Volume 65 — Wisconsin Reports

The case is thus stated by Mr. Justice Cassodaz : “ Three of the plaintiffs as a firm, and the other plaintiff, as several attaching, judgment, and execution creditors of E. Kluetz & Go.

For some years prior to 1816, one John L. Crawford rented a house in Hazel Green, Grant county, of the plaintiff. The accrued rent therefor amounted, in that year, to $800, and was wholly unpaid. John L. Crawford was a member of the firm of Crawford, Mills & Co., then doing business at Hazel Green. In December, 1816, he and another partner withdrew from the firm pursuant, to an agreement between all the members thereof.

Gabriel Mills, the defendant’s intestate, died in 1880. In 1881, John M. Chandler, the plaintiff’s intestate, presented an account against the estate of Mills for a large amount, and it was allowed by the commissioners duly appointed to adjust claims, at $3,440.70. An appeal from this determination was taken to the circuit court, and. after a hearing, that court allowed the claim at $2,177.04, and gave judgment accordingly.

Tbe following statement of tbe case was prepared by Mr. Justice Tatlob as a part of tbe opinion: This action was brought in tbe circuit court to recover for work and tbe labor done for tbe defendant by tbe plaintiff, as a carpenter and joiner and contractor and builder, in and about tbe construction and erection of a barn for the defendant upon bis farm, describing the same.

The facts are stated in the opinion. To the point that where a lien exists - equity will enforce it, counsel for the respondent cited Montandon v. Peas, 14 Ala. 33; Gillisjpie v. Bradford, 7 Yerg. 168; Blaelt v. Brennan, 5 Dana, 311; Gambling v. Read, 1 Meigs, 281; 2 Story’s Eq. Jur. 461, 462; Ford v. Sproule, 2 A. K. Marsh. 535; Ooleman v. Shelton, 2 McCord, Oh. 126.

Action to recover damages on account of personal injuries alleged to have been caused by the defective condition of a cross-walk in the defendant city. The facts will sufficiently appear from the opinion. At the close of the testimony the circuit court directed á verdict for the defendant, and from the judgment entered thereon the plaintiff appealed.

Tbe following statement of tbe case was prepared by Mr. Justice Cassoday : Tbis bill in equity for partition was commenced December 8, 1884: It alleges, in effect, that John Stockman died intestate, seized in fee simple and possessed of tbe premises .in question’,, leaving Mm surviving a widow, who died half an hour thereafter, and two sons, Gha/rles and Ealph, who were ids only children and sole heirs at law, and who thereby became the lawful owners and possessed of the…

The case is stated in the opinion. To the point that it was error to allow the district attorney to use the language objected to, they cited Regan v. State, 46 Wis. 256; Ferguson v. State, 49 Ind. 33; State v. Smith, 75 N. C. 306; Devries v. Haywood, 63 id. 53; Jenkms v. Df. G. O. D. Go. 65 id. 563; State v. WilUmis, id. 505; Glevela/nd Payer Go. v. Bamks, 15 Neb. 20; Qramford v. State, 15 Tex. App. 501; State v. Foley, 12 Mo. 431: Brow v. State, 2 H. E. Eep. (End.), 296.

The case is stated in the opinion. They argued, among other things, that the trial might proceed in the absence of the accused, even were the prosecution one for conviction for a criminal offense. JEHU v. State, II Wis. 697; Sahlingher v. People, 102 Ill. 241; Bonneville v. State, 53 Wis. 680; State v. Tall, 56 id. 577; State v. Haas, 52 id. 407; State v. Werner, id. 414.

The case is sufficiently stated in the opinion. The defendant appealed from a judgment in favor of the plaintiff that he recover possession of the land and $180.40, rents and profits, besides the costs of the action. - To the point that the covenant to pay Tor the improvements runs with the land, and the defendant has the same remedies against the plaintiff as against his immediate lessors, the McCormicks, or Sohn, they cited sec. 2195, R. S.; Hunt v. DcmfoHh, 2 Curt.

Action to recover damages for personal injuries alleged to have been caused by the defendant’s negligence in furnishing a defective and dangerous car for the transportation of the plaintiff’s live-stock. On November 20, 1884, the plaintiff shipped a load of cattle and hogs in the oar in question at Lindon and Kilbourn, to be transported to Milwaukee, and himself went with the stock as far as Portage.

