Volume 1 — Greene's Iowa Reports

<p>Error, to Dubuque District Court.</p> <p>This action was commenced by Pratt against Hubbard in assumpsit, on a promissory note. The defendant pleaded the statute of limitations; to which the plaintiff in his replication averred in substance, that he ought not to be barred from having and maintaining his cause of action, because, at the time when the cause of action accrued, the said Hubbard was out of the territory, and that within six years after he came ■ into the territory this suit was commenced. The defendant rejoined, that the promissory note mentioned in the plaintiff’s declaration was made and executed in the state of Connecticut, and at the date thereof and at the time the cause of action accrued, he was a resident of said state, and that he had never resided or been within this territory until the time mentioned in the plaintiff’s replication. To this rejoinder the plaintiff demurred; but the court considered the facts set forth in the rejoinder sufficient in law to bring the case within the statute of limitations, and gave judgment accordingly for the defendant.</p> <p>contended that the district court erred in overruling his demurrer to the rejoinder;'and in deciding that it should be governed by the statute of limitations of the territory of Iowa. See Rev. Stat. 386, § 8. Ruggles v. Keeler, 3 John. 263, Note (a.)</p> <p>In the case of Ruggles v. Keeler, cited by plaintiff in error, the statute of limitations was not pleaded, consequently the question decided by the court was not properly in the case. But the greatest blunder of all is, that this decision is made upon the authority of the case of Rupleix v. Re Roven, 2 Vern. 540, a case which Mr. Kent, in the first part of his opinion, says “ arose a short time before the proviso in the statute of Anne ;” and before he gets through with his opinion, he goes on to show that Lord Talbot, in that very case, was of opinion that the proviso extended to foreigners as well as to others; now we ask the court how Lord T. could have hadan opinion with regard to a statute which was not then in existence 1 Courts have heretofore, gone to extraordinary lengths, to explain away the statute of limitations, but the odium which once attached to this statute has now worn off; and it is properly construed like all other statutes of general utility. 1 Howard, Miss. 190 ; 3 Peter 278.</p> <p>In case of Fisher v. Hamden, 1 Pain, 55, Judge Livingston ‘ says, “ the court here disclaims all right or inclination to put upon statutes of limitations which are among the most beneficial to be found in our books, any other construction than their words naturally import.” Now we ask the court what is the “natural import” of the words “absence,” and “ return,” both of which occur in the proviso in our statute. They cannot be applied to a stranger, who is moving here from abroad; either of those terms imply a previous residence, 3 Cowen and Hill’s Notes to Phil. Ev. 903; 9 East, 192.</p> <p>There are several decisions in Johnson’s Reports, that one partner, after the dissolution of the partnership, can, by a new nromise, revive a case barred by the statute of limitations.</p> <p>But these decisions have all been overruled in the supreme court of the United States, and in numerous1 other courts: Bell v. Morrison, 1 Peters, 360; Pike v. Greene, 1 Yerger, 465; 3 Harrison, N. J., 265.</p> <p>The replication is not good. It uses the word “ come ” instead of “ return.” He should show himself to be one of those, persons described in the proviso.</p>

This was an action of replevin by Peter D. Harman against William Goodrich, to recover a span of horses and a wagon.

<p>Error to Dubuque District Court.</p> <p>referred to the following authorities : 2 Greenleaf’s Ev., § 484 ; 14 John., 215 ; 10 ib. 66 ; 1 Howard, Miss., 527; 2 Blaclcf. 29 ; Montagu on Part. 97, and note.</p>

1. The court below erred in sustaining tbe demurrer to tbe pleas. They show that there was no breach before the death of Stewart. The question is, are the administrators liable for a breach that occurred after the death of Stewart ? If so, what constitutes a breach of that covenant by the administrators?

<p>Error, to Linn District Court.</p> <p>It appears by the bill of exceptions that Lucore had sold the land, so that he was unable to convey it to the plaintiff. This dispensed with tbe necessity of demanding a deed. Blann v. Smith, 4 Blackf. 517; Gil. Dig. 771.</p> <p>Tbe court erred in giving tbe jury instruction, that it was tbe duty of the plaintiff to tender a deed for defendant to execute. This we admit to be the English practice; but it has never been adopted in the United States. Buckmaster v. Grundy, 1 Scam., 314 ; 2 Randolph, 20; 2 McLean, 495; Gil. Dig., 134, 779.</p> <p>The evidence on our part is not very fully stated in the bill of exceptions, but the court will presume that the instructions were applicable to the case, and had an influence on the jury; and if the instructions were erroneous, the judgment must be reversed. 11 Wheat., 59 ; Peyton v. Bowell, 1 Blackf., 244 ; Rogers v. Lamb, 3 Blackf., 156; Senard v. Patterson, ib., 359.</p> <p>As to first point, we say, that it does not appear that Lucore had sold the land, and was unable to convey to plaintiff; on the contrary, it appears that the defendant is so able to convey, that plaintiff has filed a bill in chancery, now pending, to compel him to convey.</p> <p>As to second point, we say the court did not instruct the jury as averred; but that one of defendant’s attorneys suggested, that plaintiff should tender a deed for defendant to execute. But had the court so instructed, and admitting the instruction erroneous, the plaintiff can take no advantage of it here; as the bill of exceptions affirmatively shows that the contract, so far from being rescinded, was then in that court being enforced by plaintiff’s bill for specific performance; and also, because the bill of exceptions shows that no demand even, was ever made by plaintiff of defendant for a deed, nor by his attorney as such. Julius E. Sanford demanded a deed, but exhibited no authority to make such demand, and named no person to whom such deed should be executed. The interrogatory to the witness was leading and illegal; and the witness did not give the reply or refusal of defendant to make a deed. The most favorable presumption, then, to plaintiff is, that the defendant was silent, as lie should have been, at the impei’tinence of a stranger, in making such a demand.</p> <p>If the bill of exceptions shows that the $50 was paid to defendant for a certain tract of land; we answer, that it also shows that the contract has not been rescinded; and before an action of assumpsit can be sustained the contract must be rescinded.</p> <p>The bill of exceptions shows that the $50 were paid for a part consideration. That plaintiff had agreed to purchase a certain eighty acres of land, and deed half to defendant, in consideration of defendant’s claim on the same; and, having failed so to do, plaintiff paid the $50 in consideration and satisfaction thereof.</p> <p>The bill of exceptions does not give all the evidence relative to the $50 ; and such evidence as it does recite clearly shows that the plaintiff could not recover; and the case went to the jury under so much confusion and uncertainty of proof, that no instruction of the court could work a prejudice to the plaintiff.</p> <p>An erroneous instruction of a judge, which works no prejudice to the party, forms no ground of reversal of the judgment. 2 U. S. Dig., 162; 3 Gill & John., 450.</p> <p>Nor will a judgment be reversed on a writ of error, where it appears that the plaintiff sustained no injury from the error. 2 U. S. Dig., 162; 3 J. J. Marsh., J1J.</p> <p>An error must be a manifest one which will reverse a judgment ; probability that the judgment is erroneous is not sufficient. 2 U. S. Dig., 164 ; 1 Halst., 132; 3 Littel, 14.</p> <p>A bill of exceptions liable to the charge of ambiguity, uncertainty, or omission, ought, like any other pleading, to be construed most strongly against the party who prepared it. Gil. Dig., 96; 3 Scam., 6.</p> <p>The bill of exceptions here belongs to plaintiff.</p> <p>All the evidence should be embodied in the bill of exceptions. This bill refers only to certain evidence tending to show the facts. Gil. Dig., 93; 2 Scam., 50T; ib. 355; Lurton v. Carson, 2 Blackf., 464.</p>

<p>Error, to Henry District Court.</p>

<p>Error, to Lee District Court.</p> <p>referred to 15 Petersdorff’s Abt., 215; 3 Scam., 388; Crawford v. Harvey, 1 Blackf., 382.</p> <p>Demurrer is a proper mode of defence. 1 Saund., 225. A contract made against law is void; and the note upon its face shows the illegal character of the transaction. 2 Peters., 538; 15 Mass. 35; 11 id., 258; 1 Pick., 53.</p>

<p>The rule of practice which prohibits the attorney of a party in a case to act as commissioner in taking depositions under a dedimus, or to write down the testimony of a witness to be used ou the trial of a cause, does not apply when the attorney is himself the witness, and reduces his own evidence to writing.</p> <p>It is proper for a witness to write his own deposition, and swear to it before the commissioner duly authorized.</p> <p>Statements made, not under oath, by a witness relative to the subject matter in controversy, may be admitted on the trial to discredit Ms testimony ; but if such contradictory statements are not supported by other proof, they must yield to Ms evidence given under oath upon the trial of the cause.</p> <p>Where a lost promissory note, which was made payable to bearer, is the ground of an action in chancery ; to enable the complainant to recover, he must indemnify the defendant by bond and security against all claims on the note. Such indemnity may be required by decree of the court, and the complainant authorized to recover on compliance therewith, and on payment of costs.</p>

Appeal in Chancery, from Louisa District Court. This was a bill in chancery, by Dunham against the defendants, for an injunction to stay proceedings at law, on execution. The bill states the following facts. On the 30th day of August, 1844, execution issued against the complainant, for the sum of two hundred and eighty-eight dollars debt, and twenty dollars costs, and was directed to be levied upon particular lands therein described.

referred to Walters y. Junkins, 16 Serg., and R. 414; Commonwealth y. Gibson, 2 Virg., Cas., TO. contended that there is not such a substantial variation between the judgment of the court and the verdict of the jury, as to justify reversal, Simmons v. United States, Morris 490.

