hand employed by the defendant railway company to worlc about its depot yard at Portage City. The yard is traversed by several tracks.

Action for injuries to the plaintiff’s intestate resulting in his death, alleged to have been caused by defendant’s negligence. The facts in evidence will sufficiently appear from the opinions of Justices Cole and Taylob. Plaintiff had a verdict and judgment; and defendant appealed.

The ease is thus stated by Mr. Justice Taylor: “ This action was brought by Ann M. G. Smith, with A. Hyatt Smith, her husband, and Charles D. Mead, the trustee of her separate estate, for the purpose of redeeming certain real estate from the lien of what is claimed to be a mortgage thereon, given by Ann M. G. Smith to the defendant «7.

This appeal was taken by the plaintiffs' from an order denying their motion for an attachment against defendant for a contempt. The grounds of the motion will appear from the opinion.

Action for an accounting between partners and a dissolution of the partnership. The case is stated in the opinion. The defendant Mender son appealed from the judgment.

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

Action to recover damages for trespasses upon lands while the same belonged to the state. Plaintiff, as patentee of the lands, had succeeded under the statute (ch. 520 of 1865; Tay. Stats., 630, §56) to all the rights of action of the state for such trespasses.

<p>APPEAL from tbe Circuit Court for Oeonto County.</p> <p>Ejectment. Plaintiff appealed from a judgment in favor of tbe defendant. Tbe case will appear from tbe opinion.</p>

This action was brought before a justice of the peace, to enforce a laborer’s lien upon a quantity of lath. Held: as conclusions of law, that the plaintiff was entitled to a personal judgment against Wirt for the above sum, and was also entitled to have the same adjudged a lien.upon the lath; and judgment was entered accordingly. The defendants Eldred appealed from the judgment. .

APPEALS from the Circuit Court for Oconto County. The case is thus stated by Mr. Justice Tayloe: “These appeals are taken in the same action, of ejectment for the recovery of three separate parcels of land. On the trial in the court below, the plaintiff obtained a verdict for one of the parcels described in his complaint, and the defendant had a verdict in his favor for the other parcels.

Replevin. Plaintiff appealed from a judgment against him. The case will appear from the opinion. They contended that, when the mortgagor tenders, and the mortgagee refuses, the amount of the mortgage debt, the lien of the mortgage is discharged, though the debt remains. Herman on Chat.

The action is for the foreclosure of a mortgage executed by the defendant Ben. B. Hall to the county of Oconto, to secure the payment of four promissory notes, amounting to $7,500, made to the county by the defendant Eichard L. Hall. The case was here on a former appeal from an order of the circuit court overruling a demurrer to the complaint. 42 Wis., 59. A sufficient statement of the complaint will be found in the report. After the cause was remitted, the defendant Ben.

The defendant board appealed fi-om a judgment in favor of the plaintiff town. The case wrill sufficiently appear from the opinion. They contended, 1. That the statute (Tay. Stats., 421, § 109) required the town treasurer to retain in his hands “ the amount specified in his warrant to be paid into the town treasury,” after paying the state tax in full; that the warrant in this case, following the statute (Tay.

<p>Pbactice. (1) What constitutes a trial. (2) Successive motionsr Ses-Adjudicata.</p> <p>1. On appeal to the circuit court from the decision of a county board' bf supervisors rejecting plaintiff’s claim for moneys paid for illegal.taxes,, where there were no formal pleadings, the judgment for plaintiff was based upon defendant’s stipulation, admitting all the facts necessary to establish the claim, and a referee’s computation of the amount paid, with interest. Held, that the record shows a trial of the issues, and not a mere judgment in default of an answer.</p> <p>2. After denial of a motion for a new trial, without leave, granted at the same time, to renew the motion, a second motion for the same relief, made on substantially the same grounds, without disclosure of any new facts, cannot properly be granted; the question being res adjudicata. Rogers v. Hcenig, 46 Wis., 361.</p>

Tbe defendant in each of these two cases appealed from a judgment in favor of the plaintiff, taken in default of an answer. The substance of the complaint in each case will sufficiently appear from the opinion.

