Volume 66 — Wisconsin Reports

Action to recover damages for tbe breach of a contract for the sale and delivery by the plaintiff to the defendant of 1,600 yards of stone. The cause was before this court on former appeals, and is reported in 49 Wis. 57, and 60 id. 12. The evidence given on the last trial was substantially the same as that given on the previous trials.

The plaintiff commenced an action on a money demand against N. B. Peterson, and at the same time instituted a garnishee proceeding against the respondent, P. D. Butler, who filed his answer therein,-denying that he was indebted to Peterson, and- stating, in detail, certain contracts and transactions with him. The plaintiff took issue thereon. The opinion contains a sufficient statement of the material portions of the answer, and of the testimony.

Tbe facts will sufficiently appear from tbe opinion. There was a verdict in favor of tbe defendant, and from tbe judgment entered thereon tbe plaintiff appealed. To tbe point that the witness Sanborn should not have been permitted to state what transpired between himself and tbe plaintiff while tbe plaintiff was seeking bis professional assistance, be cited 1 Greenl. Ev. sec. 241; 1 Wait’s Pr. 240; 2 Pest on Ev. sec. 581,». 25.

The case is thus stated by Mr. Justice Cassoday : “ This action is to recover 267,000 feet of pine saw-logs described, or their value, claimed to have been wrongfully taken from the S. E. £ of the S. W. J of section 5, township 40, range 10 east, and unlawfully and wrongfully detained by the defendants.

A trial of the action resulted in a verdict and judgment for the plaintiff. There seems to have been no controversy as to the place on the sidewalk where the plaintiff was injured. The question chiefly litigated on the trial was whether there was a hole in. the sidewalk at the point of injury. On this question the testimony is in direct conflict. Several witnesses who were there at or about the time of the injury testified to the existence of the hole.

<p>APPEAL from the Circuit Court for Wmishwra County.</p> <p>The facts are sufficiently stated in the opinion.</p>

The facts are stated in the opinion. For the appellant it was argued, among other things, that no person can redeem lands from taxes unless he has an interest in the lands at the time he attempts to redeem them, or is legally bound to protect some interest therein.

The facts are stated in the opinion. Appeals were taken from tbe judgment by the plaintiff, by the garnishee, Andrew Jackson, and by E. Goolidge and Myron Reed, constituting the firm of Coolidge & Co. There was a brief signed by Geo. Lines, attorney for Andrew Jackson, and Myron Reed, attorney for Goolidge and Reed, and the cause was argued orally on behalf of said appellants by 8. TJ. Pinney.

The following statement of the case ivas prepared by Mr. Justice Oassoday: This is an appeal from an order overruling a demurrer to the complaint for insufficiency as against the appellant.

The case is sufficiently stated in the opinion. They contended, inter alia, that the plaintiff had no power or authority to take an assignment from Schwantes of his claim against the defendant. The powers of the plaintiff are such, and only such, as the statute confers.

Oroix County. This action was brought to -recover the value of 400 bushels of wheat, which the plaintiff alleges was wrongfully taken from him by the defendant, and- converted by the latter to bis own use.

Garnishment. The following statement of the cage was prepared by Mr. Justice Cassoday : Joseph Bursinger owned a brewery and other property in Watertown.

The complaint alleges that the defendants unlawfully, and against the protest of the plaintiff, seized and took possession of “one portable saw-mill,” to the possession of which the plaintiff is entitled, and unlawfully retains the same, although due demand therefor has been made by the plaintiff. Damages in the sum of $2,000 ai’e claimed. The answer is, in substance, a general denial.

The following statement of the case was prepared by Mr. Justice Cassóday: This is an appeal from an order sustaining a demurrer to a bill of review, on the grounds of insufficiency and defect of parties. The following facts appear, in effect, from the bill, and some of them from the records of this court in the. same litigation. Breed v. Ketdhvm, 51 Wis. 164; Ketehvm v. Breed, 54 Wis. 131.

Sparrowk, late of the county of Rock, died intestate November 29, 1883. The plaintiffs and the defendant Alice O. Bean are her only heirs at law. The defendant John SparrowJc was her husband. On November 23 of that year she executed to the defendant George E. Dean conveyances of certain real estate in that county owned by her. The land so conveyed was worth between $4,000 and $5,000, and constituted substantially the whole of her estate.

