Volume 1 — Iowa Reports

<p> Appeal from the Dubuque District Court. </p> <p>This suit was commenced by Latterett against Cook, on a ■judgment rendered in' tbe inferior court of Common Pleas of Essex county, state of New Jersey, in April, Í837. Judgment was rendered in favor of tbe plaintiff, and tbe defend- ’ ant appeals to this court. Tbe material facts will sufficiently appear from tbe opinion of tbe court.</p> <p>contended:'</p> <p>1. That the transcripts set forth in the record are not duly authenticated by the judge’s certifying the same. 4 Cow. & Hill’s Notes to Phil, on'Ey. 322. 2. That the transcript'of judgment attached to petition, is not made out in accordance with the local law. St-at. of New Jersey, 940, §§77 and 78; 4 Cow. & Hill’s Notes to Phil, on Ey. 126,137. 3. The record does not show affirmatively, upon its face, that the court had jurisdiction of the person of appellant. It must show that fact, if it be a court of limited jurisdiction. Iles-see et al. y. Cole, 3 Zabriskie, 116 ; Shumway y. Stillman, 6 Wend. 453. 4. The inferior court of Essex county, New Jersey, is a court of limited jurisdiction. Oont. of New Je-sey, 1776, § 12 ; Const. 1844, art. 6, Judiciary, § 1; Ilessee y. Cole, 3 Zabriskie, 117: 3 Harrison, 73. 5. The certified transcript of certain papers cannot be given in evidence. 6. That the inferior court of Essex county, New Jersey, had no jurisdiction over the subject matter of said judgment. 7. That no evidence can be received tending to prove that the judgment set forth in the petition is valid, independent of itself. 3 Cow. & Hill’s Notes to Phil, on Ev. 1072; 3 Black. Com. 24; -Patterson v. State of Indiana, 2 G. Greene, 492. 8. That the deposition of Webster was improperly admitted in evidence.</p> <p>argued:</p> <p>1. The judge’s certificate must be according to the laws and forms of the state of New Jersey, and that is the true meaning of the act of Congress. 4 Cow. & Hill’s Notes to Phil, on Ev. 324. 2. The clerk’s certificate need not show that the copy is the whole record. 4 lb. 322. And the record may be on different sheets of paper. 4 lb. 318. 3. All presumptions are in favor of the records of the Common Pleas; 3 Zabriskie, 116 ; 3 Harrison, 78.</p>

<p>■ In cases of divorce, the District Court, under section 1485 of the Code of Iowa, which provides that'11 when a divorce is decreed, the court may make such order in relation to the children and property of the parties, and the maintenance of the wife, as shall be right and proper,” may decree the wife, as her alimony, a certain, portion of the lands of the husband; in feo simple.</p>

<p> Appeal from the Des Moines District Oouft. </p> <p>Biel in equity to enjoin a judgment at law, and to quit title. The case is fully stated in the opinion of the court.</p> <p>insisted, that the case made by the bill, did not entitle the appellant to the aid of a court of equity. It charges no fraud, accident, or mistake, but shows a mere failure of evidence. The deed from Bridges to Powers, never was accepted, Dwas fraudulently put upon the record by some person unknown, and was void as a deed. <Jachson v. Perkins, 2 Wend. 308; Huliclc v. Scott, 4 Grilm. 1&9, and cases there cited; Dinwiddie v. Roberts, 1 G. Greene, 363.</p> <p>contended, that the jurisdiction of the Court, to hear and determine on the right of complainant to maintain his bill, is not questioned by defendants in the pleadings; and even if there was anything in the position, it is now too late to take advantage of it. If there is a case made out, calling for the interference of equity, those rights will -be regarded. The relief asked here, could not have been granted by the court of law trying the action of right. A court of law cannot decree title, but acts upon title then vested. Story’s Equity Pleading, §§ 284, 488, 526, 604, 605, 606. As to what equity requires to be done, see 4 Watts. 192; 7 lb. 394; 8 lb. 280; 4 Watts & Serg. 323--S 11 New Hamp. 201; 4 Metcalf, 381.</p>

<p> Appeal from the Lee District Court. </p> <p>1st this case a motion was made by Gray, tbe appellee, to strike from tbe record a paper purporting to be a bill of exceptions. Several reasons were assigned for tbe motion, but tbe only one insisted upon in argument was, that tbe exceptions were signed in vacation, and shows a want of consent on tbe part of tbe appellee to such signing at that time.</p>

