Volume 67 — Wisconsin Reports

The case is thus stated by Mr. Justice Cassoday: “July 16, 1883, between 10 and 11 p. m. the plaintiff’s intestate, Mrs. Hoye, was found dead in Buffalo street, in Milwaukee, tinder car No. 8,122 of a freight • .train .standing upon the defendant’s track No. 10. This action is to recover the damages thereby sustained.

Before this action was commenced seven separate claims were filed by the parties herein, pursuant to ch. 143, E. S., for liens upon certain reaL estate of the defendant the Meadow Spring Distilling Gom'pany, for the price of materials furnished and labor performed by the claimants, respectively, in the erection of a certain building on such real estate. Lhree of these claimants are plaintiffs and four of them are defendants herein.

Action to recover damages on account of the death of Thomas Mulcairns, the plaintiff’s intestate, who was killed on the 16th of August, 1881, by the falling of the walls of a cistern in which he was working and which was being constructed by the defendant city for the use of its fire department. The deceased was a common laborer, and at the time of his death was fifty-five years of age. He left a widow (the plaintiff herein) and seven minor children.

The following statement of the case was prepared by Mr. Justice Taylor as a part of the opinion: This is an appeal from an order of the circuit court refusing to vacate and set aside certain orders and rulings made by a court commissioner in proceedings supplementary to execution taken by the plaintiffs under the provisions of sec. 3030, E. S. 1878. The proceeding was based upon an affidavit of the attorney for the appellants.

The following statement of the case was prepared by Mr. Justice TayloR as a part of the opinion: This action was brought by the respondent to recover damages for the death of her husband, which she alleges was caused bjr the negligence of the appellant, its servants, agents, or employees; he being, at the time he received the injuries which caused his death, a passenger on one of the appellant’s trains, and b'eing transported, as such passenger, from De Pere to the city of…

EEEOE to the Circuit Court for Racine County. The case is thus stated by Mr. Justice Cassoday: “One Louis Christensen, a boy about eighteen years of age, was twice tried for the murder of Michael Schultz, June 17, 1884. Upon the first trial the jury disagreed, and on the second he was convicted. Soon after his imprisonment at Waupun he proposed to make and did make a voluntary confession, implicating the plaintiff in error and others in the murder.

A motion to dismiss the appeal was made August 31, 1886. The facts material upon such motion are as follows: The action was brought against A. Bobbins and another. Judgment by default was obtained therein against the defendants. Execution was issued, and the personal property of said Bobbins was seized by the‘sheriff, and advertised to be sold to satisfy the execution. After these proceedings, and before the time appointed for such sale, Bobbins died.

The following statement of the case was prepared, by Mr. Justice Taylob as a part of the opinion: Action to recover of the defendant bank the value of two life insurance policies, for $1,000 each, on the life of the plaintiff. One policy was a ten-year policy, and all the premiums thereon were fully paid at the time of the alleged assignment thereof by the plaintiff to the defendant.

Upon the petition of the relator a writ of certiorari issued out of the circuit court, directed to C. W. Ludtke, town clerk of the town of Cold Spring in said county, requiring him to certify and' return to that court all proceedings, matters, and things relating to the laying out by the supervisors of a ditch in said town, and relating to the appeal from the order of the supervisors laying out the same. The town clerk made due return to the writ.

The case is thus stated by Mr. Justice Cassoday: “ In two certain actions, w'herein Thomas Gilbreath and Otto Schmidt were severally plaintiffs, and Harry Deakin ei al. were defendants, and upon -writs of attachment therein duly issued, the defendant in this action, George Pasehén, as sheriff, attached the goods, furniture, and fixtures in question, as the property of said Deakin, February 11,1885.

This is an action brought by the appellant to condemn lot 12, block 75, in the Fourth ward of the city of Milwaukee, for railroad purposes. A large number of other condemnations were included in the same proceeding.

The following statement of the case was prepared by Mr. Justice Tayloe as a part of the opinion: The Standard Paper Oompcmy brought an action against the Ereie Presse Company to recover the amount due the plaintiff on account for goods sold and delivered to the defendant, and in said action Richard Guenther was garnished, the plaintiff claiming that he was indebted to, or had property in his possession belonging to, the Freie Presse Com'pany.

