McGlone v. Prosser
Wisconsin Supreme Court
APPEAL from tbe Circuit Court for Fond du Lac County. Ejectment Tbe complaint avers “that under and by virtue of a certificate duly issued, executed and acknowledged according to law by the commissioners of tbe school and university lands of the state of Wisconsin, dated tbe 20th day of September, 1850,” one Bartholomew McGlone, late of said county, deceased, was at the time of his death the owner and in lawful possession of the premises.
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APPEAL from tbe Circuit Court for Fond du Lac County. Ejectment Tbe complaint avers “that under and by virtue of a certificate duly issued, executed and acknowledged according to law by the commissioners of tbe school and university lands of the state of Wisconsin, dated tbe 20th day of September, 1850,” one Bartholomew McGlone, late of said county, deceased, was at the time of his death the owner and in lawful possession of the premises. It then alleges that the plaintiffs are his heirs; that the defendant is unlawfully in possession, &c. A demurrer to the complaint as not stating a cause of…
1Opinion of the CourtDixon, C. J.
The plaintiffs sue upon their equitable right— the right given them by the statute, as the holders of the certificate, to maintain ejectment and other actions with respect to the land therein described. R. S., ch. 28, sec. 51. It is therefore a suit upon the statute. In pleading upon a statute, an exception in the general clause must be stated and negatived, so as to show that the party relying upon the general clause is not *274within the exception. 1 Chitty’s Pl., 223; Vavasour v. Ormrod, 6 B. & C., 430 (13 E. C. L., 225); Smith v. Moore, 6 Greenl., 277. The statute contains this exception —…
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