<p> Appeal from the Des Moines District Court. </p> <p>Oír tbe 29tb of August, 1854, Pierson filed bis bill in Cbancerj in tbe Des Moines District Court, against Jbbn S. David, A. D. Green, and tbe beirs of James Cameron, deceased. Tbe averments in tbe bill, are substantially as follows : On tbe 13th of August, 1838, complainant was seized, possessed of, and bad an equitable interest in a certain “ claim ” or “ claims ” on tbe public lands, on which be bad made valuable improvements, and to which, be bad a preemption right. After setting forth the boundaries of said premises, complainant avers that they are now designated as the west half of the southwest quarter of section thirty-two, in township seventy, range two; and the west half of the southwest quarter of section six, in township sixty-nine, range two. On the said 18th of August, by contract in writing, he sold his interest in said premises to one Amoriah W. Wilson, for the consideration of fifteen hundred dollars, to be paid as soon as Wilson entered the premises, which agreement was filed for record in the proper recorder’s office, on the 9th of December, 1838. A copy of the contract is attached to, and made a part of the petition, from which it appears, that if Wilson did not pay the purchase money, then the premises were to revert to complainant. It was further stipulated, that if Wilson, so soon as the said claim came into market, paid Pierson four hundred dollars, then Wilson was to have a certain portion of the land, which is described by metes and bounds in said contract. On the failure of Wilson to pay any portion of the purchase money, then Pierson was to pay him two hundred dollars for any improvements he might make, when Wilson restored Pierson the possession. The complainant further avers, that Wilson never entered said premises, and never intended to do so. That on the 11th of April, 1839, with intent to defraud complainant, Wilson sold the premises first described, to John S. David and James Cameron, for the nominal sum of one hundred and fifty dollars; that, on the 11th of March, 1839, with the same intention, he sold the other parcel to said David, for one hundred dollars; that he immediately left the country, and went to parts unknown; and that he never paid any part of the fifteen hundred dollars. The complainant charges David and Cameron with notice of the contract, and Wilson’s non-payment of the purchase money; that it was a lien on the premises, and that they, about the time of their purchase, and subsequently, promised to pay and discharge said lien. He avers the. non-payment by them, and charges them with having combined with Wilson, to cheat and defraud Complainant; and that by their combined action, they did cheat and defraud him out of said premises and the purchase money. That David and Cameron, by virtue of the pre-emption right, so obtained from complain-' ant, did enter said lands and obtain a patent therefor; that said Cameron has since deceased ; and that the premises are in the possession of, and claimed by said David, A. D. Green (who is alleged to have purchased the interest of William C. Cameron, one of the heirs of said deceased, with notice of petitioner’s claim), Selina Cameron and others, heirs of said. decedent. The said sum of fifteen hundred dollars with its interest, is claimed to be an equitable lien on said land. Under these averments, the petitioner prays that said defendants may be decreed to pay said purchase money and the interest thereon — that said lands may be sold to pay the same — and also for general relief. Wilson is not made a party.</p> <p>On the 28th of February,. 1855, the defendants appeared, ‘ and demurred to the bill, and for causes alleged: 1. That complainants claim was barred by the statute of limitations; 2. That petitioner could, by law, only have had a preemption right to one of said tracts of land, and which one is not designated; 3. That the contract set up is illegal; 4. That petitioner, if he had any pre-emption right, forfeited the same by his sale to Wilson, and any reserved rights under said contract were void; 5. 'A misjoinder of parties ; 6. That there is no showing that the purchase money cannot be made from said Wilson; 7. The want of equity, generally. . On the 10th of May, 1855, this demurrer was sustained, the bill dismissed, and the defendants discharged. From this ruling, the complainant now appeals to this court.</p> <p>argued, that the court below erred: 1. In deciding that the vendor’s lien could not be enforced under the circumstances set forth in the bill. Tredgül v. Pintará, 12 IIow. (U. S.) 86; 4 Kent, 152; 1 Hil-liard on Mort. 463; 20 Ohio, 464; Morris, 280, 867, 460. 2. In deciding that complainant’s claim was barred by lapse of time. Stat. of Michigan, 570; 1 Story’s Com. ,§ 1520; Code, §§ 1671, 1672. And that, the same could be taken advantage of by demurrer. 1 Morris, 321; 2 G. Greene, 183. 3. In deciding the contract between Pierson and .Wilson illegal. Hill v. Smith, Morris, 70; 'Freeman v. Holliday t Morris, 80; Stannard v. McCarty, Morris, 124; lb. 438; '2' G. Greene, 250; Code, §§ 1197, 1198; 12 How. 36. And whether there be improvements, is immaterial. Chambers v. Games, 2 G. Greene, 320; Wilson v. Webster, Morris,, 312 : Zicicafose v. Huliclc, lb. 175. 4. In deciding that the bill is multifarious. Code, § 1678; Story’s Eq. Plead. 233,, 341. 5. In rendering a decree dismissing the bill. 7. And that in chancery cases, by appeal, the District Court is ousted of its jurisdiction, and a final decree should be entered in the Supreme Court. Const, art. 5, sec. 3 ; Austin v. Carpenter, 2 G. Greene, 134; Sloclcwell v. David, 1 lb. 115.; Wright v. Marsh et al., 2 lb. 107 ; Chapman v. Morgan, 2 lb. 374 ; Code, § 1991.</p>

Hind's, filed ber petition in tbe District Court of Lee county, for a divorce and alimony, under tbe eigbtb clause of section 1482 of tbe Code, wbicb authorizes a divorce when it is “ made fully apparent that tbe parties cannot live in peace and happiness together, and that their welfare requires a separation.” Tbe petition avers, also, that tbe complainant was, at tbe time of filing tbe same, and bad been •for six months before, a resident of said Lee county.

<p>In an action of replevin for a buggy, claimed to be exempt from execution on a judgment against a firm of which plaintiff was a partner, on the ground that the same was individual property, and. that plaintiff was a practicing physician, and the same was necessary for his use in his profession, in order ■to maintain himself and family, the plaintiff, for the purpose of proving that the buggy was his private property, and not that of the firm of which he was a member, could not offer in evidence the book of the original entries •of the firm, and show by an entry therein, that the note which was given in payment for the buggy, was charged to the private account of the plaintiff .about the'time mentioned by the person by whom the buggy was sold.</p> <p>Tile testimony offered was not a part of tile res gestee, and as between tlie parties to this suit, amounted' to no more than hearsay evidence.</p> <p>To constitute declarations and entries by clerks and third persons, part of the-res gestee of the transaction, they must be made at the time the act is done,, which they are supposed to characterize, and be well- calculated to unfold the nature and quality of the facts which they were intended to explain, and so to harmonize with them, as obviously to constitute one transaction.</p> <p>If at the time of the seizure by the officer, the buggy was the vehicle by the use of which the plaintiff, as a physician, habitually earned his living, it was. exempt from seizure on attachment, or execution, irrespective of the time when, or the motive with which, he might procure it.</p>

Cox sued W. H. Farner & Co. in the District Court of Lee county, by attachment, on wbicb Burns & Bentgen were garnished, and who answered, denying the possession or control of property of Farner & Co. Issue was taken on this answer.