Ejectment. The facts -will sufficiently appear from the opinion. There was a verdict for the plaintiff; a motion for a new trial was denied; and from the judgment entered on the verdict the defendant Sunt appealed. They contended, inter alia, that sec. 2324, R. S., was taken literally from Mew York, and it is there held to mean actual notice of the fraudulent intent, and that circumstances to put the purchaser on inquiry, where full value has been paid, are not sufficient.

Action for a trespass to land. A jury was waived. Tbe findings and conclusions of tbe trial court will sufficiently appear from tbe opinion. Erom a judgment in favor of tbe defendant tbe plaintiffs appealed. contended, inter alia, that a way “ of necessity ” arises only in cases of strict necessity, not of convenience or even great convenience. Where tbe way must be founded on an implied reservation, instead of an implied grant, tbe necessity must be stronger.

On June 12, 1877, the Milwaukee News, which had theretofore been conducted by the Milwaukee News Company, passed into the ownership and control of a firm consisting of the defendant E. W. Magann and John C. Keefe. In January, 1878, M. Almy Aldrich became a member of the firm.

1. The writ of error Avas properly allowed, should be entertained, and the order affirming th§ discharge can be reversed and the defendant in error remanded to the custody of the sheriff. Ablemcun v. Booth and ü. S. v. Booth, 21 How. 506; Expcurte Lafonta, 2 Rob. (La.), 495; Holmes v. Jenneson, 14 Pet. 540; Tates v. People, 6 Johns. 338-352. The writ of error is the only remedy. An appeal Avould not lie. In re Fenélon, 37 Wis. 231.

<p> flj Guaranty: Business to be done in certain territory. ($) Reversal of judgment: Principal liable, bid sureties not. </p> <p>1. The defendant B. proposed to the plaintiff to sell its machines “ in Menominee Range and Belch Mountain and vicinity, or in such other territory as you may allow me to sell in.” The proposal was dated in Michigan (in which state are also the places named), and was accepted hy the company. The other defendants guarantied the faithful performance of such contract hy B. and the paysnent of all indebtedness which might arise thereunder from him to the company. After doing business for a time in the places named, B. removed, at the request of the company, to Oshkosh in this state and did business there for the company. At the time of such removal, and at the request of the company, he turned over to his-brother all the business in Michigan, and did not thereafter do any business for the company in that state. The action is upon the contract and guaranty to recover an indebtedness alleged to be dire from B. to the company on account 'of business done in Oshkosh. JBeld, that the guaranty covered the acts of B. so long as he continued to do business for the company in the territory named or its vicinity, whether such acts were done in that or in other additional territory, but that it did not, extend to acts done in other territory after he had abandoned the territory named with the assent of the company.</p> <p>3. The liability of the sureties for business done at Oshkosh under the original contract having been the only matter of contention in the trial court, and the question whether the principal had made a new contract with the plaintiff as to such business not having been fairly tried, the judgment against the defendants is reversed both as to principal and sureties, without prejudice to the right to bring a new action against the principal either upon the old or the new contract.</p>

The action is brought by a part of the stockholders of the Wisconsin, Pittsville & Superior Railway Compcwvy against that corporation and George Hiles, president, O. 0. Baker, secretary, James Hiles and H. O. Atkins, directors, W. G. Oollins, a stockholder, and Stephen Glement, the trustee named in certain bonds of the corporation. The facts alleged in the complaint are sufficiently stated in the opinion.

The case is sufficiently stated in the opinion. The plaintiffs appealed from a judgment in favor of the defendant. contended, inter alia, that on the pleadings the question of title or right of possession was not involved. The answer admits the wrongful seizure and therefore tenders back the property. That admission is conclusive against the defendant. 1 Sutherland on Damages, 468 et seq.; MoTvroev.

Tbe plaintiff occupied a saw-mill and dam on Red river, in Shawano county, in 1883. That river, although not meandered, is navigable in fact for the running of logs thereon to market. The plaintiff’s dam is constructed with a chute and sheer booms, to facilitate the running of logs through it.