This cause was before this court on the appeal of the defendant Van JVortwiek from an order of the circuit court overruling his demurrer to the complaint, and is reported in 38 Wis., 279. The complaint contains the contract between the parties upon which the action is founded, and the assignment thereof by the defendants to the Ames Wood Pulp Company, and is sufficiently stated in the report of the case on the former appeal.

Action to foreclose a mortgagé given by the defendant Charles Johnson to the plaintiffs to secure payment of his notes: one for $600, due December 1,1875; one for $400, due December 1, 1876; one for $200, due December 1, 1877.

<p>Pleading. (1) What averments not deniable on information and belief.</p> <p>Vacating Judgment. (2,3) On what grounds order refusing to vacate judgment will be reviewed, or reversed.</p> <p>1. In an action against a county board of supervisors to avoid taxes as illegal, defendants cannot deny on information and belief averments of facts appearing from the public records of the county and its towns: as, that the town assessors neglected to take, subscribe and annex to the assessment rolls, the prescribed oath; that the members of the board of equalization were not sworn before entering upon their duties, and did not make the affidavit required bylaw after performing their duties; that the certificates and statements required by statute were not made by the town clerk and secretary of the board of education (where the town system of school government had been adopted); and that the delinquent rolls of the towns were not properly authenticated.</p> <p>2. On appeal from an order denying a motion to vacate a judgment on default, where the motion was based entirely upon a verified answer and affidavits to excuse the default, this court cannot consider any alleged irregularities in the proceedings before judgment.</p> <p>3. An application to set aside a judgment, and for leave to answer, is largely addressed to the discretion of the court; and unless the applicant has excused his default, and tendered a verified answer showing a good defense on the merits, this court will not reverse an order denying the application.</p>

The plaintiff, the grantee named in a tax deed, brought this action to foreclose the claim and interest of the defendants, (the original owners,) in the land described in such deed. The action was brought under section 35, ch. 22, Laws ¡of 1859. The complaint is in the usual form, containing the averments required by the statute. The deed was executed in 1877, pursuant to a sale of the land in 1874 for the unpaid taxes of 1873.

The case is thus stated by Mr. Justice Tayloe: This action was brought by the appellant town to recover of the respondent the sum of $10,000 of drainage-fund money, which the appellant claims belonged to it, and which had been unlawfully received by and appropriated to the use of the respondent town. The complaint contains the following allegations: “ 1. That the respective parties are duly organized towns of the county of Ashland. “ 2.

Replevin, commenced in February, 1878, by Charles E. and Adalbert AT. Woodruff for horses, the possession of which plaintiffs claim by virtue of a chattel mortgage executed to James H. Woodruff, by Woodruff & Grist, to secure the note of that firm for $232, dated November 3, 1877, payable December 23, 1877. Plaintiffs were sons of James H. Wood-ruff.

Action for work done by plaintiff under contract with the defendant city, in grading, claying and graveling a street in said city.

Action to foreclose a mortgage on real estate, executed by the defendants Henry Layeoek and wife to one Winans, to secure the payment of a promissory note for $3,700, and ten per cent, interest, made by Henry Layeoek to Winans or order, dated July 22,1872, and payable one year after date. The complaint alleges an assignment of the note and mortgage before maturity, by Winans to the plaintiff, the note having been so transferred by indorsement in the usual way.

' CERTIFIED on exceptions from the Circuit Court for Brown County. The case is stated in the opinion. The cause was submitted on the brief of John J. Tracy for the defendant, and that of the Attorney General for the state.

Plaintiff filed with the defendant board a claim against Polk county, for work done by him in clearing and grubbing a certain “ state road ” under contract with persons appointed and acting as commissioners, by virtue of ch. 223, Laws of 1875. His- claim having been disallowed, he appealed to the circuit court, where, after a trial without a jury, judgment was rendered in his favor for the amount of his claim. .From this judgment the defendant appealed.

<p>CERTIFIED on Exceptions from the Circuit Court for Brown County.</p>

The plaintiff, as owner of lot-6 in sec. 24, town 29 north, range 7 east, in Marathon county in this state, commenced this action in April, 1876, for the purpose of procuring to he removed, and abated as a nuisance, certain works constructed and maintained by defendant in the Wisconsin river, in front of said lot, under a claim of right founded upon ch. 45, P. & L. Laws of 1871, amended by ch. 256 of 1873.