<p> Appeal from the Polio District Court. </p> <p>This was a proceeding in tbe nature of a quo warrantof commenced by Scott, as relator, against Lincoln Clark and others, commissioners to relocate tbe seat of government of tbe state óf Iowa. Tbe pleadings and facts of tbe case are stated in tbe opinion of tbe court. Judgment was rendered in favor of defendants for costs. Scott appeals, and assigns for error tbe following:</p> <p>1. Tbe court erred in overruling tbe demurrer to tbe answer of tbe defendants.</p> <p>2. Tbe court erred in finding tbat tbe act entitled “ An act to relocate tbe seat of government of tbe state of Iowa,” was in force as a law of tbis state from and after its publication by order of tbe governor.</p> <p>3. Tbe court erred in finding tbat said commissioners bad, at tbe time, a lawful right to relocate tbe seat of government witbin tbe limits prescribed in said act, as was severally found, and is specified, in the record and judgment of said court.</p> <p>4. The court erred in rendering judgment for the relator for costs.</p> <p>No counsel appeared for the appellant in this court, but Henry O’Connor and W. Penn. Clarice, on motion, were permitted to argue the questions involved, as friends of the court, who contended:</p> <p>The proceeding by quo warranto is a quasi criminal pro ceeding, and can only be prosecuted in the name of the state. This doctrine is recognized without exception. Wallace v. Anderson, 5 Wheat. 291; 8 U. S. Dig. 311. The Code does not in any way modify or change the law. Code, 299; Laws of 1853, 46. The record clearly and distinctly raises two questions, either of which this court will take notice of, whether raised formally or not, if they are apparent upon the record, viz: the question of jurisdiction, and the constitutionality of an act of the legislature. 3 How. (U. S.) 574; 1 Kent Com. 450. The prosecution not being in the name of the state, but in that of a private individual, nor conducted by the proper law officer, there can be no doubt about the want of jurisdiction. Code, 297; People of the State of Hew York v. Utica Ins. Co., 15 Johns. 358. The main question is not as to whether or not a law shall take effect upon a contingency. It is the simple question, whether the act, under which the governor appointed, or claimed to appoint, the commissioners to relocate the seat of government, and under which the commissioners claim to act, was in force at the time they undertook to officiate ? The constitution makea special provision for the publication of such laws as the General Assembly shall deem of immediate importance — they (the legislature) may provide that the same shall take effect by publication in the newspapers of the state. The legislature is to be the judge of the necessity and 'importance of the law. It is a power that must be exercised by the body on whom it is conferred, and cannot be delegated. The confidence is reposed in the law-making power, and that alone. The act of January 24, 1855, conferring on the governor the power to publish laws — to exercise authority conferred upon another department of the government — -is, therefore, unconstitutional. Galhin v. The. State, 1 G. Greene, 68. There was no legal publication of the act for the relocation of the seat of government, and. the commissioners were acting without authority. But even if the act of January 24 is not unconstitutional, the act for the relocation of the seat of government is not such a law as, by the terms of the former act, the governor was authorized to publish. The act of January 24, authorized that officer to publish such laws of a general nature, as he deemed it necessary, &c. The power extends only to and over laws of a general nature, but the act for the relocation of the seat of government, is not such a statute. It is a public and special, not a public and general, law. Code, 8^where the distinction is laid down. The publication made was not warranted by the statute, and a publication, without authority of law, is of no validity. Upon both grounds, therefore, the judgment of the court below is erroneous, and must be reversed.</p> <p>This is a proceeding at law, and must be determined in this court like any other civil suit. There was a fair trial upon issues joined, and a finding on all the issues for the defendants. There being no bill of exceptions, this court cannot know what the testimony was, but the presumption is, that the District Court had sufficient evidence before it, to warrant the finding. The law is just as well settled, and upon equally just grounds, that no matter or error will be considered in the court of errors, which has not been made below, and no objection will be considered that was not passed upon by that court. This doctrine applies to the sustaining or overruling of demurrers. If no exception is taken to the overruling of a demurrer, and the party pleads over, either by answer or replication, the court of errors will presume that the error of such ruling1' was waived. The party must stand upon his demurrer, and suffer judgment to go against bim; or, if he pleads over, he must save his objection by a bill of exceptions. This has not been done in this case. Where there is no statement of facts in the record, nothing can be assigned as error of law, which could have been cured by evidence given at the trial, and until the contrary is shown, the appellate court is bound to presume that the evidence was sufficient to sustain the judgment. 1 Texas, 192; 1Ó U. S. Dig. Ill; Durham v. Benedict, 1 G. Greene, 74; Maclcemer v. Benner, 1 lb. 157; Saum v. Board Com. of Jones Co., 1 lb. 165; Hemphill v. Salladay, 1 lb. 301; 8 How. (U. S.) 263; 10 U. S. Dig. 189; 4 lb. 38; 18' Ohio, 28.</p> <p>The reversal or affirmance of the finding and judgment of the court below, depends' — as is assumed — upon the question whether .the law authorizing a relocation of the capital, took effect from the date of the publication thereof in the newspapers, or not until circulated in the several counties of the state, as required by the constitution. Art. 3, § 27. The language of the constitution is this: “If the General Assembly shall deem any law of immediate importance, they may provide that the same shall take effect by publication in the newspapers in the state.” Did the General Assembly provide for the taking effect of the law in question by publication? and, if so, was it published in accordance with that provision ? What definition or meaning should be given to the word provide, as used in the constitution? We claim that it means “to take measures;” and upon such interpretation, what mode is pointed out by the constitution? The mode adopted by the General Assembly in this case, was by directing the governor to order the publication of this, amongst other laws. The objection to this mode of causing the law to be published,.is, that it is a delegation of their legislative power. This is not so. The law was fully formed and adopted, and approved by the governor — all its principles, its rules, its provisions, were complete. No legislative action or power was necessary further, and of course none could have Been delegated. The power conferred was to cause publication, not to legislate at all. Legislative power is tbe power of making laws. The legislatureywsseci this law —they expressed the judgment that snob a law should exist —and it is a mistake to confound the power to cause publication and promulgation of laws, with the power to malee them.</p> <p>It is undoubtedly the established rule now, that it is competent for a legislative body to make the time of taking ^ffect of laws, as also the question whether, they shall take effect at all or not, to depend upon any contingency they may elect, such as a vote of the people, the publication of the same, or the acceding to certain conditions, by a state or the people thereof. 8 U. S. Laws, 2074; Bank of Michigan v. Williams, 5 Wend. 478; Williams v. Bank'of Michigan, 7 lb. 539. These authorities have reference to the passage of laws by the governor and judges of the North West territory, to take effect and be in force upon the happening of a contingency — the approval of Congress. The legislature may make the revival of an act, depend upon a future event. The barga of the Brig Aurora, Burnside, Claimant v. The United Slates, 7 Cranch, 882. If the legislature can make the revival of a law dependent on a future event, so can it the taking effect of a law — a delegation of power is involved in both. The case of Calkin v. The State, 1 G. Greene, fíS', relied upon by the other side, is not in point. No question of this kind arose in the case. Talk, by a judge, that has no relation to the points to be decided, is worth just as much as the talk of any other person, of equal legal ability. In that case, there had been no direction given by the legislature, for the publication of the law at all, but in this direction has been given, and the only question is, was it properly given. Eo.r instances where the legislative authority has deputed others to act in some manner before the act passed should take effect, we refer to the acts authorising the president to give notice in respect to the joint occupation of Oregon, and the act for the admission of Texas, on a vote of the people. The acts of 1809 and 1810, repealing the non-intercourse laws on a subsequent event, to be made known on the president’s proclamation, are of this character — sustained by the Supreme Court of the United States, in The¡ Aurora v. The United States, 7 Crancb, 38; 3 State Papers, 297. The universality of this mode of procedure by legis-latiye bodies, may be regarded as a strong circumstance in favor of tbeix correctness. To sbow some of these acts, and the opinions of courts upon them, we refer to Pratt v. Allen, 13 Conn. 119; Laws of Kentucky, 1842; 4 B. Monroe, 146; Met. & Peck. Dig. 566; 12 Pick. T84; 7 Cowen, 349; 2 Overton, 171; 2 Yeates, 493; 2 Marshall, '483; Laws of Mich. 1845, ch. 40; Laws of Vermont, 1846, ch. 24; Laws of Ohio, 1847, 131; Laws of New York, ] 845, 322; Laws of Penn. 1846, 348; Laws of North Carolina, 1849, ch. 36; 8 Laws of Del. 21; 3 Harrison, 335; 3 Kent Com. 278; The People v. Morris, 13 Wend. 335.</p>

