Volume 55 — Wisconsin Reports

The case is reported on former appeals in 44 Wis., 342, and 49 id., 224.

Action to foreclose a land contract. The plaintiff, Antoinette McKinney, and the defendants executed an- agreement under seal, dated October 7, 1868, in and by which Mrs. McKinney agreed to sell and the defendants to purchase certain lands therein described, for $2,100, of which sum $300 was made payable at the delivery of the agreement, and the balance in installments, the last of which was to become due-in .1874.

The case is thus stated by Mr. Justice Tatloe: “ This action was brought for the purpose of recovering damages of the defendant company for causing the death of C. W. Lockwood by the negligence of said company, its agents, servants and employees. .

Tbe case is thus stated, by Mr. Justice Taylob: “This action was brought to restrain tbe.collection of a special assessment made upon tbe real estate of tbe plaintiff, situate in the city of Appleton. Tbe assessment is claimed to have been made to pay in part for grading a street in front of said real estate by tbe direction of tbe authorities of said city.

This action was brought against Henry Walter, Henry B. Myer and Albert J. Myer. Its object and alleged grounds will sufficiently appear from the opinion.

On the 24th of May, 1881, Flerriing presented, to the clerk of the city of Appleton his verified petition, addressed to the mayor and common council of that city, claiming $1,250 damages for an injury alleged to have happened by reason of the insufficiency or want of repair of a certain bridge or highway in that city; and he therein demanded payment of the claim.

<p>Practice: Evidence. (1) Oral evidence of written contract: when objection thereto may be taken.</p> <p>Account Stated: Jurisdiction of J. P. (2) Account stated binding. (8) Amount of balance determines jurisdiction.</p> <p>1. Where the fact of an assignment of the claim in suit to the plaintiff is in issue, and oral evidence of such an assignment has been admitted on plaintiff’s behalf "without objection, but it appears on cross examination that the assignment was in writing, and no reason is shown for plaintiff’s failure to introduce it, defendant is entitled, on motion, to have the oral evidence stricken out.</p> <p>2. A settlement or account stated is binding on the parties until set aside for fraud or mistake.</p> <p>3. Where the balance against one of the parties on an account stated is less than $200, an action therefor will lie in justice’s court, whatever may have been the amount involved in the original account.</p>

Ejectment agaiust Henry Hewett, Jr., Wm. P. Hewett, Peter Peuter and Alexander Reuter, to recover certain land in Outagamie county. The complaint is in the usual form. The defendants answered jointly, admitting that the defendants Reuter were in possession of the land claimed, as tenants of the defendants Hewett, and denying that the plaintiff owned the land or was entitled to the possession of it, or that the defendants unlawfully withhold the possession thereof from it.

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

<p> Stay of Proceedings for Reassessment. </p> <p>In an action to set aside tax sales and certificates, on the ground that the assessments were void, judgment in plaintiff’s favor is reversed for a refusal to stay proceedings until a reassessment should he made under sec. 12105, R. S., as amended by chapter 255 of 1879.</p>

Action by the alleged owner of a lot and store in Green Bay, to set aside the tax levied by the city for the year 1877, and also the sale for such tax and certificate issued thereon, as a cloud upon the plaintiff’s title, and also to restrain the assignment of the certificate, or the issuing of a deed thereon, on the ground that the assessor of the city, in making the assessment for that year, had discriminated against certain classes of property therein, including the…

<p>Claims against Towns: Pleading. When complaint must show filing of claim with town clerk.</p> <p>1. Where a claim against a town is one “ for which a money judgment only is demandable,” the complaint thereon is bad, on general demurrer, if it fails to allege the filing of a statement of such claim with the town clerk as required by seo. 824, R. S.</p> <p>2. A claim to recover back, the amount of a tax unlawfully exacted and actually paid, is within the provisions of said sec. 824; and in an action thereon, a further demand that the tax be declared unlawful, and that the defendant town be enjoined from ever enforcing the same, is without significance or effect.</p>

This was a civil action for an assault and battery, and was commenced in justice’s court, where plaintiff recovered a judgment for $100 damages. Defendant appealed to the circuit court. On the trial there, certain portions of the instructions given to the jury were excepted to by the defendant. Two of these portions are fully recited in the opinion.