Tbe facts are stated in tbe opinion. To tbe point that this proceeding in tbe nature of audita guerela was tbe proper remedjr, be cited McDonald v. Falvey, 18 Wis. 571; Stafford v. Janesville, 15 id. 475; Oooley v. Gregory, 16 id. 303; Broolss v. Hunt, 17 Johns. 484; Freeman on Judgments, sec. 95; 5 Wait’s Pr. 638.

The following statement of the case was prepared by Mr. Justice Oassoday: The complaint alleges in effect that, at the times mentioned therein, the plaintiffs were copartners, doing business as such “under the firm name of Edgerton & Brown, as factors and brokers of cattle and live stock, at the city of Milwaukee;” that during the same time the defendants were copartners, doing business as buyers and sellers^of cattle and live stock at Milwaukee under the firm name of…

Action for a trespass to land. The answer alleges that the locus in quo was a public street. The plaintiff claims title under a conveyance from one Haseltine, executed in 1864. Other facts will appear from the opinion and from the report of the former appeal. 58 Wis. 274. The plaintiff appeals from the judgment entered upon a verdict for the defendants.

. APPEAL from the Circuit Court for Trempealeau County. Action to recover the purchase price of a “ Light Champion Binder,” alleged to have been sold and delivered to the defendant. The answer alleges that the machine was not to be paid for unless the defendant was satisfied with it and kept it after thoroughly testing it; that he had tested it and could not make it work satisfactorily; and that he had returned it to the plaintiff.

Action to restrain the defendant from cutting through the ceiling, and roof and erecting a chimney in a building-occupied by him as a tenant of the plaintiff, it being alleged that such acts would cause the plaintiff great and irreparable damage. An injunctional order was issued upon the complaint by a court commissioner, October 5, 1885.

Action to recover the sum of $125 and interest, alleged to be due the plaintiffs, as partners, for a reaper procured for and delivered to the defendant, under and by virtue of the following written order executed by him: “ Saeatoga, Wis., May 16, 1882. “ Gross “Gael Drager.” The answer was as follows: “ Defendant, for answer, admits that plaintiffs are partners; and for further answer defendant alleges that said order in the complaint mentioned was obtained of him by fraud;…

The facts are stated in the opinion. They contended, inter alia, that the testimony of witnesses as to conversations with Haverland, one of the defendants in the principal action, Were improperly admitted to show that Rosenfeld did not have authority to execute the assignment. Haverland was not properly a party to the issue then being tried.

APPEAL, from the Circuit Court for Wood County. Action to recover damages for the destruction by fire of a quantity of lumber, it being alleged that such fire was caused by the defendant’s negligence. The facts will sufficiently appear from the opinion and from the reports of former appeals, in 58 Wis. 335, and 62 Wis. 546.

Croix County. Action to recover tolls upon logs owned by the defendant which were run over the plaintiff’s dam and slides in the Apple river in Polk county, between April 1, 1883, and December 1, 1884. The appeal is by the defendant from an order overruling a general demurrer to the complaint. The facts will sufficiently appear from the opinion.

The case is thus stated by Mr. Justice Cassoday: “ This is an action of ejectment for 400 acres of land, particularly described in the findings of the court.

This is an appeal from an order refusing to quash an alternative writ of mandamus.

APPEALS from the Circuit Court for Marathon County. In 188-1- Andrew Warren presented his two petitions to the circuit court, in which he represented that in 1882 he platted into lots certain land owned by him, within the limits of the city of Wausau, in accordance with the statute in that behalf.

The following statement of the case was prepared by Mr. Justice Taylor as a part of the opinion: This is an action of ejectment. The case was tried in the circuit court, and a verdict was found for the defendants and respondents. Judgment was entered upon the verdict, January 6, 1883.

<p>APPEAL from tbe County Court of Milwaukee County.</p> <p>Tbe Case is stated in tbe opinion.</p>

The following- statement of the case was prepared by Mr. Justice Cassoday: The following- facts -were mostly found by the trial court. The balance appear or are clearly inferable from the undisputed evidence. April 15, 1885, the debtors, E. S. Hoyt and Wesley Kinney, were wholesale liquor dealers in Milwaukee, under the firm name of E. S. Hoyt & Co., and had been since 18TT.

Ejectment to recover possession of a strip of land alleged to be a part of the northeast quarter of the southeast quarter of section 29, township 24 north, range 25 east, in Ke-waunee county. The complaint was in the usual form. The answer, besides a general denial, contained a plea of adverse possession.