Ejectment. The action was commenced December 6, 1884. The defendant appeals from a judgment in favor of the plaintiff. The facts are stated in the opinion.

The plaintiff in error was convicted of the crime of arson. The facts sufficiently appear from the opinion. They contended, water alia, that it was error to admit testimony tending to show that the defendant either stole Reeve’s chicken or poisoned Rehberg’s dog.

The facts will sufficiently appear from the opinion. The plaintiff appealed, from the judgment entered upon a verdict in favor of the defendant. Eor the respondent it was contended, inter alia, that the mortgage on its face was to secure a loan of $2,000, and upon payment of that sum it became void. Truscott v. King, 6 N. Y. 147; Mead v. Y orle, id. 449; Pa/rks v. Hall, 2 Pick. 206-211; Morris v. Tillson, 81 Ill. 607; Banle of Utica v. Hunch, 3 Barb. Oh. 293; 8. O. 49 Am.

The case is thus stated by Mr. Justice Cassoday: “August 7, 1884, the plaintiffs sued Barber, and September 9, 1884, obtained a judgment against him for $631.81.

Action to try the title to the office of county clerk of Ashland county. The complaint alleges that on February 13, 1881, upon charges filed and after a hearing had, the defendant was duly removed from said office by the county board; that on the same day the relator was duly appointed to fill the vacancy so created; and that on said day the defendant usurped the said office and has ever since unlawfully exercised the same and withheld it from the relator.

The facts will sufficiently appear from the opinion herein and from the report of the former appeal, in 61 Wis. 233. Upon the second trial of the action the court directed the jury to return a verdict for the plaintiff for $5,000, with interest from March 29, 1881. From the judgment entered on such verdict the defendant appealed.

EEEOE to the Circuit Court for Dane County. The following statement of the case was prepared by Mr. Justice Cassoday: October 9, 1884, a complaint was made to and filed with TL A. Hoverson, a justice of the peace in the city of Stoughton, Dane county, Wisconsin, for the arrest of the plaintiff in error, of which the following is a copy, to wit: “State of Wisconsin, Dane Oounti/: — In Justice’s Oourt. “ T. C. Lund of said county, being duly sworn and examined on oath by and…

The action is upon a bond in the penal sum of $15,000, executed by the defendant Horacek, as principal, and the defendants Bathborne and Kelly as his sureties, to the plaintiff, the Oahwoocl Bet/reat Association, conditioned that Horacek should faithfully keep a certain agreement entered into between him and the plaintiff.

APPEAL fi;om the Circuit Court for Rode County. The facts are sufficiently stated in the opinion. The defendant appealed from a judgment in favor of the plaintiff. They contended that a married woman could not become the owner of property by-gift from her husband; that if he gave her money it continued to be his, and her possession thereof was his possession ; and that therefore she could not maintain any action in respect thereto. 1 Bell on IT. & W. 466-9; 1 Bishop on Marr.

The case is thus stated by Mr. Justice Cassoday: “The following facts are, in effect, alleged in the complaint in this action, which is based upon an award of arbitrators and to recover the amount awarded: “ October 9, 18S2, the plaintiff commenced an action in the circuit court for Rock county to recover for work, labor, and services performed for the defendant by the plaintiff, his wife, team, and horses, and for the use of wagon, harnesses, tools, implements, etc., and…

The action was brought to recover the purchase price of cream alleged to have been sold and delivered to the defendants as partners. The facts are sufficiently stated in the opinion.

The action, was commenced in justice’s court. A written complaint was filed which states that one Peter Lochen is the acting chairman of the board of supervisors of the town of Trenton, Washington county, Wisconsin, and as such chairman makes and presents the complaint and prosecutes the action in the name of the state; that the defendant “ is indebted to the plaintiff in the sum of $200 for a penalty or forfeiture according to the provisions of section 1330 of chapter 52 of…

The case is thus stated by Mr. Justice Cassoday: “ The complaint alleges, in effect, that the plaintiff is an infant, and brings this action by his guardian ad Utem; that May 1, 1885, he purchased of Yile Emery, the then sole owner, and paid for in cash to him, and. received therefor a bill of sale from him, the undivided one-half interest and share of the personal property described, constituting a livery stock; that on the same day the plaintiff and Emery entered into a…

Attachment. The facts are stated in the opinion. After trial of the issues made by the traverse, the circuit court made an order vacating and discharging the attachment. From that order the plaintiffs appealed. This case and that of Hill v. Armst/rong and another, post, p. 231, were argued together. To the point that pai’ment of individual debts with partnership property is fraudulent, they cited Wilson v. Bdbertson, 21 hi.