<p>Error, to Lee-District Court.</p>

<p>Error, to Washington District Court.</p>

<p>Error, to Des Moines District Court.</p>

Error, to Johnson District Court. Information in the nature of a quo warranto, against Asa Calkin, for unlawfully holding the office, and… Held: had not been published as required by the fourth article and twenty-seventh section of the state constitution. There is but one question presented to the court in this case. Was the act in force at the time of the election 1 It is not contended that the law had been published in pamphlet form, and distributed prior to that time.

<p>When the error alleged is not apparent of record, the legal presumption is, that the proceedings in the court below were correct.</p>

<p>Error, to Dubuque District Court.</p> <p>This was a petition filed by M. J. Sullivan against B. J. O’Halloran, for a mechanics’ lien. The defendant pleaded the general issue, and notice of set-off. Trial by jury, and a verdict of one hundred dollars for the plaintiff below.</p>

<p>The acts of congress relative to the authentication of public acts, records, and judicial proceedings, have no reference to inferior tribunals, created by municipal law, such as justices of the peace; but they refer to the proceedings of courts possessing general jurisdiction.</p> <p>The method of authenticating the correctness of a justice’s transcript, is left to the statutory regulations of the respective states ; and should conform to the law of the state in which they are to be adduced in evidence.</p> <p>Under the statute of Iowa, the certificate that the person making a transcript, was a justice of the peace, as therein stated, should come from the clerk of the county court, under the county seal, and not from the clerk of a court of common pleas; unless the laws of the.state from which the transcript is brought, should be produced to show that he was the proper officer to certify the same.</p> <p>Parole evidence that the defendant examined the transcript of a justice, and acknowledged that the judgment had been rendered against him by the justice therein named, is admissible, and entitles the transcript to faith and credit; although the defendant did not admit it to be a correct copy of the original record, and declared the judgment to be unjust, but that it had not been paid. Such admission concedes the official character of the justice, and the amount of the judgment. In such an action the justness of the judgment cannot be inquired into.</p> <p>While it will be presumed in law, that a court of general jurisdiction acted within the sphere of its authority, a court of limited and special jurisdiction will be required to show the law conferring the jurisdiction it exercised.</p> <p>After the correctness of the judgment and the jurisdiction of the justice, are duly established, the same faith and credit are given to them, as is given to the judgment of a court of general jurisdiction.</p>

<p>A ease having been once determined in the supreme court, it cannot be brought up a second time, by writ of error.</p>

<p>The division of the state into four judicial districts, by the statute which took effect on the 10th day of February, 1847, produced a vacancy in the office of district judge in each judicial district; which vacancy continued till the election of district judges by, the people on the first Monday in April following.</p> <p>During srich vacancy no writ could -issue from the district court with the requisite attestation of the judge.</p> <p>The territorial judges, holding over under the constitution of the state, could not act as judges of the supreme court, and also of the district courts; as the two offices in the same person are constitutionally incompatible.</p> <p>The note of the secretary of state, appended to an act of the general assembly as published in pamphlet form, stating that the act was published in ■ certain papers at a given date, is not evidence of the fact.</p> <p>The courts will determine, as they are bound and are presumed to know, ex-officio, when a law takes effect.</p>

<p>Error, to Henry District Court.</p>

<p>The coverture of the defendant may be given in evidence under the general issue.</p> <p>Where the defendant had been living apart from her husband, but both within the state, for About- two years, when she gave a note as feme sole to the plaintiff who knew the fact of her marriage, it was error in the court to instruct the jury that the proof of coverture was no defence to the action on the note. ’ •</p>

<p>Error, to Clinton District Court.</p> <p>contended that the fact of'stolen goods being found buried on the farm of the prisoner some twenty months after they were stolen, affords not a presumption against him, until it is cleaidy shown that he buried them there, or at least had a knowledge of their being buried there; and even at so remote a period, were they actually in Ms possession, the courts should have ordered him discharged, without having put him upon his trial, see 1 Car. and P., 452, where the only evidence against the prisoner was, that goods which were stolen sixteen months before, were found in the prisoner’s possession. Bailey, J., directed an acquittal without calling on the prisoner for his defence, cited in 9 Petersd., 171, note; “The possession of stolen property soon after robbery, is not in itself a felony, it only raises a presumption that the prisoner is the thief.”</p> <p>Recent possession of goods, not according to the habit and circumstances of the party charged,,is a presumption against, him. McNully, Ey., 579. Gilb’t Ev., 899.</p> <p>When a jiresumption is raised against the prisoner, from the fact of goods being found secreted about his premises shortly after the theft, it must be clearly shown that he must necessarily have lmown from his intercourse with, and access to the place where they were secreted,- that he saw them, or that they could not have escaped his observation, in the necessary discharge of his daily avocation.</p> <p>Presumptive evidence of felony should be cautiously admitted, for the law holds that it is better that ten guilty men should escape, than one innocent man should suffer. 4 Black. Com., 352 ; 2 Hale, P. C., 289.</p> <p>Yet, notwithstanding these humane provisions of the law, the jury were instructed in this case, that the mere fact of the stolen property being found on the prisoner’s land, buried some twenty months after they were stolen, was itself prima facie evidence that he stoic it. If this, decision is to be maintained as the law of the land, any evil-disposed person could at pleasure incarcerate any one on the slightest pretext. To recognize this as a correct rule of law, would be an inovation of the established practice; aye more, it would be an abrogation of all the decisions upon this one point, for the last hundred and fifty years.</p> <p>Although the courts are not inclined to grant new trials, when the object is only to impeach a witness; yet they ought not to be so jealous of the reputation of a witness, as to prejudice the rights and liberties of a prisoner; and if, as in this case, the evidence discovered will establish the innocence of the accused, upon principles of justice, as well as of law, he certainly should have the benefit, even if upon the trial the guilt of his prosecutors should become apparent.</p> <p>cited 1 Cow. and Hill’s notes, 424, 426; 5 N. H., 203.</p> <p>insisted that a new trial should not be granted on an affidavit stating that the newly discovered witness had told the party what he would say. Shumway v. Fowler, 4 John., 425.</p> <p>“ The newly-discovered testimony must go to the merits of the case, and not to impeach the character of a former witness. The People v. The Superior Court ofJVew York, IQ Wend. 292.</p> <p>“ New trials will not be granted to impeach witnesses who testified on the former trial.” Halsey v. Watson, 1 Caines, 24; Duryee v. Dennison, 5 John., 248. Bun v. Hoyt, 3 John., 255. Jackson Ex. Dem. Rowley v. Kinney, 14 John., 186.”</p> <p>“ A party moving for a new trial, on the ground of newly-discovered evidence, is bound to produce the affidavits of the witness from whom such evidence was to come, setting forth the facts, or show that such affidavit could not be obtained.” Denn. v. Morrell, et al., 1 Hall, N. Y., 382.</p> <p>“ On a motion for a new trial, on the ground of newly-discovered evidence, a case of what transpired on the trial must be presented.” Anon. 7 Wend., 331.</p> <p>United States Digest, vol. ii, p. 754, sec. 65, on a charge of shop breaking and larceny, possession of part of the stolen goods is prima facie evidence of the larceny. 1 Mass. 6.</p> <p>Possession of stolen goods is prima facie evidence of guilt, whether the circumstances amounted to a possession, or how far they were such as to rebut the presumption, is fox" the iury to determine. 7 Ver., 122; State v. Weston, 9 Conn., 527.</p>

<p>Under «the criminal code of Iowa, an accessary before tbe fact may be indicted and convicted as principal.</p>

