Volume 51 — Wisconsin Reports

Ejectment, for an undivided one-fourth of 120 acres of land in Sheboygan ^county. The plaintiff claims as devisee of her late husband, Stephen D. Littlefield, deceased.

Plaintiff brought this action to redeem certain real estate from two mortgages executed by his father, who is now deceased.

Action to have a certain deed or patent of land, which had been issued to the plaintiff, declared to be a mortgage, and to obtain a foreclosure and a sale of the land to make the amount of the mortgage debt remaining unpaid, which is alleged to exceed $1,500.

<p>APPEAL from the Circuit Court for Sheboygan County.</p> <p>The defendant appealed from a judgment in favor of the plaintiff. The case is stated in the opinion.</p>

APPEAR from the Circuit Court for Sheboygan County. The case is thus stated by Mr. Justice Taylor: This is an appeal from a judgment giving construction to the last will and testament of Carl Schseffner, deceased.

Ejectment, for lot 72, town of Stockbridge, Calumet county. The complaint is in the usual form. Answer, a general denial. The defendant is an Indian, and is in possession of the premises, claiming title thereto by descent from John W. Quinney, his father, who held the land under a patent from the United States dated July 1, 1854.

Action for damages for an unlawful taking and conversion of chattels. There was a special verdict, and also a general verdict for the plaintiff; the court refused to grant a new trial, and rendered judgment in accordance with the general verdict; and defendant appealed from the judgment. . The case is further stated in the opinion.

Action to recover damages for personal injuries, alleged to have been received by the plaintiff by means of falling into a hole negligently suffered by the city to be and remain in the sidewalk of one of its principal streets.

In proceedings supplementary to execution instituted before a court commissioner, under B. S., sec. 3031, the defendant, the execution debtor, answered that he had in his possession $500 in money which he received from the United States in payment of a pension granted to him by the government. The commissioner made an order requiring him to pay over the money to the sheriff, to be applied on the plaintiff’s judgment against him.

<p>APPEAL from the Circuit Court for Manitowoc County.</p> <p>The defendant appealed from a judgment in plaintiff's favor. The case is stated in the opinion.</p>

This action was brought against Joseph Bohman, Jr., Barbara Bohman, his wife, and Joseph Bohmcm, Sr., to obtain specific performance by the two defendants first named of their written contract to convey certain lands to the plaintiff, and to have the defendant last named adjudged to convey to the plaintiff, or reconvey to Joseph Bohman, Jr., certain lands mentioned in said contract, etc. After the commencement of the action, Joseph Bohman, Sr., obtained from a court…

<p>Right of Wat. (1) Implied grant or reservation in deed. (2) Remedy of grantee for obstruction of way.</p> <p>1. In every deed of a part of the grantor’s land, without express provision on tho subject, there is an implied grant, or reservation, of easements of necessity for the enjoyment of the part conveyed, or of the part retained.</p> <p>2. If the owner of land which is subject to a right of way obstructs the way, a person entitled to use the same may enter upon and go over adjoining land of the same owner, doing no unnecessary damage.</p>

In May, 1878, the supervisors of the respondent town instituted a proceeding before the judge of the county court under chapter 34, R. S. 1858, to compel Mary Williams, the appellant, to relieve and maintain her indigent mother.

On the 14th day of March, 1879, in the county of Manito-woc, Michael Lewis died, leaving an instrument, executed by him two days before his death, purporting to be his last will and testament.

The case is thus stated by Mr. Justice Tayloe: “ This is an action to foreclose a mortgage given by the defendant Timothy Sullivan and his wife, in 1869, to one Louis Koehnke, then chairman of the board of supervisors of Man-itowoc county, for the benefit of said county, and by him assigned to the plaintiff.