The action was brought to foreclose a mortgage on forty acres of land in Rewaunee county, executed by the defendants Joseph Pawlot and wife to the plaintiff, by the name of Josepha JDrichta. The mortgage was dated July 3,1868, and recorded in the proper office four days later.

The case is stated in the opinion. argued, among other things, that the work for which the plaintiff was first employed did not require his assuming any risk from the falling of pieces from the roof of the mine, and it cannot be claimed that the accident occurred from the ordinary risks that he took upon himself when he entered the employment of the company.

The facts will sufficiently appear from the opinion. They contended, inter alia, that the defendant, having failed to show title in himself, cannot question the title of the plaintiff. Being a stranger to the record, and having failed to show title in himself, he had no right to pay the tax in question. Eaton To the point that the payment of the taxes before the sale avoided the sale, they cited Sprague v. Ocenen, 30 Wis. 209; B. S. sec. 1129.

Ebenezer Hubbard, who was a resident of the town of Algoma, in Winnebago county, died at his residence in that town, April 29, 1885. At the time of his death he was the owner of certificates of deposit issued by two banks in the. 'city of Osbkosli, amounting to $80,000. May 14, 1885, the defendant in error, Q, W, Roe, was duly appointed special administrator of the estate of Hubbard, and immediately thereafter qualified and entered upon the discharge of his duties as such.

Action upon a promissory note, dated April 3, 1885, which was given in renewal of an indebtedness maturing at that date. The plaintiff caused an attachment to be issued, which was levied upon the property of the defendants on June 25, 1885. The defendants traversed the affidavit for the attachment, and the issues were tried by the court.

The case is thus stated by Mr. Justice Cassoday: “ Libel. The article was held to be actionable per se, and tbe complaint sufficient on demurrer, for which see 59 Wis. 309. The answer, in effect, admitted the publication of the article, January 1, 1882, and that it was false in so far as it concerned or referred to the plaintiff; but denied that it was maliciously published, or that a certain portion of it was capable of the meaning ascribed to it.

Action to enforce specific performance of two contracts for the sale of lands. The cause was before this court on a former appeal. 53 Wis. 107.

December 7, 1873, Ebenezer E. Jones, late of Dodge county, died testate, leaving surviving him Margaret Jones, his widow, and David E.,… Held: and gave • judgment accordingly, that Margaret Jones took under the will only an estate for life in the property of the testator, with power to sell such life estate, if she chose to do so; and his children took, in equal shares, a vested remainder in fee in such property, which, upon the termination of the life estate, will become…

APPEALS from the County Court of Dodge County. Actions of replevin. The facts are stated in the opinion. To the point that the notice of motion should have specified wherein the answer should be made more definite and certain, they cited 2 Wait’s Pr. 487; 4 id. 596; Bryant v. Bryant, 2 Rob. (N. Y.), 612; Benedict v. Hake, 6 How. Pr. 852; Blake v. El-dred, 18 id. 240; llathbun v. Mcvrkham, 43 id. 271; Gilmore v. Norton, 10 Kan. 491; Ellis v. Bones, 6 How.

APPEALS from the Circuit Court for Winnebago County. Action for an accounting, brought against A. J. Webster, as surviving partner of the firm of Webster & Lawson. The facts are sufficiently stated in the opinion.

The case is thus stated by Mr. Justice Cassoday: “ Forcible entry and unlawful detainer.

Tbe case is stated in tbe opinion. They contended, inter alia, that there was not sufficient evidence to sustain the conviction. Tbe proceeding is quasi criminal, and the defendant must be proved guilty beyond a reasonable doubt. Bakerv. State, 47 Wis. Ill; Van Tassel v. State, 59 id. 351. Tbe first instruction asked should have been given.

<p> Criminal law: Abusiva language: Pleading. </p> <p>A complaint for the use of abusive or obscene language tending to provoke an assault, should state that such language was used in the presence of the complainant or of some member of his family.</p>

REPORTED from the Circuit Court for Milwaukee County. The case is stated in the opinion. The cause was submitted upon both sides on unsigned briefs. For the defendant it was contended, inter aUa, that the so-called bonds did not come into his possession in his capacity as an officer of the city. The law gave the comptroller no authority to take, receive or control them, and he had no duties in connection with them except to countersign them.