In July, 1885, tbe appellant instituted the usual statutory proceedings to condemn to its use a large amount of property in the city of Milwaukee, including the east fifty feet of lot 15, block 8G, in the Fourth ward, owned by the plaintiff, and situated on the northeast corner of Second and Fowler streets, having a frontage of fifty feet on Second street, and a depth of 150 feet on Fowler street.

<p>APPEAL from the County Court of Mihoaalcee County.</p> <p>The facts are sufficiently stated in the opinions.</p>

The following statement of the case was prepared by Mr. Justice Cassoday: November 9, 1885, this action was commenced in the county court for Milwaukee county against the defendant Sloteman alone, and certain property, appraised at $2,294.35, was attached, upon an affidavit therein in substance as follows: “E L. D. Kelley, being duly sworn, says that he is the agent of the above-named plaintiff and makes this affidavit on its behalf and at its request; that the above-named…

The facts are sufficiently stated in the opinion. There was a verdict for the plaintiff, and from the judgment entered thereon the defendants appealed. The cause was before this court on a former appeal, and is reported in 64 Wis. 338. for the respondent, contended, iMer alia, that no advantage can be taken on appeal of a general exception to a charge not wholly wrong. Mil. & O. B. Oo. v. Hunter, 11 Wis. 160; Tomli/nson v. Wallace, 16 id. 224; Somervailv. Gillies, 31 id. 152.

<p>APPEAL from tbe County Court of Milwaul&ee County.</p> <p>Tbe facts are stated in tbe opinion. Tbe defendant appealed from a judgment in favor of the plaintiff.</p>

The case is thus stated by Mr. Justice Cassoday: “Prior to 1870, Milwaukee county (exclusive of the city) was duly divided into two superintendent school districts, Nos. 1 and 2. No. 1 consisted of the towns of Franklin, Greenfield, Oak Creek, and Lake, and, according to the official census of the United States for 1870, then contained a population of 9,304. By the official census of the state, taken in 1875, said district No. 1 contained a population of 11,921.

The plaintiff recovered a judgment against the defendant, and issued execution thereon, which was returned unsatisfied. He then commenced a supplementary proceeding before a court commissioner, and the defendant appeared before that officer, pursuant to an order in that behalf, and made answer concerning his property. This was in March, 1885.

The facts are sufficiently stated in the opinions. A motion to dismiss the appeal was made by the respondent and argued August 31,1886. The following opinion was filed September 21,1886: By the Court. The judgment from which the appeal herein was taken, was entered May 10, 1884, and the appeal was perfected May 10, 1886.

<p>APPEAL from the Circuit Court for Milwomkee County.</p> <p>The facts are stated in the opinion. The plaintiff appealed from a judgment dismissing the complaint.</p>

The following statement of the case was prepared by Mr. Justice Cassoday: March 14, 1884, the plaintiff, by occupation a merchant grocer in Milwaukee, in consideration of $15 by him paid, procured of the defendant a policy of insurance whereby it insured the plaintiff for the term of twelve months ending March 14, 1885, and issued to him its policy, wherein the defendant, among other things, agreed in effect that “if the insured shall sustain bodily injuries, . . . effected…

ee County. This action was brought to enforce a statutory-lien for an unpaid balance of the price and value of certain materials furnished and labor performed by the plaintiffs in the erection of a house upon a specified lot in the city of Milwaukee, owned by the defendant Catherine Bonzel, upon which lot the lien is claimed.

The following statement of the case was prepared by Mr. Justice Taylob as a part of the opinion: This action was brought to recover for the use of certain rolling stock, cars, engine, etc., for the use of which it is alleged the defendants agreed to pay; also for repairs upon said stock, which it is alleged said defendants also agreed to pay for; and for damages in not returning said rolling stock to the plaintiff in good repair, as it is alleged defendants were bound to do…