<p>Justice’s Return on appeal: Presumption as to evidence.</p> <p>On an appeal from a justice’s court to a county court under secs. 3763, 3769, R. S. (where the case is to he heard in the appellate court on the evidence taken by the justice and the proceedings in his court), it is not necessary that the justice should certify that the evidence returned as taken before him is all of the evidence in the case, but, in the absence of any motion for a further return, that fact will be presumed.</p>

<p>An appeal will not lie in favor of one who has no interest in the controversy, and against whom no judgment has been entered, however irregular may be the j’udgment in the cause.</p>

<p>Paetibs. (1) Who necessary parties in foreclosure of land, contract. Waiver of objection for defect of parties.</p> <p>Equitt. (2) Judgment in equity not reversed for admission of improper evidence. (S) Effect of verdict.</p> <p>Fixtures. (4) Oral declarations as evidence that certain things are fixtures. (5) Their removal enjoined without proof of defendant’s insolvency. (6) Certain machinery held to be fixtures.</p> <p>1. In an action for strict foreclosure of a land contract, the plaintiff’s rights are not affected by the fact that since the sale a third person has bought of the purchaser some interest in the land; and the objection that such person is not made a party is waived if not taken by demurrer or answer.</p> <p>2. A judgment in equity will not be reversed for the admission of improper evidence, when such evidence has not improperly affected the findings of the trial court.</p> <p>3. In a suit in equity, the court, after submitting questions of fact to a jury for a special verdict, may set aside the verdict, and find the facts for itself.</p> <p>4. Evidence of oral statements of the purchaser at the time of the purchase of land, as to his intention to build a shop thereon and place in it the necessary machinery for a manufacturing establishment, though inadmissible to modify the written contract of sale, is admissible as bearing upon the question (where that is in issue), whether machinery actually found upon the land is hi the nature of fixtures.</p> <p>5. In an action to foreclose a land contract, the purchaser may be enjoined from removing structures which have become a part of the realty, without showing that he is insolvent, at least when such removal would leave the premises of very little value, and very greatly damaged.</p> <p>6. The machinery and attachments here in question consisted of a steam boiler, set in a brick arch which rests on a stone foundation let into the ground about two feet; an engine resting on a bed of brick masonry on a stone foundation let into the ground in like manner; line shafting adapted in length and adjustment to the shop, and connected with the engine by a band from the main wheel, and securely fastened to the shop by hangers bolted to the joists and beams of the second floor; a circular and jig saw, with frames, etc.; a mortising machine, a planer, a borer, a header, and a turning lathe, all securely fastened to the building in the usual manner of sueh machinery, and operated solely by the steam power. Defendant built the shop and put in said machinery and attachments, intending to make them permanent accessions to the freehold, as an improvement of his own property for the purpose of carrying on a manufacturing business; and the same were so constructed and annexed as to be adapted to the use to which the premises were devoted, and were actually so applied. Held, that the whole of said machinery and attachments wer& fixtures.</p>

Action commenced in justice’s court, to recover $20 for threshing alleged to have been done by the plaintiff for the defendant.

The case is thus stated by Mr. Justice Taylor: “This action was brought to foreclose a mortgage given by one Susanah Bowles to the plaintiff, to secure the payment of any sum which should be found due to the plaintiff from her on her contract of guaranty below set forth.

Replevin, for a piano. Defendant took the property as agent of one Corbett, who claimed it by virtue of a mortgage thereof given to him by plaintiff’s husband, O. ~W. Kellogg, to secure a note of the latter.

Action on a promissory note. The facts shown by the evidence are thus stated by Mr. Justice Oassoday: “ The undisputed evidence in this case shows, in effect, the following facts: April 3, 1875, the defendant Patten was treasurer of the town of Chilton,- to which office he had been elected the year previous, and as such was liable on his official bond for all moneys coming into his hands as such treasurer.

<p>CRIMINAL Law, etc. Stay of Execution.</p> <p>Hereafter, a stay of execution in a criminal case -will not be granted by this court or a justice thereof, pending a writ of error, except for very cogent reasons; but the application must be made to the trial court. And the rule is here applied to a proceeding under the bastardy act.</p>

Action against William K. Dresser, principal, and O. E. Dreutzer and L. B. MeLaehlin, sureties, on a bond running to the plaintiff district. Dreutzer and MoLaehlin appealed from a judgment rendered against all the defendants. 1. The bond in suit is not the bond of the defendant Dreut-zer. He signed it upon the promise and under the belief that it was also to be signed by one E. 0. Daniels. It never was so signed. Linn County v. Horren, Mo., 75. 2.

This action was in tbe nature of trover, for goods seized by the defendant, who is a sheriff, as tbe property of tbe Hacine Yeneer & Seating Company, on attachments sued out by several creditors of that corporation. Tbe attachment suits were afterwards prosecuted to judgments, and the goods were sold by the sheriff to satisfy tbe same, on executions duly issued thereon.

