Volume 62 — Wisconsin Reports

This is an action of replevin brought by the plaintiff against the defendant to recover the possession of certain personal property described in the complaint, consisting prin-cipallv of farming utensils, horses, cows, and young stock. The defendant answered a general denial, and that the property claimed belonged to him.

<p>APPEAL from the Circuit Court for Fond du Lao Count}'-.</p> <p>The case is stated in the opinion.</p>

The facts will sufficiently appear from the opinion. The defendant appealed from a judgment in favor of the plaintiffs. To the point that it was error to permit a plaintiff to answer the question whether the engine furnished was such an engine as was contemplated by the contract, they cited Reynolds v. Shanlcs, 23 Wis. 307; Kelley v. Fond du Lao, 31 id. 179; Mellor v. TJtica, 48 id. 457.

The action is for the foreclosure of two mortgages. The first mortgage and the note secured thereby were for $1,000, and were executed April 15, 1814, by the defendant John Anton Boll to Gabriel Boll, and were alleged to have been assigned by the mortgagee to the minor heirs of Joseph Buhl, deceased, and by George Wilhelm, their guardian, to Yalentine Boll, and by him, on June 12, 1882, to the plaintiff.

The case is thus stated by Mr. Justice Cassoday: “This action was commenced March 20, 1884, for the unlawful detainer of a farm. The plaintiff failed to recover in the justice’s court.

The case is thus stated by Mr. Justice Oassouay: “It appears from the complaint that on October 29, 1880, one Athearn had, by permission, consent, and approval of the defendant, used and operated a telephone line in the city, and had erected poles in the streets and allej^s thereof, on which were placed the necessary wires to use in the business, and that he continued to hold and operate the same until March 21, 1881, when the plaintiff, having become incorporated, became…

REPORTED from the Circuit Court for La Crosse County. The facts are stated in the opinion. To the point that the information is insufficient in law to charge any crime, he cited: State v. Creen, 7 Wis. 676; Comm. v. Drew, 19 Pick. 184; Dilling-ham v. State, 5 Ohio St. 283; People v. Tomplcins, 1 Parker’s Crim. R. 237.

The facts will sufficiently appear from the opinion.’ John Mtdlen, one of the devisees named in the will of John Mullen, deceased, appealed from the judgment of the circuit court.

The plaintiff in error was tried upon an information charging that on June 29, 1882, in the county of Grant, he received certain moneys, bills, and notes of the value of $2,800, the property of the United States Express Company, which had theretofore been feloniously and burglariously stolen and taken away by some person unknown: he, the said plaintiff in error, then and there well knowing that the same had been stolen.

County. The defendant appealed from a judgment in favor of the plaintiff. The facts will sufficiently appear from the opinion.

Court for Fonddu Lao County. The case is thus stated by Mr. Justice Cassoday: “ February 27,1883, J. C. Whittelsey made an assignment for the benefit of his creditors to M. W. Simmons.

Action upon a promissory note. The plaintiff is a corporation. The answer of the defendant Wheeler alleges “ that he never made or joined in the making of the note mentioned in said complaint; that if the name of this defendant appears upon said promissory note as maker or indorser, either or both, the said signature is a forgery.” Upon the trial the plaintiff introduced the note in evidence, and rested.

APPEAR from the Circuit Court for Kewaunee County. The principal facts are stated in the opinion. The contract of sale, therein mentioned, from the plaintiff to Dier was executed and Dier went into possession, May 13,1880. The action by the defendant in this action to foreclose his tax certificates, was commenced Márch 28, 1881. The certificates sought to be foreclosed were of the tax sale of 1877.

January 9, 1884, the defendants, composing the firm of R. S. Smith & Co., made an assignment under ch. 80, R. S., to Richard T. Richards, of all their property… Held: -as a conclusion of law, that they were entitled to an order dissolving the writs. From the order entered accordingly, the plaintiff appealed. They contended, inter alia, that it was not shown that the omissions from the inventory happened through mistake, and the assignment was therefoi’e fraudulent and void.

APPEA.L from the Circuit Oourt for Grant County. Action of trespass quare olausum. The answer admits the doing of the acts complained of but alleges that the locus in quo was a “ street or public highway, or ground over which defendant has an easement or right of way,” etc. The facts will sufficiently appear from the opinion. There was a verdict and judgment for the plaintiff, and the defendant appealed.