Trover, for logs. On a former appeal in this action, it was held that the complaint states a cause of action. The complaint is sufficiently stated in the report on that appeal. 45 Wis., 119. The defendant answered a general denial.

<p>APPEAL from the Circuit Court for Ashland County.</p> <p>The respondents (defendants) moved to dismiss the appeal.</p>

The defendants appealed from an order sustaining a demurrer to the second and third defenses set up in their answer. The nature of the action and the character of those defenses will sufficiently appear from the opinion. They argued substantially as follows: 1.

This action was brought against one Hollabush as principal, and Wolf and Payne as sureties, upon a bond. Erom a judgment against all the defendants, Wolf and Payne appealed-.

In September, 1859, the plaintiffs executed and delivered to the Evansville Seminary (a corporation under the laws of this state) án absolute, unconditional deed, with full warranties, of a parcel of land in the village of Evansville, in Rock county, known as “ Seminary Park,” the consideration named in the deed being $500. This action was brought in 1876 against the Evansville Seminary and the Evansville Boot & Shoe Manufacturing Go.

Action upon a policy of insurance against fire issued by the defendant company to the plaintiff. The original policy had expired before the loss, but the plaintiff alleges that it had been renewed by an oral contract between himself and the company (through its agent), and was in force when the property was destroyed.

The ease is thus stated by Mr. Justice Taylok: “ This action was brought to recover the balance due the plaintiff for a quantity of coal alleged to have been sold by him to George Covert, the respondent, and Augustus Covert, as partner’s in business, on the first of December, 1876.

This appeal was taken by the plaintiff from an order sustaining a demurrer to the complaint as not stating a cause of action. The substance of the complaint is stated in the opinion.

This was a proceeding commenced in justice’s cpurt, under tbe statute, as for an unlawful detainer, to remove tbe defendant from certain premises, wbicb be was alleged to bold as plaintiff’s lessee, on the ground that be bad made default in the payment of rent. Defendant having obtained a verdict and judgment in the justice’s court, plaintiff appealed to tbe circuit court. The case made on the trial there will sufficiently appear from tbe opinion.

Trespass, for breaking and entering the close of the plaintiff, and taking therefrom a large quantity of wheat, oats and hay. The answers of the defendants allege that the property was taken by virtue of certain executions duly issued on judgments recovered by some of the defendants against one Hammond, who, it is alleged, was the owner of the property.

Action to recover the value of a quantity of hay, wheat and oats, which the plaintiff claims to own, and which, he alleges, was wrongfully taken from his possession by the defendants and converted to their use. Defendants took the hay and grain by virtue of an execution upon a judgment in their favor against one Hammond, the owner in fee of the land upon which the same was raised and found.

Action for injuries to tbe person alleged to have been caused by a defective highway. It appeared that plaintiff and several other persons, at the time of the accident, were riding along the highway in a private conveyance drawn by a horse which was driven by one of the party, and defendant sought to show, among other things, that the accident was caused by negligence in driving. The defendant appealed from a j udgment in favor of the plaintiff.

This action was brought to recover damages for an alleged breach of warranty.

<p>Change oe Venue, for convenience of loitnesses, etc.</p> <p>The determination of a motion for a change in the place of trial, to promote “the convenience of witnesses and the ends of justice,” rests largely in the discretion of the circuit court; and in this case no sufficient reason appears for reversing an order denying such a motion.</p>

The case is thus stated by Mr. Justice Tayloe: “ This action was brought to recover the amount due upon two promissory notes given by the defendant to Heller, Bro. & Co. or order, both dated August 14, 1877, for $271 each; one payable in forty days, and one in sixty days after date.

APPEALS from the County Court of Milwaukee County. While these actions were pending in the circuit court for Milwaukee county, the plaintiff in each case procured a change of venue to the county court of the same county, upon an ex fiarte application and an affidavit of the prejudice of the circuit judge.

PETITION for a Writ of Mandamus. On the relators petition, an alternative writ of mandamus issued from this court addressed to David W. Small, Judge of the Second Judicial Circuit, commanding him to resettle the bill of exceptions in the case of Diedrich v. The Northwestern Union Railway Company (in which an appeal had been taken by the defendant company), by inserting the defendant’s exceptions to the refusals of said judge to give certain instructions requested by the…

PETITION for a Writ of Mandamus. On the relator’s petition, an alternative writ of mandamus issued from this court on the 23d of September, 1879, addressed to Philip L. Spooner, Jr., Commissioner of Insurance of this ■state.