EXCEPTIONS from the Circuit Court for Brown County. The case is thus stated by Mr. Justice Cassoday: “ The defendant was charged with the murder, and also with the manslaughter, of Byron Simpson, in Brown county, September 21, 1885. He was tried at the November term of the circuit court for that county.

APPEALS from the Circuit Coui’t for Winnebago County. The following statement of the case was prepared by Mr. Justice Cassoday: This action was commenced in the circuit court, for the construction of the last will and testament of Hiram W. Webster, deceased, and for the advice and directions of the conrt upon certain questions submitted, and for such other or further instructions thereon respecting the execution of the trusts thereby imposed as may seem proper.

.'APPEAL from the Circuit Court for (rm^i'CouMy. The action was brought against J. H. Evans, as assignee of 1. Iiodges, to recover the sum of $1,500, with interest from February 8, 1884, less a payment of .$90, to have the same adjudged a lien upon the estate of Hodges in the hands of the defendant, and payment thereof directed out of such estate. The facts are stated in the opinion.

This is a proceeding under the bastardy act (R. S. oh. 64) to charge the plaintiff in error as the father of a child alleged to have been begotten by him upon the body of the prosecutrix, one Amelia Illgen, an unmarried female. The complaint was made before a justice of the peace of Dane county, before whom the accused was examined.

The complaint avers that the plaintiff is the owner in fee ■simple and possessed of the W. of the IST.

The following statement of the case was prepared by Mr. Justice Taylor as a part of the opinion: ■ Two actions were commenced by the respondent in the circuit court, on the same day, upon two promissory notes. One note was executed by the said Ketelmm as maker, and was indorsed by John Hoxie, and Ketelmm and Hoxie were made defendants in the action upon that note. The other was executed by Ketelmm as maker, and indorsed by Thomas Logan and G. W..

The case is stated in the opinion. They contended inter alia: 1. The right to discharge the accumulated waters which carry the logs to the lower point named in the act, is a necessary incident of the power’s granted. The charter must be reasonably construed. Ohesapealee & 0. Oanal Go. v. Kay, 3 Oranch C. C. 599; Briclgeforcl v. Kail, 18 La. Ann. 211. 2.

The case is thus stated by Mr. Justice Oassoday: “February 25,1880, James Smith owned the land in question.

This action was brought to foreclose two distinct liens, one in favor of the plaintiff Smith, and the other in favor of the plaintiffs Lyon & Beason, for materials furnished and labor performed by them, respectively, to and for the defendant in the erection of a dwelling-house. Smith recovered, but the proceedings relative to his claim are not involved in this appeal.

The case is sufficiently stated in the opinion. They contended, inter alia: 1. The delivery of the notes to Webb was upon the express condition that they should at once be indorsed over and delivered to Travis, who was to destroy and never assert them against the defendant. There was never any valid delivery for any other purpose. And this purpose may be shown by parol.

Ejectment. The cause was tried by the court without a jury. The facts are stated in the opinion. contended that the language of the exception or reservation should receive the same construction as if used in a grant. French v. Carhart, 1 N. Y. 96, 103; Sliep. Touch. 100; Band v. Kingseote, 6 Mees. & W. 197.

The case is thus stated by Mr. Justice Cassoday: “This action was commenced in the circuit court for Portage county, and upon issue joined a trial was had, and a verdict rendered in favor of the plaintiff, which was set aside on motion of the defendant. Upon application of the defendant, and an affidavit of prejudice of the judge, the venue was ordered to be changed to the circuit court for Ashland county, October 5, 1885.

Appeal by the defendant BruMing from an order overruling a general demurrer interposed by him to the complaint. The case made by the complaint is substantially as follows: In 1884, plaintiff purchased, of one Cameron and one McPhee, a certain lot in the city of Chippewa Falls owned by them, and paid the agreed price therefor.

Action to abate as a nuisance a boom built by the defendant in Lake Superior, and for damages. The cause was tried by the court without a jury. The facts, so far as they are essential to an understanding of the decision, are stated in the opinion.