From August, 1872, to September, 1874, the plaintiffs and .the defendant Mairet were partners in business at Chippewa Falls, under the firm name of Mairet, Le Boef & Co. They ceased doing business as such at the latter date.

The case is thus stated by Mr. Justice Tayloe: “ Action to recover the value of a quantity of pine logs which plaintiff claims to own, and which he alleges to have been unlawfully converted by the defendant. It appears that the logs were cut and banked by Langley & Plaisdell, under a contract between them and one S. M. Newton, in the season of 1818-9. Under said contract the logs were marked with a mark recorded in the proper office as the mark of said S. M. Newton.

The defendants appealed from a judgment in favor of the plaintiffs. The case will sufficiently appear from the opinion. argued, among other things, 1. It appears from the complaint and findings that the lands were sold by the treasurer of the county, and as the county could not in such case be the purchaser, or own the certificates (R. S., sec. 1138), the owner or owners of the certificates were not parties to the action-.

Ejectment. There was a judgment in favor of the plaintiff, but requiring him, as a condition of obtaining possession of the premises, to pay to the defendants the purchase money and taxes paid by them, and the value of their improvements, with interest. The plaintiff caused the amount, $3,257.58, to be deposited in the circuit court, and was put in possession of the land. The judgment was subsequently reversed by this court, and a new trial ordered. See 51 Wis., 487.

APPEAL írom tbe Circuit Court for Rock County. The defendant George Covert appealed from a judgment rendered against him and his co-defendant, Augustus Covert.

Action to set aside a judgment obtained by Frank and Jolm W. Clifford against school district No. 1 in the town of Magnolia, and to restrain the collection of a tax upon the property of said district to pay such judgment.

The plaintiff appealed from an order overruling his demurrer to a counterclaim set up in the defendant’s answer. The case is stated in the opinion. In support of the counterclaim they cited Glen and Mall Memuf. Go. v.Mall, 61 N. Y., 226, 236-7; 52 Barb., 132; 27 Tnd., 4; Vilas v. Mason, 25 Wis., 310; McArthwr v. Gcmal Go., 34 id., 139; 35 id., 618.

This action is brought by the county to recover from the village $2,850, collected by the village during the years 1879 and 1880, for licenses granted during those years to sundry persons, allowing… Held: appropriated and used in the same manner as in the years 1879 and 1880, without the right to so collect, etc., being questioned or tested in any public or private suit or action.

Tbe case is thus stated by Mr. Justice Taylor: “ This is an action in tbe nature of a creditors’ bill, brought against H. G. Matthews, against whom the plaintiff had recovered a judgment at law for the sum of $1,000 and more, and against F. M. Hillman, a grantee of certain real estate theretofore owned by the said Matthews, and also a mortgagee of certain personal property of the said Matthews.

Tbe defendants Ely and Bender appealed from a judgment in favor of tbe plaintiff. Tbe case is sufficiently stated in the opinion.

The territorial legislature of 1843 authorized A. Hyatt Smith and William II. H. Bailey to construct a dam across Bock river within the present limits of the city of Janes-ville. The dam so authorized was soon thereafter constructed.

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

The plaintiff’s cause of action in this case is thus stated by Mr. Justice Orton: “ It appears that on the 16th day of January, 1879, the plaintiff obtained a judgment against Louis Oberland and Nicholas Thompson in the sum of $1,257.50, and that on the same day execution was issued thereon and delivered to the defendant, as sheriff, and that he levied upon a certain store building, with the entire stock of merchandise therein, as the property of said judgment defendants,…

Ejectment, for forty acres of land, commenced May 27, 1878. The complaint is in the statutory form, and asks for mesne profits. The plaintiff recovered judgment by default, and was put into possession by execution issued thereon. The defendant’s default having been excused on payment of costs, be served an answer therein August 25, 1879, containing : (1) A general denial.