Slander. The complaint contained two counts, relating to language used on two different occasions, the alleged defamatory charge against plaintiff in both cases being, in substance, that she had been guilty of the crime of larceny in stealing corn from the defendant. The answer alleged “ that the supposed slanderous matters set up in the complaint are true of the plaintiff; ” and further set out the facts which induced defendant to make the charge complained of.

APPEALS from the Circuit Court for Kenosha County. The case is thus stated by Mr. Justice Cole: “These are cross appeals from the same judgment. The action is trespass de bonis, etc., the subject matter of the controversy being a horse. The complaint consists of two counts.

Action to recover damages for defendant’s breach of contract. Plaintiff had a verdict and judgment for $200; and defendant appealed. The nature of the contract and of the breach thereof, and the errors alleged, will sufficiently appear from the opinion. In support of the view that the contract price of the ice should be deducted from the gross damages accruing to the plaintiff from all causes, they cited Sedgwick on Dam., 260; Bank of Montgomery v. Reese, 26 Pa.

The case is thus stated by Mr. Justice Taylob: “ This action is brought by the plaintiff against the city of Milwaukee to recover for the expenses of raising the grade of the street in front of the plaintiff’s lot in said city, and for damages to said lot by reason of changing the grade and filling the street up to such new grade. “ The plaintiff alleges that the grade of said street had been fixed and established in 1853, and the street graded in accordance therewith and…

The case grows out of the divorce suit of Howard v. Howard, which was before this court on appeal from the judgment therein, and is reported under the title of Downer, Adm'r, v. Howard, 44 Wis., 82. On that appeal the judgment of the circuit court, directing James Howard, the defendant, to pay certain sums of money to the attorney of Mrs. Howard, for counsel fees and expenses of the litigation, was affirmed.

The case is thus stated by Mr. Justice Tayeoe : “ This action is upon a promissory note, which is set out at length in the complaint, and purports to have been signed by the defendant, bearing date April 20, 1870, for the sum of $150, payable five months after date, to the plaintiff or bearer, with interest at the rate of ten per cent, per annum.

Action to foreclose tax certificates, under eh. 181 of 1872.

This action having been commenced in a justice’s court, and a judgment having been there rendered against the defendant, a notice of appeal was filed and served in his behalf, and the justice made a return to the circuit court as upon an appeal. After the cause had been called in that court, and a jury impaneled, plaintiff moved to dismiss the appeal upon the ground that the affidavit on appeal was not signed by the defendant.

Action for libel. Tbe alleged libelous words, and tbe circumstances under which they were written, will appear from tbe opinion. Tbe circuit court sustained a demurrer to tbe complaint as not stating a cause of action; and plaintiff appealed from tbe order.

The complaint is sufficiently stated in the brief of counsel for plaintiff, as follows: “ The complaint is in trespass on the case. Plaintiff is the owner of a certain lot in the twelfth ward of the city, and on the lot there are valuable improvements, among which is a large two-story frame building used for business and dwelling purposes.

The case is thus stated by Mr. Justice Tayuok : “ This is an action to recover the value of certain personal property. The plaintiff claimed to own the same by virtue of a chattel mortgage given to him by one Gottlieb Stolper, to secure the payment of the sum of $800, dated November 18, 1878.

'Ejectment, for a lot in the city of Milwaukee; tried, by the court without a jury. Plaintiff traced title to the heirs of Charles K. Watkins, deceased, and showed that, in a partition of the estate of said deceased, said lot was set off to himself as one of the heirs-at-law, and that he was in possession in 1876.

Action for rent. The complaint was, in substance, that on or about May 1,1878, plaintiff leased to defendant one-half of an office, known as “Office No. 5,” in the Newhall House block, in the city of Milwaukee for the term of one year, at the annual rent of $325; that defendant agreed to pay said rent in equal portions on the first day of each month, the first payment to be made on the first of June; and that, after demand, it had failed to pay the rent which became due on…

Action for a sum alleged to be due plaintiff upon his salary as defendant’s agent for the three months ending April 1, 1878, amounting to $375.