The following statement of the case was prepared by Mr. Justice Cassoday: January 31, 1885, the defendant made a general assignment for the benefit of creditors' to T. D. Stone, containing a direction, in effect, for the payment, out of the net proceeds of the estate, all and singular the debts “ set forth and enumerated in a schedule to be annexed, marked ‘ Schedule C,’ and designated in said schedule as Class No. 1; ” and then, out of “ the residue and remainder of the…

Mary Divan died testate, probably in 1883, and the respondent, Emanuel Divan, the son of the testatrix, who was named in her will as the executor of her estate, duly qualified as such executor, November 20, 1883. He filed in the county court an inventory of the assets of the estate, verified by his affidavit.

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

Action to recover the sum of $116, rent due upon a written lease executed by the parties.

<p>APPEAL from the County Court of Fond du Lae County.</p>

The following statement of the case was prepared by Mr. Justice Cassoday: , July 15, 1884, in pursuance of an oral agreement made about May 1, 1884, the defendant, in behalf of himself and others, constituting the McKey heirs, but in his own name, and in writing, and upon the conditions, conventions, covenants, provisos, and reservations therein contained, leased to the Peloit City Guards, by S., B., and A., the hall known as Armory Hall, in the third story, and three rooms…

The action is to recover the consideration paid by the plaintiff to the defendant for a certain gray mare, and the cost of keeping her after the defendant had refused to accept an offer of plaintiff to return her. The ground of the action is that on the sale the defendant made fraudulent representations or warranties that the animal was true and gentle, and was with foal, upon which the plaintiff relied, and which he believed to be true.

The case is stated in the opinion. They argued, among other things, that in this class of cases, upon a motion to have the complaint made more definite and certain, the plaintiff will be required to set out the particular facts constituting the negligence complained of, at least so far as they would appear to be properly within his knowledge. This has been repeatedly decided in cases where the complaint was held good on general demurrer.

The facts, so far as they are essential to an understanding of the point decided, are stated in the opinion. There was a verdict for the defendant, and from the judgment thereon the plaintiff appealed. They argued that the hypothetical question was improper because it did not include all the facts shown. State v. Hanley, 26 N. W. Rep. 397; O’Hara v. Wells, 14- Neb. 403; Quinn v. Higgins, 63 Wis. 664.

The case is thus stated by Mr. Justice Cassoday: “ The plaintiff complained in justice’s court that the defendant, November lé and 15, 1884, forcibly broke and entered upon the lands of the plaintiff in the N. W. J of section 12, in the town of Hartford, Washington county, Wisconsin, and commenced building a fence upon the same, and otherwise injuring said premises, to the plaintiff’s damage $200.

The parties entered into a contract in writing under seal, wherein the plaintiff agreed to sell, and the defendants jointly to buy, several parcels of land for the aggregate price of $é,800. Of this sum $3,200 was to be paid in cash on a certain specified day, and the defendants were to assume and pay an outstanding mortgage on some portion of the land, given to secure $1,600, which made up the residue of the purchase money.

The motion was submitted on the brief of G. W. Gate, for the appellants, and on that of Reed <& Lines, for the respondents.

The following statement of the case was prepared by Mr. Justice Cassoday: The- complaint alleges, in effect, that between May 10, 1885, and May 23, 1885, inclusive, the village had granted and issued licenses to five certain keepers of saloons named, for the price of $200 each, for the sale of strong, spirituous, malt, ardent, or intoxicating liquors within said village; and did at the time mentioned and has received for said licenses, and paid to said village treasurer,…

The case is stated in the opinion. The stipulation referred to therein, relating to the pay of the referee and reporter, was as follows: “ It is hereby stipulated and agreed that the fees of J. M. MorroV, Esq., as referee in this action, shall be $15 per day for each day spent in the trial and determination of the matter of said reference, and that the same shall be considered as part of the costs in the case to await final judgment.

The action was brought to recover the agreed price for two abutments for a bridge, alleged to have been sold by the plaintiff and one Lawrence to the defendant town. Held: however, that the. allegation that the town accepted the abutments and built a bridge thereon pursuant to the agreement, should be construed to mean that it ratified the void contract by its subsequent lawful and binding acts, and hence that the complaint stated a cause of action. 61 Wis. 397.

The facts are sufficiently stated, in the opinion. Eor the appellant it was contended, inter alia,- that the obligation of towns under sec. 1499, E. S., to aid “poor and indigent persons” was imperative. Meyer v. Prairie du Chien, 9 Wis. 234; Westfield v. Saule Co. 18 id. 624; Mappes v. Iowa Co. 4Y id. 31; McCaffrey v. Shields, 54 id. 645.

