Volume 8 — Wisconsin Reports

On the 4th of August, 1843, Harvey Durkee, one of the defendants in this appeal filed his bill of complaint in the District Court of Brown… Held: was still in said Henry, whereas it turned out, as this defendant afterwards learned, that in the January previous, said Henry had made the aforesaid conveyance to said Joseph, without consideration, and for the purposes hereinafter stated, and that when this defendant afterwards learned that such a conveyance had been so made by…

The plaintiff in error was indicted, at the April Term, 1857, of the Grant circuit court for murder in the first degree, of one Peter Fagan, to which he pleaded not guilty. The venue was changed, on the application of the defendant, to Iowa county, where the cause was tried at the March Term, 1858, and the defendant found guilty of manslaughter in the first degree. Several exceptions were taken on the trial, which are made the subject of review here.

This was an action of assumpsit, brought by Daniel Wells, Jr., against Osmond Bailey, on a parol lease, a copy of which is appended to the declaration. The declaration contains a special count on the lease, and also what is called the common counts.

<p>After five or six years delay, this court will not go hack, upon a collateral proceeding, to hunt up technical errors or defects in the proceedings of inferior courts.</p> <p>After five years from the rendition of judgment, on appeal to the circuit court, from the judgment of a justice of the peace, on a motion for execution upon the judgment, the court rightly refused to consider defects in the affidavit for the appeal.</p> <p>A motion for execution upon a final judgment, and the decision of the court thereon, constitute no part of the record proper, and can only be considered in this court, when made part of the record by bill of exceptions.</p>

This was an action of unlawful detainer brought by the appellant against the respondent, in a justice’s court of Milwaukee county. The complaint alleges that Elisha Eldred being in possession of a certain piece of land situated in the city of Milwaukee, viz : (describing the same) — leased said premises by instrument in writing to Cornelius Davis, for the term of five years from the first day of May, 1855.

This was an action commenced by Mary Weeks by her next friend, Holland Weeks, against School District No. 6, in the town of Hampden, before a justice of the peace in the county of Columbia; and in which a judgment was obtained in favor of the plaintiff against the defendant, July 22, 1858, for $100 damages and $13.96 costs.

This action was commenced before the passage of the code of practice, and was a bill to foreclose two mortgages executed by John B. Shaw and Julia Ann Shaw, the one to George Wilson, arid the other to Daniel Shaw, both of which were duly assigned to the plaintiff. The judgment of the circuit court was for the plaintiff, from which this appeal is taken.

This matter first came on to be heard July 13, 1857, in probate court, in Milwaukee county, on the petition of Henry Durbin, that the will of John Wilson, deceased, be admitted 7 7 , to probate^ and on written objections thereto, filed by Calista Wilson, the widow of the deceased. These were, first, that deceased was of weak mind and incapacitated to make a will ; and second, that the will had been altered since its execution, and therefore was void.

The facts in this case are so fully stated in the opinion of the court, that it becomes unnecessary to notice them, or the arguments of the counsel, further,

This was an action brought. by the plaintiff against the defendant for the recovery of a stock of merchandise, which the defendant had taken by virtue of a warrant, from the plaintiff, of the value of $2,130.

This action was commenced by the plaintiff in the circuit court of Crawford county.

This was an action brought by the plaintiff against the defendant to recover a demand claimed to be due upon a contract. The case was brought to trial on the 11th of June, 1858 ; and judgment was rendered for the plaintiff, from which this appeal is taken. The facts to which the defendant objected are sufficiently stated by the court in its opinion, and in the arguments of counsel. 1.

This was a motion for a rehearing of the case, made by the respondent Ely. The facts will be found fully stated in 6 Wis., 244.

This was an action to foreclose a mortgage made by Henry Berliner and Julius Bruno to the plaintiff to secure the payment of $16,000… Held: in Tiernan vs. Hindman, 16, Ill. R., 400, that a proviso in a mortgage that the whole sum shall become due upon the failure to pay any one of the installments, is in the nature of a penalty, against which equity will relieve upon adequate compensation, viz: Payment of the installment due, interest thereon, and the costs in proceeding…

The printed case referred to in the opinion of the court, disclosed the facts that the plaintiffs commenced suit against the defendant, before the Code, by filing declaration on the money counts, and giving a copy of the note signed by the defendant alone on which the action was founded, with a notice that the note would be read in evidence under it. To this the defendant pleaded the general issue..

APPEAR PROM circuit COURT, MILWAUKEE COUNTY. This was an action brought by the plaintiff against the defendants for work and labor as foreman of the defendants’ brick yard, from the 5th of May to the 26th of September, 1857, at $>100 per month, amounting to the sum of $352 50.