McCaffree sued Guesford in tbe District Court. Tbe original notice was placed in tbe bands of tbe sheriff for service, and served, on tbe 5tb day of September, 1854, and recited that there was then on file, a petition. No petition was, in fact, filed until tbe next day. Tbe defendant moved tbe District Court to dismiss tbe cause, for tbe reason, among others, that no petition was on file as alleged in the notice. This motion was sustained, and the cause dismissed.

Suit was brought by Pilkey in tbe District Court of Davis ■county, against Stiles S. Carpenter, James Gleason and Joba R. Craig. Tbe original notice was returned, as follows: “ This came to band tbe 26tb August, 1854. Served tbe within notice on tbe within named defendants, by reading to Stiles S. Carpenter, John R. Craig. No copy of petition ■or notice demanded — within on tbe 26th day of August, 1854.

This cause is an appeal from tbe decision of tbe District Court of Lee county, on a writ of error to a justice of tbe peace, sued out by Houston, wbo was garnished at tbe suit of A. Walcott & Co. against one Earner, on a judgment by confession against tbe latter. In tbe transcript of tbe justice, after tbe title of tbe cause, tbat officer states as follows: “This day came tbe defendant, Wm.

■ Appeal from the Boone District Court. Godfrey sued Cruise before a justice of tbe peace, on an account, claiming some seventy-two dollars. Cruise appeared to tbe action,- and denied owing tbe amount claimed by plaintiff, or any part thereof, and also plead a set-off, composed of several items, amounting to some eighty dollars.

<p>Error must appear affirmatively upon the record, before this court will interfere with the judgment below.</p> <p>Where evidence is rejected in the court below, and the record does not show the ground of rejection, this court will presume that the evidence was properly rejected.</p>

Marshall & McKee sued Kinney before W. Stotts, a justice of tbe peace.. On tbe return day, tbe parties went to trial before a jury.

'Error to the Des Moines District Coxw't. D. C. Cloud, Attorney-General (by Henry O’ Connor), for the state, moved to quash the writ of error, for the reason that no final judgment had been rendered in the cause.

This was an 'action originating in the county court of Polk county, and appealed to the District Court. In the latter court, the cause was tried by a jury, who rendered a verdict for the plaintiff for $297.30, and judgment was rendered thereon. No exceptions were taken on the trial in the District Court, to any ruling or decision of that tribunal.

Oh the 16th of May, 1854, proceedings were commenced before a justice of the peace, against Jacob Hintermeister, charging him with selling intoxicating liquors, with a view to their being drunlc on or about the premises where sold.

Mary Hyde, by her next friend, Samuel Hyde, brought suit against Cole, for slander. The defendant filed an answer in abatement, alleging that the said plaintiff is a minor, and has a father living, who is her guardian by law; that she has no power to institute this suit by a next friend; and tbat no bond for security for costs was filed, which answer was sworn to.

This suit was brought by Hanlon against Ingram, for injuries resulting to the plaintiff’s property from the act of the defendant in setting out fire and permitting tbe same to escape, and pass on to tbe premises of tbe plaintiff, and there burn up a large amount of rails and ' other fencing, of tbe ■value of five hundred dollars.

Tbe defendant pleaded a set-off to tbe amount of eighty dollars, for tbe rent of land. To this tbe plaintiff replied, denying that be rented land of defendant, or that be owed bim any sum therefor.

Crandall, for money bad and received by tbe defendant, for tbe use of tbe said intestate. Tbe allegations of tbe petition were denied. Erom a bill of exceptions in tbe record, ¡it appears that a trial was bad at tbe August term, 1854,. but tbe result of that trial, or whether any judgment was-rendered thereon, does not appear..

Trespass by Brewington against Patton and Swan, for tbe wrongful talcing and sale of certain property named in tbe petition. Judgment in tbe court below for plaintiff, and defendants appeal. Tbe errors assigned are as follows: 1. Tbe admission in evidence of a certain chattel mortgage, and tbe assignment tbereon. 2. Tbe giving of tbe fourth instruction ashed by plaintiff 3. Tbe court charged tbe jury on questions of fact.

' This was an action brought by tbe plaintiff in tbe District Court of Muscatine county, to recover tbe amount of a promissory note, without words of negotiability, for $100.00, made by defendants, payable to Maston & Parrish, dated July 21, 1851, and indorsed in blank to plaintiff.

Brock brought suit against Manatt, before a justice of the peace.

The husband, John Lyster, filed bis petition for divorce, July 5, 1854.

This action was commenced by Creighton before a justice of tbe peace, on tbe 29th day of June, 1854, on a receipt in the words and figures following: “ Received of J. U. Creighton, a lot of medicine and ware, valued at $42.87 1-2, for which we are to pay him at any time within two years from this 10th of April, 1844,” and signed by the defendants. The defendants pleaded, orally, the statute of limitations, which was noted down in the docket of the justice.

This action was brought by Jourdan against Eeed, for tbe value of twelve and a half ounces of gold dust, wbicb be alleges be intrusted to defendant’s care, to bring from California to plaintiff’s wife in Burlington, in tbis state. ’ Tbe petition charges tbat tbe gold dust was delivered to tbe defendant, at bis special interest and request; tbat defendant was to sell and dispose of tbe same', and pay tbe proceeds thereof to said plaintiff’s wife; and tbat in consideration 'of…

This action originated before a justice of tbe peace, on an account, by whom judgment was rendered for tbe plaintiff. Tbe defendant appealed to tbe District Court, and when tbe cause was called for trial, demanded a jury. No petit jury baring been returned for that term, tbe court ordered a jury to be summoned by tbe sheriff from tbe bystanders. Tbe defendant objected to any jury, except tbe regular panel.

