Volume 69 — Wisconsin Reports

This was'an action by a subcontractor against the owner of a brick block, for the erection of which he had furnished brick to the contractor, to recover from such owner the value of such brick, based on his promise to pay therefor, in consideration of a release of plaintiff’s lien on the block. Defendant demurred to the complaint as showing no consideration for the promise, which demurrer was overruled, and such ruling sustained on the former appeal. 61 Wis. 195.

This is an action to recover for the loss of plaintiff Atkinson's house and other property in the city of Green Bay by a fire, alleged to have been caused by the negligence of the defendant corporation in. not providing its steamboat with, proper spark-arresters, as required by a city ordinance, and by the negligence and unlawful acts of the defendant’s '• employees in charge of such steamboat, in running it near the shore while emitting large quantities of sparks which a…

This is a proceeding by mandamus by the respondent against the appellant, a justice of the peace, to compel him to enter in his docket an adjournment of a suit which was tried before him, wherein one August Meyer and another were plaintiffs, and the said Lyman D. Green was defendant.

The plaintiff, as surviving trustee for the Brothertown Indians, sues in ejectment to recover twenty acres of land, a part of the Brothertown reservation, claimed by defendant under successive warranty deeds from a member of that tribe and his grantees. The main facts of the case are the same as in Fowler v. Scott, 64 Wis. 509. The. evidence relied upon by the defendant to establish the title under which he claims is sufficiently stated in the opinion.

In an action to foreclose a mortgage, pending at the death of the mortgagor, the plaintiff afterward obtained judgment and sold the mortgaged premises, and there being a deficiency, judgment was entered therefor against the executors of the deceased, as modified on appeal, and the same was declared to be a lien upon all of her real estate.

The following statement of the case was prepared by Mr. Justice Cassoday: June 26, 1882, a complaint was made by the mother of a child before Samuel Hayt, a justice of the peace in Sparta, to the effect that on or about August 15,1880, the plaintiff in error did beget upon her a bastard child, of which she was delivered April 23, 1881.

The case is sufficiently stated in the opinion. Among other things, they argued that the time limited by a contract within the statute of frauds for its performance may be extended by parol, citing Erwin v. Saunders, 1 Cow. 249; Bacon v. Gobi), 45 Ill. 47, 56; 2 Reed on Statute of Frauds, sec. 445, and cases there cited. A verbal acceptance of a written offer to sell lands takes the case out of the statute of frauds.

The case is sufficiently stated in the opinion. Among other things, they contended that the defendants had a right to keep back the water for a reasonable time, with due regard to all the circumstances of the case. Mabie v. Matteson, 17 Wis. 1; Thurber v. Martin, 2 Gray, 394; Davis v. Winslow, 51 Me. 290; Parl&er v. Hotehkiss, 25 Conn. 321; Wood on Nuisances, sec. 414; Bullard v. Sara-toga Victor Mfg.

The action is one for the recovery of penalties under sec. 1954, R. S., for the failure of the defendant company to file the annual statements required thereby. The substance of the complaint appears in the opinion. The defendant demurs thereto on the ground, among others, that it does not state facts sufficient to constitute a cause of action. Prom an order striking out that demurrer as frivolous, the defendant appeals.

Upon certiorari to review the proceedings of commissioners appointed by the county judge for Kenosha county, on an appeal from the decision of prior commissioners, which affirmed that of the town supervisors laying out a highway and discontinuing another highway, the circuit court reversed and annulled the decision of those commis-missioners, and the town officers, defendants, appealed. Further facts appear in the opinion.

. The case is sufficiently stated in the opinion. in person, argued, among other things, that the three years’ limitation of sec. 1188, B. S., as amended by sec. 2, ch. 309, Laws of 1880, governed this case; and that the nine months’ limitation of actions to recover back lands sold and conveyed for non-payment of taxes, prescribed by ch. 133, Laws of 1885, applied only to cases where all the conditions of fact therein enumerated co-incided at the time that act took effect.

The defendants, sought to be charged as garnishees on execution, appeal from a judgment against them. The case is fully stated in the opinion. argued that the garnishee proceeding, was equitable, and should have been tried by the court without a jury. Sec. 2766, R. S.; Fraedrioh v.- Flieth, 64 Wis. 184; Steen v. Norton,-45 id. 412; Wells v. Am. Eta]). Oo. 55 id. 33; Bates v. G., M. de Sé. P. B. Oo. 60 id. 301.