The plaintiffs, who were attorneys-at-law doing business as a firm, presented a claim for professional services against the estate of Jacob Lueps, deceased, and filed a bill of particulars. The county court Raving allowed sucR claim, the administrator appealed to the circuit court, where the cause was tried by a referee, and upon his report judgment was rendered for the plaintiffs. The administrator appealed from such judgment. There were no formal pleadings.

Plaintiffs appealed from that part of the judgment herein which awarded costs against them in favor of the garnishee. The case is stated in the opinion.

Eor several years preceding November 1, 1877, and up to that time, the defendant Mills was continuously treasurer of the Wisconsin state hospital for the insane, under successive appointments, and from time to time gave bonds to the state, .conditioned for the faithful performance of the duties of such office.

The case is stated in the opinion. They argued, inter alia: 1. It was error to permit Ur. Piper to testify to his comparison of two hairs, one from a wheelbarrow and one from the skull, and to declare his belief that they both belonged to the same head. This was not a scientific question, calling for an expert. An expert is one who testifies as to conclusions which cannot be verified by the jury. 1 Wharton on Ev., sec. 434; Oooh v. State, 4 Zab., 843; Jefferson Ins.

An information was filed in the municipal court of Dane county, charging the plaintiff in error with the crime of rape upon the person of one Minnie Yietense, alleged to have been committed on the 18th of September, 1880. The plaintiff in error demanded a trial. in the circuit court for Dane county, pursuant to the statute (R. S., sec. 2516), and the cause was thereupon transmitted to that court for trial.

<p>Ceihinai. Law and Practice. (1) Mode of charging assault with intent to murder. (2) Evidence of intent. Degree of proof . (3J Instruction considered. Presumption, (h) Whether drunkenness an excuse. (5) Setting aside verdict.</p> <p>1. An information under sec. 4376, E. S., which charges the defendant with unlawfully and feloniously making an assault upon S., “ said defendant being then and there armed with a dangerous weapon, to wit, a revolver pistol, with intent then and there to kill and murder said S.,” is not had (on motion in arrest of judgment) fox-failing to charge that the assault was made “ with malice aforethought,” or “with a premeditated design to kill and murder said S.,” nor for failing to allege that the pistol was “ loaded with powder and a leadexx bullet.” E. S., secs. 4659, 4669.</p> <p>3.' There was no error in refusing to instruct the jury that the intention of the deceased could not be inferred from his acts, or that they should acquit him unless convinced “ beyond any doubt” of his intention to1kill.</p> <p>3. Where the proof was that S. (the person assaulted) was shot in the head, there was no error in charging that if the jury believed that defendant, “ having a deadly weapon, a pistol or revolver,” “went to the door and then turned around and deliberately shot” S., they would be justified in presuming that he intended to take S.’s life.</p> <p>4. Evidence was admitted tending to show that defendant was in some degree intoxicated, and the jury wei-e insti-ucted that if they believed that he was frenzied from the use of liquoi-, so that he was incapable of knowing what he was doing, they would be justified in acquitting him, and that they were to take all the circumstances togethei-, and see whether he had acted with delibei-ation. Wo more definite instruction was asked for defendant. Held, that there was no error in further charging, that “ drunkenness is no excuse for crime.”</p> <p>5. On defendant’s motion to set aside the verdict against him for misconduct of the sheriff in respect to the jury, no proof was offered of such misconduct, and the motion was denied; and defendant’s subsequent motion for leave to file affidavits of the alleged misconduct, at any time during the term, nunc pro tuno, was also denied. Held, no error.</p>

An alternative ’writ of mandamus was awarded to the secretary of state upon petition of the relators. The petition stated substantially the same facts as were contained in the complaint in an action for the same cause brought by the relators against the state (51 Wis., 623), with the exception that it contained no averment that any “trespass funds ” remained in the state treasury.