<p>Error, to Des Moines District Court.</p> <p>moved the court to dismiss the writ of error on the ground that it will not lie in a case in chancery, but should come up by appeal: 6th article of constitution, section 3d.</p> <p>An appeal removes a cause entirely, subjecting the facts as well as the law to a review and now trial. It, has its origin from the civil law; but a writ of error is of common law origin, and removes nothing for examination but the law. Wiscart v. Dauchy, 3 Dali., 321, 327; 1. Cond, 146 ; 3 Story, on the Constitution, 627, 628; Howard’s U. S., 63.</p>

<p>A contract with an attorney to attend to a suit in the district court alone, does not authorize him without further authority to take the cause to the supreme court; nor can he recover compensation for services in the supreme court without showing that he was employed to render the service, or was in some way recognized by his client as attorney in the suit.</p>

<p>In equity, when the bill sets out and seeks to enforce a usurious contract, it is not necessary for the defendant to plead the usury in order to prevent a decree for the usurious portions of "the contract.</p> <p>Before a debtor can secure aid in chancery to avoid usury in a contract, he should tender to his creditor the principal and legal interest.</p> <p>A creditor, before seeking to obtain a decree upon a bill disclosing usury, should allege therein a willingness to abandon the usurious portion of the contract; otherwise a demurrer to the bill should be sustained.</p>

<p>A usurious contract, under the statute of Iowa, is not void.</p> <p>A note, payable two years after date, to bear interest at fifty per centum after due, until paid, is not usurious.</p>