This is an. action against the assignee of an insolvent hanker to recover the amount collected by such banker for the plaintiff as the purchase money of land, and to enforce an equitable trust for the amount upon the assets in the hands of such assignee. There was a judgment dismissing the complaint, from which plaintiff appeals. The facts are stated in the opinion.

Oroix County. The facts are fully stated in the opinion. Held: 47 Wis. 340; Knight v. Keaton, 22 Yt. 480; Variehv. New Yorh, 4 Johns. Ch. 53; Beardslee v. French, † Conn. 125; Richmond v. Poe, 24 G-ratt. 149; Armstrong v. Dalton, 4 Devereux, Law, 568; State v. Pettis, 7 Eich.

The following statement of the case was made by Mr. Justice Cassoday: This action in equity was commenced by Isaac Hodges in his own name, February 13, 1884, in aid of an attachment issued in favor of said Hodges, and against N. H. and H. H. Virgin, and in- part levied upon the lands described in a deed executed by N. H. Virgin and wife to the defendant, Emma Y. Laughton, October 9, 1882, and recorded February 11,, 1884.

The following statement of the case was prepared by Mr. Justice Cassoday: This action in equity was commenced by Isaac. Hodges in his own name, February 14 and 15, 1884, in aid of an attachment issued in favor of said Hodges and against Noah H. and H. H. Virgin, and in part levied upon the lands described in a deed executed by Noah H. Virgin and wife to Eugene W. Virgin, May 1,18T9, and recorded May 9,1819, as the^ separate property of N II. Virgin.

The following statement of the case was prepared by Mr. Justice Cassodat: It appears from the record that, February 12, 1884, Isaac Hodges, a banker at Platteville, commenced an action against the defendants, in business at the same place as partners under the firm name of N. H. Yirgin & Son, upon a balance on account due from the firm to him of $58,752, also upon two notes past due executed by the firm to him,— one for $5,000, and the other for $0,000; and upon affidavits…

A criminal information was filed against the town of Saukville for a failure to repair a bridge, alleged to be a common and public bridge and part of a public highway in that town, such neglect continuing for nearly five years. Upon the trial a verdict of guilty was rendered, and a motion to set aside the verdict and grant a new trial having been denied, the defendant sued out this writ to review the judgment.

CERTIFIED from the Circuit Court for Grant County. The case and exceptions are sufficiently stated in the opinion. The Attorney General, for the state, argued, among other things, that the information in this case contained all the averments necessary in one for adultery, and that the words “ with force and against the will,” and “ ravish,” were not inconsistent therewith, since it is -sufficient to constitute that offense that it be voluntary on the part of the accused.

The case is sufficiently stated in tbe opinion. The defendant appeals from a judgment against it, a motion for a new trial having been denied. contended, among other things, that no express notice to the station agent of the obstruction Avas proved and none can be presumed. Nor ivas there proof of negligence on his part. The burden of proof of both was on the plaintiff.

This action was brought to subject to the lien of two certain judgments against the defendant Hawthorne twenty acres of land in Outagamie county, the record title to which is in the defendant Whorton, under a conveyance thereof executed to him by Hawthorne.

The facts are sufficiently stated in the opinion. Eor the plaintiff in- error it was argued that the “unfinished dwelling-house,” charged in the information to have been feloniously entered in this case, was but a hasty skeleton of four days’ growth, and not a “ building,” within sec. 4409, R. Sounder which the conviction was had. That statute creates a new grade of burglary, and must be construed with the greatest strictness. State v. Kane, 63 Wis. 260.

<p> Appeal bond: Sureties must be residents and householders. </p> <p>Bach of the sureties in an undertaking on appeal to the supreme court must possess the qualifications of bail in civil actions, required by sec. 3065, R. S., that is, he must be a resident and a householder within this state.</p>

The case is sufficiently stated in the opinion. to the point that it is essential to a legal service of a notice by mail, in order to set the statute running, that all the conditions of sec. 2821, E. S., should be strictly complied with, and, among others, that there should be no indorsement on the envelope directing a return in case of non-delivery to the person addressed, and that the proof of such compliance should be affirmative and positive, and not merely upon…

On November 5, 1883, one Joseph Bursinger executed an assignment of his property for the benefit of his creditors, to Jonas H. Sleeper, the respondent, and the same was filed in the proper clerk’s office on the following day. The as-signee qualified as such, and proceeded to execute his trust in attempted compliance with the statute. E. S. ch. 80.