In May, 1818, an order was made by tlie county court of Walworth county, in the matter of the estate of Stephen Williams, deceased, by which, among other things, the defendant JET. G. Williams, as administrator of said estate, was directed to pay to the administrator or executor of Roxy Lyle, deceased, the sum of $449.43, her share of said estate. Erom that order II.

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

This action was brought to recover a balance alleged to be due the plaintiff from the defendant for services performed by him for the defendant as a farm laborer. The answer is (1) a general denial; and (2) that such services were rendered to and for the benefit of one Edward M. Wright, and were fully settled and paid for by the latter before this action was commenced.

<p> Judgment: Remission, after reversal, of part of damages: Interest. </p> <p>A judgment for plaintiff having been reversed because the damages were excessive, and this court having ordered that if plaintiff should remit from the verdict all the damages except $5,000, she should have judgment, “ on the verdict and sucli remission,” for $5,000 and costs, it is held that she was entitled to include in such • judgment interest on the $5,000 from the date of the verdict.</p>

<p>APPEALS from the Circuit Court for Mikvauhce County.</p> <p>The facts are stated in the opinions.</p>

The facts will sufficiently appear from the opinion. They argued, among other things, that the admission of Swan that he set the fire was not admissible in evidence against Towle. That was not a matter pertaining to the partnership business. In order to bind the firm or be admissible the declaration of a partner must relate to the partnership business, and mere community of interest will not be sufficient, daggers v. Binnings, 1 Stark. 6é; Fairlie v. Pastings, 10 Ves.

Ejectment. A jury was waived. Tbe trial court found in favor of tbe plaintiff and, among other things, that tbe defendant unlawfully withheld tbe premises from tbe plaintiff, to bis damage $360. Judgment was entered that tbe plaintiff recover tbe possession of tbe premises, “ and also tbe sum of $360 for bis damages for tbe unlawful withholding thereof by tbe defendant, and tbe further sum of $75.90 for tbe plaintiff’s costs,” etc. Tbe defendant appealed from tbe judgment.

<p> Chattel mortgage: Description of property: Mistake as to location. </p> <p>A chattel mortgage containing a sufficient and otherwise accurate description of the property will not be vitiated by an erroneous statement therein as to the place in which the property is then situated.</p> <p>As to description of property in chattel mortgage, see Weber v. Illing, 37 N. W. Rep. 834, and note; S. G. 66 Wis. —. — Rep.</p>

This is an action for the use and occupation of real property. It was commenced in 1878. The alleged leased property consists of (1) twenty-four feet of ground, designated as “ piling-ground,” situated west of and adjoining premises in the village of De Pere on which there is a mill operated by the defendants; (2) a lot 64 by 150 feet, immediately north of the mill, known as the “ wharf lot; ” and (3) the use of certain water-power used in propelling the mill.

The action is to recover the possessioil of the school-house and fixtures referred to in State ex rel. Wiesmann v. Kemen, 61 YYis. 494. The complaint was voluminous, and upon ■motion of the defendant several portions of it were stricken out as irrelevant and redundant. A general statement of the character of the portions so stricken out will be found in the opinion, and it is not deemed necessary to set them out more fully here.

The following facts appear from the record, and were, in substance, found by the trial court: June 12, 1876, the testator, William Leach, and the defendant, Sarah Leach, were married. Sm-ah then owned forty acres of land and personal property to the amount of $600.

The following statement of the case was prepared by Mr. Justice Taylor as a part of the opinion: This action wTas brought by the respondent to set aside certain tas certificates, issued upon a tax sale made in 1883 for the nonpayment of the taxes assessed on certain lands situate in Door county. The taxes for which the lands were sold were first levied in the year 1875.