<p>Error, to Jackson District Court.</p>

<p>Error, to Muscatine District Court.</p> <p>In the opening argument, the following authorities were submitted by Hastings: As to judgment, non obstante veredicto, &c., Stephens on PL, 97 ; Chit, on Con., 767, 768, 770; 2 Gill, and John., 508. As to plaintiff’s right to a voluntary non-suit, 2 Wend., 295 ; Graham’s Pr. 310.</p> <p>1. The plaintiff claims a reversal of the judgment, because the court refused him a non-suit. Our statute forbids it after tbe jury leave the box. Rev. Stat., 472, § 18. In this case, it was not asked until they had returned the verdict.</p> <p>2. That the court refused a new trial. Admitting for a moment, that this court can reverse, for this cause; is there sufficient matter shown on the record, to satisfy this court that the court below erred in this 1 The note was settled, by giv ing a collateral security, with which the plaintiff rested more than four years, without any notice that the paper he received, was unproductive, or unavailing; and without an offer to return, or reassign. No authority read or cited by plaintiff, shows that a party can maintain an action, or the original con sideration, without an offer to return the collateral security, if he has received any. And is it not plainly inferrable from the record, that the defendant was willing to pay the whole note, if the plaintiff would cancel or reassign the judgment! What terms were alluded to by defendant, with whieh he required a compliance, other than a re-assignment, before he would pay ! Under the circumstances of the case, made by the record, the defendant takes the ground that the jury were right in treating the negotiation of Sept. 25, 1842, as an accord and satisfaction of the note.</p> <p>It is stated in 2 Greenl. Ev., 4 8l, that “ whether an accord with a tender of satisfaction is sufficient without acceptance, is a point upon which the authorites are not agreed. It is, however, perfectly clear, that a mere agreement to accept a less sum in composition of a debt is not binding, and cannot be set up in bar of the original contract.” Again, in the same section, it is said, “ But whether, where the agreement is for the performance of some collateral act upon sufficient consideration, a tender of performance is equivalent to a satisfaction, seems still to be an open question, though the weight of authority is in the affirmative.”</p> <p>The question stated in the last extract seems so clear upon the principles of common sense, that it may well he wondered how any combination of the artificial rules of law can suggest a different result. The matter has vexed the courts of common law for centuries, yet we cannot recognize any principle, whieh has been clearly set forth, or steadfastly adhered to.</p> <p>The whole difficulty appears to be referable to a curious doctrine which gained favor with the courts, and is stated in Allen v. Harris, 1 Ld. Raym., 122. It was there held that a promise for a promise constituted a mere nudum pactum. In accordance with this idea, an accord without satisfaction was held bad. But the cases in which this was originally decided, though they announce the result, do not contain the reasons upon which the rule is said to be founded. One of the earliest cases is reported in 43 Edw. III., 33. That was an action of trespass, and the plea was an accord, but there was no allegation that the plaintiff had performed his part, for which reason it failed.* In 16 Edw. IV., 8, Catesby contended that a plea of accord was good, and Littleton held with him. This case seems to be wholly overruled in Robinson v. Leavitt, 7 N. H. 73, and in Wentz v. DeHaven, 1 S. & R. 312. The case reported in 17 Edw. IV., 8, was an action of trespass, and a plea of tender and refusal was held bad. Of course, no tender can be made in the case of unliquidated damages. The next case is in 6 H. VII., 10. This was an action of trespass, and no tender was alleged.' Consequently the plea of accord failed. These three cases of trespass are constantly cited to support the doctrine that an accord without satisfaction is no bar. But they all turn upon the well known rule that in an action ex delicto a tender cannot be pleaded. Yet in Peytoe’s case, 9 Co., 77, tho court saw fit to recapitulate them, and by a misconstruction of them to introduce a cardinal error into the law. Peytoe’s case was an action of ejectment, and a question seems to have been raised in the course of the discussion, by the sergeants, which had nothing to do with the case. The question was this, “ whether, if a man be bound to do any collateral act, the obligor cannot, by accord between them, give money or some other valuable thing in satisfaction, as well as where he is bound to ¡>ay money, in which case he may give a horse or any other valuable thing in satisfaction thereof V’ The court, “ to satisfy the said question moved amongst the sergeants,” saw fit to go over the whole law of accord and satisfaction, and establish a number of principles which really do not result from the authorities they cite. They there enunciate the rule, which does not seem to have been ever fairly stated before, that if the thing is to be performed at a day to come, tender and refusal are not sufficient without actual satisfaction and acceptance.</p> <p>The influence of this blunder may be easily traced, though it was a great while before the question came fairly before the court. In Tassall v. Shane, Cro. Eliz., 198, the case failed, among other things, for want of a tender. In Case v. Barber, Sir T. Raym., 450, the statute of frauds came in the way. Allen v. Harris, 1 Ld. Raym., 122, was merely a case of the liquidation of damages. In Lynn v. Tlf!M!Ífcfc317, the court relied wholly upon Lord mas, 2 Wils., 86, it was held, that the faction, because an equity of redemptij which is not now true.</p> <p>In 1810, the whole matter came befo^ ^ at nisi prius, in the case of Bradley vJ* 385; and either because he forgot some of the*i?arlior decisions, or because his great mind was superior to such quibbling, he took a position before unheard of. A tender had been made agreeably to the terms of a previous accord, and Lord Ellen-borough held that as the defendant had done all in his power to complete the compromise, a party should not be permitted to say that there had been no satisfaction, if the satisfaction had been offered. It would bo unjust.</p> <p>Yet twenty-seven years after, Ch. Just. Tindal, in the C. B., reiterates the doctrines of Lord Coke, and thinks the current of authority too strong for contradiction. In the state of New York, the dextrine of Lord Ellenborough has been sustained in the case of Coil v. Houston, 3 Johns. Gas., 243, where the court expresses its opinion.</p> <p>The second case stated in Prof. Greenleaf’s work seems perfectly clear upon principle. The original compromise evidently amounts to an independent executory contract of imperfect obligations. It may certainly be decomposed into the four essential elements to which all contracts are reducible ; competent parties, a subject of the contract, a consideration for it, .and an actual consent. The first and most natural objection is the supposed inadequacy of the consideration. Bayley v. Homan, 5 Bing., 920, Bryant v. Gale, 5 Ver., 421; and if the agreement should be stripped of its attending circumstances, it is hardly to be supposed that any one would relinquish any part of a just claim, without a motive. But to neglect these surrounding circumstances, would be to omit tho most important part of the transaction. And so says the law. Commencing with the case of Cumber v. Wane, 1 Strange, 425, the courts have repeatedly declared, that a security of an equal sum cannot be pleaded in an action for the larger one. All this results naturally enough from the doctrine of consideration, but it also results that the creditor may violate his promises with impunity, though freely and honestly given, and with as much solemnity as attends the ordinary transactions of life. Brooks et al. v. White, 2 Mete., 283. Tho natural influence of such a rule would be to promote bad faith in the business world, and the courts have readily'seized upon any circumstances which would obviate the theoretical difficulties of extinguishing a debt by the payment of a less sum. Thus, where there is any collateral act to be performed, which may raise a technical legal consideration as against the payee, tho courts have refused to apply the rule of Cumber v. Wane. For instance, if the smaller sum is to be paid at an earlier time, or at a more convenient place, or if a third person is to become responsible, or if it is to be paid in articles of a different nature; in all these eases, subject to a few qualifications which will be mentioned in their place, tho law will protect and enforce the compromise. There is one moj^ class of cases of a more recent date, where the ingenuity of the bench has been taxed to the utmost to overcome the technical difficulties, which are set forth in Cumber v. Wane. These are the bankruptcy cases, where the debtor enters into a composition with his creditors to pay a certain per centage of their respective demands, upon which he is to receive a complete release, the courts deciding that the consent of the other creditors eonstitutes a sufficient consideration to save these contracts from any technical objections. Such exceptions prove the narrowness of the original rule.; and all must admit them to be in accordance with strict justice, and well calculated to preserve the harmony of society. And it is not a little amusing that the old judges should have attacked these compromises, quoting the maxim, “ Interest reipublicce ut sit finis UtumW Their advocates have since adopted the same maxim, and with far more justice.</p> <p>On these grounds, we venture to lay out of the case all objections founded upon any supposed inadequacy of consideration. The next serious objection we have already alluded to by calling such compromises contracts of imperfect obligation. This objection, upon principle, is far from clear, but is, nevertheless, so well fortified by authority that it must be admitted that an accord executory is no bar. It must be executed. The rule is laid down in Peytoe’s case, being one of the gifts of the old judges, contained in their lecture to the sergeants. It has since been generally followed, and Mr. Wallace, in his elaborate note to the case of Cumber v. Wane, (1 Smith’s Lead. Cas. 253,) deduces it as an indispensable requisite to a good accord and satisfaction. It would bo more consistent with common justice to pay more respect to promises, and to recognize the obligation of a contract operating as an accord and satisfaction, with a promise to accord at a future day, as well as of a contract for the sale of goods, with a promise to deliver at a future day. By the civil law, the obligation developed by a novation, -which seems closely to resemble an accord and satisfaction, differs in regard to the necessity of execution. A novation is the substitution of a new debt for an old; but it does not follow that a new debt must be discharged before the creditor loses his remedy on the old. On the contrary, the whole debt is as completely extinguished, as it would be by an actual payment; so that (to state a strong case,) if one of several debtors, in solido, should contract a new engagement with the creditor, as a novation of the former debt, the former debt would be extinguished, and his co-debtors released. Poth. Obi. n. 563. And in a delegation, which is but another name for a novation, whereby a third person assumes the obligation of the original debtor, the discharge of the latter does not depend on the payment of the debt, by the party delegated, but is completed by the delegation, unless it is expressly stipulated that the debtor shall, at his own risk, delegate another. But these provisions are peculiar to the civil law, and we, who number the common law among our Anglo-Saxon inheritances, must take it as it is.</p> <p>In the civil law, the principle is set forth in the case of the pactum constitutes pecunia, which is a new promise to discharge a previous obligation, and the debtor, by offering to perform this promise, can be liberated from the previous obligation, per exceptionem pacti, as it is called. The effect of such an obligation is thus illustrated by Pothier, Obi. part ii., c. 6, sec. 9, § 4: “ Suppose a person, who owes me thirty pistoles, has promised to give mo six gallons of wine, of his own vintage, in payment, this pact does not destroy the former obligation. -I may, by virtue of that, demand from my debtor the thirty pistoles, and my demand may, ipso jure, be supported; but as I have agreed, by the fact that he may pay me, instead of this sum, six gallons of his wine, he may, per exceptionem pacti, on offering such wine, require to be liberated from my demand of thirty pistoles; his former obligation, which was a pure and simple obligation to pay me precisely the sum of thirty pistoles, receives, by the pact, a modification, and becomes an obligation of thirty pistoles, with the power of paying the six gallons of wine in its stead.55</p> <p>Now, governing our case by the analogies, does it not result that every accord is a contract of which, what is technically called satisfaction, is a condition precedent — that the requisite consensus animorum takes place at the time of the compromise; and that, after that compromise has been effected, it is no longer discretionary with the creditor, whether he shall be bound by his promise, but he must be satisfied with a fair performance.</p> <p>Why, when it is so generally admitted, in every other case of contract, that a tender and a refusal constitute a sufficiently good performance of a condition precedent, it should be denied in cases of accord, is difficult to perceive. The whole trouble originated in the utter inability of the old common-law judges to understand the fluctuating value of a chose in action. For a long time, they held that they were not assignable. Now, there are some who hold that their value is the same under all circumstances. ■ •</p> <p>We are not enthusiastic admirers of the civil law, nor do we wish to do injustice to the memory of the early judges. We thought, however, that the present case might afford an amusing instance of the obstinacy with which one of the old common-law fortifications has withstood repeated attacks by the civilians and the merchants. Wo thought it also not a little amusing, that in constitutional England, and almost under the shadow of the parliament-house, they should have succeeded, by misrepresenting the year books to the sergeants, in ingrafting a rule upon the common-law, which exerts almost as much influence upon the transactions of daily life as any statute of the realm.</p> <p>In regard to the position taken by Prof. Greenlcaf, although it is so consistent with common sense, and it is to be hoped it will be adhered to in cases which may arise hereafter, it ought not, perhaps, to be said that “ the weight of authority ” is on that side, unless the clear and manly decision of Lord Ellen-borough is thought to outweigh all the doctrines of Lord Coke and his followers.</p> <p>There seems to be three classes of accords. The first includes cases of torts, in which clearly there can be no tender. The second is represented by the case of Cumber v. Wane, and includes those cases where there is an agreement to pay a lesser sum for a greater. In these cases, there is the technical defect of the want of consideration. The third embraces those cases, where there is some new consideration moving at the time of the accord. .In these the intent governs. Brook et al. v. White, 2 Mete. 28S.</p> <p>The ruling in Coke’s Report, set up here to negative the idea, in a question before a jury, of an accord and satisfaction, is almost the only relic of the subtilo law of his time, which has survived the inroads of the commercial system. We conclude, then, that this question being submitted to a jury, without any instruction from the court, that their decision is not only in accordance with the weight of authority, but in accordance with the enlightened spirit of the age; and the court did not err in refusing a new trial.</p> <p>3. That the court refused to give a judgment non obstante veredicto ; and to sustain this, wo are referred to Stephen on Pleading, p. 9T, which says: “ This motion is made in cases where, after a pleading by the defendant in confession and avoidance, as, for example, a plea in bar, and issue joined thereon, and verdict found for the defendant, the plaintiff, on retrospective examination of the record, conceives that such plea was bad in substance, and might have been made the subject of demurrer on that ground. If the plea was itself substantially bad in law, of course the verdict, which merely shows it to be true in point of fact, cannot avail to entitle the defendant to judgment; while, on the other hand, the plea, being in confession and avoidance, involves a confession of the plaintiff’s declaration, and shows that he was entitled to maintain his action. In such case, therefore, the court will give judgment for the plaintiff without regard to the verdict; and this, for the reason above explained, is also called a judgment as upon confession.</p> <p>No case is cited, where such a motion has been sustained under the general issue.</p> <p>The bill of exceptions contains and sets forth a motion for a new trial, for reason that the verdict was against the evidence, and that the verdict Ayas unsustained by the evidence.</p> <p>That evidence Avas¿ on the part of the defendant, the matter set forth in the affidavit; and on the part .of the plaintiff, the fact of the possession of the note, and Fennimore’s offer to pay it on certain conditions.</p> <p>The plaintiff’s debt is thrown into a precarious condition by inexperience. Justice requires a new trial, if it can be granted consistently with the rules of law; and I believe it can, with entire consistency.</p> <p>Is the evidence sufficient to warrant a verdict for defendant ? The affidavit says he settled the debt, &c. The word settle is ambiguous ; it has many meanings. In relation to pecuniary demands, it more commonly means reduce to certainty. It sometimes moans paid, but more rarely.</p> <p>But its meaning here is fixed by the subsequent statement, that he settled the demand, in the following manner. Now if that following manner does not amount to a payment, then there is no payment. What ivas this manner 1 By assigning a judgment to one creditor for the benefit of several. He nowhere says it was given or taken in payment or satisfaction.</p> <p>This notice amounts to a plea of accord' and satisfaction, or of payment. A plea of the former kind must surely show that the thing was taken in satisfaction. And a plea of payment would have to aver that it was taken in payment or satisfaction. 3 Blackf., 355.</p> <p>But farther: the assignment or transfer of a note, or other chose in action, is not a payment of a former demand, unless it be so expressly taken, and it must be so alleged. Chit, on Con'., (Ed., 1842,) pp. 749, 750, n. (2,) 767, n. (1,) 772; 2 Pick., 204; 2 John., 455; 4 ib., 296; 6 ib., 110; 9 ib., 410.</p> <p>It seems to me, therefore, that neither the form nor the substance of this affidavit, and its averments, amount to a payment or satisfaction, even when taken alone.</p> <p>, But how much is the force of the facts in the affidavit lessened by the evidence of the plaintiffl 1. Showing possession of the note, thus manifesting -clearly that it was not considered paid by the parties. 2. By Fennimore’s' offer to pay the note, on certain conditions, and so making it clear that he did not regard it as paid.</p> <p>The court will perceive that the affidavit is not a clear, open, and definite statement of a payment; but an artful, carefully-drawn, ambiguous instrument. '</p> <p>Justice requires a new trial, that the facts of the case may be investigated. I trust the court will grant it, and we will cheerfully submit to the terms which they may prescribe.</p> <p>On granting a new trial, sec 1 Blackf., 229; 8 Scam., 486; 2 ib., 351.</p> <p>Whether a verdict is against evidence or not, is a question that cannot be raised on a bill of exceptions. Foot v. Wisnall, 14 John., 305 ; Whiteside v. Jackson, 1 Wend., 418; 7 Wend., 471.</p> <p>The notice appended to the plea is no part of the record. Plcdgar v. Glover, 2 Porter, 174.</p> <p>The case in 14 John, is not in point. The abstract is too broad. See the opinion of the court.</p> <p>The case in 7 Wend, is that the facts merely, unmingled with law, cannot be'inquired into by a court on error.</p> <p>. But whether the verdict is against law on the facts, or whether the verdict is supported by the evidence, taking law and facts in view, is another question. See 1U. S. Dig., 414; §§88,410,131.</p>