The following statement of the case was prepared by Mr. Justice Taylor as a part of the opinion: This action was brought to recover $1,000 upon a certificate of insurance in the appellant companjq No. 62, duly issued to F. Stylow, the husband of the respondent. The respondent was named the beneficiary in said certificate. F. Stylow died October 29, 1885.

• The case is sufficiently stated in the opinion. They .argued that the court acquired no jurisdiction of the city for want of service of the summons upon the mayor. The facts that there was no mayor, or other officer filling his place, and that the chairman of the board of street commissioners exercised some of the functions of the mayor, did not make service on him sufficient.

The following statement of the case was prepared by Mr. Justice Cassoday : It is undisputed that about December 18, 1869, Peter 8. Twinmg gave a note and mortgage on the premises in question to one Samuel Weiner for $400; and that the balance unpaid thereon July 31, 1872, was about $200; that on that day said Peter executed and delivered a note, payable three years from date, to his brother IST.

The case is stated in the opinion. To the point that the appeal to the circuit court was of no avail and conferred no jurisdiction, because the jurisdiction of the municipal court was exclusive, they cited Taylor v.De Gamp, 68 Wis. 162. To the point that jurisdiction of the subject-matter was not conferred by consent they cited Bullard v. Kulil, 54 Wis. 544; Mathie v. McIntosh, 40 id. 120; Damp v. Dane, 29 id. 420.

The action, is upon a policy of insurance issued by the defendant company for the benefit of the plaintiff on the life of her husband, Louis Schuetze.

The case is sufficiently stated in the opinion. argued, among other things, that a strict compliance with the statute regulating the organization of corporations in all respects was essential to their corporate existence. B. da A. R. Go. v. Garey, 26 N. Y. 75; Suxvrtwout v. Mich. A. L. R. Go. 24 Mich. 389; Dan-rod v. Darner, 32 Wis. 162; Attfy Gen. v. R. R. Gos. 35 id. 600; R. S. secs. 1772,1775; Morawetz on Priv.

The action was commenced August 26, 1886, and is upon a judgment recovered against the defendant in the circuit court of the United States for the district of Wisconsin, September 13, 1866, and upon several bonds issued by the town September 1, 1856, and due September 1, 1876. The defendant pleaded the ten years’ statute of limitations to the first cause of action, and demurred to all the others.

The following statement of the case was prepared by Mr. Justice Cassoday: It appears from the record that January 25, 1886, the circuit court issued an alternative writ of mandamus against the defendants, commanding them to immediately proceed to lay out the highway described, as commencing at a point where the town road, running westerly through the southern part of section 6 in the town of Pewaukee, in said county of Waukesha, intersects the town line between the towns of…

The case is sufficiently stated in the opinion. contended that by-operation of law, a guardianship expires upon the ward’s attaining majority, and all his powers then cease. Jones v. Ward, 10 Terg. (Tenn.) 160; Perry's Lessee v. Brainard, 11 Ohio, 442; Hutton v. Williams, 60 Ala. 107.

The action is ejectment, brought to recover an undivided half of five distinct parcels of land, each of which is fully and particularly described in the complaint. The defendant in his answer claims to be the owner of the same undivided half of said five parcels, and denies that the plaintiff has any title thereto.

This action was brought to recover damages for injuries to the plaintiff, his wife, and property, alleged to have been caused by a defect in a highway in the defendant town.

AJPPEAL from the Circuit Court for Washington County. The case is stated in the opinion. They argued, among other things, that the court erred in granting a nonsuit. Evidence of adverse possession is always strictly construed, and whether the possession proved is adverse in fact is a question for the jury.

The case is sufficiently stated in the opinion. They argued that the appellant’s possession of the property was under the mortgage and rightful. The legal title was in him, and the mortgagor had only a right to redeem, which would not entitle him to maintain this action at law. Mowry v. First Nat.