<p>(1) Stake Decisis: Effect to be given to former decisions of this court. (2) Voluntary general assignment; assignee’s rights only those of assignor.</p> <p>1. Where the precise point in controversy in an action has been once decided by this court, in a case where it has properly arisen, and such decision has not been overruled by this court, it will be treated as settled, except where the court is asked or deems it proper to review and overrule it; and this will not be done without the most cogent reasons, where rights of property have for a long time been adjusted according to such de- • cisión.</p> <p>2. It was established as the law of this state by Estabrooh v. Messersmith, 18 Wis., 551, that in case of a voluntary general assignment for the benefit of creditors, the assignee takes no rights of action as against previous grantees or mortgagees of the property, which the assignor himself would not have; and that decision is followed in this case.</p> <p>8. Nichols v. Kribs, 10 Wis., 76; Thompson v. Hintgen, 11 id., 112; and Beiley v. Johnston, 22 id., 279 — distinguished.</p>

The defendant Henry Ketchum appealed from an order denying his motion to vacate the judgment against him in the action and for a new trial.

This action was brought by FeUx MoLinden, in his own behalf and as trustee of several other persons, against B. B. Wentworth, John P. McGregor and Cornelius Wheeler.

Plaintiff appealed from a compulsory judgment of nonsuit. The case is thus stated by Mr. Justice Tayloe: “ This action was brought to recover -money alleged to have been expended by the town of Scott for the support of certain indigent persons residing in that town, who had no settlement therein, but had a settlement in the town of Clayton. The poor persons for whom the support was furnished, were a mother and her two children.

Action for the value of goods destroyed by fire, alleged to have been caused by defendant’s negligence, while they were in possession of defendant as warehouseman, at one of its depots. At the close of plaintiff’s evidence, a motion by defendant for a nonsuit was denied; and evidence was then introduced in defendant’s behalf. So much of the instructions given by the court as is important here, will be found in the opinion.

On the 12th of June, 1878, the defendants, who were husband and wife, executed their promissory note, payable on or before December 1, 1878, to M. A. Buckley or order, for $140, with interest at seven per cent, after due. The plaintiff purchased the note before due, for value, of Buckley, who indorsed the same without recourse. Judgment was recovered by the plaintiff in justice’s court, and also in the circuit court.

Action to foreclose a mortgage executed by the defendant A. H. McLaughlin to the plaintiff, dated March 2,1874, given on 120 acres of… Held: executed by said Albert LI. McLaughlin and wife, and that said A. LL McLaughlin should execute a new one for the same debt, extending the time for payment thereof, at the request of and to accommodate said Swensends, who had assumed and promised to pay the same; that plaintiff objected to taking a new mortgage instead of the former…

Action to recover $50, with interest, upon an account for livery furnished in February and May, 1875, to one I. 0. Otis, a servant and agent of the defendants, which livery, it is alleged in the complaint, “was used and employed by the said I. 0. Otis in and about the business of the said defendants, and at their special instance and request.” The account attached to the complaint was made out against Otis.

The case is thus stated by Mr. Justice Tatloe: “ This is au action of ejectment, to recover from the defendr ants the undivided two-thirds of certain real estate situated in Muscoda, in this state. The property is village lots, and had thereon a steam mill, which had been used for several years for the manufacture of cooperage materials.

The case is thus stated by Mr. Justice Oassoday: “ Mary and John Bennett were married in 1845, and lived together as husband and wife on tie farm in question, in Grant county, until the spring of 186 3. In May, 1863, Mary Bennett, the plaintiff here, with the.r six children, went to California, where they remained until 1872, when she came back to Wisconsin, and, after remaining a short time, returned to her children in California.

The action was commenced before a justice of the peace, on an account for various articles of personal property alleged to have been sold by the plaintiff to the defendant. The defendant answered by a general denial, and a counterclaim on an account for personal property sold and money paid by him to plaintiff. A trial before the justice resulted in a judgment for the plaintiff. The defendant appealed to the circuit court.

The case is thus stated by Mr. Justice Tayloe: “ The plaintiffs in this action were the assignees of two judgments against the defendant George I. Eollett. Executions were issued upon these judgments, and James O’Neill was summoned as garnishee, upon the affidavit of the plaintiffs alleging that he was indebted to George I. Eollett, the defendant in the executions. The garnishee appeared and was examined.