<p>In an action on a judgment rendered in another state, if the record shows that the defendant appeared by attorney, it is sufficient, without disclosing the name of the attorney who thus appeared for defendant.</p> <p>Where the record shows that the plaintiff’s attorney produced a power of attorney to confess a judgment, and that its execution by defendants, was duly proven to the satisfaction of the court, the further entry, that another attorney, after such proof, appeared and waived errors, and confessed judgment, we can but regard more as a matter of form than as going to the substance, so far as relates to an examination of the judgment in our courts.</p> <p>If the judgment of a sister state is simply erroneous, and not void, it will be valid here upon its face.</p> <p>A judgment may be assigned, so that the assignee can sue thereon in his own name.</p> <p>When a judgment is assigned, the assignee becomes the pa,rty in interest', and, under our Code, the suit must be brought in the name of the real party-interested.</p> <p>Cinder the act of January 24, 1853, which provides that in all actions, then or thereafter to be instituted in our courts, upon any note, bill, bond, or other evidence of debt or liability, it shall not be necessary to prove the execution or assignment of the same, unless such execution or assignment is specificaEy denied by the defendant, under oath, it was not necessary for the plaintiff to prove the assignment of the judgment, until it was denied by the defendant, under oath.</p>

On the 8th of November, 1854, a notice issued to the defendants in proper form, was returned by the sheriff, with a return that defendants were not found within his county. On the same day, whether by order of the court or the clerk, does not clearly appear, it was ordered that publication be made in the “Iowa Capital Reporter,” of the pendency of said petition.

ON tbe 27tb day of January, 1854-, tbe plaintiff sued tbe defendants before a justice of tbe peace, claiming one hundred dollars, for injuries sustained by tbe acts of tbe defendants in assaulting… Held: in Taylor v. Barber, 2 G. Greene, 352, that technical nicety and legal precision are not required of justices. The judgment rendered by tbe justice would be a bar to other proceedings for tbe same cause of action between tbe .same parties.

Brown commenced suit against Andrews, before a justice of tbe peace, on a note for $192, dated January 25, 1853, payable to tbe order of C. C. Brown, thirty days after date» “for pork purchased of him this day,” and signed by Andrews. Tbe assignment on tbe note shows, that it was transferred to tbe plaintiff (E. A. Brown) after due. Tbe amount claimed in tbe original notice was $80. On tbe 20th of July, 1853, tbe parties appeared before tbe justice.

This suit was commenced by Hyde against Woolfolk and Bacon, in tbe District Court of Lee county, tried at tbe January term, 1854, and a verdict was returned for tbe defendant, Bacon, and judgment rendered tbereon. Woolfolk failed to appear, and was defaulted. Tbe plaintiff, appeals. Tbe errors assigned, and tbe facts of tbe case, are sufficiently stated in tbe opinion of tbe court.

JError to Muscatine District Court This was an indictment for retailing intoxicating liquors,, containing four counts, indorsed as follows: “A true bill, Silas C. Pierson, foreman of tbe grand jury. Presented and filed in open court, in tbe presence of tbe grand jury, May 24,1854. Wm.

This was- a petition originally filed in tbe county court of ■Lee county, by Harriett Young, as widow of Peter Young, '•deceased, praying tbe assignment of her dower in two parcels of real estate described therein. Tbe material facts, as disclosed by tbe record, are as follows; The husband of pe* titioner died in August, 1851, and during bis lifetime, and the coverture of tbe said Harriett, was seized in fee simple of tbe property described.

' ThiS was an action of assumpsit brought by summons, returnable to the March term, 1846, of the Yan Burén District Court. The declaration contains a special count, and three common counts, to which a copy of the demand sued upon is appended.

This was .a proceeding by mandamus. An alternative writ bad been granted on an ex parte showing, on wbicb, after a bearing on tbe alternative writ,, a rule bad been entered for a peremptory writ.

The defendants executed tbe -note on wbicb tbis suit was brought, which reads as follows: “ On or before the first day of March, 1854, we, or either of us, promise to pay George W. Games or order, one hundred and thirty-eight dollars and ten cents. If not paid when due, to bear twenty-five per cent, interest, for value received ; payable at Bloomfield, Davis county, Iowa. March 81,1852.” The note was indorsed to the plaintiff.

This was an indictment for retailing intoxicating liquors* -containing six counts. A demurrer to the indictment being ■overruled, tbe defendant filed bis plea of not guilty.

• This suit was brought to recover the rents and .profits of certain real estate described in the petition.

<p>Where hills of exceptions in a cause were signed, “Seevers, Judge,” and “ W. H. Seevers, Judge,” and a motion was made to strike the exceptions from the record, for the reason that they were not properly signed; Held, that the exceptions were sufficiently signed by the judge.</p> <p>Those papers which the law recognizes as constituting the record files, or which are properly made a part of the record, being embodied in one transcript, or united together, and certified by the official certificate of the clerk of'a known court, under his seal of office, are presumed to be authentic, at least, until something is shown against them.</p> <p>Where a bill of exceptions is silent as to when it was settled, this court will presume that it was taken in term regularly, or so settled by agreement, without any reference to the time of filing.</p> <p>A motion for a new trial is a part of the record of the cause, without being embodied in a bill of exceptions, under section 1971 of the Code.</p> <p>A witness, although he states that he did not hear the whole of a conversation, may be permitted to testify to that part which he did hear-.</p> <p>Where a question put to a witness is objected to, and the objection is overruled, and the witness allowed to answer, this court cannot consider the correctness or incorrectness of the question, unless the answer of the witness-to the interrogatory, is shown by the record. •</p> <p>It is not sufficient to show that an improper question was asked a witness; it must also appear, that the answer thereto, disclosed improper and' illegal testimony, prejudicial to the party objecting.</p> <p>Where an affidavit on which a motion for a new trial was based, alleged that the party, since the trial, had discovered new evidence unknown to him before ; that the evidence of two persons, whose affidavits are appended to the motion,.had been brought to his knowledge since the' trial; that one Durham had informed affiant, since the trial, that he was present at a conversation between plaintiff and one Woods, setting out the substance of the conversation; that after the conversation between plaintiff and Woods, one Truman told plaintiff that he had lived near the land in controversy, and it was one of the best pieces of timber In the country; that plaintiff said he would go down and close the trade for the land at once; that affiant believes he can show from the testimony of Truman, that said plaintiff traded on said Truman’s representations; that he made inquiry for said Truman, to have him at the trial, but was unable to find or see him; and that one of his witnesses, who was subpoenaed', on being called, was found to be at home, sick.</p> <p>MM, 1. That the affidavit did not show due diligence to obtain the testimony-of the witnesses.</p> <p>2. That the evidence in the cause, not being before the court, it could notr know that the newly discovered evidence was not merely cumulative.</p> <p>3. That the affidavits of all the new witnesses, showing what their testimony would he, should accompany the motion.</p> <p>4. That it did not appear from the record, that the court below had not exercised a proper discretion in overruling the motion for a new trial.</p>