The following statement of the case was prepared by Mr. Justice Cassoday: This action of ejectment was commenced May 12, 1886, and is for a strip of land described, being 120 feet in width and containing about one and-four-tenths acres, and lying on the southerly side of, and adjoining the defendant’s right of way at, Germantown station. Upon the trial the following facts were proved by record evidence, and are undisputed.

This is an appeal by defendants from an order overruling their demurrer to the plaintiff’s complaint. The grounds of the demurrer were that the plaintiff had no legal capacity to sue; that the personal representative of the deceased should have been made plaintiff or should be joined as such; and that the complaint does not state facts sufficient to constitute a cause of action. The cause of action and the allegations of the complaint are sufficiently stated in the opinion.

This action was brought to recover damages for an alleged false imprisonment of the plaintiff by the defendant. A trial of the cause resulted in a verdict for the plaintiff. On motion of the defendant the court set aside the verdict and granted a new trial, for the reason, as stated in the order in that behalf, “ that on said trial the court erred in certain of his rulings and his charge to the jury.” This appeal is by the plaintiff from such order.

The case is sufficiently stated in the opinion. They contended that there was evidence tending to show that the injury to the plaintiff might continue for some time beyond the trial, and was in that sense permanent. If the use of the words “ permanent disability ” in the charge was calculated to mislead the jury, the defendant should have called attention to it by a special objection. Morse v. Gil-man, 18 Wis. 383; Towns v. Riddle, 2 Ala. 698.

This was an action to foreclose an equitable mortgage, in the form of an absolute deed. It was tried by a referee, and on the coming in of his report the defendants excepted to his findings and moved to modify his report. Upon the hearing of that motion it was denied, and an order entered confirming the report, from which defendants Schrage and wife appeal. The arguments were confined to the sufficiency of the evidence to sustain the findings, and the regularity of the order.

The following statement of the case was prepared by Mr. Justice Oassoday: This is an action for the dissolution of an alleged copart-nership, and an accounting and receiver. The defendants answered jointly, taking issue with portions of the complaint, and setting out in Ml the writings between the parties.

The case is sufficiently stated in the opinion. in person, argued that a refusal to strike off a demurrer to the. complaint as frivolous is equivalent to holding the demurrer well taken, and is erroneous if a good cause of action can be gathered from the complaint. Biggie v. Boulden, 48 Wis. 477; Lerdall v. Charter Oak L. Ins.

The facts are sufficiently stated in.the-opinion. For the appellant it was argued that the verification was the main and essential element of the traverse, and in this case the verification is insufficient in not stating that it was true of defendant’s “own knowledge.” Secs. 2666, 2145, R. S.; 2 Till. & Shearm. Pract. .35, 36; 1 Boone, Code Pldg. sec. 34.

The following statement of the case was prepared by Mr. Justice Taylor as a part of the opinion : The respondents commenced an action upon contract against one W. E. Barlow on the 10th day of July, 1886. On the commencement of such action the respondents made the statutory affidavit, and obtained a garnishee summons against the appellant, and such summons was served upon the appellant on the 10th day of July, 1886.

The case sufficiently appears in the opinion. to the point that the certificates were valid, and therefore the money paid for them could not be recovered back, cited numerous, cases, which are referred to in the opinion. The case having been decided upon this point, others need not be noticed.

The following statement of the case was prepared by Mr. Justice Oassoday: October 5, 1886, a judgment was entered in said action in the following ivords and figures, to wit: “ The above entitled action having come on for trial before a ’jury on the 23d day of April, A. D. 1884, and a jury having been impaneled, and the same having been duly tried, II. J. Huntington, Esq., appearing on behalf of said plaintiff, and George II.

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

The facts sufficiently appear from the opinion. They contended that the deed from plaintiff to defendant Anderson was void, there being no evidence of its acknowledgment or delivery, or of an intention to deliver. Bates v. Wilbur, 10 Wis. 415; Dunbar v. Bittle, 7 id. 143; Bogie v. Bogie, 37 id. 373; Meach v. Meach, 24 Yt. 591; Fitzgerald v. Goff, 99 Ind. 28; Jones v. Loveless, id. 317.

Action to foreclose a tax certificate. The land described therein was sold to the plaintiff for nonpayment of taxes, and the certificate duly issued to him on such sale, May 11, 1880. This action was commenced May I, 1886.