This action was brought against James Hewitt, Randolph MeNutt, Robert Christie and Edward Carpenter; and the relief demanded was, that a tax deed issued to MeNutt be set aside, and that defendants, their agents, etc., be restrained from cutting or removing any timber or trees from the lands described in the said deed until a certain note secured by mortgage of said lands, running to and held by the plaintiff, should be fully paid.

the Circuit Court for Claris County. Action to remove a cloud upon plaintiffs’ title to land. The case is thus stated by Mr. Justice Cassoday: “ The plaintiffs were married in 1872, and lived together as husband and wife in a house on a lot in the village of Hum-bird, Clark county, 'Wisconsin, and occupied the same as a homestead from 1872 to April 10, 1877.

TJnder a contract with a certain building committee of a church society, the defendants erected an edifice for the society, and the plaintiff did work thereon for the defendants to the value of $70. Of this sum only five dollars has been paid. The plaintiff brought this action before a justice of the peace for the balance, and recovered a part of his claim. The defendants appealed to the circuit court, and filed an amended answer.

The case is thus stated by Mr. Justice Taylor: “ This action vras brought in the circuit court to recover an alleged balance due to the plaintiff from the defendants, upon an account for work and labor, cash expenses, and money paid at the request of defendants. The complaint was not verified. The cause was referred to a referee for trial.

Action upon an insurance policy. The case is thus stated by Mr. Justice Cassoday: “The complaint sets out the substance of a policy of insurance for $5,000, issued by the defendant to the plaintiffs, and a portion of the application therefor, upon their steam flouring mill in Prescott, and the machinery and fixtures therein (exclusive of boilers and engines), and on the stock of wheat and flour in said mill; and it alleges performance of the conditions on the part of the…

<p>APPEAL from the Circuit Court for Walworth County.</p> <p>Defendants appealed from a judgment in favor of the plaintiff. The case is stated in the opinion.</p>

Foreclosure of a mortgage. The case is thus stated by Mr. Justice Oetoh: “ The defendant Betsey Shaw, on the first day of October, 1875, gave to the plaintiff her three promissory, notes, each for the sum of $306, payable respectively in one, two and three years from date, with ten per cent, interest, payable annually; and at the same time she gave her promissory note to one William B. Kendall for the sum of $382, payable four years from date, with ten per cent, interest,…

<p> New Trial. </p> <p>There was no error in- refusing to set aside the verdict in this case as contrary to, or not sustained by, the evidence.</p>

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

The complaint contains two counts. The first is upon a note dated June 2, 1871, for $308.74, with interest.

Action to foreclose a mortgage on several parcels of land, executed by the defendants to the plaintiff and another, to secure the payment of the notes of the defendant husband for $6,000. All of the mortgaged premises are the separate estate of the defendant wife, and one of the parcels is her homestead. The husband did not answer.

The case is thus stated by Mr. Justice Taylor: “The complaint alleges that, prior-to 1873, John Ed. wards, L. P. Powers, John Rablin, Seth Reeves, Reuben 0.

Wylie appealed from an order denying 9his motion to set aside a satisfaction of a judgment of foreclosure rendered in favor of Welch against Karner and one Stevens. Stevens was made a defendant to the foreclosure as having or claiming an interest subsequent to Welch's mortgage. Wylie claimed the right to redeem as assignee of a subsequent mortgage to Stevens. The case is further stated in the opinion.

This is an action to eject the defendant from a village lot in Plover, on the ground that the plaintiff had title thereto by virtue of two tax deeds from Portage county to him, — one dated, executed and recorded September 1, 1879, and the other at some other time not stated.

Defendants demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action. The action was upon a sheriff’s bond, and was brought against the sureties therein and the administratrix of the estate of the sheriff, who died after the alleged cause of action arose. The bond is set out in the complaint. The sureties are not named in the body of it.

Defendants appealed from an order sustaining a demurrer to that part of their answer which set up a counterclaim. The nature of the action and of the counterclaim will sufficiently appear from the report in Pennoyer and another v. Allen and (mother, 50 Wis., 308-311; and the present case seems to have been submitted on the argument made in that.

This action was commenced in justice’s court; was taken by appeal of plaintiff to the county court; and was afterwards removed to the circuit court, where judgment was rendered in plaintiff’s favor.