<p> (lj Foreclosure of mortgage: Vacating judgment: Excusable neglect: Time within which application must be made. (8) Irregularities in sale: Appeal. (3) Waiver: Surrender of possession. </p> <p>1. An application for relief from a foreclosure judgment and sale on the ground of excusable neglect should be made within a year after notice of the proceedings. E. S. sec. 2833. Aside from the statute a delay in this case of more than six years was unreasonable and inexcusable.</p> <p>2. If there were irregularities in a foreclosure sale, the proper remedy is by appeal from, the order of confirmation.</p> <p>8. Irregularities in a foreclosure judgment and sale are waived by a defendant who, after full notice of tliem, surrenders possession of the premises, for a valuable consideration, to the purchaser at the sale.</p>

The following statement of the case was prepared by-Mr. Justice Cassoday: R. P. Eighme, the defendant’s intestate, died in the fall of 1883. At the time of his death he held a certificate of deposit of $100 against said bank, and also had a credit for a cash deposit in said bank of $91.11, both of which came into the hands of the administrator.

The action was brought to recover damages for personal injuries sustained by the plaintiff, caused by an alleged de-feet in one of tbe sidewalks in the defendant city, which it was the duty of the city to keep in repair. A trial resulted in a verdict for the plaintiff, assessing his damages at $217.

The following statement of the case was prepared by Mr. Justice Tayloe as a part of the opinion: The plaintiff, as assignee of Emil Schmidt, brought this action to récover the value of a certain stock of hardware, which he alleges had been wrongfully converted by the defendants, and to which he claimed title as assignee.

John F. Morse (the plaintiff’s intestate) and the defendant were partners in business from 1863 to 1812, when the partnership was dissolved. In 1874 Morse commenced an action against the defendant for an accounting and settlement of the partnership affairs.

The action was brought against Richard F. Conway, John McAdam, Adam Groth, and Hugo Peters, as members of the firm of Groth & Peters, upon promissory notes executed in the name oi‘ that firm.. The defendant Conway only answered. The pleadings and proceedings in the circuit court, together with the substance of the evidence given on the trial, are stated in the opinion.

The case is thus stated by Mr. Justice Cassoday : “ This action was commenced August 4,1885, for the foreclosure of a tax certificate dated May 11, 1880, and given, on a sale made on that day to C. K. Pier, with his name indorsed on the back. Uotice of Ms pendens was filed August 6. 1885. The complaint is in the usual form, and prays for a foreclosure and sale of the” lands described as in case of the foreclosure of mortgages on real estate, and is verified.

- APPEAL from the Circuit Court for Fond, clu Lac Count}'. Action to recover damages for personal injuries alleged to have been received by the plaintiff by reason of a defective highway in the defendant town. The alleged defect was a broken plank covering a culvert across the highway.

APPEALS from tbe County Court of Fond du Lao County. The following statement of the case was prepared by Mr. Justice TatloR as a part of the opinion: These actions were brought in a justice’s court of Fond du Lac county to recover the penalty prescribed by sec. 1331, R. S., for not removing a fence, which it is alleged was an encroachment upon a public highway in the town of Eden, in said county of Fond du Lac.

<p> Tax titles: Parties: Joinder of causes of action. </p> <p>1. In an action against the county board of supervisors to annul tax certificates the holders of such certificates should also be made parties.</p> <p>2. A cause of action for the cancellation of tax certificates cannot be joined with a cause of action for the recovery of the amount of the taxes unnecessarily paid into court by the plaintiffs as a condition of relief in an action by one of the holders of such certificates to bar the plaintiffs’ rights in the land sold.</p>

The case is thus stated by Mr. Justice Oassoday: “ This is an action for moneys had and received during the years 1879, 1880, 1881, and 1882, amounting to $782, which the defendant refused to pay on demand. The answer was a general denial and a counterclaim for board, etc. At the close of the trial, the jury, under the charge of the court, rendered a verdict in favor of the plaintiff and against the defendant for $657. From the judgment entered thereon the deféndant appeals.”

The action was commenced April 4, 1885. As a first cause of action the complaint alleges that the defendant hired the plaintiff to work for him for one year ending September 7, 1884, for the sum of $200; that the plaintiff worked for said term, but that the defendant refused to pay him the agreed compensation or any part thereof except the sum of $96; and that there remained due on September 7, 1884, the sum of $104, which the defendant still refuses to pay.