Action of trespass quare clausum. The answer alleged title in the defendants. The facts will sufficiently appear from the opinion. There was a verdict for the defendants, and from the judgment entered thereon the plaintiff appealed.

The defendants own and operate a steam saw-mill, and the plaintiff was employed as a laborer therein, doing general work. The carriages in tbe mill on which the logs are placed are moved back and forth by' what is called a steam-feed — a cylinder through which the steam acts upon them. The steam passes through a pipe, screwed together in sections, into the cylinder.

The case is thus stated by Mr. Justice Tatloe: “ Action to recover damages for the alleged wrongful acts of the defendants in obstructing the flow of the water which issues out of Lhemerie coulie and turning the same upon the lands of the plaintiff. “The evidence given on the trial shows that Lhemerie coulie is a hollow or ravine worn down through the hills or bluffs on the east side of the Mississippi river, in Crawford county, and, that at the mouth of this coulie, and on…

APPEALS from the Oircuit Court for Crawford County. The facts sufficiently appear from the opinion. The plaintiffs appealed from orders dissolving their attachments. They contended, inter alia, that the new notes took the place of the old ones, leaving the indebtedness unaffected by the transaction. Williams v. Starr, 5 Wis. 534; Tuthill v. JDavis, 20 Johns. 285.

Action to foreclose a mortgage given to secure two promissory notes. The case is thus stated by Mr. Justice Cassoday : “ The defendant Patrióla McGrath obtained the title to the mortgaged premises in question, November 1, 1856, by purchase and deed of conveyance from his'brother, Thomas McGrath, and wife, and which deed was recorded two days afterwards.

The defendant Terrence Brady was prosecuted and tried before a justice of the peace for a misdemeanor, and convicted thereof. He appealed to the circuit court, and James Brady and Milan Van Morn became his sureties on such appeal. He was tried in the circuit court and again convicted, and thereupon judgment was entered, imposing upon him a fine of $50 and costs, amounting in all to $234.75.

The appeal is by Rodney Sargent, brother of Cyrus Sargent, deceased, from the order of the circuit court affirming the order of the county court appointing Robert C. Orr as administrator of the estate of said decedent. The facts will sufficiently appear from the opinion. They contended, inter alia, that the words “ next of kin,” in sec. 3807, R. S., mean “ nearest of kin.” This is clear from the origin of the statute down. 3 Bac. Abridg. 480, tit.

The facts are sufficiently stated in the opinion. They contended, inter alia, that the testimony of the plaintiff’s employer as to the result of his injury in incapacitating him for work or travel, was inadmissible as being an opinion. Ashland v. Marlborough, 98 Mass. 48; Burning v. State, 2 Pin. 215; Knoll v. State, 55 Wis. 249; Koonan v. State, id. 258; Neilson v. 0., M. da N. TP. R'y Co. 58 id. 516; Blair v. M. da P. du G. P. B. Go. 20 id. 262.

In addition to the facts stated in the opinion it appears that one of the tax deeds under which the defendant claimed was executed and bore date February 5, 1881, but the certificate of acknowledgment read as follows: “ On this 5th day of February, one thousand eight hundred and eighty, came before me Herman Rush, county clerk,” etc.

The facts sufficiently appear from the opinion. The appeal is by the plaintiff from a judgment rendered in his favor upon the report of the referee as modified by the court. He contended, inter alia, that the acceptance was absolute. It is the contract of the acceptor, and should be construed most strongly against him. Sylvester v. Staples, 44 Me. 496; Corbett v. Ciarle, 45 Wis. 403.

The case is thus stated by Mr. Justice Cassoday: “ January 10, 1883, J. T. Hicks and Robert ITick’s, copart-ners under the firm name and style of J. T. Hicks & Co., made an assignment under ch. 80, R. S., to the plaintiff, and to his successors in trust, of all and singular the lands, goods, chattels, accounts, notes, bonds, bills, debts, choses in action, claims, demands, property, and effects, of every kind and description, real, personal, and mixed, belonging to them, or…

The appeal is by the defendant from an order overruling its motion to set aside the service of the summons. The motion was based upon the papers- in the case and affidavits by J. IL Turner and A. J. Meacham. The facts will sufficiently appear from the opinion.