<p>A count for the asportation of goods may be joined with a count for trespass, guare clausum fregit.</p> <p>Applications to amend pleadings should always be allowed when the tendency is to advance justice; and especially when the amendment contemplated is to narrow down, and not to extend the allegations.</p> <p>It being a matter of discretion with the court to allow or refuse an amendment, except in cases authorized by statute, it cannot ordinarily be made the ground of error.</p>

<p>Error, to Muscatine District Court.</p>

<p>Error, to Dubuque District Court.</p>

<p>In order to bring papers, used on the trial below, before the supreme court, as a part of the record, they should be incorporated into the bill of exceptions, or plainly identified thereby.</p>

<p>Error, to Muscatine District Court.</p>

Error, to Cedar District Court. This was an action of assumpsit, brought by Hardacre against Miller, in the district court, Cedar county, returnable to September term, 1846. The presiding judge failing to hold a term in September, this cause, among others, stood continued until the' May term, 1847.

Error, to Muscatine District Court. This was an action of assumpsit, commenced in the district court, on a promissory note. Judgment for the plaintiff. A full statement of the case, to understand the points decided, is not necessary.

<p>Error, to Muscatine District Court.</p>

Error, to Johnson District Court. The indictment in this case was found in the district court of Cedar county, and the venue was changed to Johnson county. The statement of the case, like most of the others reported, is sufficiently set forth in the opinion of the court.

<p>In computing the time of serving process before the return day, the day of service should be included, and the day of return excluded.</p>

Error, to Jones District Court. The first reason assigned for error in this cause, is the overruling the plea in abatement of defendant below. It will be seen that the suit is brought in the name of “ the hoard of commissioners of Jones county that the writ commands the sheriff to summon to answer unto the board of commissioners of said county.

Error, to Clayton District Court. The only question in this case is, whether a witness may be impeached by showing a general bad character, and not by confining the inquiry as to his character for truth and veracity. In this case, it was proposed by the plaintiffs in error, to prove that a witness, examined by defendant in error, was of general bad character.

Appeal in Chancery, from the Cedar District Court. This was a bill in chancery, filed by Daniels, to foreclose a mortgage against Wilkorson. Bill states that Wilkorson owned the E. half of N. W. quarter of section 9. T. 8. N. R. 3.

Error, to Cedar District Court. The facts in this suit are : 1. Jennings being owner, conveyed the land to Tomlinson, Aug. 9, 1841. 2. Tuthill attached the land in a suit, v. Jennings, Sept. 24, 1841. 3. Tuthill got judgment, May, 1842. 4. Deed from Jennings to Tomlinson, recorded Oct. 11, 1842. 5. Tomlinson conveyed to Brown, Oct. 12, 1842, and recorded same day. 6. Property sold on Tuthill’s judgment, Nov. 19, 1842. 7.

Error, to Lee District Court. This was an action of debt against John M. Young, on the record of a judgment from the state of Indiana. Plea, nul tiel record. Judgment for the plaintiffs. It is objected that the transcript of the judgment was not properly authenticated, nor correctly described, and therefore erroneously admitted in evidence. The particulars of the objection are shown sufficiently in the opinion of the court.

Error, to Muscatine District Court. In several of the positions taken by the defendant below, and which are contained in the hill of exceptions, we were met by the answer, that they could not be taken by, or against, third persons. We wish to examine this answer. We admit that some errors in process are amendable. Of some, advantage can be taken only by the party or his privy. But we hold tho above answer too broad, as applied to this case.

Error, to Cedar District Court. Stephen Whicher, Esq. made application to the commissioners of the county of Cedar, for compensation as an attorney under the direction and appointment of the district judge, in defending a pauper prisoner. The commissioners declined making satisfactory allowance; and the claim was submitted by agreement to the district judge, who decided that an attorney is not entitled to remuneration from the county, for such services.

Error., to Muscatine District Court. On motion to reject the bill of exceptions, and strike from the record the papers therein referred to.

Error, to Louisa District Court. This case was tried and brought up under the territorial organization of our courts. Held: that “ affidavits of jurors may be received to show, that in making up their verdict they adopted a principle, in estimating damages, not allowed by law.” See also, to same point, Morrow v. McLennan, 2 Penn. 918; Sawyer v. Stephenson, Breese, 6.

<p>A person cannot be rendered liable on a bill of exchange or promissory note, unless his name, or the style of the firm of which he is a member, is attached to some portion of it as a party.</p> <p>Where W. M., as authorized agent, drew a bill of exchange to the order of P. M., for means furnished his principals, T. & W., in carrying on their business, and appended the word “ agent,” without stating for whom he was agent, it was held that W. M., on being released from liability to P. M., became a competent witness to prove the nature of the agency transaction; and for that purpose, that letters between him and his principal were admissible. It was also held, that as P. W. advanced the means under circumstances which justified the belief that the principals, T. & W., were responsible, and would pay the amount advanced for their benefit, he might file the bill for cancelation, and recover on the money counts.</p>

Error, to Des Moines District Court. This was an action of assumpsit, to recover the value of certain work and labor done, and materials furnished by the plaintiff, at the instance, and for the benefit of the defendant, Bridges. A trial was had at the October term, 1848, upon the defendant’s plea of non-assumpsit, to the plaintiff’s declaration, and a verdict rendered for the plaintiff, for two hundred dollars.

<p>Error, to Lee District Court.</p> <p>cited Rev. Stat. p. 187, § 15; 14 John. 272; 15 ib. 213; 5 Wend. 423; 7 Cowen, 266; 3 Caine, 307.</p> <p>referred to 3 Hill, 261; 10 Mass. 391; 14 Wend. 250.</p>

<p>Nothing appearing in the record to the contrary, it will be presumed that the officer in a replevin suit obtained a bond as required by law, from the plaintiff, before executing the writ.</p> <p>When judgment is rendered for more than two witnesses’ foes, it will be pre- ■ sumed that the certificate of the judge, that more than two were necessary, was regularly made.</p> <p>Questions in relation to costs should first be adjudicated in the court below on a motion to re-tax.</p>

Error, to Des Moines District Court. 1. This note is indorsed.to plaintiff, without date, and is presumed to have come to his hands before due, and is subject to no such defense as set up. 2. It was made, as shown by the record, at Iowa territory, under the statute of1 1839, p. 381. § 1, and is to be “taken to be due and payable,” to the person to whom given, and is assignable by law.

Error, to Des Moines District Court. This Avas an action of trover, commenced by Austin and others against Peasley. Vérdict and judgment below for the defendant. The only objection urged to the proceeding is in relation to the exclusion of a witness’s testimony; the par- / ticulars of which are set forth in the opinion of the court.