This was an action brought by the defendants in error against the plaintiff in error, for the value of a stock of goods, mortgaged to them by Michael T. Reardon; and of the value of about $3,000. The facts of the case as proved are stated by the court in its opinion. After the plaintiffs had closed their testimony, the defendant below made a motion for a nonsuit on the following grounds: 1.

The bill of complaint is filed for a specific performance of a parol agreement of sale of the E J NW F’l J, and E J of E. \ of SW J, Sec. 13, T. 8, N. R. 18 E., containing about 106 acres of land situated in the county of Waukesha, made between the complainant, Samuel Smith, and the defendant, Jonathan Finch, the attorney in fact of George Finch.

<p>By the law merchant, the following is not a negotiable promissory note : “ Dolls. 7,500. Philadelphia, 2 mo. 22d, 1853. On the tenth day of November next, for value received, I promise to pay N. A. Middleton, seven thousand five hundred dollars, payable and negotiable without defalcation, at the Bant of Pennsylvania. JOHN W. MIDDLETON.”</p> <p>W. indorsed a note not negotiable, with the words “ pay to the order of A.” held that between W. and the holder of the note, the indorsement made it negotiable, and subject to the principles and regulations of other instruments of that character.</p> <p>The demand and protest for non-payment of a note, payable in Pennsylvania, may be proved in this State by a Notary’s certificate, made in the former State.</p>

The complaint in this case averred that the defendant on the 1st of April, 1858, carelessly set fire to a large log pile on his own lands and about three feet from the boundary of the plaintiff lands; that the fire continued to burn for three days when the wind blew hard, and blew the sparks and fire from the log pile, about twelve rods, to a straw stack of the plaintiff’s close to the plaintiff’s barn, and so burnt the stack and barn with its contents, hay, and a fanning…

The bill in this case states that on the 29th of November, 1854, Sheldon and his wife made a contract with Kelley for the sale of a quarter section of land in Cook county Illinois, for $1280, to be paid for, $100 the first of January and February each, $126,66 the first of March, $426,67 the 15th of September next after date, and $426,67 the 15th of September, 1856, with interest on all amounts due, and also pay all taxes ; that the three first payments had been paid ; that…

<p>Where there is no hill of exceptions nor case settled in a cause, the court Trill presume that the finding of the court below was authorized by the evidence, especially as it is not excepted to; and that the judgment is correct.</p> <p>The court will not review the finding of the facts in the court below, unless the party preserve the evidence by bill of exceptions or casé.</p> <p>The case of Bead vs. Wells, 7 Wis., 149, affirmed.</p>

CROIX COUNTY. This was an action on a promissory note. The facts of the case are fully stated in the opinion of the court, to which reference is made. 1. The plaintiff to recover should have proved the partnership of the first indorsers. Chitty on Bills, 228 ; 8 B. and C. 436 ; Palmer vs. Stephens, 1 Den., 447 ; 3 Humph., 209 ; Williams vs. Johnson, 1 B. and C., 44; 2D. and R., 281; Gar-rióle vs. Vickery, Doug. 653.

<p>When the sheriff had a writ of attachment returnable the first Monday of April, and did not make return until the 17th of July, and the plaintiff took no steps to procure a return to the writ, nor entered his own appearance in the case ; held that the action thereby became discontinued.</p> <p>Where the plaintiff in an attachment suit brings the defendant before the court by publication of notice, &c., enters the default of the defendant, and sues out a writ of inquiry to assess his damages, but did not previously take an interlocutory judgment ; held that for want of the entry of the interlocutory judgment, the final judgment was erroneous.</p> <p>In a case where the defendant does not enter an appearance, the plaintiff must proceed in the action strictly according to law, and the well established practice of the court.</p>

This action was commenced by declaration in the common counts, for goods, &c., sold and delivered, but in fact to recover for the value of a large quantity of nursery trees, vines &c., sold by the Drakes to Savage. There was no bill of particulars. The defendant, Savage, pleaded the general issue, and gave notice that he should prove that the trees, vines, &c., were worthless and of no value at the time of their delivery.

APPEALED PROM CIRCTJIT COT7RT, WALWORTH COUNTY. This case is fully reported in 4 Wis. 31, upon an order to set aside the order defaulting the defendant Perry, and to let in his answer, and vacating all proceedings subsequent; and which order was reversed in this court. At the January term, 1856, the complainant renewed his motion for the confirmation of the report of sale.

The bill of complaint avers, that by virtue of an act of the Congress of the United States, entitled “ an act to revive and continue in force certain acts for the adjustment of land claims in the Territory of Michigan,” approved February 21, 1823, one Pierre Challefoux, on the 17th day of September following, made claim to lot numbered twenty-seven, on the plat of private claims, situate on the west side of Fox river, then in the township of Green Bay; that in support of…

The judgment in this action, which was founded upon a negotiable promissory note, was entered by the clerk for the amount mentioned in the summons, upon the default of the defendant. It was so entered as upon a verified complaint under section 158 of the code, subd. 1, and therefore no assessment was made, by the clerk in form, of the amount due to the plaintiff The judgment was perfected November 21,1857.