This is an action to recover the expenses resulting from injuries to the plaintiff’s minor children, for loss of their services, and for damage to his horse, buggy, and harness, which injuries and damage are alleged to have been inflicted near the crossing of a public highway by the defendant’s railway, and to have been caused by the failure of the defendant’s servants running and managing one of its locomotives with a train of cars attached thereto, approaching such…

This action was brought to recover the penalty prescribed by sec. 1331, R. S., for an alleged encroachment upon a public highway in the town of Ludington, Eau Claire county. The existence of the highway is denied by the answer.

This is an action to recover damages for a breach of the covenant of seizin contained in a deed of certain land, executed by the defendant to the plaintiff. In March, 1873, the parties made a written agreement for the sale, by the defendant to the plaintiff, of three forty-acre lots of land in Lincoln county, for the price of $1,250, payable as therein specified.

The following statement of the case was prepared by Mr. Justice Tatloe as a part of the opinion: This was an action of replevin to recover the possession of a quantity of pine lumber which the plaintiff claimed to own, and which was, at the commencement of the action, in the possession of the defendant who also claimed to own the same. The evidence established the following facts: First.

The complaint alleges in substance: 1. That the plaintiff is a duly organized town, etc. 2.

Action to recover damages for personal injuries alleged to have been caused by defects in a sidewalk in the defendant village. The circumstances of the accident are thus stated by Mr. Justice Cassoday: “About 6 o’clock on the evening of December 22, 1881, the plaintiff started from a drug-store in the village to go to his boarding-place.

The facts are stated in the opinion. Upon the trial in the circuit court it appeared from the plaintiff’s evidence that the claim had been acted upon as a whole and not by items, by the county board. A motion for a nonsuit was denied. There was a verdict for the plaintiff, and from the judgment thereon the defendant appealed.

James Ballantine, the executor named in the last will and testament of Margaret Stewart, deceased, presented that instrument for probate in the county court of Grant county. The will was executed January 2, 1877, five days before the death of the testatrix. It purported to devise and bequeath all her estate, real and personal, after the payment of debts, etc., to the four children of said executor.

This is an action in equity in the nature of guia timet, brought by the plaintiffs to procure the cancellation of a deed of certain lands therein described, executed by the sheriff to the defendant. T-he complaint alleges that the plaintiffs are the owners in fee and in the actual possession of the lands described in such, deed, and that the deed is a cloud upon their title.

<p>APPEAL from the Circuit Court for Portage County.</p> <p>The facts will sufficiently appear from the opinion.</p>

Croix County. The plaintiff is a corporation located at Auburn, N. Y., and engaged in the manufacture and sale of agricultural machinery. The defendant was appointed its sub-agent under a written contract, the terms of which will sufficiently appear from the opinion. This action is brought upon that contract to recover the amount of three notes of $10 each executed by one Joseph Pable to the plaintiff for a reaper sold by the defendant, as-agent, to the said Pable.

<p>APPEAL from the Circuit Court for Pierce County.</p> <p>The case is sufficiently stated in the opinion. The defendants appealed from the judgment.</p>

The case is thus stated by Mr. Justice Cassoday: “This is an appeal from a judgment of the circuit court for Columbia county, reversing a judgment in' a justice’s court of that county upon a common-law writ of certiorari.

The defendant Prien appealed from an order overruling-a demurrer to the complaint.

<p> Assault and battery: Evidence: Intent: Self-defense. </p> <p>1. The defendant in an action for assault and battery may testify as to the intent with which he approached the plaintiff, and also as to what he thought the plaintiff was about to do with an axe which he raised in his hand.</p> <p>2. Evidence showing, among other things, that the defendant, after disarming the plaintiff, threw him upon the floor and struck him, is held not to sustain a plea of self-defense or support a verdict in favor of the defendant.</p>

The accident occurred June 25, 1881. The circumstances are sufficiently stated in the opinion.. The circuit court charged the jury, among other things, as follows: “The next question to which I come is, Was the deceased in the exercise of ordinary care himself at the time of the accident? There seems to be no proof, no eye witness saw him if he went through the hole and was drowned in this manner, or how he was traveling, or what he was doing at the time.

The case is thus stated by Mr. Justice Cassoday: “ This action was commenced in the circuit court May 18, 1881, for personal injury sustained by the plaintiff March 12, 1879, by reason of a defective sidewalk in the defendant city.

This is an action brought by the plaintiff as administrator of William Parish, deceased, under the statute (secs. 4255, 4256, R. S.), to recover damages resulting from the death of the intestate, alleged to have been caused by the insufficiency and want of repair of a public highway in the defendant town. The death occurred during the night of August 2, 1880. The summons herein was served April 13, 1883.