This was an action of right, brought by the plaintiff, as-the guardian of Adolph H. and other minor children of Peter C. Burmeister, deceased, against La Eranz, to recover the possession, and rents and profits, of certain real estate described in the petition.

'ON tbe 29tb of March, 1851, Gilliss was tbe owner of >share No. 20, in tbe balf-breed tract in Lee -county. He •resided in Kansas, Mo. One'Lyman E. Johnson, at that %ime visited defendant for -tbe .purpose of purchasing -that share. Being unable to contract, defendant made Johnson his agent to dispose of the same, and executed the following instrument or instruments: “Price of land drawn by Wm.

This was a bill in chancery, by James Campbell against William E. Ayres, claiming of tbe respondent, tbe title to,, and possession of, certain real estate described in tbe petition.

'The petition reads as follows: “ To the District Court of Wapello county. Your petitioner, Darid Sands, claims of •the defendants, Joseph Thompson and Andrew Ds Wood, the sum of two hundred and sixty-six dollars and fifty-one «cents, which he alleges to be due him from the said defendants.

Court. This was a bill in chancery, by Samuel H. McCrory, as ‘■administrator de bonis non of tbe estate of William 33-. Snyder, deceased, against Eliza Ann Poster, seeking to •subject certain real estate, tbe title to wbicb was in tbe said Eliza Ann, to tbe payment of tbe debts of said decedent, ■and also to recover from ber an amount of money, claimed to be due to said estate. * Tbe facts material to be stated, are as follows: Mrs. Poster was tbe wife of Wm.

ON tbe lltb day of Sejitember, 1851, John Pierson, with. Ms wife Sarab, executed and delivered a deed to Ellen Armstrong,, which, excluding the formal parts, recites, that they were of the first part, and “ Ellen Armstrong, wife of Barnet C. Armstrong, and daughter of said John Pierson and wife,” was of the second part, and witnessing “ that the said Pier-son and wife, for and in consideration of the natural love and affection, they bear to the said Ellen, their daughter,…

ON the 26th day of November, 1853, Hugh Harkins-filed bis petition in the District Court of lee county,against the EranMin Eire Insurance Company of New York and Edwards & Turner, claiming one hundred and ninety - five dollars and forty-eight cents, growing out of an injury to certain goods which had been shipped on the steamer Badger State, of which Harkins was master, and which had been insured by said company, alleging, also, that $300 was the amount originally due on…

This is an actioa of right, brought by Cavender against ■Jeremiah Smith, for eighty acres of land in Des Moines •■county. -Pending the action, Smith died, and his heirs were substituted as defendants. Both parties claim title under ■the said Smith, the defendants as Ms heirs, and the plaintiff ¿under a judgment against the said Jeremiah, execution thereon, sale and sheriff’s deed to James W. Grimes, and a •conveyance from Crimes to him.

1858.. The plaintiff's claim is for-damages by reason of defendant’s having harbored and retained in his employment, one Jonah Everett,, the minor son of plaintiff, from May 1st, 1852, to- the time of the commencement of this suit.

- Bill in chancery. The process served upon the respondents reads as follows : “ The State of Iowa, “ To the sheriff of Johnson county, greeting:— “In tbe name of the state of Iowa, we command you to summon Sybil Harris, and Sterling Stagg, if to be found in your county, to be and appear before the District Court of said county, on the first day of the next term thereof, to be begun and held at the court-house in Iowa city, on the second Tuesday in April, 1855, to answer…

This is a suit in chancery, to compel the conveyance of -certain real estate. The original bill was filed January 14, 1852, in tbe names of'“ Jonah. Pipe, and'William -H. Humph-reys, who sue in behalf of themselves and many other persons too numerous to bring before the court, constituting the members of -tbe British Emigrant Mutual Aid Society,” ^against Bateman and others. Two amended bills* were filed by .the complainants, all of which were answered by tbe respondents.

This action originated before a justice of tbe peace, by information, filed September 15, 1854, containing three counts, and cbaxging the defendant below, Baurose, with unlawfully retailing intoxicating liquors. Trial by jury. Verdict, guilty on two counts, and judgment tbereon. Appeal was taken to the District Court, and on the call of the case in that court, the prosecuting attorney moved an affirmance of the judgment of the justice.

ACTION ou a note. Plea — infancy on tbe part of Anderson, one of tbe defendants. Issue taken on plea and replication, alleging tbat at tbe time tbe note was given, and tbe goods furnisbed wbicb were tbe consideration thereof, tbe defendant was engaged in business as an adult, and plaintiff bad good reason to believe bim capable of contracting; and also, tbat tbe defendant bas not returned tbe money or property received by bim by virtue of tbe contract.

In 1848, the Bank of Pittsburg, being a foreign corporation, obtained a judgment in the Lee District Court, against the complainants in this bill. Execution issued on this judgment, and certain lands were sold thereon to Grimes & Starr, the attorneys of the bank. Before the sale, however, the complainants obtained an injunction to restrain the bank, her agents and attorneys, from collecting some $578.00 of said judgment.

This was a proceeding under a special statute, to recover compensation for the right of way over the land of the plaintiff, and conies up on the following bill of exceptions: “ Be it known that on the trial of this cause, evidence was given by the plaintiff tending to show, that the defendants had taken the right of way through plaintiff’s farm to build their plank road upon, in quantity between five and six acres; that it passed through the cultivated part of his farm,…

JError to the Des Moines District Court. The plaintiff in error was indicted, and convicted in 1855, of the murder of one McCardle, in October, 1840, and sentenced to the penitentiary for life. On the trial below, the defendant, among other things, asked the court to instruct the jury as follows: “ 1.