Keplevin, for certain trade fixtures removed by the defendant from a building used as a manufactory of wagons and fanning mills. The defendant was theretofore the owner of the lots on which said building stood, but had conveyed the same to the plaintiff by deed duly executed by himself and his wife. The principal questions determined by this court arise upon that deed. It is necessary* therefore, to quote a considerable portion of it.

The plaintiff, Marry G. Williams, as administrator of the estate of Stephen Williams, deceased, appealed to the circuit court for Walworth county from an order of the county court of that county disallowing, among other items in his account against said estate, a credit of $665.70 on account of moneys of the estate deposited in bank and lost by the failure of the bank. The cause was subsequently removed to and tried by the circuit court for Rock county.

Action to recover a balance alleged to be due for services performed by the plaintiff while in defendant’s employ. The answer alleged, among other things, payment in full. Upon the trial before the referee, the defendant’s books of account were introduced, in evidence. An entry therein: “ A. W. Goetz, Jr. Or.

When the alleged cause of action arose, the plaintiffs were copartners, engaged at the city of Milwaukee in the business of bottling and selling lager beer, manufactured by the-Joseph Schlitz Brewing Company of that city, and the defendants had entered into a copartnership for the purpose of carrying on the liquor business in Dakota. The firm established itself at Fargo.

Action, to recover the value of a barrel of whisky alleged, to have been lost while being transported by the defendant company. The action was commenced in justice’s court and removed thence, by appeal, to the county court, where it was tried by the court without a jury.

The complaint alleges that the defendant city is a municipal corporation and that the defendant Geilfuss is its treasurer ; that the plaintiff is the owner of certain lots and parcels of land in the fourth ward of the city; that in January* 1880, a petition was presented to the common council of said city praying that certain lands, described as block 165 in the second ward, be taken for public use for the purpose of enlarging a public square in said ward, and that such…

This is an appeal from an order overruling a demurrer to •■a complaint alleging, in effect, that the city was a municipal ■corporation, and that the defendant Geilfuss was its treasurer ; that the plaintiffs were,, and for more than ten years last past had been, the owners in fee of lot No. 9, in question, and that the same was joined on the south by lot No. 16, in question, and that said lots faced and) abutted on Seventh street, between Chestnut and Prairie streets, in the…

The case is stated in the opinion. The plaintiffs appealed from a judgment, that the “ complaint herein be and hereby is dismissed, and that they take nothing thereby,” etc. They contended, inter alia: 1.

Replevin for a quantity of leather. On the 19th of May, 1881, the plaintiffs, who are leather dealers in Manitowoc, agreed to sell to Scheiderer & Reid, who were carrying on a tannery in the city of Milwaukee, twenty-six rolls,.containing two hundred and sixty sides of rough leather, for which the purchasers were, at their option, to pay cash or give their note at thirty days. In case they paid cash a discount was to be made.

The case is thus stated by Mr. Justice Taylob : “This is an'appeal by the plaintiff from an order sustaining a demurrer to the complaint, on the ground that it did not state facts sufficient to constitute a cause of action.

They argued, among other things, that the ¡fiaintiff’s reduction from the “scalping-account ” was a voluntary act without consideration, binding upon neither party, and did not preclude the defendant from contesting his liability to the plaintiff on the gaming transactions covered by that account.- Otto v. Klauber, 23 Wis., 471; Oalhins v. State, 13 id., 389.

Action to recover moneys deposited in the defendant bank. The answer alleged payment. The facts appear from the opinion. The plaintiff appealed from a judgment dismissing the complaint. The relation of the bank to the plaintiff is that of a debtor to a creditor. Morse on Banks, 25; Story on Bailments, ch. 88; Shoemaker v. Mime, 53 Wis., 116. Payment, as a general rule, must be in money or its equivalent and be received as payment. Kingston Bank v. Gay, 19 Barb., 459.