■ MANDAMUS to the Circuit Judge of the Eleventh Circuit. The case is sufficiently stated in the opinion. took the ground that the trial judge alone had a discretion to say how much of the testimony should be inserted in the bill of exceptions, and that mandamus would not lie to control that discretion, citing numerous cases.

The case is sufficiently stated in the opinion. They contended that plaintiff’s testimony as to boarding the deceased related to personal transactions with him, and was inadmissible. Reed V. Jones, 15 Wis. 40; Lawrence v. Vilas, 20 id. 381; Real v. People, 42 N. T. 279. And his other testimony was incompetent. Maeh v. Slate, 48 Wis. 271; Gay v. Fretwell, 9 id. 186; VanValkeixburgh v. Milwaukee, 43 id. 574; Johnson v. Filkington, 89 id. 62; Plant's Mfg.

The following statement of the case was prepared by Mr. Justice Cassoday: This is an appeal from an order refusing to strike out seven different portions of the complaint as irrelevant and redundant, and refusing to make nineteen other different portions more definite and certain. The complaint covers seventeen printed pages, with three bills of particulars thereto annexed as a part thereof, marked, respectively, “A,” “ B,” and “ 0,” covering seven additional printed pages.

This is an application to the circuit court by the owners of all lands on both sides of an alley which runs east and west through the west half of block 67 in the Fourth ward of the city of Milwaukee, to vacate the same.

The defendant -Yorton brought an action against the Milwaukee, Lake Shore & Western Railway Company to recover damages for personal injuries alleged to have been inflicted upon him, when a passenger on one of its trains, by the employees of the company. December 2, 1881, he recovered judgment in such action against the railway company for something over $1,200, damages and costs.

The case sufficiently appears from the opinion. took theground that the month’s salary of the principal defendant was a debt “to become due,” when the garnishee summons was served, and became absolutely due before the return day, the defendant having worked out his month. Prentiss v. Danaher, 20 Wis. 313; Jones v. St. Onge, 67 Wis. 520.

<p> Appeal: Refusal of instructions, idlien not error. </p> <p>Where, in an action for an injury to a horse by working him severely when sick with the distemper, the principal question was whether the aggravation of the disease was caused by the defendant’s neglect and misuse, it was not error to refuse to give instructions predicated upon the theory that the misuse of the horse caused it to have the distemper.</p>

The following statement of the case was prepared by Mr. Justice Cassoday: This action was commenced against Sloteman alone, by summons and writ of attachment, November 9, 1885, upon an affidavit made November 7, 1885, stating the grounds thereof, in effect, that Slotemmi had assigned, conveyed, disposed of, or concealed his property, or a part thereof, with intent to defraud his creditors, or was about to do so.

The case is sufficiently stated in the opinion. They argued, among other things, that the juror challenged for favor was not entirely impartial, and the refusal of the court to sustain the challenge was ground for a new trial. Reynolds v. United States, 98 II.

Action by plaintiff to recover a balance of $380 and interest, due him from the defendant company, December 31, 1885, for labor and services.

The facts are fully stated in the opinion. Eor the appellants it was argued that the evidence offered and rejected was competent, as tending to show an independent agreement, in part founded upon the same consideration. Bonney v. Morril, 57 Me. 368; Basshor v. Forbes, 36 Md. 154; Ga/rr v. Dooley, 119 Mass. 294. A consideration additional to that recited in a conveyance may be shown by parol. KicJcland v. Menasha W. W. Go. 68 Wis. 34.

APPExAL from the County Court of Milwaukee County. This is an action by a wife for a divorce from her husband, commenced May 10, 1886, in the circuit court for Milwaukee county, and upon defendant’s application removed to the county court of that county.

The following statement of the case was made by Mr. Justice Cassodat: The plaintiff, Theodore 0. Shove, was the brother of Dan A. Shove, and the defendant was his wife. March 25,1869, Dan A. Shove procured from the Northwestern Mutual Life Insurance Company a policy of insurance upon his life for $2,000, pm-porting to be “for the sole use and benefit of Theodore O. Shove,” aforesaid.