Action to recover damages for the failure of defendant, as sheriff, to levy an execution upon a judgment in favor of the plaintiffs against the Fond du Lac Threshing Machine Company. The facts shown upon the trial, so far as important here, are stated in the opinion.

■ Defendants appealed from a judgment rendered against them in an action of ejectment. So much of the case as is necessary to an understanding of the decision, is stated in the opinion.

Replevin, for a hearse alleged to have been seized by defendant as an officer, upon a warrant of attachment issued by a justice’s court in an action against plaintiff’s husband. The facts shown by the evidence will sufficiently appear from the opinion. Defendant appealed from a judgment in favor of the plaintiff. 1.

Replevin, for logs. The facts found by the court were substantially as follows: On the 6th of January, 1876, one Cornell sold to one Snow all his interest in the pine timber suitable for saw logs upon certain lands in Chippewa county belonging to Cornell.

Justice Tayloe: “ The action is brought to recover damages for flooding the plaintiff’s house and lot, situate in the city of Eau Claire, by the maintenance of a dam across the Chippewa river by the defendant.

<p>APPEAL from the Circuit Court for Golurnbia County.</p> <p>Defendant appealed from a judgment in favor of the plaintiffs. The case is stated in the opinion.</p>

<p> Removal of action to county of defendant's residence. </p> <p>1. TJnder section 2624, R. S., where an action, commenced in justice’s court, or in the municipal court of Dane county (sec. 2517), is pending on appeal in the circuit court, the defendant, if he resided at the commencement of the action, and still resides, in another county, is entitled to have it removed to the county of his residence, upon motion made at the first term at which the action is noticed for trial, and accompanied by proof of such residence.</p> <p>2. Such removal cannot be refused on the ground that a trial of the action in the court in which it is pending will promote the convenience of witnesses; especially where the defendant makes his motion before answering.</p> <p>Couillard v. Johnson, 24 AVis., 533, distinguished.</p>

<p>APPEAL from the Circuit Court for Sauk County.</p> <p>Defendant appealed from a judgment in favor of the plaintiff. The case is stated in the opinion.</p>

Tbis action was brought in this court to recover an unpaid balance of an award in favor of the plaintiff, made pursuant to chapter 243, Laws of 1873, as amended by chapter 152, Laws of 1874.

The action was brought under chapter 146, R. S., entitled “Of mills and mill dams,” to obtain compensation for the alleged flowing of the land described in the complaint, by means of the mill dam of the defendants.

Defendant appealed from a judgment in favor of the plaintiff. The case is stated in the opinion. He cited Sheldon v. Peek, 13 Barb., 317; Col-burn v. Lansing, 46 id., 37; Ensign v. Webster, 1 Johns. Cas., 145; MeKinstry v. Pearsall, 3 Johns., 319; Woodman v. Clapp, 21 Wis., 350; Smith v. Schulenberg, 34 id., 41; Clifford v. Baessman, 41 id., 597; Ballston Spa Bank v. Marine Bank, 16 id., 120. They cited Dunn v. Hewitt, 2 Denio, 637; Terry v. Wheeler, 25 N. Y., 521.

Action upon a bond and mortgage. The bond was executed by the Baraboo Manufacturing Company, and M. J. Drown, William Andrews, B. F. Mills, G. A. Sumner, H. B. Ryan, 8. W. Ryan and A..

Action to recover the amount appearing due by the terms of an endowment policy of insurance issued by the defendant to the plaintiff June 3, 1867.

The case established by the pleadings and evidence is correctly stated in the brief of counsel for the plaintiff as follows: “ The action was brought to foreclose four certain mortgages made by Martin Osborne and wife upon eighty acres of land in Dane county, three of which mortgages had been satisfied of-record before the commencement of the action. “The facts are, that on November 11,1871, Martin Osborne was seized in fee of the west half of the northwest quarter of. sec.…

This action was commenced May 20, 1876, to recover the value of pine timber alleged to have been, in the years 1871 and 1872, wrongfully cut and removed by the defendants, and disposed of and converted to their own use, from eighty acres of land, being the east half of a quarter section, alleged to be the property of the plaintiffs.

The case is thus stated by Mr. Justice Tayloe: “The action was brought in a justice’s court to recover the value of a reaper which it is alleged that defendant unlawfully took from the possession of plaintiffs and converted to his own use. The complaint avers the value of the reaper to be $125, and claims damages to the amount of $150.