Tbe. complaint alleges that in 1871 tbe common council of the defendant city, on proper petition, ordered the board of public works to cause a certain alley in said city to be graded to the established grade, and that (quoting from the complaint), “ in pursuance thereof, and the charter of said defendant city, on the 10th day of July, the first assistant engineer of the city duly made a schedule of the lots and parts of lots fronting on said alley, and an estimate of the…

APPEALS from the Ootmty Court of Milwaukee Comity. The case is thus stated by Mr. Justice Taylor: “In this case there are two separate appeals taken from the judgment rendered in favor of the plaintiff — one by the Grand, Grove and one by Meinrieh Oonracl and wife.

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

This action was commenced April 3, 1862, by the service of the summons upon the Marine Bank and certain alleged stockholders of the bank, including the appellant.

Action for false imprisonment of the plaintiff wife. The first trial, in the county court, resulted -in a verdict for the plaintiffs for $200, which was set aside on the ground that it was contrary to the evidence.

The case is thus stated by Mr. Justice Taylor: “ This is an appeal from an order refusing to set aside a judgment of foreclosure and permit the defendant to file an amended answer. The action was to foreclose a mortgage-given by the defendant to his father, E. L. Northrup, and by said E. L. Northrup assigned to the plaintiffs. The action was commenced on the 6th of December, 1879. The defendant appeared in the action by his attorney and served his answer December 26, 1879.

The case is sufficiently stated in the opinion. The. plaintiff appealed from a judgment dismissing the complaint, and dissolving a temporary injunction. Upon a demurrer ore tenus a more liberal rule prevails in support of the pleading than if it had been formally demurred to. Lutheran Fvangelieal Chweh v. Gristgau, 34 Wis., 328; 30 id., 162, 161; 14 N. Y., 247; 22 Barb., 388, 394; 23 id., 25, 30. This is not a case of mere fugitive and temporary trespass.

The case is thus stated by Mr. Justice Cassodat : “ This is au appeal from au order overruling the demurrer to the complaint on the ground that it did not state facts sufficient to constitute a cause of action. The complaint, in effect, alleges that at the time mentioned the defendants were copartners, residing at Manistee, Michigan, and doing business as dealers in lumber, in Milwaukee, under the firm name of Peters 1.

Action upon an account for plows sold to the defendant. The answer denies any indebtedness and sets up two counterclaims : one based upon a breach by the plaintiff of its contract of warranty of the plows, and containing a statement of various items of damage caused by such breach; the second alleging that the plaintiff shipped twenty-five cultivators to the defendant, for which the latter paid $10 each, the plaintiff agreeing to take back what the defendant could not sell;…

Action to recover for a loss by fire of property covered by a policy of insurance thereon, issued by the defendant company.

. The case is thus-stated by Mr. Justice Cassoday: “ This is an action to recover the cost of a certain carriage manufactured by the plaintiff, and alleged to have been ordered and contracted for by Franz Falle through his agent, Louis Ealk, in November, 1818, as a family carnage for the use of himself and family, at a price not exceeding $900, to be ready for delivery on or about May 1, 1879, and which was, as alleged, built and completed according to agreement, and has…

Action to enforce a mechanic’s lien. The defendant demurred to the complaint on the ground that it did not state facts sufficient to constitute a, cause of action. October 11, 1881, the court sustained the demurrer, with leave to the plaintiff to amend the complaint within twenty days upon payment of $10 costs. Notice of the entry of the order, and a copy of the same, was served upon the plaintiff’s attorney, November 21,1881.

Court for MiVcomohee County. Action to recover damages for a false imprisonment.

Action to foreclose a mortgage on real estate given to secure performance of the condition of a certain bond, a copy of which is annexed to the complaint and made a part of it. The bond and mortgage are dated June 29, 1880.

The case is thus stated by Mr. Justice Tayloe: “ This action was brought to recover damages for an injury received by the plaintiff while in the employ of the defendant company, and which he alleges was the result of the carelessness of the defendant’s agent. The complaint was demurred to for the reason that it did not state facts sufficient to constitute a cause of action.