<p>Criminal Law. Errors in omitting to instruct.</p> <p>1. In a prosecution for rape, it was not error, against the accused, to omit to instruct the jury, in the general charge, that if they did not And him guilty of rape, they might find him guilty of assault with intent to commit that crime.</p> <p>2. The court below did not caution the jury that prejudice was liable to be aroused against the accused because of the heinous nature of the crime alleged; nor call them attention to the difficulty of defending against such an accusation; nor press upon their attention the rule that voluntary submission by the woman while she has power to resist, however reluctantly yielded, deprives the act of an essential element of rape; nor instruct them that proof of the good reputation of the accused as a peaceable and law-abiding citizen (there being such proof in the case) was entitled to some weight in his favor, especially if there were circumstances proved on the trial upon which a doubt of his guilt might be based. The court also refused instructions ashed by the accused, containing some inaccuracies, but which aimed to state the foregoing propositions. Held, in view of the evidence at the trial, that such neglect to charge was error.</p>

OEBTIFIED on Exceptions from the Municipal Court of Milwaukee County. On a motion by the state to dismiss the exceptions, there was a brief by the Attorney General, and oral argument by II. W. Ohynoweth, Assistant Attorney General.

REPORTED by the Judge of the Municipal Court of Milwaukee County. Miller was convicted upon an information in said court for arson; and, after denying a motion to set aside a verdict and grant a new trial, the judge of said court reported the cause to this court upon questions of law, which are stated in the opinion.

In May; 1879, an information was filed in said court against Charles Cas^per, Peter Bellinghausen and Henry G-. Phillips. The first count charges, in substance, that Charles Casper was clerk of said court from January 1, 1876, until January 7, 1.878; that Peter Bellinghausen was assistant clerk of the same court from January 1, 1876, until January 1, 1879; that Henry G-.

Information for larceny. The court refused to instruct the jury, at defendant’s request, to return a verdict in liis favor. After a verdict of guilty, a motion in:arrest of judgment, on the ground that the verdict was not supported by the evidence, was also denied, and judgment rendered against defendant, which is here sought to be reversed. They contended, 1.

<p>CRIMINAL Law. When case may be reported from municipal court.</p> <p>The statutes of this state do not authorize the judge of the municipal court of Milwaukee county to report a case to this court for the determination of questions of law arising therein, where the defendant has been prosecuted and tried on complaint, as in cases before justices of the peace, without information or. indictment.</p>

In an action against one Slater and one Ball, plaintiffs, on the 7th of December, 1878, garnished the State Bank of Madison, Wis., as being indebted to Slater or having in its possession personal property belonging to him. The garnishee denied that it was liable, unless it were by reason of having issued to Slater a certificate of deposit as follows: “ $1000, Madison, Wis., Nov. 19, 1878.

The case is thus stated by Mr. Justice Taylor: “ This is an action of replevin. The plaintiff claims the property as the assignee of Bernard Kohner, by virtue of an assignment made under the provisions of chapter 63, E. S. 1858, as amended by chapter 64, Laws of 1858.

The plaintiffs, merchants in New York city, brought this action against the defendant, a merchant doing business in the city of Milwaukee,… Held: that whatever that meeting should decide to do, he would abide by; that there was no evidence of a subsequent agreement by plaintiffs, either at or after the meeting, to compromise on the terms there voted, but clear evidence that Mellen reserved the question for further consideration, and, immediately after the meeting, when the…

A statement of tbe contract upon which this action was based, will be found in the report of a former app>eal herein (22 Wis., 476). The foregoing head notes, and the opinion, infra, state the facts sufficiently for the purposes of this appeal. The circuit court found as a fact, that the value of the improvements put by the original plaintiff upon the lot in question was, in 1868, after the return of this case from the supreme court, $5,700.

The case is thus stated by Mr. Justice Taylok: “ Action to foreclose a mortgage. The defendant O'Neil brings a separate appeal from the order confirming the sale made under the judgment. The record shows that final judgment in the action was rendered on the 9th of November, 1877, and that the sale under the judgment took place on the 21st of December, 1878.

Foreclosure of a mortgage, against O’Neil, Larkin and others. Larkin appealed from an order after the sale, but before confirmation thereof. The nature of that motion will appear from the opinion.