<p>ERROR to the Municipal Court of Milwaukee County.</p> <p>The facts are sufficiently stated in the opinion.</p>

<p>EEEOE to the Municipal Court of Milwaukee County.</p> <p>The casé is stated in the opinion.</p>

<p>EXCEPTIONS from the Circuit Court for Dame County.</p> <p>The facts are sufficiently stated in the opinion.</p> <p>cited Vannatta v. State, 31 Ind. 210; Bachmann v. Milwaukee, 47 Wis. 435; U. S. v. Tureaud, 20 Fed. Rep. 621; Comfort v. Fulton, 89 Barb. 56; Swart v. Kimball, 43 Mich. 451; People v. Ileff-ron, 19 K. W. Rep. (Mich.), 170; In re Rule of Court, 3 Woods O. C. 502; Comm. v. Certain Lottery Tickets, 5 Gush. 369; Comm. v. Phillips, 16 Pick. 211; State v. Gleason, 32 Kan. 245; Barbour’s Or. Law (2d ed.), 519; 1 Archb. Or. Law (Waterman’s ed.), 122.</p> <p>To the point that a complaint on information and belief was sufficient to confer jurisdiction upon the justice, they cited In re Lewis, 31 Kan. 71; State v. Otey, 7 id. 69; State v. Ruth, 21 id. 583; State v. Hobbs, 39 Me. 212; Toops 'o. State, 92 Ind. 13; Franklin v. State, 85 id. 99; Moore’s Or. Law, 133; State v. Tall, 56 Wis. 577.</p>

The case is thus stated by Mr. Justice Cassoday: “ This action was commenced against the defendant Incjer-soll alone, in a justice’s court in Merrill, in Lincoln county, April 23, 1883, upon an affidavit filed therein to enforce a lien upon saw-logs therein described, for work, labor, and services thereon, completed on and before March 31, 1883, to the amount of $192.68. The attachment was issued and served, and the property seized April 23, 1883.

Ejectment. The cause was before this court on a former appeal and is reported in 55 Wis. 96. The* judgment affirmed on that appeal was vacated and a new trial granted under the statute (sec. 3092, R. S.). The defendants then amended their answer so as to set up a counterclaim for the reformation of the deed under which the plaintiff claimed, to accord with the alleged intention of all parties thereto.

for Jefferson County. Action to recover damages for personal injuries alleged to have been caused by the negligence of the defendant and its 'agent and foreman, one Brooks. The facts as they were shown by the 'evidence and found by the jury will sufficiently appear from the opinion. In addition to a special verdict, the jury found generally in favor of the plaintiff and assessed his damages at $10,500.

The case is sufficiently stated in the opinion. The defendants appealed from a judgment in favor of the plaintiff, for the foreclosure of both mortgages in suit.

The cause was before this court on a former appeal and is reported in 54 Wis. 234. Upon the second trial the complaint was amended to conform to the view of the case taken b}*' this court.

. This is an appeal from an order denying a motion of the relator town for a writ of mandamus, and dismissing the proceedings in that behalf. The application was made under sec. 1319, B. S., as amended, to compel the county of Sauk to aid in the construction of a certain bridge in that town. The motion was founded upon an affidavit setting forth all the facts which, under that statute, are essential to the relator’s right to the relief demanded.

This action was commenced in 1883 by the plaintiff, as administrator of the estate of Charles A. Single, late of the county of Marathon, who died in 1880, against the widow of the intestate. It was brought'by direction of the county court, pursuant to sec. 3832, R. S., the assets of the estate in the hands of the plaintiff being insufficient to pay the claims allowed against the estate.

This action was brought under sec. 1326, R. S., to recover the penally therein prescribed for obstructing Monroe street, in the village of Waterloo. The obstruction complained of is alleged to be a* barn erected by the defendant in 1882, within the limits of the east side of the street. The action was brought by direction of the president of that village, and a judgment against the defendant for $25 is demanded in the complaint.

Upon the petition of the plaintiff, Charles Smaney, the circuit court appointed commissioners to ascertain and appraise the compensation to be made by the United States to the plaintiff for injuries to his lands upon the Fox river caused by the erection of a dam across said river at Govern- or’s bend, by the Fox and Wisconsin Improvement Company. The commissioners assessed the damages to said lands, and from their award the defendant appealed to the circuit court.