Ejectment. The answer alleged title in the defendant by virtue of a tax deed issued September 24, 1881, based upon the sale of the lands for taxes and a certificate thereof duly issued, Nay 11,18J5. The tax deed so described was offered and received in evidence at the trial. The defendant also offered in evidence an assignment to him from one Heffry Sherry, dated June 20, 1881, of the certificate of the sale upon which the tax deed issued.

CEETIOEAEI. This is a certiorari to the governor to bring here for review proceedings before him instituted under ch. 10, Laws of 1882, and his determination therein. The writ ivas allowed in vacation by one of the justices of this court. The governor has made due return thereto, at the same time protesting that this court has no jurisdiction to send its writ of certiorari to the governor of the state.

The case is stated in the opinion. There was a verdict for the defendant; and from a judgment thereon, the plaintiff appealed.

The defendant was arrested and brought before a justice of the peace in the city upon complaint for exhibiting to public view, for gain, within the city a theatrical entertainment, to wit, “ The Corinne Merry-makers,” without first having obtained a license therefor, in violation of an ordinance of the city entitled “ An ordinance relating to the exhibitions of shows and showmen,” providing in effect that it should not be lawful for any person or persons to exhibit to public…

Action to recover $105 paid under protest by the plaintiff, a theatrical manager, as license fees to the chief of police of the defendant city. The money was paid by the officer into the city treasury and the claim of the plaintiff therefor, duly filed, was disallowed.

During the afternoon of December 3, 1880, a hotel in the •city of Oshkosh, known as the “ Beckwith House,” was de■stroyed by fire. The defendant and his wife lived in this hotel, occupying rooms in the fourth story. When the fire broke out Mrs. Paige was in those rooms and perished in the flames.

<p>City Chautee: Sidewalks: Evidence. (1) Evidence of defective construction of sideioalk. fSJ Party eliciting opinions on cross examination cannot object thereto. (3, 4\) Charter construed.Existence of defect for certain time, how proved: Notice: Evi~ denee.</p> <p>1. Upon the evidence in this case (for which see the opinion), it was-proper to submit to the jury the question whether or not a certain sidewalk was defectively constructed.</p> <p>2. Where the opinions of witnesses on behalf of the plaintiff that a, sidewalk was defective were elicited on their cross examination by the defendant, the latter cannot object to the competency of such testimony.</p> <p>3. The charter of a city provides that it “shall not he liable to or for any damages arising or growing out of any sidewalks ... in. said city, being in a defective or dangerous condition, or out of repair, unless it be shown that previous to the happening of the-same one of the aldermen of the ward in which the same is located had knowledge thereof, and no knowledge of such condition of the same shall be presumed, unless the defect out of which the ' same occurred, existed three weeks before such damages occurred.” Held:</p> <p>(1) The fact that the defect which caused an injury had existed for three weeks before the accident need not be proved by positive evidence that the particular plank which caused the injury was. loose or decayed so as to be dangerous for that period of time, but may be inferred, like any other fact, from all the evidence upon the subject.</p> <p>(2) If there was no actual knowledge of the defect on the part of an alderman of the ward, it is necessary in order to establish a liability on the part of the city to prove that the defect had in fact, existed for three weeks before the injury, and also, such facts as. would charge the proper city officers with notice of the defect, before the accident happened.</p> <p>4. The evidence in this case tended to prove all the facts necessary to establish a liability on the part of the city for the injury com plained of.</p>

Action to recover the purchase price of 1,000 cigars sold and delivered to the defendant. The answer alleged payment in full. The facts as they appeared in evidence and the proceedings upon the trial sufficiently appear from the head-notes and the opinion. There was a verdict for the defendant and from a judgment thereon, the plaintiffs appealed.

The case is thus stated by Mr. Justice Cassoday: “ This action is to recover $14-1.75 for the support of William Fox, an alleged pauper, having a legal settlement in Wi/nne-oonne, between January 1,1878, and December 3,1878.