<p>Csiinmii Law. Information for rape will not sustain conviction of fornication.</p> <p>Under our statutes, fornication and rape are not related to each other as a smaller offense included in a greater; and an information charging the latter will not sustain a conviction of the former. So held, where the information did not charge that the rape was committed upon a single woman.</p>

EEEOE to the Circuit Court for Columbia County. The case is thus stated by Mr. Justice Cassoday: “The plaintiff in error was found guilty of an assault with a deadly weapon upon Louis Koepp, October 10, 1879, with an intent to kill him, and was accordingly sentenced to imprisonment for the term of five years.

Action on a promissory note, by tbe payee against tbe maker and indorser.

This action was brought by James Sheriurne, who will be designated as the plaintiff therein, though, in consequence of his death after the trial, the administrator of his estate was substituted as plaintiff. The action was for false imprisonment and malicious prosecution. Such prosecution was one for perjury, alleged to have been committed by the present plaintiff as a witness in his own behalf in an action of replevin brought by him against the present defendant.

<p>Appeal to Supbeme Court. (1) From ivhat determinations an appeal ivill lie. (2) How to procure review of refusal to admit any evidence under . complaint.</p> <p>1. An appeal will not lie from any ruling or decision of the court which is no part of the record except as made so by a bill of exceptions.</p> <p>2. Where, on the trial, an objection'to the admission of any evidence under the complaint, on the ground of its insufficiency, is sustained, the plaintiff,. if he wishes to have the ruling reversed, should not only have a bill of exceptions settled, preserving such ruling and his exception thereto, but should have judgment entered in accordance with the ruling, and appeal from such judgment.</p>

Action to recover damages for an alleged malicious prosecution. The defendant made complaint to a justice of the peace, in due form of law, charging that the plaintiff had committed the crime of forgery. The plaintiff was arrested by virtue of a warrant issued upon such complaint, and, after an examination, was held to bail for his appearance at the circuit court to answer an information for such crime.

Defendants appealed from a judgment rendered against them in ejectment. The case will sufficiently appear from the opinion, and from the report in Mohr v. Tulip, 40 Wis., 66.

The case is thus stated by Mr. Justice Tayloe: The plaintiff commenced an action against the 'city of Watertown by summons and complaint, which his attorney delivered to the defendant, a deputy sheriff of Jefferson county, to serve.

The court, on the application of Thomas Murphy, made an order on A. J. May to show cause why, as secretary of the Janesville Cotton… Held: in other states, to invalidate all unrecorded transfers, as against the creditors of the assignor. SJcowhegan Bankv. Gutter, AS Me., 315; Bockv. Nichols, 3 Allen, 342; Weston v. Mining Go-., 5 Cal., 186; Strout v. Mining Go., 9 id., 78; Naglee v. Pacific Wharf Go., 20 id., 529; White v. Salisbury, 33 Mo., 150; First Nat. Bank v. Ins.

<p>Public Streets: Dedication: Acceptance: Abandonment. (1) What entry and possession not adverse to public. (2) Dedication by state is also acceptance by ptiblic. (3-5) Abandonment by non-user.- (5) Court and jury: Burden of proof.</p> <p>Charter of Racine. (6) Ordinance void, because not approved by mayor.</p> <p>1. Where the owner of two blocks of land in a city plat, separated only by a strip of land designated on the plat as a public street, enters upon and encloses the whole body of his land, including such street, claiming title to the latter only on the ground that he acquired the fee thereof by his purchase of the adjoining blocks, such entry and the possession founded thereon are not adverse to the rights of the public.</p> <p>2. Where the state, by authority of law, makes a city plat of its own land, • and thereby dedicates to the public use the streets and other public grounds marked thereon, that act is itself an acceptance by the public.</p> <p>3. A non-user for eight years of land dedicated to and fully accepted by the public as a street, is not an abandonment of the street.</p> <p>4. Until the time arrives when a street or part of a street is required for actual public use, and when the public authorities may properly be called upon to open it for such use, no mere non-user, however long continued, will operate as an abandonment of it, and all persons in possession of it will be presumed to hold subject to the paramount right of the public.</p> <p>5. The question whether there was negligence and unreasonable delay of the public authorities in regard to opening a public street, after the time when they might properly have been called upon to open it, is a question of fact, to be determined upon evidence; and the burden of proof is upon the party who alleges an abandonment through such negligence and delay.</p> <p>6. Under the charter of the defendant city, an ordinance passed in 1869 by the common council to vacate part of a public street in said city, was void'’because not approved by the mayor.</p>