This was an action of replevin in cepit by Watson, as the assignee of Simeon Dean for the benefit of creditors, against Martin, the Sheriff of Sauk county, who had seized the goods assigned by virtue of two writs of Ji. fa. issued from the circuit court of Dane county, and directed to the Sheriff. The goods consisted of a stock of dry goods, hardware, shoes, and groceries, such as is usually kept in a country store.

THREE APPEALS EROM CIRCÜIT COURT, DANE COUNTY. After the decisions in 2 Wis. Rep., this cause was remitted to the circuit court, which being then in session, the order mentioned in the opinion of the Chief Justice, was made. From that order this appeal is taken. Mr. Justice Smith sat pro forma merely, as in the other appeals.

The preceding appeal appointing a receiver being before this court on the 23d day of June, 1854, the counsel for the respondent made the following motion in the case: “And now at this day comes the said appellee, by Ifnowl-ton, Knapp & Collins, his solicitors and counsel, and moves this court to vacate the order of this court heretofore made on the 26th day of December, A. D. 1851, whereby this court overruled the motion of this appellee before that time made, to dismiss the…

After the decision of this court in the case of the Attorney General ex rel. Gushing vs. Lum, 2 Wis., 507, the writ of assistance was issued to the sheriff oí Polk county, and Cush-ing was let into possession of the premises mentioned in the bill of complaint and in the writ of assistance.

APPEAL PROM circuit COURT, DANE COUNTY. This cause was first commenced in 1848, in the county of Iowa, and thence changed to the county of Green by the complainant. While there the order of July, 1849, restoring Cushing to the possession on condition of his giving bond, &c., was made.

On the 20th of May, 1854, and immediately after the decision of this court in the case of the attorney General vs. Lum, 2 Wis., 507, the clerk of the circuit court of Dane county, issued a writ of assistance to Caleb Cushing et al., to put him into possession of the property in controversy between Hun-gerford and Cushing. This writ was served upon Hungerford and those in possession on the first of June, 1854.

This case comes up on the report of the judge of the circuit court of Jefferson county.

This was an appeal from an order of the circuit court of Dane county, discharging and setting aside an attachment issued in this case against the defendant as a non-resident, by virtue of which his property was attached and is still held by the sheriff of Dane county, to satisfy the plaintiff’s demand.

The complaint in this case averred that the defendants below and plaintiffs in error were indebted for goods, wares and merchandize, sold, &c., and there was appended to it a bill for varnishes, amounting to $253 38. The varnishes are described as wagon and carriage varnishes.

This was an action commenced by bill in chancery to restrain the defendants from erecting and maintaining a dam across the Meehan river, in the county of Waushara, The statements of the bill, and the facts of the case are sufficiently disclosed in the opinion of the court. The decree of the court perpetually enjoined and restrained the maintaining of the dam. From which the defendants appealed.

This was an action to recover damages for a malicious prosecution, brought in the circuit court by the defendant in error, against the plaintiff in error. 1.

26 APPEALS FROM CIRCUIT COURT, LAFAYETTE COUNTY. These cases now come here upon appeals from orders made by the circuit court of La Fayette county, setting aside the sales made under the executions issued by the appellant, Corwith, against the respondent. The facts in the original case are fully stated in 6 Wis. Rep., 551; where this court reversed the judgment upon which these executions issued.

The complaint in this action alleges that on or about the 17th day of July, A. D. 1857, the defendant forcibly entered upon lands owned and occupied by the plaintiff, in the fourth ward of the city of Racine, and tore down the fences and destroyed the crops thereon.

The following opinion by the late Chief Justice, was found among his papers and placed on file, after his death. The importance of the point decided has induced its report; although in what case it was made does not appear from the MS.- opinion.

This was a bill in chancery to enforce the specific performance of a contract between the plaintiff, and Loyal H. Jones, relating to a sale of lands lying at the outlet of Lake Winnebago, and embracing the town of Neenah. The bill sets forth that by an act of Congress approved March 3d, 1843, the lands on which the improvements for the benefit of the Indians had been made, was ordered to be sold under the direction of the War Department; and he made proposals to buy them.

The case being again before the circuit court for Marquette county, it was referred to Satterlee Clark, a court commissioner, who notified the parties to appear before him, and state an account between them.

This was an action of ejectment commenced in July, 1856 ; and on the first trial the verdict was given for the plaintiff, Reynolds. That judgment was reversed in the Supreme Court, and reported in 6 Wis. 214.

This was a proceeding by bill in equity, to restrain the common council from widening a street in the city of Milwaukee.