The case sufficiently appears in the opinion. They argued that a final adjudication, in terms, that the plaintiff was not entitled to the injunction at the time he obtained it, was necessary to warrant an assessment of damages. Shearman v. N. Y. Cent. Mills, 11 How. Pr. 271; Benedict v. Benedict, 35 Hun, 305; S. C. 76 N. Y. 600; Meth. Ch. of N. Y. v. Barker, 18 N. T. 465. That decision must be upon the merits, after a full hearing.

- On November 1, 1886, four suits were commenced in the circuit court for Milwaukee county, against Louis Abraham and Martin Eukeyser, copartners under the firm name of L. Abraham & Co., by the Merchants’ Exchange Bank, the respondents Landauer and Miehelbaeher, Daniel Nast, and Max Schiller, respectively, on demands against that firm amounting in all to about $20,000.

APPEALS from the County Court of Milwaukee County. The following statement of the ease was prepared by Mr. Justice Taylob as part of the opinion: The facts in this case as set up in the complaint are substantially as follows: (1) That on and before November 17,1884, the defendants ■ Frcmk Rees and John K. Rees were the owners of a brick block, known as “Bees’ block,” situated on West Water street, in the city of Milwaukee; that said block is four stories high above the…

The case is sufficiently stated in the opinion. They contended that a contract for the sale 'of goods on approval cannot be rescinded by the vendee without a return or offer to return the property. Benjamin on Sales, sec. 595; Paige v. McMillan, 41 Wis. 337, 340; Gammon v. Abrams, 53 id. 323, 327; First Nat. Bk. v-. Larsen, 60 id. 206, 217; 2 Schouler on Real Pr. secs. 308, 312; Humphries v. Carvalho, 16 East, 45; Story on Sales, secs. 128-130; Dewey v. Erie Borough, 14 Pa.

The following statement of the case was prepared by Mr. Justice Cassoday: It is admitted by all the parties that April 22, 1886, the defendant Helen M. Skelton owned the lot and premises in question; that they were located in Milwaukee; that the defendant Knight then resided thereon as her tenant, with the right to remain thereon until May 15, 1886, when his lease expired; that she had in the fall before offered to sell the premises for $6,500; that in February, 1886, she…

The complaint in this action is ■ upon a promissory note for $500, and interest, executed by the defendant to the plaintiifs. The answer alleges that the note was given to compound the crime of embezzlement, committed by one Carl Brauns, an employee of the plaintiffs, after they had commenced a criminal prosecution against him therefor and caused him to be arrested.

The case sufíiciently appears in the opinion. They contended, inter alia', that it was improper to join a motion to strike out a pleading with a motion for judgment. Fellows v. Prest, etc. of Menasha, 11 Wis. 559.

This is a civil action in the nature of quo warranto, commenced by summons and complaint pursuant to sec. 3463, R. S. It was brought to try the right of the relator, James J. Anderton, to the office… Held: used, and exercised the same, to the exclusion of the relator, and against his rights, and in contempt of the people of the state of Wisconsin. The usual judgment of ouster against the respondent is demanded, and that the relator is entitled to' such office. .

The following statement of the case was prepared by Mr. Justice Taylor as part of the opinion: This action was brought by the appellants against the respondents, Connell and others, to recover damages for a trespass upon the real estate of the appellants. The trespass alleged to have been committed by the respondents was the removing of the bark from a large number'of trees standing and growing on the lands of the appellants, and carrying away such bark.

This was an action for injuries to the plaintiff caused by a conspiracy of the defendants. The complaint is very long, and difficult to condense and yet clearly present the points taken by counsel and decided by the court.

The following statement of the case was prepared by Mr. Justice Cassoday: It is alleged in the complaint, in effect, that the plaintiffs, as copartners and as subcontractors, had between January 1, 1884, and February 20, 1884, done work and labor and furnished materials to one James L. Judge, the principal Contractor, in and about the construction and completion of Fifth district school-building, exclusively for said city, to the amount of $329.70; that the amount due to…

The action is upon a claim for services rendered. The summons and original complaint were served January 6, 1881. On the 26th of January the parties by their attorneys stipulated in writing that the defendant might have “ten days, in addition to the twenty days allowed by law, to serve and file his answer herein, and that the'plaintiff have leave to amend his complaint before the expiration of ten days.” The complaint was amended by certain erasures and interlineations.

, The action was brought to recover for the use of a delivery wagon alleged to belong to the plaintiff, and for certain injuries thereto. The answer admits the use of the-wagon, and a small part of the injury charged, but alleges that the wagon is the property, of one O. T. Sloteman, and contains a counterclaim for an account against the latter.