The case is stated in the opinion. They argued, among other things, that the cause of action in ejectment is purely and simply one of tort (Hoioland v. Needham, 10 Wis. 497), and at common law did not survive the death of the defendant as against his heirs or grantees. Putnajm «. Van Bicren, 7 How. Pr. 81; Mosely v. Mosely 11 Abb. Pr. 105; Hopkins v. Adams, 5 id. 351, 357; Web-ber f Ex'rs v. Underhill, 19 Wend. 447; Moseley v. A. N. H. Go. 14 How. Pr. 71.

The following statement of the case was prepared by Mr. Justice Cassoday: While the action was pending in the county court for Dodge county the defendant applied in open court to that court for a change of venue for the reasons stated in the affidavit of the defendant then and there presented, to the effect that he had good reason to believe, and did believe, that he could not have a fair tidal of the action in that court on. account of the prejudice of Hon. S. W. Lamoeeux,…

This action was brought to foreclose a mortgage executed by the defendant Stephens to one Cook, for the plaintiff, dated June 1, 1870, to secure the payment of $2,GOO, Avith ten per cent, interest. It was thereafter duly assigned by Cook to the plaintiff. The answer of Stephens alleges as a defense that the mortgage is paid, and contains a counterclaim for a balance alleged to be due from the plaintiff to him.

The case is thus stated by Mr. Justice Cassoday: “ This action is for the strict foreclosure of two land contracts set forth in the complaint, each of which recited a consideration of one dollar, and named the plaintiff as the party of the first part,’ and the defendant, Joseph LeClair, as ' party of the second part.’' “ The contract constituting the first cause of action is dated October 26, 1882, and is to the effect that the plaintiff, on the payment to him, one year from…

This is an appeal from an order sustaining a traverse of an affidavit annexed to a writ of attachment, and dissolving and setting aside the attachment.

The following statement of the case was prepared by Mr. Justice Tayuoe as a part of the opinion: This action was originally commenced in the county court of Milwaukee county by the appellants, to foreclose a lien, claimed by the appellants as subcontractors, for materials furnished by them to the defendant Krieg as principal contractor, who was painting, etc., a building for the defendant Gross.

APPEALS from the Circuit Court for Langlade County. The facts will sufficiently appear from the opinions. They contended, inter alia, that the present town of Langlade is liable upon the orders in suit. The temporary, provisional annexation to the town of Polar did not affect the liability. Ryan v. Evans, 49 Tex. 364; Midland v. Roscommon, 39 Mich. 424; Clark v. Goss, 12 Tex. 395; Haynes v. Washington Co. 19 Ill- 66; State ex rel. Wise v. Button, 25 Wis. 109.

Action to enforce specific performance of an agreement for the sale and conveyance of land, alleged to have been made by the defendant Helen M. Skelton.

The following statement of the case was prepared by Mr. Justice Cassoday: The complaint alleged, in effect, that January 11, 1882, the defendants, as wholesale grocerymen, were occupying Nos. 318, 320, and 322, east side of East Water street, in Milwaukee; that, in carrying on their business on that day, they obstructed the sidewalk by placing across the entire breadth thereof, along in front of their said store, a skid about eighteen feet in length, consisting of two…

The plaintiff brought her action against the defendant, her husband, to obtain a divorce from him, alleging cruel and inhuman treatment as ground therefor. With a general denial, the defendant interposed a counterclaim for a divorce, charging the plaintiff with adultery.

The case is stated in the opinion. to the point that an error in an instruction inadvertently committed is not fatal where from the whole charge the jury could not have been misled by it, cited Hutchinson v. O. <& W. TU. P. Co. 41 Wis. 541; Greene dé Button Go. v. Van Vechten, 63 id. 16; Scheilte v. Johnson, 39 id. 384; Kidd v. Fleeh, 47 id. 443; Lela v. .Domashe, 48 id. 623; Kelly v. Houghton, 59 id. 400; Horsey v. P. da C. Const. Co. 42 id. 583.

The plaintiffs commenced an action by service of 'summons on October 14,1884, and on the same day made an affidavit stating that the defendant was indebted to them in the sum of $1,282.74; that the same was to become due ■upon implied contract as follows: $617.50 on October 31, ■1884;- $564.30 on November 14, 1884; and $100.94 on November 29, 1884; and that the defendant had disposed of his property with intent to defraud creditors. A writ of attachment was duly issued.