Action brought in the circuit court to recover a penalty for an alleged encroachment by the defendant upon a public highway on the line between the towns of Stockbridge and Brothertown, in the county of Calumet.

The complaint alleged that by the procurement of the defendant the plaintiff’s barn was set fire to by Herman Gruhl and Max Claudot, and the barn and the dwelling house of the plaintiff with their contents were destroyed, to his damage $15,000. The answer was a general denial.

Action upon a policy of insurance against fire. The answer alleged in substance that, by the terms of the policy, notice to the officers of the company of the loss was a condition precedent to the right to payment, and that no such notice had been given; that the defendant was a town insurance company and had no right or authority to insure a •school-house, that the building claimed to have been burned was used and occupied at the time as a school-house, that the defendant…

The case is thus stated by Mr. Justice Cassoday : “ This is an action to recover damages caused by the defendants entering upon the lands described, situated in the town of Alto, in the county of Eond du Lac, and alleged to be the estate and property of the testator, and cutting down and carrying away certain trees standing thereon. The action was commenced before a justice of the peace in the city of Ripon, wholly situated in the town of Ripon, in said county.

The complaint alleges the sale, by the plaintiff and one Sewell, under the firm name of Carswell <fe Sewell, of goods and merchandise to the defendant Thomas Mason; that the said firm had been dissolved; that the plaintiff was the owner of the account for such goods and that the defendant was indebted to him thereon in the sum of’ $83.64 and interest.

This is an appeal from an order sustaining a demurrer to the complaint, which alleged, in effect, that at the times mentioned the plaintiff owned, occupied, and possessed eighty acres of land, being a half mile in extent north and south, and that the defendants owned, occupied and possessed one hundred and twenty acres of land, being three-quarters of a mile in length north and south, and that the north forty of the plaintiff’s land was directly east, and adjoined the south…

Action, to recover advances made upon a building contract and damages for a breach thereof. The facts are stated in the opinion. The action was tried before a referee, who found that the plaintiffs were entitled to a judgment for $306.89. The report of the referee was confirrped by the court, and from a judgment in accordance therewith, the defendants appealed.

. This action was brought under the statute (K. S., 1020,. secs. 4255, 4256) to recover damages for the alleged negligence of the defendant railway company, which caused the death of the plaintiff’s intestate, Charles W. C. Zibell. The plaintiff had a verdict for $3,500, and the defendant company has appealed from the judgment rendered pursuant thereto.

Ilie case is thus stated by Mr. Justice Taylor : “ In this action the plaintiff’s complaint alleges £ that it is a corporation duly created and organized under the laws of this state for the purpose of engaging in, and actually engaged in, the business hereinafter mentioned.’ ‘That for many years last past, and during all the time hereinafter mentioned, it has been the owner of a large saw and shingle mill, situated upon the bank of the Little Suamico river, in Oconto…

EEEOE to the Municipal Oourt of Milwtmlcee County. The case is sufficiently stated in the opinion. To the point that in burglary the name of the owner of the house entered must be stated and the ownership must *be proved as laid, they cited: 3 Chitty Or. Law, 1110; 1 id., 216, 217, 556; 1 Russ, on Or., 807; 2 East P. C., 499; Arch. Or. PL, 11, 67; 2 Bish. Or. Pro., sec. 109; 1 Whart. Cr. Law, sec. 256; 2 id., sec. 3110; Garter v. State, 20 Wis., 647; Bell v. State, id., 599.

Action for the conversion of property left by the plaintiff in tbe possession of the defendant. The facts are stated in the opinion. There was a verdict for the defendant.

APPEALS from the Circuit Court for Mihocmhee County. The action was commenced in April, 1862, by Newcomb Cleveland, on his own behalf and on behalf of all other creditors of the Marine Bank of Milwaukee who should make themselves parties to the proceeding, against the bank to collect debts alleged to be due therefrom. Jonathan Bv/rnham and various others, alleged to have been ■stockholders in the bank at the time the indebtedness accrued, were also made defendants.