The case is thus stated by Mr. Justice Cassoday : “ This action was commenced in justice’s court to recover the balance due the plaintiff for the use of livery rigs, etc., alleged to have been hired by the defendant from the plaintiff, amounting to $11.50. The answer was a general denial, and pleaded payment.

Action to recover for services rendered. The plaintiff is the daughter of the defendant. She resided with her father when she reached the age of twenty-one years, and continued to do so nearly eight years thereafter. She acted as his housekeeper (he being a widower), and worked in his family and in and about his farming and dairy business during that time, and rendered efficient and valuable services. This action was brought by her to recover compensation for such services.

Replevin for a quantity of boots and shoes alleged to be the property of the plaintiff and to have been taken from his possession by the defendant, who was a constable, on February 21, 1884.

Action to recover the sum of $657.34, alleged to be due for professional services rendered and moneys expended by the plaintiffs for and at the request of the defendant in and about the prosecution of the saloon-keepers of the village of Brandon for violations of the excise laws. At the time when such services were rendered the defendant was the president of the village.

APPEALS from the Circuit Court for Fond du Lao County. . Replevin.

The case is stated in the opinion. To the point that the plaintiff should have alleged that he had no knowledge of the carelessness or unskilfulness of the engineer or of the defects in the engine, they cited D unmead v. A. M. Mining Oo. 4 McCrary, 245; Buzzed v. Laconia Manuf’g Go. 48 Me. 113; M. R. do L. F. R. Go. v. Barber, 5 Ohio St. 541; G. R. They argued, inter alia, that plaintiff’s knowledge that the engineer was careless and unskilful and the engine defective has no…

The case is sufficiently stated in the opinion. He contended, inter alia, that the service of the alternative writ was insufficient. Sec. 3450, R. S., prescribes the method of service. The original writ must be delivered to the person, body, or tribunal to whom it is directed. State ex rel. Havemeyer v. Sttpervisors, 22 Wis. 391; State ex rel.

<p> Duress of imprisonment: Bastardy: Voluntary settlement. </p> <p>While under arrest in bastardy proceedings the plaintiff paid money in settlement thereof. No threats were made to extort such settlement, and the plaintiff did not then deny that he was the father of the child, but took a receipt .by the terms of which he virtually admitted such paternity. Afterwards, in an action to recover the money as having been paid under duress of imprisonment, he denied the paternity. Held, that the payment was voluntary and the money could not be recovered.</p>

The following statement of the case was prepared by Mr. Justice Cassoday: This action was commenced in justice’s court to recover $36.50, for work, labor, and material performed and furnished by the plaintiff, at the defendant’s request, about August 20, 1884, in digging and constructing a well for the defendant.

Tbe action is trespass. Tbe complaint charges that tbe defendant broke and entered the plaintiff’s close, tore down bis fences, and did other injuries to bis freehold, to bis damage, etc. Tbe defendant answered that tbe locus i/n quo was a public highway, .legally laid out and established; that tbe plaintiff or his grantor bad neglected and refused to open tbe same after having been required to do so by competent authority; that tbe defendant was overseer of th,e road…

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

The case was before this court on a former appeal and is reported in 63 Wis. 185, where a sufficient statement of the facts will be found. After the reversal of the judgment on the former appeal, the cause was remanded to the trial court, and the venue was thereupon changed to La Crosse county.

Action to recover damages for the breach of a written contract. The following statement of the case was prepared by Mr. Justice Cassoday: November 12, 1816, the defendant Foster owned a lot of timbered lands in Clark county, Wisconsin, and a saw-mill in the town of Mentor, in that county. On the day named a large portion of the mill and machinery was destroyed bjr fire.

APPE AL from the Circuit Court for Vernon County. The following statement of the case was prepared by Mr. Justice Taylok as a part of the opinion: This action is brought to recover of the respondent city $800 which it is alleged was illegally and unlawfully received by the former village of Yiroqua for granting a license to the said appellant to sell intoxicating liquors in said village.