The facts will sufficiently appear from the opinion and from the report of the former appeal in 61 Wis. 545. Upon the second trial the jury found a special verdict to the effect that neither of the fractional lots owned by the plaintiff was assessed more than its proper proportion of the whole assessment. Judgment was entered upon the verdict in favor of the defendant, and the plaintiff appealed.

The cause was before this court on a- former appeal, and is reported in 60 ~WIs. 541. Upon the second trial the jury found a special verdict, the substance of which, so far as it is material, is stated in the opinion. Erom the judgment entered upon the verdict in favor of the plaintiff, the defendant appealed.

The case is thus stated by Mr. Justice Cassodat : ton county, for the McCormick Harvesting Machine Com-pa-ny, and having a dwelling-house on two village lots therein, and a warehouse, falsely represented and pretended that he had such agency for the five years next ensuing, with the exclusive right to the territory for ten miles around, and with the right to sell it, and that he could procure the appointment of the plaintiffs as such agents for said term, and then and there…

The action is to recover damages for personal injuries suffered by the plaintiff through the alleged negligence of the defendant company. The defendant owns and operates a street railroad in the city of Milwaukee, which extends along Farwell avenue, southwest to Ogden street, and thence west on a descending grade along the latter street across Marshall street, which extends north and south across Ogden street.

APPEALS from the County Court of Milwaukee County. The facts are stated in the opinion. As to the computation of time they cited 4 Kent’s Comm.

The plaintiff recovered a judgment in justice’s court against the defendant by default. The defendant appealed to the county court, and from an order of that court dismissing his appeal has appealed to this court.

The case is thus stated by Mr. Justice Cassoday: “This action was commenced in justice’s court.

APPEAL’from the County Court of Milwaukee County. The facts will sufficiently appear from tlie opinion. There was a verdict in favor of the plaintiff, and from the judgment entered thereon the defendant appealed.

, This is an action to recover damages for the death of the plaintiff’s intestate (who was his child), alleged to have been caused by the negligence of the defendant company (which, oivns and operates a line of street railway in the city of Milwaukee), and of the driver of one of its teams and cars. On a former trial the county court ordered a compulsory nonsuit, and the judgment rendered pursuant thereto was reversed by this court on appeal. 62 Wis. 652.

APPEALS from the County Court of Milwaukee County. The following statement of the case was prepared by Mr. Justice Taylob as a part of the opinion: The admitted facts in these cases are as follows: On the 20th of August, 1884, judgment was entered in the county court of Milwaukee county in favor of the appellant Bertha Meissner, and against the defendant, Max Meissner, for the sum of $2,000 damages, and $32 costs, upon a judgment note bearing date August 18, 1884.

The- case is sufficiently stated in the opinion. They argued, among other things, that anyone affected by a fraudulent judgment may invoke the aid of a court of equity. Whittlesey v. Delaney, 75 1ST. Y. 571-574; Dobson v. Pea/rGe, 12 id. 156-165. And the practice pursued in this case to impeach the judgments for fraud, and to determine the rights of creditors to the moneys paid into court, has been sustained in McDonald v. Allen, 57 Wis. 108; Allen v. Beeh-man, 42 id. 185.

Action to recover the amount of a debt alleged to have been owing by the defendant to one Herman Wussow and to have been by him assigned to the plaintiff.

The facts will sufficiently appear from the opinion. There was a verdict for the plaintiff, and from the judgment entered thereon the defendant appealed.

APPEALS from the Circuit Court for Milwaukee County. The plaintiff commenced two actions against the defendant before different justices of the peace in the county of Waukesha. Each action was commenced by attachment, under which the property of the defendant was seized. The defendant being absent from the state, service of process upon him was obtained by publication, pursuant to statute. He did not appear before the justice in either action.

<p>APPEAL from the County Court of Milwaukee County.</p> <p>The case is stated in the opinion.</p>

Action to recover damages for personal injuries alleged to have been caused by the defective and unsafe condition of a cross-walk in the defendant city. The cause has been before this court on an appeal from an order overruling a demurrer to the complaint. That order was affirmed. 57 Wis. 639. After the cause was remitted to the county court, the defendant answered, and a trial was had which resulted in a verdict in favor of the plaintiff assessing his damages at $24.27.