Tbe following statement of tbe case was prepared by Mr. Justice Tatloe as part of tbe opinion: This action was brought to restrain the respondent from committing waste bj*- tbe removal of certain trade fixtures from the premises occupied by tbe respondent as tbe tenant of tbe appellant. A temporary injunction was obtained on tbe esa parte application of tbe appellant at tbe commencement of the action.

Action for the breach of a promise to many, and for seduction in reliance upon such promise. On the first trial the jury gave to the plaintiff a verdict for $1,050; on the second trial a verdict for $3,500, and on the third trial one for $2,144. The testimony upon each trial was substantially-the same, except as appears in the opinion.

The facts are sufficiently stated in the opinion. He contended, among other things, that the defendants could not avail themselves of any agreement by plaintiffs’ agent not to charge interest, because they had not set up that defense in their answer. Sec. 2055, R. S. Interest was chargeable according to the usual course of business, and defendants could relieve themselves from its payment only by showing a valid agreement to that effect, founded on a good consideration.

The case is sufficiently stated in the opinion. ■ They took the ground that our statute does not make a declaration to the witnesses, or a knowledge by them of the nature of the instrument they are signing, essential to the validity of a-will, citing cases referred to in the opinion and many others. They also insisted upon the presumption in favor of the testamentary capacity of the testatrix, and of the absence of fraud and undue influence.

The following statement of the case was prepared by Mr. Justice Cassoday: The complaint, verified February 4,188J, alleged, in effect, that the plaintiff was elected and qualified as register of deeds of Waushara county; that as such he occupied the office of register of deeds at Wautoma, provided by the county; that, December 1, 1886, the defendant, without his consent, took and continued to hold possession of said office, and occupied a table, and books and records…

The case is sufficiently stated in the opinion. argued, among other things, that the plaintiff’s title and possession were both admitted in the answer and a stipulation served and filed before the trial, and on her recovering less than $50 damages the defendant was, under sec. 2920, R. S., entitled to costs. The plaintiff’s title is admitted by defendant’s plea of license, and also by his denial of the trespass.

This action was brought in justice’s court, to recover the purchase price of a quantity of trees alleged to have been sold by the plaintiff to the defendant. The plaintiff recovered before the justice, and the defendant appealed to the county court. A trial in the latter court resulted in a judgment of nonsuit, from which the plaintiff appeals to this court.

This is a proceeding by a laud-owner to have her premises condemned for the use of the railroad company, respondent herein, for its right of way, and to have commissioners appointed to appraise her damages. The facts sufficiently appear in the opinion. The petitioner appeals from an order denying her application.

This is an appeal from an order refusing to hold an assignee for the benefit of creditors liable as garnishee of the assignor. The facts sufficiently appear in the opinion. They argued, among other things, that the claim in the inventory as to exempt property renders it indefinite and uncertain, and therefore void. This case does not come within the decisions in this state on that subject. Goll v. Ilubbell, 61 Wis. 293; First Wat.

The defendant appeals from a judgment against it. The case is sufficiently stated in the opinion. To the point that the preliminary or parol contract of insurance was complete, they cited Fames v. Home Ins. Go. 94 U. S. 621; Train v. Hol-la/nd P. Ins. Go. 62 ÜST. T. 598; Fitton v. Fire Ins. Association, 20 Fed. Eep. 766; Baldwin v. Ohouteau Ins. Go. 56 Mo. 151, and numerous other cases. The terms of insurance were settled.

The following statement of the case was prepared by Mr. Justice Cassobay : This action was commenced February 17, 1886, for the foreclosure of a mortgage upon real estate executed January 2, 1877, by one Conrad Maurer (since deceased), and the defendant Marie Maurer, then his wife and now his widow, given to secure a promissory note of even date, executed by said Conrad, and both running and payable to the plaintiff’s intestate, for $1,200, two years from the date thereof,…

The case is sufficiently stated in the opinion. They argued, among other things, that the plaintiff had made at least a prima facie case, and to nonsuit was error. Gay v. Frelwell, 9 Wis. 198. The defendant’s possession was a gratuitous loan, revocable at pleasure, and revoked by demand before suit. Story on Bailments, sec. 277; Madgéburg v. Uihlei/n, 53Wis. 167/

In 1880-81 the defendant Pierron was treasurer of the city of Fond du Lac; and the plaintiff’s intestate, Thomas Mason, James Gaynor, Charles B. Bartlett, M. D. Moore, Leon Lallier (the defendant), John Hughes, and Robert A. Baker were his sureties in his official bond as such treasurer. By the failure of a bank in which Pierron had deposited the city funds, he became largely in default to the city, and suit was brought by the city on such bond, against him and his sureties.