<p>Error, to Henry District Court.</p> <p>This was an action of trespass on the case, commenced by Eddy and Sewell, against R. and J. Wilson and Henshaw, to recover damages for injuries sustained by the plaintiffs, upon the dam of the defendants, in navigating the waters of Skunk river with a flat boat. Issue was joined on the first and fourth counts of the declaration; and a demurrer sustained to the second and third. These counts aver among other things, that by an act of the legislative assembly of the territory of Iowa, authority was given to Robert Wilson, his heirs- and assigns, to erect a dam across Skunk river, upon condition that it' should be so constructed as to contain a convenient lock of stated description, for the passage of steam, keel, and flat boats; but that he built the dam without such a lock, and in consequence, in attempting to navigate the river with their flat boat, it struck upon said dam, and sunk with all the loading. As the sufficiency of these counts was not particularly decided upon by the supreme court, it is not necessary to quote them in detail. The objection alleged as cause of demurrer was, the second and third counts do not show that the defendants, J. Wilson, and Henshaw, were either the heirs or assigns of R. Wilson, or were in any way bound to put a lock in the dam. 2. They do not set forth sufficient cause of action against the defendants. 3. The declaration does not show the plaintiffs’ right to navigate the river; nor aver that it was or is, a navigable stream, or public highway. 4. The counts prove the plaintiffs to be trespassers upon R. Wilson’s mill-dam. The record does not show upon -which of these grounds the demurrer was sustained. Upon trial on the other two counts, after the evidence on the part of the plaintiff was concluded, the court directed a non-suit as to Henshaw. A verdict of not guilty, and judgment in favor of the other two defendants.</p>

<p>Parole testimony is admissible to explain the inducement and ciroumstancos of a record entry made by mutual consent, where such evidence has no tendency to contradict or vary the record.</p>

In Equity. By writ of error, under territorial laws, to Des Moines District Court. A bill in chancery, filed by Bridgeman and Partridge against Pbilinda Donaldson and William Phinney, administrators, with the will annexed of Calvin Donaldson, deceased; and also against A. Donaldson, A. Marten, and A. Doolittle.

<p>Error, to Des Moines District Court.</p>

Error, to Des Moines District Court. cited Wilkie v. Jones, Morris, 97. The third cause of error assigned seems to be the only one relied on by plaintiff in error; to support which, reference is made to the case of Wilkie v. Jones, Morris, 97. 1.

Error, to Des Moines District Court. An action of assumpsit on a promissory note, by Hugh McCollock, for the use of Andrew Snyder, against Azariah Gregg. By consent of parties, the cause was tried by the court without a jury.

Error, to Des Moines District Court. The following points and authorities were submitted by Mr. Stockton: 1. Judgment in district court, Des Moines county, {Dyer v. English) rendered June 19, 1838. 2. Execution issued thereon, and returned, October 6,1838. Returned November 26. Second execution issued January 28, 1843, and returned. 3. English bought the land of U. S., October 28, 1839. 4. Iowa statute relating to judgment liens, was approved January 16,1840. 5.

<p>Error, to Des Moines District Court.</p> <p>This was 'an action of replevin, commenced before a justice of the peace. The case was taken to the district court by appeal, when the jury returned a verdict for the defendant, and assessed his damages at eight dollars. Judgment was accordingly rendered against the plaintiff for the eight dollars damages; and for one hundred and eighty dollars and seventy-one cents, costs of suit. The only question raised in the supreme court, as will be seen by the opinion, is in relation to costs.</p>

In Equity, by writ of error to the Des Moines District Court, under territorial laws.

<p>S. set forth in his bill that S. B. & Co. obtained judgment against him, in February, 1840, for the sum of two hundred and thirty-four dollars, upon which execution was issued, and levied upon eighty acres of his land, which was, in May, 1842, sold to G., as attorney.for S. B. & Co. In May, 1844, and some time after the period for redeeming the land had passed, G. conveyed it to C., one of the firm of S. B. & Co. The bill charged that the sale was not duly advertised, and that since the sale, S. had redeemed the land by paying the amount of the judgment to S. B. & Co. The answer of S. B. & Co., duly sworn to, admits the sale of the land as alleged, but denies that it was not legally advertised and properly conducted, and utterly denies that S. had redeemed the land from the sale, or paid one dime towards it; but explains that S. S., the brother of S., had paid to them §218, 28, which was placed to the credit of said S. S. on their books, with the understanding that when he paid the balance of the judgment against S., with the additional sum of about §400, which they claimed to have against him, that they would convey the land to S. S., in trust, for the wife and children of S.; that the sum of §218, 28 was never applied towards redeeming the land, but in 1843 was paid over to the administrator of S. S,; that S. was in no way recognized in the transaction, and that the only pay they had received on the judgment was from the sale and purchase of the land through G., their attorney. The deposition of G. supports the answer in many particulars; but the depositions of B. and S. prove an admission from C. that the judgment had been paid off, and that the land would be deeded to S. only upon conditions similar to . those set forth in the answer of S. B. & Co. Held, that the admission of C. was too ambiguous to justify the belief that S. had satisfied the judgment, otherwise than by the land which was sold under execution, and that such testimony was not sufficient to overcome the more definite proof by G. and the explicit answer of S. B. & Co. under oath, strengthened by the lapse of time, no proof of effort, and no receipt of payment by S. Held also, that the understanding with S. S. had been rescinded by his administrator, in demanding and receiving back the funds he had deposited with S. B. & Co.</p> <p>Where testimony is ambiguous, and there is doubt as to its correct application to the facts in question, the promotion of truth, and justice to the witnesses, require that construction which will render-it as consistent as possible with the opposing evidence.</p>

Error, to Bes Moines Bistrict Court. This was an action of replevin, commenced by Isaac N. Leffler, agent for Peter Van Bergen, against Abner Martin. As the declaration had not been filed within the time required by law, the plaintiff was nonsuited ; and a jury of inquest was awarded, who found for the defendant, and assessed the damages at one hundred dollars.

<p>Under the statute, the names of the witnesses, upon whose evidence an indictment is found, should be noted upon it. But where the witness was not objected to at the trial on that account, the irregularity will be regarded as waived, and will afford no ground for a new trial.</p> <p>Had the witness been objected to, and the objection overruled by the court, the proceeding should have been made matter of record by a bill of exceptions, in order to make it cause of error.</p> <p>When the accused is found guilty on the uncorroborated testimony- of an accomplice, it aifords good cause for a new trial.</p> <p>An accomplice should not be admitted as a witness without a previous order from the court, made on an application, showing that there is no other person by whom the offense can be proved; that the witness is not more guilty than the person on trial; and that his testimony can be substantially corroborated.</p> <p>Though a particeps criminis is not an incompetent witness, the court should instruct the jury not to convict of felony on his uncorroborated testimony. Such corroboration should bo in facts tending to establish the guilt of the accused.</p> <p>A verdict for larceny should fix the value of the property stolen.</p> <p>"Where the errors below pertain chiefly to a motion for a new trial, the judgment will not he arrested, but a venire de novo awarded.</p>

Error, to Henry District Court. The rules of construction which govern remedial statutes are not applicable to the construction of creative and disabling statutes, and to statutes for raising revenue. The doctrine in pari materia, does not apply. 9 East. 44; Rogers v. Goodwin, 2 Mass. 475; 3 ib. 215, 523; Ayres v. Knox, 7 ib. 306, 523 ; Pearce v. Atwood, 13 ib. 354; 12 Pick. 223; 10 ib. 505 ; Ludlow v. Johnston, 3 Ham. 553; 3 Caine, 259; People v. Allen, 6 Wend. 486.

Error, to Des Moines District Court. An action of assumpsit on a promissory note, made by Abner Martin and J. L. Bradley, payable to Fear and Ralston, or order, and indorsed in blank by John S. Dunlap. The suit was commenced against Dunlap alone, by a declaration containing six counts; the first charges Dunlap as maker; the second and third as guarantor ; and the other three are for money had and received, an account stated, and for goods sold and delivered.

<p>Error, to Bes Moines District Court.</p> <p>cited 1 Chitty, PI: 370; Roberts v. Smith, Morris, 417.</p> <p>cited 7 Wend. 315, 318; 2 Blackf. 338 ; 1 Paine and Duer’s Prac. 358, and note.</p>

Error, to Lee District Court. An action of assumpsit on a promissory note, made by Joseph Norris, on the 2d July, 1830, promising to pay Samuel Slaughter the sum of five hundred dollars, in five years after date. The declaration contains several special and common money counts. The defendant pleaded non-assumpsit, no consideration, and the statute of limitations.