The facts will sufficiently appear from the opinion. They cited Powner v. Koiogrd, 44 Wis. 92; Varney v. Varney, 52 id. 129; 8. O. 58 id. 19. argued, among other things, that a meritorious cause of action must appear to exist before an order granting allowances of this kind can properly be made. Phillips v. Phillips, 27 Wis. 252; Krause v. Krause, 23 id. 354; Weishaupt v. Weishaupt, 27 id. 621; Wood v. Wood, 2 Paige, 454; Rose v. Rose, 11 id. 166; Worden v. Worden, 3 Edw.

The following statement or4he case was prepared by Mr. Justice Cassoday: The complaint alleges, in effect, that July 14, 1885, the defendant, a widow, offered to sell to the plaintiffs a farm owned and occupied by her, in section 24, in township 7, range 21, being in the town of Wauwatosa, which she represented to contain forty-nine acres, with the buildings and improvements thereon, with the crops, consisting in part of hay and oats, and personal property, of which a…

The facts sufficiently appear from the opinion. The plaintiff appealed from a judgment in favor of the defendants.

The case is thus stated by Mr. Justice Cassodat: “ Tbe defendant, as sheriff, seized the plaintiff’s ‘ hearse ’ upon an execution against him. The plaintiff replevied the same on the ground that it was exempt. At the close of the testimony on the trial, the court directed the usual verdict in such cases for the plaintiff.

Ejectment. The cause was before this court on a former appeal, and. is reported in 61 Wis. 650. The lands were formerly owned by one George W. Beckwith. The plaintiff claims title by virtue of a deed from said George W. Beckwith to one Charles W. Watson; a deed from Watson and wife to one Henry A. Beckwith; and a deed from Henry A. Beckwith to the plaintiff.

This action was brought to recover damages for the breach of an alleged contract on the part of the defendant company, entered into by one Bradt, its agent, on November 11, 1884, to insure the dwelling-house of the plaintiff, in Omro, “ against loss or damage by fire for the period of three years from said date, in the sum of three hundred dollars, in consideration of which this plaintiff agreed to pay and has paid to said defendant the sum of three dollars and seventy-five…

The following statement of the case was prepared by Mr. Justice Taylor as a part of the opinion: In this case G. W. lemens, the appellant, presented a petition to the county court of Winnebago county setting forth the following facts: That C. W. Leavens, deceased, was formerly a resident of said county, and he died intestate in said county, October 29, 1874; that in December, 1874, a petition was presented to the county court of said county by one claiming to be the widow of…

Attachment. The , action was brought upon a demand not yet due, pursuant to the statute.

Action to recover damages for the death of the plaintiff’s intestate (his son), a boy about eighteen months old, alleged to have been caused by the failure of the defendant company to fence its track at the place where the accident happened. At the close of the plaintiff’s testimony a motion for a nonsuit was denied. The defendant introduced no evidence.

The following statement of the case was prepared by Mr. Justice Cassoday: This is an action to recover the purchase price of 400,000 feet of lumber, the most of which was destroyed by fire while piled in the plaintiff’s mill-yard at Oshkosh. August 9, 1883, the plaintiff was the owner of a saw-mill in Oshkosh, and engaged in the business of manufacturing saw-logs into lumber.

The plaintiff brought this action to recover $995.84, being the amount of a tax on personal property assessed against him by the defendant city in the year 1883, and paid by him under protest. lie claims that the tax is invalid because (1) on May 1,1883, he was not a resident of that city, but was then a resident of the city of Topeka, in the state of Kansas; and (2) various errors, irregularities, and omissions, specified in the complaint, intervened in the assessment and…

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

The facts will sufficiently appear from the opinion. The plaintiff had a verdict in her favor assessing her damages at $3,500, and from the judgment entered thereon the defendant appealed.

The following statement of the case was prepared by Mr. Justice Cassoday: This is a bill in equity filed May 25, 1883, to compel the defendant Mary Delaglise, and those claiming under her, to specifically perform an oral contract made by her June 1, 1819, and by which she agreed to sell and convey to the plaintiff Mcvry Honzik the premises in question, situated in the village of Antigo. All the defendants answered separately. There is no bill of exceptions.