Action to foreclose a mortgage. A supplemental answer alleged that during the pendency of the action the defendant Beach, the mortgagor, had settled the mortgage and the matters in controversy with the plaintiff, and had received from him a release and quitclaim deed of the mortgaged premises. Other facts are stated in the opinion. The plaintiff appealed from a judgment dismissing the complaint.

Action to enforce a lien for building materials furnished by the plaintiffs to the defendant Alden, and used by him in the construction of a dwelling-house for the defendant Olsen upon lands owned by the latter, under a contract and agreement with him.

The action was for the dissolution of a partnership and for the appointment of a receiver. The material facts are sufficiently stated in the opinion. The defendant appealed, February 17, 1882, from a judgment in favor of the plaintiff.

The action was brought against the defendants, George-Liddle, Jr., and his wife, to foreclose a mortgage executed by them to the plaintiff, and resulted in a judgment of foreclosure. The defendants made no appearance. The mortgaged premises were sold pursuant to the judgment.

Action by the plaintiff as one of the stockholders of the 'Oakland Mining Company against that company and over twenty of its alleged stockholders, including the appellant .and James H. Earnest, for the purpose of determining the names of the stockholders, the number of shares owned by •each upon the production of the certificates, and for judgment that the corporation had forfeited its corporate rights, privileges, and franchises, and that the same be excluded from •such…

The case is thus stated by Mr. Justice Tayloe : “ This is an appeal from an order overruling a demurrer to the complaint. The principal ground of demurrer was that the complaint does not state facts sufficient to constitute a •cause of action.

Tbe case is stated in tbe opinion. Tbe defendants appealed from a judgment in favor of tbe plaintiffs. Tbe alleged agreement in nowise released tbe drawer of tbe orders or the maker of tbe time checks from liability upon them. This is tbe true test whether tbe promise was original or collateral, even though tbe real credit was wholly given to the surety or guarantor.

<p>Final Settlement of mutual accounts: when set aside.</p> <p>Findinos of Fact: when not disturbed.</p> <p>It is well settled that a full and final settlement of mutual accounts, which has been fairly and deliberately made, will not be set aside except upon clear and satisfactory evidence of mistake or fraud therein; but the findings of the trial court upon the question of a mistake will not be disturbed by this court unless they appear to be contrary to the fair preponderance of evidence.</p>

Replevin for a quantity of flaxseed. The plaintiffs claim the seed by virtue of the following agreement under which it was grown: “ Minekal PoiNT, WisooNsiN, January 24, 1879. “ In consideration of Lanyon c& Bro., of Mineral Point, Wisconsin, having advanced, furnished, credited, and delivered to us, George Pettis and Caroline Moss, this day, sixty-seven bushels of prime flaxseed, I hereby agree to sow the same for him in good, suitable, and well prepared ground, on the farm…

The ease is thus stated by Mr. Justice Taylor: “ This is a proceeding by common law writ of certiorari to review the proceedings of the board of supervisors of said town of Hazel… Held: merely, that the acts shown to have been done by the land owners in those cases did not amount to a waiver. The beginning of the proceeding, the thing necessary to give the supervisors jurisdiction of the subject matter, is the filing of a proper petition. Pam]) v. Town of Dame, 29 Wis., 419.

The cáse is thus stated by Mr. Justice Taxloe: “ This action was brought to enjoin the defendants from opening a highway through the lands of the plaintiffs.

Action to recover the possession of a stock of goods taken from the plaintiff’s husband by the defendant, as constable, by virtue of several writs of attachment against the husband. The plaintiff claimed title to the goods under a chattel mortgage thereof from her husband to her.

The case is thus stated by Mr. Justice Oassoday: “ This is an action of ejectment to recover a lot in La Crosse. The defendants claim title under a deed executed by the original owner in December, 1878. The plaintiffs claim title by virtue of ten years’ possession, commencing in April, 1860, under a tax deed void on its face, issued to Alexander and John McMillan, and recorded August 6, 1856. Prior to April, 1860, the lot was vacant, unfenced, and unoccupied.