<p> Attachment: Fraudulently contracting debt: Evidence of intent. </p> <p>1. A finding of the trial court that the defendant fraudulently contracted the debt in suit, is held to have been sustained by the evidence.</p> <p>2. The direct testimony of a party as to the intent with which he did an act does not necessarily outweigh the evidence of circumstances tending to show a different intent.</p>

The following statement of the case was prepared by Mr. Justice Cassoday: This is an action for libel.

Action to recover damages for the death of the plaintiff’s intestate, alleged to have been caused by the failure of the defendant to fence its line of railroad as required by law-. The facts alleged in the complaint will sufficiently appear from the opinion. The defendant appealed from an order overruling its general demurrer to the complaint.

This action was brought to charge the defendant, as trustee of the plaintiff, in respect to an undivided half of lot 2, block 14, in the village (now city) of Chippewa Palls, and for an accounting for the rents and profits thereof. The facts are somewhat involved, but, as they are claimed by the plaintiff to be, are fully and clearty stated in the findings of the circuit judge. Although somewhat lengthy, it is deemed advisable to insert them here in full.

APPEALS from the Circuit Court for Douglas County. The facts will sufficiently appear from the opinions. The defendants appealed from an order striking out a demurrer to the complaint, and from an order refusing to set aside a temporary injunction.

The following statement, of the case was prepared by Mr. Justice Cassoday: The plaintiff’s intestate was living and had a dwelling-house in Iowa county, May 28, 1878. On that day it was totally destroyed in a tornado.- At the time of the destruction the house and personal property therein were insured against fire or lightning by the defendant. Soon after, this action was commenced upon the policy. On the first trial, which was in Dane county, the plaintiff was nonsuited.

The plaintiff appealed from a judgment in favor of the defendant. The facts will sufficiently appear from the opinion. to the point that the poor persons in question did not acquire a settlement in the plaintiff city, cited Town of Soott v. Town of Clayton, 51 Wis. 185; S. C. 54 id. 499; Foxcroftv.

Action to recover fees for services rendered and expenses incurred by the plaintiff as referee in an action between the defendants. The facts will sufficiently appear from the opinion. The defendant Jacob W. Baby appealed from an order striking out as frivolous his general demurrer to the complaint. For the appellant it was contended, inter alia, that the party who takes up the report only is liable to the referee for his fees. Devlin v. Mayor, 54 IIow. Pr. 64.

Action to recover fees for services performed by the plaintiff as a justice of the peace in the defendant county.

The following statement of the case was prepared by Mr. Justice Cassoday: The plaintiff presented to the board of supervisors of Waukesha county his itemized account for fees, charges, and services as sheriff of the county, which was in part disallowed. He then appealed therefrom to the circuit court.

Susan Farnsworth died June 19, 18S4, at the age of about eighty years. Subsequently an instrument in writing, executed by her with all the formalities required by the statute of wills, ahd purporting to dispose of her whole estate, was presented to the county court of Dodge county for probate as her last will and testament. The instrument bears date and was executed May 14, 1884.

<p> (1) Evidence: Instructions to jury: Amendment of ‘pleading. (%) Promissory note: Signature fraudulently obtained. </p> <p>1. Evidence tending to establish a defense not set up in the answer, if admitted without objection, should be submitted to the jury with proper instructions, and, if necessary, the court should direct the answer to be amended to conform to the defense made.</p> <p>2. If one who is unable to read is induced to sign a note for a certain sum by false and fraudulent representations that it is for a smaller sum, and is guilty of no negligence in so doing, he is not liable upon the'note even to a bona fide holder thereof.</p>

<p>Appeal to S. 0. (1) Exceptions by respondent available.</p> <p>Towns: Villages. (SJ When town board may sue. (3) Conversion of license moneys by village: Waiver of tort. (J}.) Evidence.</p> <p>1. The respondent may, on a-ppeal to this court, avail himself of any exceptions he may have taken to the rulings on the trial below, to sustain.the judgment.</p> <p>2. The town board may, without a vote of the electors of the town, bring an action’to recover from a village therein moneys received for licenses for the sale of intoxicating liquors and wrongfully retained by such village. Sec. 819, R. S. State ex rel. Manitowoc v. County Clerk, 59 Wis. 15, distinguished.</p> <p>3. Where the village board has appropriated to the use of the village moneys in the hands of its treasurer belonging to the town, the town may recover the same from the village in an action ex con-tractu, the conversion being -waived.</p> <p>4. In such action a properly certified copy of the record of the proceedings of the village board appropriating the moneys, is admissible in evidence.</p>

The case is thus stated by Mr. Justice Cassoday: “ The plaintiff commenced an action of replevin against the defendant, Gleissner, in justice’s court, to recover a buggy, cushion, and whip, of which the plaintiff was-alleged to be the owner and entitled to the possession.