This action was tried before a jury at tbe September term, 1855, of the Lee District Court. Verdict for the defendant, and judgment against the plaintiff for costs. The facts of this case are fully detailed in the opinion of the court.. The plaintiff appeals' from the judgment thus rendered against her, and in this court, assigns for error, the giving, and refusal to give, certain instructions. argued: 1.

This was a bill in chancery to quiet the title to lot one in block twenty-four in Keokuk, filed by Wickersham, September, 15, 1853, against Reeves & Miller. Tbe substantial allegations of tbe bill, are as follows: On and before tbe 28tb of November, 1851, one John Lockman was the owner in fee of one -undivided eigbtb part, and one-sixth of seven-eigbtbs of said lot, and in possession of tbe same.

This was a proceeding under the act of January 18, 1853, to obtain the right of way over defendant’s land, for the railroad being constructed by the company. A jury having been summoned, the damages of the defendant were assessed at one hundred and thirty dollars, and from this, Sater appealed to the District Court of Des Moines county, in 'which county the proceedings originated. He afterward made application for, and obtained, a change of venue to Louisa county.

Noel, is tbe owner in fee of the lot of ground which, is the subject of this suit. Nicholas Noel, the complainant and father of defendant, elaims that his son holds one-half of it in trust for him, and this suit is brought to compel a conveyance of that half.

This suit was brought by Harkins, as master of the steamboat Badger State, against the Eranklin Eire Insurance Company, and Edwards & Turner, claiming of them the sum of $195.48, for cause of which claim, the petition alleged as follows: “ That about the 11th of May, 1853, the plaintiff received on board said boat, to carry to various points on thé Des Moines River, from Keokuk, in Iowa, cer- ■ tain goods of different persons, which were insured by said defendants; that on…

This canse was beard upon bill and answer. Tbe bill sets out that complainant- and one Hawthorne were in partnership, and as such partners were indebted to respondents in the sum of $750, and that in January, 1855, respondents agreed with complainant, that if he would secure them as to the payment of one-half of said partnership indebtedness, they would release him entirely from the payment of the ■other half, and that in pursuance thereof, he made and executed a promissory…

This was an action of right for lot No. 5, in block 36, in the city of Keokuk, brought by appellants against appellee. All of the testimony is preserved in a bill of exceptions. From this, it appears, that on the 3d of February, A. D. 1852, the plaintiff recovered a judgment in the Lee county District Court, on a contract, made in April, 1851.

Two cases are before us of the above title, which have been argued as involving the same question. We shall, therefore, speak of but one, treating -the disposition of it as a disposition of both. Complaint was made against the ' defendant, before a justice of tbe peace in the city, of Du-buque, for a violation of a city ordinance, entitled, • “ An ordinance to prevent nuisances, and for other purposes,” approved July 17, 1854. He was fined in the sum of fifty dollars.

This was a bill in chancery, filed by Walker, May 8, 1851, seeking to enjoin an execution against Mm, in favor of Ayres, administrator of Davis. The case made by the bill is substantially as follows: In April, 1841, a judgment was •obtained in the Lee District Court, in favor of the estate of Davis against Walker, and one Henry Eno, for some $990. On this judgment, payments were indorsed as follows: June 1, 1844, $29; August 24, 1844, $305; Jan. 10, 1845, $13.25.

This suit was brought to recover a balance due for work and labor, done by Porter for Walker, in roofing a building.. The answer denies tbe petition, and claims damages on account of -tbe failure of Porter to do tbe work according to contract. Judgment for plaintiff. All tbe testimony given on tbe trial, is not brought up.

This is an appeal from an order dissolving an attachment. Tbe appellee moved to dismiss tbe 'appeal, for tbe reason, tbat tbis court cannot revise sucb an order of tbe District ■Court.

Preston, who was. required to appear at tbe next term of said court, and answer interroga* taries. At tbe succeeding term, judgment was rendered against Hathaway & Parkhurst, for tbe sum of $890.47, and tbe- answer of Preston, as garnishee, was taken.

District Court 'This suit was commenced before a justice of tbe peace, and taken by appeal to the District Court, where judgment was rendered for the plaintiff. The defendants appeal. The facts of the case ■ are fully stated in the opinion of the court

<p>Where in a proceeding by mandamus, the order for the writ, and the writ itself, are issued in vacation, and not during the session of; and by, the court as such; and the proceeding is not carried on in the name of the state; and where the writ recites no part of the inducement, or that which must justify the command, the proceedings are erroneous.</p> <p>The writ of mandamus should not issue, until there is some wrong on the part of the tribunal, corporation, board, or person, to be commanded; in other words, the party to be compelled, should have failed and refused, to do that which it was clearly and certainly his duty to do, from his office, trust, or station.</p> <p>Where, under an act of the legislature, approved January 24, 1865, providing for the relocation of the county seat of Keokuk county, an election was held, for the purpose .of determining whether the county seat should be removed from Lancaster to Sigourney, and the county canvassers, found that a majority of the votes cast were in favor of Lancaster; and where two citizens of said county, and who voted at said election, claimed that the vote had not been properly canvassed — that a majority of the votes were in fact) cast for Sigourney — and that the board of canvassers had improperly excluded the returns from four townships, which, if counted, would show a majority for Sigourney; and thereupon, said two citizens, for the purpose of compelling the removal of the county offices to Sigourney, presented their sworn information to the judge of the District Court of that county, in vacation, praying a writ of mandamus, commanding the said county officers to make such removal; and where the said judge made an order, authorizing the clerk of the District Court, to issue the alternative writ, to said officers) commanding them to remove to Sigourney, or show cause on the first day of the next term of said court, which writ was issued; and where at the next term of said court, the information was amended, so as to set forth the facts, as plaintiffs claimed, with regard to the county canvass of the votes, and the alternative writ was also amended, so as to include an order on the county judge and canvassers, to count the votes from the townships said to be excluded; and where the defendants appeared, and demurred to so much of the writ as claimed a removal of the county seat, because of the incorrectness of the county canvass, or because the actual vote was different from that declared, and also answered, showing the election and the result as declared; and where the record disclosed, that the demurrer was overruled, and the defendants declining to plead over, the plaintiffs moved for a peremptory mandamus, based upon the information, writ and answer without any other evidence, commanding the county judge to so amend his record as to show the true state of the majority vote and the said county officers to remove their offices, &c., to the town of Sigourney, on the 15th of March next, which was granted; •</p> <p>Held, 1. That the peremptory writ did not follow the alternative.</p> <p>2. That the county judge could not be commanded to amend his record, until, either in connection with the former canvassers, or others to he selected, or in some other method, the returns had been re-examined, and the result declared, so that he could make his amendment therefrom.</p> <p>3. That the peremptory writ having been ordered without any other evidence or records, than that contained in the information, writ, answer, and demurrer, was unwarranted.</p> <p>4» The writ of mandamus could properly issue to compel the board of canvassers to correct the mistake, and do their duty; and upon such correction, if the majority was in favor of Sigourney, the county officers, upon a failure . so to do, could be compelled by mandamus, to remove their offices to that place.</p>