Justice Taylor as part of the opinion: This is an action to recover damages for a personal assault by the appellant upon the plaintiff and respondent. The action was commenced against the defendant, who is not a resident of this state, but is a resident of the state of Illinois.

County. .The case is sufficiently stated in the opinion. They argued that notice of the dissolution of a partnership was necessary to relieve a retiring partner from liability on a note subsequently executed by the continuing partner in the firm name, and the burden of proof thereof is on him, citing authorities.

The following statement of the case was prepared by Mr. Justice Cassoday: This action of ejectment was commenced October 31, 1883.

This is an action for a trespass in leaving open a gate erected by the plaintiff at the end of a private way which crossed his land. The defendants owning .the easement claim the right to have it kept open. All the other essential facts appear in the opinion. Among other things, they contended that by describing the private way by metes and bounds, and making the highway the boundary at one end, the grantor had conveyed an open way.

This is an action for goods sold and delivered by the plaintiffs to the defendants prior to October 1¿ 1885. The complaint alleges that the defendants were partners, and demands judgment against them as such for the price and value of such goods. The defendants, by their duly verified answer, denied that they were partners, as alleged in the complaint. A trial resulted in a verdict against both defendants for the amount of plaintiffs’ claim.

The case is sufficiently stated in the opinion. contended that a petition to intervene should be granted only to protect the rights of the defendant or third persons against a fraudulent or unjust judgment. The plaintiff’s judgment in this case is acknowledged to be just. 1 Wade on Attachment, sec. 37; Horn v. Yolcano Water Go. 73 Am. Dec. 569; 13 Cal. 62; New Orlea/ns O. dé B. Go. v. Beard, 79 Am. Dec. 582; Brown v. Saul, 16 Am.

The following statement of the case was prepared by Mr. Justice Taylob as part of the opinion: This is a proceeding bj? mandamus issued out of this court on the petition of the said town against the judge and clerk of the circuit court of La Fayette county, to compel said judge to direct the clerk to enter judgment, and the clerk to enter judgment upon a verdict of the jury, which it is alleged was returned by said jury to said court on the trial of an action in which…

The case is fully stated in the opinion. Among other things, they argued that the administrator might, under license, sell the real estate subject to the appellant’s mortgage. Secs. 3871, 3875, 3897, E. S. This may be done even after partition among or a sale by the heirs. Pierce v. Pierce, 64 Wis. 75; Kammerrer v. Ziegler, 1 Dem. 177. It was his duty to apply for license as soon as he ascertained that the estate was insolvent.

The following statement of the case was prepared by Mr, Justice Cassoday: The defendant was, during the times herein mentioned, sheriff of Grant county.

The nature and bistory of the cause sufficiently appear in the opinion. They contended that the complaint shows that the appellant has not yet completed the construction of its road on and across the highway in question, and hence does not show any unreasonable delay in restoring the same.

The action is trespass quare clausum fregit by Daviclson, respondent.

The facts are sufficiently stated in the opinion. For the appellant it was contended that damages were properly awarded to the respondent MoKee, for laying the highway through his land, and he did not appeal therefrom, and a town order for the amount was duly tendered to him. Due notice was also given him to remove his fence, and he had refused to comply therewith, before the defendant, as road overseer, removed the same by order of the supervisors.

The case is stated in the opinion. That shows that the testatrix, by tbe instructions first given for drawing her will, intended to give a portion to the appellant; that she was dissatisfied with it as drawn and intended to change it and give him the largest share; and that she supposed the will was broken by her afterward conveying away a portion of the land.

The following statement of the case was prepared by Mr. Justice Cassoday : Among the machines attached by the defendant herein as sheriff of Grant county, by virtue of the attachment mentioned in the statement of the case of Bawson Mfg.