The averments of the complaint, as amended, are thus stated by Mr. Justice ORton: “ The complaint charges, in effect, that the defendants are the owners, and one of them master, and the plaintiff a seaman, of the vessel “ Surprise,” sailing on Lake Erie, between the ports of Ashtabula and Erie; that while a heavy sea was running, and the vessel was pitching and rolling heavily, the jaw rope of the main gaff parted, and the gaff was unshipped, launched forward in front of the…

In March, 1875, defendants, as owners of a vessel, employed the plaintiff, George Budge, to sail it as master on the great northern lakes, for the season of 1875, for a specified sum. Plaintiff served as such master until July 1, 1875, when defendants discharged him from their service.

On the 5th of September, 1874, plaintiffs, at the city of Milwaukee, put into defendants’ hands, for collection, a claim, in the form of an account, against L. P. Rogers & Eros., of Foxburgh, Pa. Defendants forwarded the claim to an attorney at St. Petersburgh, a village in the same county as Fox-burgh, who collected the whole amount of the claim, but never paid over any part of it to either the defendants or the plaintiffs.

The plaintiff is the owner of a hotel in Oeonomowoc, in this state; and the defendant, being a resident of Chicago, and the publisher of a newspaper in that city called The Hotel World, published an article in said newspaper derogatory to the character of the plaintiff, and severely censuring him for the manner in which he conducted his hotel business.

Plaintiff appealed from an order sustaining a demurrer to the complaint as not stating facts sufficient to constitute a cause of action. The complaint is sufficiently stated in the opinion.

A sum of money was paid into court iu this action by the defendant Adam Schnur, the respondent in this appeal, to keep good a tender thereof alleged to have been made by him to the plaintiff in satisfaction of the contract in suit. The money was paid to James Hickcox, who was then clerk of the circuit court for Milwaukee county, in which the action was pending. The cause was tried, and the trial resulted in a finding that no sufficient tender had been made.

Action for an injury to the plaintiff’s intestate resulting in his death, alleged to have been caused by defendant’s negligence. ■ At the time of the accident, the deceased was a locomotive engineer in defendant’s employ, and was engaged in operating a switch-engine in defendant’s yards at the city of Milwaukee; and the injury was caused by a collision between the said engine and a train on defendant’s road.

On the 13th of September, 1878, an execution issued from' the circuit court for Dane county to the sheriff of Milwaukee co.unty.

<p>Costs on appeal from Justice's Court.</p> <p>Under secs. 69, 73, ch. 133, Tay. Stats., and prior to the revision of 1378, where an action for an assault and battery had been commenced in justice’s court, and, on appeal from a judgment for the defendant, plaintiff had recovered in the circuit court any sum, though less than $50, as damages, he was entitled to full costs; and subd. 4, § 54 of the same chapter, had no application to the case.</p>

APPEALS from tbe Circuit Court for Wauhesha County. Two judgments were recovered in the circuit court against Isaac Coller — one by Henrietta A. Coller, and the other by Charles P. Kellogg and others, the appellants. Executions were duly issued upon both judgments and returned unsatisfied.

Action for libel. The newspaper article upon which the action was based, and which is set out in the complaint with matter of inducement, innuendoes, etc., is of considerable length, and will he omitted here, as its general purport is sufficiently stated in the opinion. Defendants demurred to the complaint as not stating a cause of action, and appealed from an order overruling their demurrer.

Plaintiff appealed from ail appraisal, made by commissioners duly appointed for that purpose, of a strip of land to which he claimed title, and which had been taken by defendant for its railroad track. On appeal from a former judgment of the circuit court herein, that judgment was reversed, and the cause remanded for a new trial. 42 Wis., 248.

The board of directors of the defendant chamber of commerce having suspended the relator, a member of the chamber, from the privileges of membership, for nonpayment of a penalty imposed upon him for an alleged violation of one of the rules of the chamber, the relator sued out of the circuit court an alternative writ of mandamus, commanding the respondents to restore him to membership or show cause to the contrary.

<p>APPEAL from the County Court of Bodge County.</p> <p>Plaintiff appealed from a judgment in favor of the defendant. The case is sufficiently stated in the opinion.</p>