<p> Discontinuance of action: Reinstatement. </p> <p>1. Plaintiff's voluntary discontinuance of an action by announcement in open court and the entry thereof in the minutes of the clerk and judge, is sufficient, as against him, to put an end to the action, although no formal order has been made and the costs have not been taxed.</p> <p>2. An action after being discontinued should not be reinstated — especially not on the ground that the plaintiff’s attorney was ignorant either of the law or of a fact which he ought to have known and might readily have known before the discontinuance.</p>

The case is stated in the opinion. The tenth instruction, therein referred to, asked on behalf of the defendant and refused, was as follows: “ In determining the question as to whether the sale and transfer in question was fraudulent as to the creditors of Charles Tuckwood, you will consider as bearing thereon the evidence as disclosed by the personal property statement of William Tuel&woocl in evidence, the probabilities under the evidence of his having $1,085 to put into…

<p> Appeal to 8. O.: Order denying neto trial made after .judgment. </p> <p>An order denying a motion for a new trial made after judgment is entered, will not be reviewed on an appeal from tlie judgment alone.</p>

The following statement of the case was prepared by Mr. Justice Taylor as a part of the opinion: This action was brought against the defendant city to recover damages for an injury received while passing along one of the traveled streets of said city. T¿e injury was caused by the firing of a gun inside of a shooting gallery. The shooting gallery was a mere tent, and the ball passed through the tent and struck the plaintiff, on • the sidewalk.

The action is to recover damages for an alleged malicious prosecution. The defendant and his son were the owners of two warehouses in the village of Dexterville, Wood county, in which was stored a quantity of wooden ware. On the night of Saturday, July 7, 1883, these, warehouses -were set on fire, and, with their contents, were destroyed.

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

<p>ERROR to the Municipal Court of Milwaukee County.</p> <p>The case is sufficiently stated in the opinion.</p> <p>[No brief on file.]</p> <p>[No brief on file.]</p>

The facts are stated in the opinion. They argued, among other things: 1. A domestic manufacturing company could not give a trust deed. The enumeration of that right in sec. 1828, B. S., and its omission in sec. 1148 raise the presumption that such omission was intentional. As to the distinction between a trust deed and a mortgage, see Mcvrvin v. Titsworth, 10 Wis. 326. 2.

Action upon promissory notes given for a part of the purchase price of a harvesting machine. Counterclaim for damages from a breach of warranty. The plaintiff is a corporation. The substance of the pleadings and of the evidence given on the trial will sufficiently appear from the opinion.

Tbe appeal is from an order, made in a proceeding under sec. 1752, E. S., compelling tbe appellant, G. A. Willard, as secretary of tbe E. E. Bolles Wooden Ware Company, to transfer, on the books of said company, one certain share of stock therein to tbe petitioner. Tbe facts are stated in tbe opinion. To tbe point that tbe by-law -was unreasonable and against tbe policy of tbe common law, they cited State v. FranMin Bank, 10 Ohio, 91; Sargent v. FranMin Ins.

The case is thus stated by Mr. Justice Cassoday: “April 24, 1880, this action was commenced upon an express contract against Taylor Bros.; and the respondent, Balter, was garnished as being indebted to them or having property in his hands belonging to them. May 12, 1880, Balter answered, denying any such indebtedness or having any such property. The plaintiffs, constituting the firm of Warder, Mitchell & Co., of Springfield, Ohio, thereupon toolc issue with such answer.

<p> Levy of attachment after appointment of receiver: Proceedings to set aside: Parties: Appealable order. </p> <p>After the appointment of a receiver in an action for the dissolution of the corporation, but before, he had qualified, the sheriff levied an attachment upon the property of the corporation, which was already in his hands by virtue of previous attachments. The receiver obtained an order that the sheriff show cause why the last levy should not be set aside., This motion to set aside the levy was denied, and the receiver appealed. Held:</p> <p>(1) The motion by the receiver was not a special proceeding, but was a mere motion in the action to dissolve the corporation, to which action neither the receiver, the sheriff, nor the attaching creditor, were parties. It was therefore not the proper remedy. The receiver should have brought an independent action to set aside the levy.</p> <p>(2) The order denying the motion did not affect the merits of the action, and was not appealable.</p>

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

This action was brought to recover the sums due on eight bonds for $100 each, and interest, executed by the village of Mew London to the treasurer of the Green Bay & Lake Pepin Railway Company, or bearer, dated March 1,1872, and owned by the plaintiff. Such village was incorporated and organized in 1868 under and by virtue of ch. 504, P. & L. Laws of that year. It became an incorporated city under ch. 162, Laws of 1877.