On the 19th of January, 1870, by contract in writing, defendant agreed to pay plaintiff $360 for one year’s work in his store, and to let him have all the goods he needed for himself at cost, with ten per cent, added, during the time, reserving to himself the privilege of dismissing plaintiff at the end of six months if he should no longer need his services; and Bast agreed-to work strenuously in the store for defendant’s interest.

William Baker died in March, .1876, testate. On appeal from a decision of. the county court construing the will and settling the estate, the circuit court rendered a judgment at the October term, 1879. Afterwards, during the same term, James Baker, the executor, moved to set aside the judge’s findings filed in the cause, and vacate the judgment, and that certain other findings be filed, and a certain other judgment rendered.

Mrs. Samuel presented to the county court of said county a petition that she be allowed, out of the estate above named, certain money expended by her for the purposes and under the circumstances hereinafter mentioned. The material facts alleged in the petition are as follows: In September, 1875, the deceased, John Thomas, was duly adjudged to be insane, and William W. Vaughn was duly appointed guardian of his person and estate; and thereafter acted as such guardian.

The case is thus stated by Mr. Justice Taylor: “ The plaintiff brought an action in justice’s court against the defendant school district to recover his wages for teaching its school.

Prior to and on September 26, 1877, Banger, as sheriff, by his deputy, Van Vechten, and by virtue of sundry attachments issuing out of the state courts, seized a stock of goods and fixtures belonging to the Groskopfs; and after such seizure, but prior to September 29, 1877, he also, by virtue of an execution for $138.05, damages, interest and costs, in favor of Roehring, issued out of said state court, seized the same goods subject to the attachments, the aggregrate amount…

The plaintiff appealed from an order of the county board of supervisors disallowing his account for medical services rendered on orders of the board. On the trial, a verdict was rendered in favor of the defendant by direction of the court; and from a judgment pursuant to the verdict, plaintiff appealed.

Action under E. S., secs. 4255, 4256, to recover damages for the death of plaintiff’s intestate, John Schantin, alleged to have been caused by negligence of the defendants.

Action upon a Michigan judgment. The following statement of facts was prepared by Mr. Justice Oassoday as the basis of his dissenting opinion. A briefer outline of the facts will be found in the opinion of Mr. Chief Justice Cole.

<p>APPEAL from the Circuit Court for Milwaukee County.</p> <p>Defendants appealed from a judgment in favor of the plaintiff. The case is stated in the opinion.</p>

The plaintiff obtained a judgment in justice’s court against the defendant for $35.60, including costs. When the cause •was reached for trial on appeal, June 4, 1880, the plaintiff discontinued his action, and judgment of nonsuit was ordered, with costs, against the plaintiff.

<p>APPEAL from the Circuit Court for Wauhesha County.</p> <p>Plaintiff appealed from an order sustaining a demurrer to the complaint. The case is stated in the opinion.</p>

' The complaint alleges that on July 15, 1875, the servants of the defendant company negligently ran a train of cars over the plaintiff’s intestate, Richard George, and killed him. Due appointment of the plaintiff as administrator of the estate of the deceased, on the 4th of October, 1879, is also alleged. The action was brought under the statute to recover damages for such killing.

Action on a fire-insurance policy. The complaint is thus stated by Mr. Justice TayloR: “ The complaint sets out, among other things, that the company agreed to pay, in case of loss, ■‘the amount of the loss or damage, to he estimated according to the cash value of the property at the time of the loss, and to be paid ninety days after notice and proof thereof made by the assured to the defendant.’ The defendant demurs to the complaint on the ground that it does not state…

<p>APPEAL from the Circuit Court for Milwaukee County.</p> <p>Plaintiff appealed from a judgment of nonsuit. The case is stated in the opinion.</p>