The action is brought by the town of Menasha and the city of Menasha (which, after the issuance of the bonds of the town to the defendant, was incorporated out of a part of the territory of the town) to compel the defendant company to perform on its part the contract under which the town had issued $50,000 of its bonds to aid in the construction of the railroad of said company. The facts stated in the complaint will sufficiently- appear from the opinion.

This is an action of ejectment, brought by the original owner of the land claimed against one claiming under a conveyance from the grantee in certain tax deeds. The defendant in his answer attempted to set up a statute of limitations as a defense to the action. He prevailed upon this defense in the circuit court. On appeal this court reversed the judgment in his favor because the statute was defectively pleaded, and remanded the case for a new trial. 60 Wis. 139.

The following statement of the case was prepared by Mr. Justice Taylor, as a part of the opinion: This is an action commenced on the part of the state, on the relation of the respondent, to oust the appellant from the office of treasurer of joint school district No. 3, composed of a part of the city of Waupun and of parts of the towns of Waupun, Alto, Trenton, and Chester, in the counties of Dodge and Fond du Lac.

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

Ejectment. The complaint was in the usual form. The plaintiff claimed title under a deed from Charles Hatch and wife, executed March 2,1883, and recorded on the following day. Held: upon the facts, that the defendant was entitled to judgment dismissing the complaint and adjudging that the plaintiff convey to the defendant all his title in and to the premises, and for costs. From the judgment entered accordingly the plaintiff appealed.

The complaint alleges that on April 13, 1881, the defendant entered into an agreement in writing whereby he prom-isedto pay the plaintiffs $50 a year during their lives, payable Fovember 1st, and to deliver to them, among other articles of personal property, one ton of hay and five bushels of oats in each year.

The case is stated in the opinion. contended, inter alia, that it is admitted that Prof. Conover’s survey is strictly accurate according to Britts’ plat. Both the surveyors agree as to the location of the quarter-post from which the survey of the plat was to he started; and this quarter post is conclusive upon the subject of survey. Vroman v. Dewey, 23 Wis. 530; Marsh v. Mitehell, 25 id. 706.

<p>Replevin: Costs: Appeal to 8. C.: Res adjudicata.</p> <p>1. In an action of replevin the trial court found that the plaintiff was entitled to a portion only of the property, and rendered judgment in his favor for the part belonging to him, and against him for the value of the share belonging to the defendant, which had been delivered to and disposed of by the plaintiff. Costs were awarded to the plaintiff but not to the defendant. On appeal to this court the judgment was reversed on the ground that the defendant had not been awarded sufficient damages for his share which had been delivered to and disposed of by the plaintiff. The allowance of costs to the plaintiff was assigned as error on such appeal, but it was not alluded to in the brief of the plaintiff, nor was it discussed on the argument or passed upon by. this court. Held, that the question of the allowance of costs to the plaintiff upon a new trial was not res adjudicata.</p> <p>2. If in replevin the property has been delivered to the plaintiff and retained or disposed of by him, and on the trial it is found that each party is the owner of a portion of the property of greater value than $50, costs should be awarded to each.</p> <p>3. Where in such a case no costs are awarded to either, the judgment will not be disturbed if this court is unable to say that either party is prejudiced thereby, such failure to award costs being virtually an offset of the costs of one party against those of the other.</p>

The case is sufficiently stated in the opinion. This appeal was taken on behalf of the estate from the judgment of the circuit court. To the point that after accepting the provisions of the will in her favor, and entering upon their enjoyment, the widow could have no further provision for her support out of the estate, they cited Golder v. Littlejohn, 30 Wis. 344; Caulfield v. Sullivan, 2 Am. Prob. Rep. 43 and notes; Schouler on Executors, sec. 453.

-, The facts will sufficiently appear from the opinion and from the report of the case on the former appeal. See 53 Wis. Hi. They contended, inter alia, that words are actionable which directly tend to the prejudice of any one in his trade or business. 1 Starlde on Slander, 111; Gott-behuet v. Ilubachek, 36 Wis. 515. The business need not be one of which courts will take judicial notice. 2 Addison on Torts (Wood’s ed.), 1121.

The following statement of the case was prepared by Mr. Justice Cassoday: This is a claim against the estate of William T. Henry, deceased, first determined in the county court and tlien on appeal in the circuit court.