<p>•INSURANCE against EIre. (1, Waiver of conditions: Authority of agent: Agreement to notify of falling due of premium note. (8) Loss: Deduction of unpaid premium: Statute of limitations.</p> <p>1. An. agent of a fire insurance company has authority to waive the conditions of a policy.</p> <p>2. A premium note was payable in annual instalments, and the policy provided that the liability of the company should cease upon failure to pay any instalment, but should revive again on payment provided written consent of the department superintendent were first obtained. The agent agreed to give notice to the insured fifteen days before any instalment became due. The first instalment became due July 1, 1877, but no notice was given to the insured until October 4,1877, when he paid said instalment. No claim was then made that the policy had been forfeited or that any written consent was necessary to revive the comx>any’s liability; and the' agent again agreed to give fifteen days’ notice before each subsequent instalment became due. No such notice was given, and no further instalments were paid. In May, 1881, before the policy expired, a loss occurred. Held, that the condition as to the termination of liability had been waived, and the fact that instalments were several years past due at the time of the loss did not affect such waiver.</p> <p>3. The policy provided that in case of loss the company might deduct any premium note or instalment. Held, that such right continued although the insured did not bring his action on the policy until the statute of limitations had run on the note.</p>

The case is sufficiently stated in the opinion. He contended, inter alia, that the statute requires “ the county clerk ” to execute tax deeds for the county and state “as county clerk.” Sec. 1176, E. S. The form given requires him to add to his signature his official designation. Sec. 1178. Such statutory requirements have ordinarily been held imperative, and not advisory.

The case is thus stated by Mr. Justice Oassoday: “ The plaintiff in this action of ejectment, commenced January 30, 1883, claims title to the lands described under and by virtue of a tax deed from the state of Wisconsin and county of Waupaca, to Waupaca county, executed May 19, 1877, recorded June 8, 1877, upon a tax certificate issued May 14, 1872, for the unpaid taxes of 1871; and also a quitclaim deed from Waupaca county to the plaintiff, executed and recorded May 18,…

The appeal was taken by the defendant from an order overruling a general demurrer to the complaint. The case stated in the complaint is as follows: In January, 1880, the Wisconsin Talley Bailroad Company, in consideration of $600, granted to C. A. & S. A. Sherman, in writing, the right and privilege to cut and remove from certain lands of that company the pine timber thereon, the same to be taken off by April 1, 1881.

<p> (1, SJ Immaterial errors: Muling on evidence not introduced: Failure to give instruction not aslced for. (£) Wrongful attachment: Burden of proof: Want of probable cause: Malice. </p> <p>1. An erroneous ruling that certain evidence was admissible is immar teilal if the evidence was not in fact introduced.</p> <p>2. Jn an action for a wrongful attachment the plaintiff must show malice as well as a want of probable cause for suing out the attachment. But want of probable cause, clearly proved, may boprima fade evidence of malice.</p> <p>3. A failure to instruct the jury that a certain fact was established by the evidence cannot be alleged as error when no such instruction was asked and no exception taken because it was not given.</p>

<p> Amendment of pleading: Original must he introduced as evidence. </p> <p>After a pleading has been amended the original pleading cannot be used or referred to on the trial as proof of any fact unless it has been introduced in evidence.</p>

Replevin. The case is thus stated by Mr. Justice Cas-soday: “ April 30, 1885, Henry ICurtz, the keeper of a drug-store at Medford, executed and delivered to one Hirsch a chattel mortgage of all the stock of medicine, drugs, patent medicine, store fixtures, and furniture, and all and everything in his store then belonging to him, or that he might thereafter purchase for the keeping up of said stock and said store, to secure the payment of two promissory notes of $500 each,…

The case is stated in the opinion. He contended, inter alia, that the complaint fails to show that the lack of fences was the proximate cause of the injury. It should have alleged that the horse got upon the track at a point where the defendants were bound to maintain a fence and had neglected to do so. The horse might have got upon the track at depot grounds or a highway crossing and strayed along the track to the point where it was killed.