<p>Cbiminai, Law and Pbactice. (1) Evidence in prosecution for rape. (S) Form of entry of verdict of guilty. (3) Recording verdict before discharge of jury. (4, 5) Right of accused to have his counsel notified of rendition of verdict.</p> <p>]. In a prosecution for rape, the principal witness having- stated on cross examination that one - B. had told her he thought it was the accused who committed the act, there was no error in permitting her then to testify, for the state, that she had described to B. the man who did the act, before B. told her he thought it was the accused.</p> <p>2. The form of the written verdict herein — “ The jury impaneled in the case of the state of Wisconsin against Robert Smith find a verdict of guilty ” —and the form of the entry thereof in the clerk’s minute book (for which see the opinion), are held sufficient. R. S., sec. 742.</p> <p>3. No entry or record of the verdict in a criminal action need he made before the discharge of the jury, except that in the minute book.</p> <p>4. Under the constitution of this state, which provides that “ in all criminal prosecutions the accused shall enjoy the right to be heard by himself and counsel ” (art. I., sec. 7), if the accused has employed counselor has had counsel assigned to him, he has a right to have such counsel present during all the proceedings in the court; and if the verdict is rendered at a time when the court is not in regular session, unless the counsel has stated that he does not desire to be present, or has absented himself from the place of trial in such a way that he cannot be notified without unreasonably delaying the proceedings, or the accused, having his attention called to the matter, expressly waives the presence and assistance of such counsel, it is the duty of the court to see that the counsel is notified that the jury are about to render their verdict.</p> <p>5. In this case, after the jury had retired, defendant’s counsel remained in the court room until a late hour at night, and then went to his office, a short distance from the court room, and went to bed; the jury came in before seven o’clock the next morning, with their verdict, which was received by the court, and the jury discharged without having been polled; and defendant’s counsel was not notified, the sheriff’s proposal to notify him being disregarded by the judge; and he did not know that a verdict had been rendered until the opening of the court at 9 o’clock A. M., when it was too late to poll the jury as then demanded by him. Held, that it was error to refuse defendant’s motion for a new trial on that ground.</p>

The plaintiffs, who constitute the law firm of Sloan, Stevens dh Morris, brought their action in this court to recover compensation, quantum meruit, for legal services rendered by members of the firm to the state. The case came before the court on a motion of the plaintiffs for judgment on the complaint and answer, and on a motion of the attorney general to dismiss the complaint.

Action upon a policy of insurance against fire on a mill and machinery in Prescott. The policy was issued by the defendant company to Redmon, Cross & Co. The loss (if a'ny) was made payable to the plaintiff as his interest should appear. The insurance was for one year from December 1, 1875, and the insured property was totally destroyed by fire September 20, 1876. The interest of the plaintiff in the property exceeds the sum for which it was so insured.

APPEALS from the County Court of Milwaukee County. These are cross appeals from the same judgment.

Tiie plaintiff, Abbott H. Smith, claims title to certain land by virtue of a deed to him from bis grandfather, Benjamin Holmes, executed in August, 1878. The defendant Charles W. Smith is the father of the plaintiff and the son-in-law of Benjamin Holmes, and he claims title to the same land by virtue of a deed purporting to have been executed in April, 1878.

On March 15, 1880, Gatha/rina G. Schafer, who was twenty years of age on the 6th of April following, and was the wife of John Schafer, Jr., and the daughter and heir-at-law of Henry Luke, Sr., deceased, together with John Gr.

The substance of the complaint is thus stated by Mr. Justice Oiston: “ The complaint is for the specific performance of a verbal contract, made by the defendants with the plaintiff, to accept from the plaintiff and execute on their part a written lease of a part of lot 1 in block 15, and a block of five stores thereon, in the city of Milwaukee, for the term of five years from May 1, 18 T8, at the annual rent of $3,000, payable each year in certain installments.

Action for injuries to plaintiff’s lands in Jefferson county, caused by the maintenance of a dam in Rock county, and for an abatement of the dam as a nuisance. The action was commenced in Jefferson county, and removed for trial to Rock county. Defendant demurred to the complaint on the grounds, 1. That the court had no jurisdiction of the subject of the action. 2. That several causes of action were improperly united. 3.

Action to recover damages for the neglect of the defendant city to keep one of its streets in repair, by reason whereof the plaintiff, while passing along such street, was thrown from his carriage and greatly injured. The action was commenced in May, 1880, and it appears from the complaint that the injury was received on the 5th of April, 1874. The defendant city demurred to the complaint, on the grounds, 1.