This is an appeal by the plaintiffs from an order sustaining a genei’al demurrer to the complaint herein. Held: but it never owned a parsonage. The rental of the property was worth $12 per month, but the parties' believed the same would be exempt from taxation while used as a parsonage; so they estimated the saving of taxes at $24, and thereupon agreed upon a rental of $10 per month.

This is an action brought against the town of La Valle to recover damages for an injury sustained in consequence of a defect in a highway in that town. The appeal is from a judgment in favor of the plaintiffs. Other facts will appear from the opinion.

The case is stated in the opinion. To the point that no right of stoppage remains after the goods are in the hands of the carrier as warehouseman, holding them for the consignee, they cited Benjamin on Sales (2d ed.), 305, 697, 707-15; Wilmshxvrst v. Bówlcer, 2 Man. & G. 792; Bielcbarrow v. Mason, 4 Ero. P. C. 57; James v. Griffin, 2 Mees. & W. 623; Jackson v. JSTichol, 5 Bing.

The facts will sufficiently appear from the opinion. They contended, inter alia, that as the proofs of loss were received as evidence without objection, they were competent for all purposes in the action. Bonner v. Some Ins. Co. 13 Wis. 6YY; Ili/nclcen v. Mut. Ben. Ins. Co. 50 N. T. 65Y; Moore v. Protection Ins. Co. 29 Me. 9Y; Jones v. Mechanics' F. Ins. Co. 36 N. J. Law, 29; N. A. Ins. Co. v. Zaenger, 63 Ill. 464; Wood on Ins. Y09, sec. 415.

The plaintiff, as administrator of the estate of Mary Bailey, deceased, presented to the county court of Rock county a claim against the estate of John P. Dickson, deceased. The claim was in the form of a petition or complaint, the substance of which will appear from the opinion.

Ejectment. The land in question is a part of the bed of Rock river, and is a part of lot 174 in Smith, Bailey and Stone’s addition to the city of Janesville. Said lot 174 is bounded on the north by Milwaukee street and on the east by the middle line or thread of Rock river.

The case is sufficiently stated in the opinion. To the point that the warrant having been directed, in the body thereof, “to the sheriff or any constable of said county,” and not to Joshua Killips in person, it could afford him no protection under a plea of justification, they cited Abbott v. Booth, 5£ Rarb., 646; Barb. Or. Law, 459; 1 Chit. Or. Law, 38; Oomm. v. Foster, 1 Mass. 488.

The case is thus stated by Mr. Justice Cassoday: “ The plaintiffs let a small farm to the defendant to -work on shares,— to raise hogs and small grain,— he doing the work and raising the feed. Each party was to furnish a portion of the hogs in the first instance, and then each was to have back in value the amount so furnished and one half the net increase. The plaintiffs had some of the hogs for their own use.

The relator presented his affidavit to the circuit court, in which he deposes that he resides within one' mile of the school-house of the respondent district, but not in such district, and is a tax-payer therein; that there is no public school in session in the school district in which he resides, but there is one being held in the respondent district, and that the qualified electors of the latter district duly authorized the district board thereof to admit nonresident…

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

<p>CEBTIOBABI to the Judge of' the Thirteenth Judicial Circuit.</p> <p>The case is stated in the opinion.</p>

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

The case is thus stated by Mr. Justice Oassoday: “ The defendants, La Flesh da Hewett, became involved in a controversy respecting their mutual partnership dealings and accounts.

Appeal by tbe defendant from a judgment against him, in an action to enforce a statutory lien for the price of materials furnished and labor performed by the plaintiffs in the erection of a dwelling-house for the defendant. No question is raised on the pleadings. The cause being at issue, the same was referred by the court to a referee to hear, try, and determine.

Garnishment. The facts are sufficiently stated in the opinion. At the close of the plaintiffs’ testimony a motion for a nonsuit was granted, and from the judgment entered accordingly in favor of the garnishee, the plaintiffs appealed. contended, inter aUa, that when facts are required to be proved by affidavit, such affidavit must contain averments sufficiently precise and unequivocal to sustain an indictment for perjury if the facts are untruly stated. Bacon’s Abr.