<p>Error, to Henry District Court.</p>

<p>In a deposition, the answerB of a witness should be substantially responsive to the interrogatories.</p> <p>Where a demand is placed in charge of an attorney to collect without limitation, he is authorized to receive the money after procuring a judgment, and to enter satisfaction. If the client assigned the judgment to a third party, and after the transfer the judgment-debtor paid the same to the attorney of record, it was held that, as the debtor had no- notice of the assignment, he should be protected from further liability.</p> <p>An attorney has no right to receive anything but money in satisfaction of a demand placed in his hands for collection, unless especially authorized to do so by his client.</p>

<p>In Equity. Appeal from Des Moines District Court.</p>

<p>Upon finding a verdict, the jury should assess damages, and not the court.</p>

Error, to Henry District Court. This was an action of assumpsit and attachment. The attachment bond appears to have been filed on the 81st July, 1845 5 but was approved by the clerk of the Des Moines district court, instead of the clerk of Henry district court. Notice of the proceedings was published in the Territorial Gazette, as appears by the publishers5 sworn certificate, for six •consecutive weeks after the March term of 1846, of the district court of Henry county.

<p>Where a proceeding in chancery appears to have been brought to the supreme court by writ of error, under territorial laws, the case will be decided upon such errors only as are assigned, and appear of record.</p> <p>The evidence in such a case is no part of the record, unless embraced in a bill of exceptions.</p> <p>Unless the contrary affirmatively appears, it will be presumed that a decree in the court below was justified by the evidence.</p>

<p>Error, to Henry District Court.</p>

<p>In Equity. Appeal from Henry District Court.</p> <p>Mr. Walker submitted the following authorities : 1. That the arrangement between the parties did not amount to a contract to convey. 2 Story’s Equity, § 751. 2. That the transaction cannot be taken out of the statute of frauds. 2 Story’s Equity, §§ 980,1195,1198,1201. 3. That complainant should not recover, because he does not offer in the bill to pay purchase-money. Libert v. Kelly, 6 Monr. 673; Clark v. Hall, 7 Paige, 382.</p> <p>cited 2 Story’s Equity, 62,'69, 740; 14 John. 32; 1 John. Ch. R. 284; 2 ib. 339,' 369 ; 1 Blackf. 294; 2 Cowen and Hill’s Notes, pp. 287, 340, 350; 1 Paige, 212; 9 John. 466 ; 1 Rand. 169.</p>

In Equity. Appeal from Des Moines District Court. This was a bill in chancery for a specific performance. Decree in the court below for the complainant. The principles decided can be sufficiently gathered from the opinion.

Error, to Lee District Court. cited 2 Leigh’s Nisi Prius, 1,404; 2 Cowen and Hill’s Notes, 67, 396; Dunlap v. Patterson, 5'Cow. 243 ; Clarke v. Dutcher, 9 Coat. 674. 1. The defendant was liable for shooting mare, even if such shooting was accidental. 1 Campbell’s Nisi Prius, 497; 14 John. 432; 7 Blackf. 342; 11 Mass. 137; 2 Campbell’s N. P. 464; 3 East. 393; 10 Bing. 112.

<p>Owners of a steamboat, under the statute, maybe sued byname of tie boat, but they cannot institute a suit by suck name, nor sue out a writ of error.</p>

Error, to Des Moines District Court. This was an action commenced before a justice of the peace to recover the value of a sleigh. Judgment having been rendered against the defendant, the case was taken to the district court by appeal. The questions raised in the court below sufficiently appear in the opinion of the court.

In Equity. Appeal from Bes Moines District Court. This was a bill in chancery to foreclose a mortgage. The defendant demurred on the ground, that the note given in connection with the mortgage was not made a part of, or given as an exhibit with the bill. Demurrer overruled, and a decree rendered for complainant.

<p>Error, to Des Moines District Court.</p> <p>cited 1 Scam. 579; Chitty on Con. 472, 550; Starkie’s Ev. 72; 2 Peter, Dig. 424; 3 Term. 423; 2 ü. S. Dig. 465, §§ 14, 17.</p> <p>referred to .Rev. Stat. 273; R.ust v. Gott, 9 Cowen, 169 ; Lansing v.' Lansing, 8 John. 454; Bunn v. Biker, 4 ib. 426 ; 12 ib. 1; 13 ib. 88; 5 Wend. 250; Cowper, 37, 729; 2 H. Black. 369; 3 B. & A. 179; 5 Eng. Com. Law, 255; Kinne’s Law Comp. January, 1848, p. 25; 2 B. & P. 371; 7 Term. 630; 6 ib. 405.</p>

Error, to Des Moines District Court. This was a proceeding by assumpsit and attachment on a promissory note made in St. Louis, by J. and M. Smith, to the order of J. and 0. Bernard, and by them indorsed to Barry and Hurst. The suit was commenced by Barry and Hurst, indorsees, against J. and 0. Bernard, indorsers of said note. J. Bernard having withdrawn his plea in the case, judgment was rendered against him by nil dicii. The plea of general issue filed by 0.

<p>Where an indictment charges an assault to have been committed with several different weapons, it is not necessary to prove that the defendant used all the weapons described. The indictment will be sustained by proving that one of the instruments was used as alleged.</p> <p>Where one of two co-defendants is acquitted, it does not necessarily follow that the other should be.</p>

In Equity. Appeal from the Des Moines District Court. Lucy Ann Deeds filed her petition in chancery against Silas Deeds, her husband, praying a divorce a vinculo matrimonii. Petitioner sets forth that she had .three children by her husband, to wit, Edward, a son, about nine years of age, Martha, about four, and Maria, about two years of age; that her husband repeatedly offered such indignities that her situation was intolerable.

<p>A complaint against a boat, under tke statute, should aver, in substance, that it was navigating the waters’ of the state at the time of the liability; but it is sufficient, after pleading over, if the complaint allege that the contract was made at a town -within the state by the master or clerk of the boat.</p> <p>By-pleading, the defendant waives all objection to the overruling of his demurrer, especially where the defects are not substantial.</p> <p>A boat is liable, under the statute, for the use of a barge.</p> <p>A remedial statute should be so construed as to meet most effectually the beneficial end in view, aud prevent a failure of the' remedy intended.</p>

<p>Though an attorney, in his opening statement to the jury, claimed for his client a special property only in a chattel, evidence of general property is admissible.</p> <p>It is not the province of the court, under our statute, to instruct the jury upon questions of fact. The charge of a judge should be confined exclusively to the law of each case.</p>

Error, to Wapello District Court. Tins was an action of assumpsit commenced in the district court against Cole, upon which a writ of attachment was issued. Among other proceedings in the court below, a motion was made to dismiss the attachment, on the ground of alleged, defects in the affidavit upon which the writ of attachment was issued. The motion was sustained by the court; and the plaintiff was authorized to amend his affidavit, which he accordingly did.

Error, to Wapello District Court. cited the following authorities as to instructing the jury, rendering the verdict, and entering judgment on Sunday. Swan v. Broome, 3 Burr. 1595; Beclor v. Aepo, Sir Vm.

Error, to Wapello District Court. This suit was commenced before a justice of the peace, against the board of commissioners of the county of Wapello, and a judgment for the plaintiff was rendered.

Error, to Jefferson District Court. cited Rev. Stat. p. 158, 5 90; ib. p. 161, § 6 ; ib. p. 214, § 1; Laws of 1846, p. 1, H 1 and 2. contended that the sections of the statute referred to and in force only authorize the county to pay witness fees, in criminal cases when the accused is acquitted.

Error, to Wapello District Court. for the state. 1st. Figures at common iaw do not vitiate an indictment, and as we have no statute on the subject, of course the common law rule must govern, 1 Chit. Cr.

Error, Lo Jefferson District Court. This suit was commenced before a judge of probate, on a promissory note made by John George, deceased, to the defendant in error. The probate court refused to allow the note, and an appeal was taken to the district court.

<p>Error, to Van Burén District Court.</p>

Error, lo Jefferson District Court. This was an action of assumpsit commenced in the name of “ A. J. Davis,” as the payee of a note against the maker, and dismissed on motion in the court below, because the plaintiff was not described by any Christian name. This cause was decided in the court below, on amotion filed bv defendant in error to dismiss the suit, on the ground that the plaintiff is not in the writ or summons described by any Christian name.