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

The facts are sufficiently stated in the opinion. They argued, among other things, that if the defendant’s works were of the kind authorized by its charter, neither their utility nor their sufficiency can be questioned by any one, save the state alone. Wis. R. Imp. Go. v. Manson, 43 Wis. 265; Pound v. Tur alt, 95 U. S. 459; Could on Waters, secs. 129-134, and cases cited. The defendant is not liable for errors of judgment.

Action to enforce a lien for labor upon logs. The case is thus stated by Mr. Justice Cassoday : “ In October, 1883, the Comstocks made a contract with the Babcocks for the purchase of the logs in question, which the Babcocks were to cut, put in, and deliver in the Merrill boom, at Merrill, and for which the Comstocks were to pay them according to the logging scale,— the common way of buying logs.

This is an action in equity, brought in April, 1880, by the plaintiff l’ailroad company, to procure the setting aside and cancellation of a large number of tax certificates upon lands of the plaintiff, situated in Lincoln county when the lands were taxed and sold, but afterwards included within the limits of Price county. These lands were sold for nonpayment of the taxes assessed against thérn in 1876, and the certificates were issued to Lincoln county.

The following statement of the case was prepared by Mr. Justice Taylob as a part of the opinion:. This action was brought by the vendees of certain real estate described in the complaint to recover damages on account of fraudulent representations alleged to have been made bjr the vendors at the time of making the sale, and upon which the vendees relied in making their purchase.

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

APPEALS from the Circuit Court for Marathon County. The case is thus stated by Mr. Justice Oassoday: This action was commenced by Louis Schaefer, a minor, by his guardian, August 15, 1885, against Everha/rt Oster-brinh and Henry Osterbrmk jointly, upon a complaint, alleging, among other things, in effect, that December 25, 1884, while Louis was riding in a sleigh along in the public highway, with his father, the present plaintiff, drawn by a span of small ponies, the…

The defendant is a practicing physician and surgeon. The plaintiff brought this action against him to recover damages for injuries caused by his . alleged malpractice in his treatment of her, she being his patient. In Eebruary, 1884, the plaintiff, who is a married woman, gave birth to a child. A few hours after the birth a physician —■ Dr. Garrey — attended her and removed the afterbirth.

The case is sufficiently stated in the opinion. There was a verdict for the defendant, and from the judgment entered thereon the plaintiff appealed. They cited 3 Wait’s Act. & Def. 595; MoCrary v. Puddick, 33 Iowa, 521; Shelton v. Johnson, 40 id. 84; 2 Parsons on Cont. (5th ed.), 46, 58; Phillips v. Jones, 1 Ad. & El. 333; Peacock v. Peacock, 2 Campb. 45; Watermcm v. ■Gibson, 5 La. Ann. 672; James v. Bixby, 11 Mass. 34; Farmington Academy v. Allen, 14 id. 172.

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

The following statement of the case was prepared by Mr. Justice' Cassoday : “January 20, 1885, Peter St. Onge commenced an action of replevin against Robert and W. D. Connor, in the circuit court for Wood county, to recover certain logs described. Thereupon the Connors gave the requisite undertaking, with two sureties, and retained possession. Issue being joined in said action, the same was tried in said circuit court.

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

It is alleged in the complaint that the defendant village is situated within the limits of the plaintiff town, and was organized under the provisions of ch. 40, R. S. Two alleged causes of action are separately stated therein.

Action to recover a balance alleged to be due upon a logging contract. The principal facts are stated in the opinion.

The following statement of the case was prepared by Mr. Justice Cassoday: The plaintiff is an attorney at law, and was a member of the firm of Stark & Brand, of Milwaukee, from October, 1879, to May, 1884. This action is to recover for legal services and disbursements rendered to and made for the defendant by the firm, between March, 1880, and December, 1882; and in and to which Stark sold and assigned his interest to the plaintiff before the commencement of this action.

EEEOE to the Circuit Court for Taylor Comity. The plaintiff in error was convicted of rape, and sentenced to the state prison for ten years. The facts are sufficiently stated in the opinion.

St. Oroix County. The case is thus stated by Mr. Justice Cassoday: “ This action of ejectment was commenced September 3, 1884. The complaint alleged that the plaintiff was the owner in fee-simple absolute of the premises described, and entitled to the immediate possession, which was wrongfully and unlawfully withheld by the defendant.