Action to l’ecover dower and damages for the withholding thereof. A jury was waived, and the cause was tried by the court. The facts will sufficiently appear from the opinion. There was a judgment in favor of the plaintiff for the recovery of her dower, to be admeasured; for the recovery of $324.98 damages for the withholding of said dower from demand to date of trial; and for costs. The defendants appealed. 1.

Appe'al from, an order denying a motion to dissolve a temporary injunction, granted at the commencement of the action. The plaintiff owns a parcel of land in the village of Waukesha, on which there'is a spring, the water of which, as she alleges and the defendants admit, is valuable for its curative qualities.

Ejectment. The case is sufficiently stated in the opinion. The defendant appealed from a judgment in favor of the plaintiff.

The following statement of the case was prepared by Mr. Justice Cassoday: This is an action upon a bond executed by Shadboldt & Burbank, as principals, and the respondents, Balter and Fridstein, as sureties, to the plaintiff, in the penal sum of $1,000, reciting, in effect, that Shadboldt & Burbank had been appointed the agents of the plaintiff at Marinette “for the purpose of selling for and remitting the proceeds of such sales, all goods consigned to such agents, as per…

<p>Taxation: Equity. (1, %) Irregularities in tax proceedings: Injunction: Conditions of relief: Requisites of complaint. (3) Objection to sufficiency of complaint, when taken, (j) Failure to verify assessment roll.</p> <p>1. A court of equity will not set aside or enjoin the collection of a tax for mere irregularities in the tax proceedings, unless the taxes justly chargeable to the property are first paid or tendered in all cases where such taxes are ascertainable.</p> <p>2. A complaint which does not allege in direct terms the injustice and inequality of the tax, and further allege a state of facts which, if proved on the trial, would establish the truth of the general allegation of its injustice, does not state a cause of action for equitable relief, unless there be a further allegation of an offer to pay the taxes justly chargeable to the property of the plaintiff on account of which he seeks relief.</p> <p>3. The objection to the sufficiency of the complaint in such a case may be taken after judgment, on appeal, although there was no appear-' anee on behalf of the defendant in the trial court. Potter v. Brown Co. 56 Wis. 272, distinguished.</p> <p>4. The mere failure of the assesssor to verify the assessment roll as required by law, does not necessarily render the taxes apportioned upon such assessment unequal or unjust. Language used in Marsh v. Supervisors, 42 Wis. 517, criticised.</p>

The cause was before this court on a former appeal, and is reported in 58 Wis. 379. When the cause was again brought to trial, after the reversal.of the judgment in favor of the plaintiff, the defendants applied for leave to amend their answer, which was granted, and from the order entered in that behalf the plaintiff appealed. Other facts are stated in the opinion.

<p>APPEAL from the Circuit Court for Wood County.</p> <p>.The case is sufficiently stated in the opinion.</p>

Action for a determination of the rights of all parties having or claiming an interest in a certain water power, and for a partition thereof. The complaint sets out the interest and title of the plaintiff and of each defendant. Five of the defendants joined in a motion to strike out certain portions of the complaint and to make other portions thereof more definite and certain.

Action to recover the value of goods and merchandise seized by the defendant as constable under and by virtue of writs of attachment, and sold by him under and by virtue of executions thereafter issued upon judgments against one Charles H. McLean. The plaintiffs claimed title'to the prop-ertjr under a chattel mortgage executed by McLean to them prior to the levy of the writs.

The case is thus stated by Mr. Justice TayloR: “The material allegations in the complaint are that the plaintiffs were the owners of a certain block of land in the city of Watertown, with the flouring-mill situate thereon, and that as such owners they had the right to have a certain quantity of water, viz., 700 square inches of water, under a certain head, flow through a race or water-way from the dam across Bock river in said city above said block and mill, down to their…

<p> Counties: Fees of justices in criminal cases: Statement of account: Complaint on appeal: Demurrer. </p> <p>An account of a justice of the peace for costs and fees in criminal cases, under sec. 679, R. S., as amended by ch. 188, Laws of 1883, if sufficient in form and 'substance to be allowed by the county board, is sufficient as the complaint on an appeal to the circuit court, and is not subject to demurrer because of the lack of formal averments which would be necessary in an action commenced originally in that court.</p>

The case is thus stated by Mr. Justice Cassoday: “This action is upon a promissory note for $1,000, purporting to have been executed by the defendant, October 9, 1880, payable to Martha Y. Thomas or bearer three years from that date, and by her sold, transferred, and delivered to the plaintiff before due. The complaint is in the usual form, and verified.