<p>In a proceeding on cognovit, or on a power of attorney, to confess judgment, in which the nature and amount of the plaiutiCfs claim are acknowledged, a declaration is not necessary.</p>

Error, to Jefferson District Court. This suit was commenced before the board of commissioners of the county of Jefferson, Wollard filed his account for services rendered by him in making out a complete list of the lands and property on which the school taxes remained unpaid, on the first Monday of January, 1847, with a statement, showing the amounts of school taxes paid and those remaining unpaid, as required by third section of the school law, approved January 15, 1846 ;…

<p>Error', to Keokuk District Court.</p>

Error, to Van Burén District Court. Declaration in assumpsit containing three counts, neither of which contains the usual concluding averment of damages ; nor is there such an averment at the end of the declaration. But one of the counts alleges an indebtedness of $500. Humphreys, the defendant below, made default, and upon an assessment of damages by a jury, judgment was rendered against him for $297.33.

Error, to Van Burén District Court. The fee book is part of the record, and'is certified to this court as such. Having control of the entire record, if there be error in any part of it, the court will correct it. The judgment of the district court is for the principal and costs made up in the fee book. If the judgment for the principal be correct, let it stand. If the record shows an erroneous judgment for costs, it can and ought to be corrected.

<p>In an indictment for obstructing a road leading from a point in Jefferson County to Lake Prairie in Mahaska County, the defendant offered to prove Lake Prairie to be in Marion County and not in Mahaska: Held not to be admissible ; the discrepance not being material, and could not impair the description or identity of the road.</p> <p>An indictment and conviction are proper for obstructing a road established by re-location; even if it had not been opened and used as a highway.</p> <p>A road is established when the survey and plat are placed upon record as required by statute.</p>

<p>Error, to Van Burén District Court.</p>

<p>A plea averring complete performance of all the conditions of the bond sued upon, is not demurrable.</p>

Error, to Scott District Court. This was an action of debt against Eb. and Wm. Held: that this statement did not make the affidavit and bond a part of the record, and that to make them so, by means of a bill of exceptions, they should be copied into it.” Huff v. Gilbert, 4 Blackf. 20.. “ It is said that there was a motion to quash the writ in this case, and that the motion was improperly overruled.

<p>Error, to Louisa District Court.</p>

<p>The statute limiting -writs of error to the respective appellate districts, extends to the county in -which the trial -was had by change of venue, rather than to the county in -which the cause originated.</p>

Error, to Linn District Court. This was an action of assumpsit on a promissory note, made by W. J. Carson to J. K. Rickey or bearer, for the sum of one hundred dollars. A credit and certificate appear upon the back of the note, as set forth in the opinion.

<p>Error, to Cedar District Court.</p>

<p>Any appearance or acquiescence in the proceedings of a suit in the supreme court, will be regarded as a waiver of the notice of suing out a writ of error</p> <p>■ The want of such notice should be taken advantage of within a reasonable time, and before any other proceeding' or appearance in the case.</p>

Error, to Louisa District Court. . contended, 1st. That the issue confines the evidence of the plaintiffs below to the following points : 1. The committing of the act alleged; 2. The attendant circumstances. The evidence should be given to the jury, 1. To prove the real injury done to plaintiff on his property, in order to compensate him for the loss sustained; 2.

<p>Error, to Linn District Court.</p>

Error, to Muscatine District Court. This is an action of debt on bond, by which the defendants below undertook to deliver to the plaintiff, (the sheriff,) certain property taken by the sheriff on execution, to be sold. The defendant pleaded three pleas. lsi Plea.

<p>Error, to Johnson District Court.</p>

Error, to Muscatine District Comt. This was an action of assumpsit, commenced by the defendants in error against the plaintiffs, Nicholas Temple and Henry Funk. The summons was served upon Funic only, and the declaration subsequently filed excluded Temple as a party ; but judgment by default was rendered against both of them.

Error, to Linn District Court. The court cannot compel the plaintiff to submit to a nonsuit, after the evidence has gone to the jury. 1 Peters, 471, 476; People v. Brown, 3 Gilman, 88; Amos v. Sinnott, 4 Seam. 447; Booe v. Davis, 5 Blackf. 115. The court erred in deciding that trespass and not case was the proper remedy. The bill of exceptions shows affirmatively that the plaintiff had title, and that he never had possession.

In Equity. Appeal from Muscatine District Court. This was a bill in chancery, filed by “ The President and Trustees of the Town of Bloomington,” against John Phillips and Francis J. Clark, to vacate a ferry lease, and enjoin the lessees from -the franchise. The relief sought, and the proceedings in the case, are sufficiently set forth in the opinion of the court. The cause came up in the court below on the bill, the answer of Phillips, exhibits and depositions.

Error, to Johnson District Court. Indictment for perjury, framed in the usual form, but omitting to charge the perjury in the language of the statute. Held: that an indictment at common law, for aiding' a prisoner’s escape, should state, that the party knew of his offence. ' In Gatewood v. The State, 4 Ham. 386, it was held, that an indictment for stealing bank.bills,'must aver that the defendant knew the bills to be bank bills, or the indictment would be bad.

In Equity. Appeal from Muscatine District Gowrt. First. It is said that these lands were under contract of sale by title bond, to D. R. and A.. O. Warfield. In answer to this, we refer to the following facts: Í. These lands were advertised for sale in Nov., 1841, in a list of land, particularly describing them. Whether through mistake, or to urge the purchasers to payment, we care not. The only fact we have to do with is, that they were advertised'. 2.

In Equity. Error under territorial laxos to Van Burén Eistx'ict Court. The opinion sufficiently states the ease to give a correct idea of the point decided. The court erred in rendering judgment against Miller, on a more order of dismissal, as against Burns and McBride.

<p>Jurors who rendered a verdict against the defendants on ah indictment, are not competent jurors in an action of trespass against the same defendants, involving the same questions, and in relation to the 'same subject matter; nor are they rendered competent by declaring upon then- voir dire that they had not formed or expressed an opinion.</p>

<p>A court of equity may dissolve a partnership, when difficulties between copartners are of so serious a nature as to render the continuance of the company impracticable, and injurious to one or both of its members.</p> <p>It may be doubted, whether either member of a copartnership can dissolve it, where its duration is fixed by articles of covenant for a term of years.</p> <p>The fact, that the petitioner for a dissolution of a partnership may have committed the first wrong, affords no- excuse for wrongs committed by the other party, and should not prevent a dissolution, when the deportment of each party is hostile to the harmony, prosperity, and continuance of the firm.</p>

<p>Errpr, to Dubuque District Court.</p>

<p>In Equity. Error, to Dubuque District Court.</p>

<p>Where the answer to a bill is not sent up with the transcript of the record, the respondent will not be permitted to file another answer; but where it properly appeal’s that such answer is lost or destroyed, and that the defence therein set forth is substantial, the cause will be continued, in order to give the court below time to supply the lost record.</p>

<p>In Equity. Error, to Jackson District Court.</p> <p>On motion to dismiss the writ.</p>

In Equity. Appeal from Dubuque District Court. This was a proceeding upon the report of a master in chancery, appointed by virtue of the decree rendered in preceding case of Blake v. Dorgan, ante, p. 537. The facts and points decided appear in the opinion of the court. 1. The fact that Blake superintended the business and labored for the partnership concern, is proved by the testimony, and not denied in any way. 2.

Error, to Dubuque District Court. Greene J. A motion is made in this case to dismiss the writ of error, on the ground that it will not lie in a criminal case. As we can see no sufficient reason or authority to support this motion, it must be denied. Our statute places the matter beyond question, that writs of error are applicable in criminal cases. Rev. Stat. p. 157, § 77. Stat. of 1844, p. 6, § 1; and p. 9, § 35.

<p>Error, to Dubuque District Cotvrt.</p>

Error, to Dtibuque District Court. This was an information in the nature of a quo warranto filed by the United States, on the relation of the prosecuting attorney, against the president, directors and company of the Miners’ Bank of Dubuque. The bank pleaded the act of incorporation.' The prosecuting attorney then filed a replication, setting up the statute of 1845, repealing the charter of said bank.

In Equity. Appeal from Dubuque District Court. Prior to July 8d, 1846, Isaac Russell purchased from one Patrick Maloney the claim to certain lands lying in the county of Dubuque, and bounded on the west side by the territorial road leading from Dubuque to Davenport. The said Maloney, on the 3d day of July, 1846, sold to the Messrs.

This was an action of right, (ejectment,) for 160 acres of land, parcel of the “Half-Breed Tract.” The Sac and Fox Indians ceded to the United States in 1824, “ all their lands in Missouri,” by metes and bounds which included a small tract in Iowa between the Mississippi and Des Moines rivers, “it being understood that the small tract between the rivers, &c., is intended for the use of the half-breeds, &e., to be held by them as other Indian lands are held.” In 1832 the Sacs…