After alleging that the plaintiffs are partners, the complaint proceeds as follows: “ That on or about the 19th day of June, 1885, the above-named Elizabeth A. Waylcmd executed and delivered to the plaintiffs, as such copartners, a chattel mortgage, of which a copy is hereunto annexed as a part of this complaint; that the property described in said- mortgage consisted of a certain stock of millinery goods and certain store fixtures, the same being all the personal property,…

Groins County. Action to recover damages for injuries to lands situated on the Apple river, alleged to have been caused by the negligence of the defendant corporation. The plaintiffs were in possession of the land, claiming title under the will^ of Mary Field, deceased wife of the plaintiff F. B. Field, which had been admitted to probate August 7, 1876. The facts will sufficiently appear from the opinion.

The case is stated in the opinion. The defendant Goodwin appealed from a judgment in favor of the plaintiff. contended, inter alia, that by the assignment the end and design of the corporation were completely determined, and such determination was a dissolution of the corporation vpsofaeto. Blee v. Bloom, 19 Johns. 473-477; Gray v. Oof-fin,, 9 Cush. 192, 203-4; Bruee v. Platt, 80 N. Y. 379.

Action for a breach of warranty. The facts will sufficiently appear from the opinion. There was a verdict for the defendant; a motion for a new trial was denied; and from the judgment entered on the verdict the plaintiff appealed.

Croix County. This proceeding was instituted under sec. 397G, B. S., by Ole Barbo, a son of the appellant, Lars Barbo, who filed in the St. Croix county court his verified petition representing that his father was insane and mentally incompetent to have the charge and management of his property and himself, and praying that a guardian of his person and estate be appointed by the court. Due notice was thereupon given, and the petition was heard in March, 1885.

The facts are stated in the opinion. They cited Horn v. Ivdmgton, 28 Wis. 82; M., II. to the point that the defect being in defendant’s own car, under its control, the plaintiff is not required to state the defects with as much particularity as if the facts' lay presumptively in his own knowledge, cited Stephen on Pleading (Tyler’s 3d Am. ed.), 328; St. John v. Worthrup, 23 Barb. 26; Richards v. Eclick, 17 id. 270; Ayres v. O. c& JST.

• APPEAL from the Circuit Court for Dcme County. The action was brought by the plaintiff, Ida J. Bishop, to recover damages for the acts of the defendant set out in the complaint. The defendant demurred to the complaint on the ground that several causes of action were improperly united. On motion of the plaintiff the demurrer was stricken out as frivolous, and from the order entered in that behalf the defendant appealed.

The principal facts are stated in the opinion. Upon his cross-examination the plaintiff testified, among other things, that he had seen pieces of coal lying along the track while he was trackman.

The case is thus stated by Mr. Justice Cassoday: “ This is an appeal from an order refusing to set aside the service of the summons in this action — the defendant having appeared specially and for that purpose only.

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

The action is brought to have the plaintiffs, together with the defendants Ole Ellingson and Soren Anderson, declared to be the sole and lawful board of trustees of the Norwegian.

The case is thus stated by Mr. Justice Cassobay: “This action of ejectment was commenced July 2,-1885, to recover the forty acres of land described. The complaint, alleged that the plaintiff was the owner in fee-simple absolute, and entitled to the possession, which was unlawfully withheld by the defendant. The answer admitted that the defendant was in possession, but denied that the plaintiff had any title, either legal or equitable.

April 10,1884, at Sheboygan, Wis., the defendant Brandt executed to the plaintiff a note for $400, payable November 15, 1884, and a mortgage to secure the same, on lands in Marathon county.

Action for a divorce. Arthur Way was the principal defendant, and his brother and sister, Seward Way and Nettie Way, were made parties as being fraudulent grantees of his property.

APPEAL -from the Circuit Court for Rock County. This action was brought to recover damages for personal injuries suffered by the plaintiff, alleged to have been caused by the negligence of the defendant company. A trial resulted in a verdict and judgment for $10,000 damages. .Motions for a nonsuit and a new trial were denied. The defendant appeals from the judgment.