Replevin. The complaint was in the usual form. The answer was a general denial. The facts shown upon the trial are stated in the opinion. There was a verdict and judgment for the defendant, and the plaintiff appealed.

APPEALS from the Circuit Court for Brown County. The substance of the complaint is sufficiently stated in the opinion.

This is an appeal by the plaintiff, in the same action as the appeals by the defendants Marshall and Kelly reported ante, p. 690, and is from an order sustaining the demurrer of the defendant Joseph Tayler, on the ground that the complaint did not state facts sufficient to constitute a cause, of action against him. The special facts relating to said defendant are stated in the opinion.

¡This action was commenced May 20, 1876, to foreclose a note and mortgage executed by the defendant Dominick Brunette to John Baldwin, May 23, 1856; due in one year from that date, for $925, with interest from June 30, 1856, at ten per cent., payable semi-annually. The note and mortgage were assigned by Baldwin to Elisha Morrow, November 10, 1862; and Morrow assigned them to the plaintiff’s intestate (Esther W. Williams), January 13, 1874.

The plaintiffs claim that- they are entitled to a franchise to collect wharfage for the use by others of a certain pier or wharf built from the shore into the waters of Geneva lake, within the limits of the village of Geneva. They use this wharf as a landing-place for two steamers, owned and operated by them. The defendants are the owners of another steamer called “ The Commodore,” which they also operate on the same lake.

The case is sufficiently stated in the opinion. They contended, inter alia, that when the order of confirmation is entered it relates back to the sale, and the purchaser is entitled to have delivered to him the premises in the same condition that they were in on the day of sale, and all crops growing thereon pass to the purchaser. 2 Jones on Mortg. § 1658; Fuller v. Van Geesen, 4 Hill, 171; McLaren v. Hartford F. Ins. Go. 5 N. Y. 151; Puggles v. First Nat.

On the 23d of April, 1883, this cause being then pending in justice’s court, the parties appeared by their attorneys, issue was joined, and the cause was adjourned, the following entry of such adjournment being made by the justice in his docket, under date April 23, 1883: “ By agreement of parties case adjourned to the 30th day of April, 9 A. M., at my office in said town of Whitewater.” On April 30, 1883, the case was called and the plaintiff, by his attorney, obtained an…

The case is thus stated by Mr. Justice Cassoday: “ The complaint sets out two causes of action. The first cause of action is under a contract between the plaintiff and the defendant Laus, made April 11,1882, and guarantied by the defendant Beyer. Under this contract, it is alleged that Laus had made default in the payment for machines and merchandise ordered and delivered, and for wagon rental, in the aggregate, $161.64.

The facts are sufficiently stated in the opinion. The defendant appealed from the judgment. They argued, among other things, that as between shipper and carrier, when the articles are designed for a special purpose, that fact must be communicated to the carrier at the time of contract, as a condition precedent, to make the foundation for special damages such as were recovered in this case.

May 26,1883, a daughter of the plaintiff, aged four years and four months, was run over by one of the ears of the defendant company at or near the intersection of Walnut and Tenth streets, in the city of Milwaukee, causing her death.

<p> Pleading: Sale: Allegation of nonpayment. </p> <p>A complaint alleging the sale and delivery of property by the plaintiff to the defendant at an agreed price, and demanding judgment for such price, is sufficient, although it does not allege that no part of such purchase price has been paid. Cassoday, J., dissents.</p>

The cause was before this court on a former appeal and is reported in 60 Wis. 425. The facts necessary to an understanding of the questions determined on this appeal are stated in the opinion.

The case is thus stated by Mr. Justice Cassoday: “ In the Third ward of Milwaukee, Buffalo street runs east from Milwaukee river to Lake Michigan. Four side tracks of the defendant run north and south across that street at right angles with it, each terminating at the bumpers 232 feet north of the sidewalk on the north side of that street.