This was an action for the publication of a libel, com* anenced by Kiene against Euff. The libel was contained in 'a letter written at Dubuque in this state, and there copied •for the defendant, and there mailed, addressed to one ■Spracher, in Switzerland, which was received by said Spracher.

This suit was brought on the following instrument: “ Certificate. Illinois Phoenix Panic. “ Chicago, Sept. 22,1854. “ Briggs and Felthouser have deposited in this bank four hundred and sixty-two 50-100 dollars, to the order of themselves, payable two months after date, payable to their order, on return of this certificate, at interest at six per cent. $462.50-100. M. Bob & Co., Cashier.” which was indorsed by the said Briggs & Felthouser in blank.

Thomas McCkANEy petitioned tbe county court of Du-buque county, at tbe October term, 1851, for a road, called tbe Eagle Point Road, wbicb passed over tbe lands of tbe Smiths, taking about one-fourtb of a balf block of lots.

Appeal -from the Linn District Court. This was an action brought to recover on a promissory note, dated October 8th, 1844, payable on demand, and was commenced August 14th, 1855. With other defences, the defendant plead in proper form, the statute of limitation of Eebruary 15th, 1843.

This action was brought to recover for injury done to the-colt of plaintiff, while tbe same was being yarded with other stock of plaintiff at defendant’s, at which place tbe plaintiff, bis family and stock, were staying over night, on their way moving to tbe country. Defendant is sought to be charged as an innkeeper generally, and also on a special undertaking. A verdict was had for plaintiff for fifty dollars. Defendant moved for a new trial, which motion was overruled.

This was an information filed before a justice of tbe peace, under section 932 of. tbe Code. On tbe trial, there was- no appearance for the lot or building. It being found tbat the prohibited traffic had been carried on in the building, and upon the lot charged, the justice entered up six several judgments of guilty, and assessed the fine in each case at ten dollars.

A-bbAHAH Eloyd died, leaving the plaintiff as his widow^ with her family, in .possession of a tract of land, which she, •as his surviving widow and head of the family, continued to occupy and possess as tbe homestead farm. Whether it exceeded forty acres, is not shown. A portion of this tract she rented to the defendant. This suit was brought for an alleged breach of that contract.

At the October term, 1854, of the Des Moines District Court, 'Samuel M. Trulock was indicted fox the murder of Thomas B. McCormick. A trial was had at. the same term, which resulted in the discharge of the jury, from their inability to •agree.' At the last Spring term, on motion and affidavit of defendant, the venue was changed to Henry county, in the same district.

Appeal from the Davis District Court Judgment having been rendered against the defendant at tbe last September term of the District Court of Davis county, be now appeals and seelcs to reverse it, for reasons which will appear in the opinion of the court.

Ik September, 1847, Jobn Foley and wife conveyed to Carson, tbe complainant, tbe quarter section of land in controversy. In October, 1849, Harrington recovered a judgment against Foley, and in October, 1850, an execution was issued tbereon, and levied upon said land, and tbe same was advertised for sale as Foley's property.

This was an action to recover for goods sold and delivered. The answer denies the allegations contained in the petition, in general and specific terms, and also professes to plead in bar of the action, the statute of limitations. This was not demurred to, neither was there any motion for a more specific statement, nor a replication.

This was an action commenced before a justice of tbe peace. On the trial of the cause, on appeal, in the District Court, the defendant proposed to prove by the justice before whom the cause was tried, what a witness had sworn to in the trial before him, and which witness had died pending the appeal. The plaintiff objected, and the testimony was excluded. This ruling is now the only question presented for our determination.

Certificate of Deposit,. No. 434.. “ Banking-house of W. J. Barney & Co. “ Dubuque, Iowar Aug. 18,1854. “ Hawthorne, Childs & Co., has deposited in our office, in currency funds, nine hundred and forty-five, 0-100 dollars,.payable to the order of themselves, on return of this certificate, thirty days from date. W. J. BakNET & Co.” On which are the following indorsements : . “ Bay to the- order of P. B. Ring, “ Hawthorne, Childs & Co.” “ Pay to the order of M..

Error 'to the Linn District Court. Tina was an indictment under section 2577 of tbe Code, ©barging the defendant with haying disabled a member, to wit, the little finger of one Oliver Clark, by biting, with intent to disfigure the person of said-Clark. To this, there Was a demurrer, which was overruled.

This suit was instituted to recover an amount claimed on three promissory notes, on which, an attachment issued. One of the notes was not due at the time of the commencement of the suit. A bond was filed, regular in all its parts and conditions, and was signed by plaintiffs, and by Smith, McKinlay & Poor, each in their partnership style and name.

This was an action commenced before a justice of tbe peace, by tbe following notice : . £t To John Monahan, Sir: You are hereby notified that Edwin Hall claims of you forty-seven dollars, justly due him as an indorser on a note, dated Jan. 14, 1855, due in one day, jo John Monahan, for forty-one dollars and ninety-one cents. Note signed by Taylor Pierce; assigned to Edwin Hall by John Monahan, on the 2d day of February, 1855, value received.

This was a proceeding, commenced before the county court, to pre-empt a certain quarter section of land, under chapter 156, Laws 1855, page 228, entitled an act “ To present trespass or waste on swamp or other lands, in the state of Iowa, and for other purposes.” From the decision of the county court, the plaintiff appealed to the District Court.

The plaintiff sued for dower in certain lots in Dubuque,- and judgment of admeasurement was] rendered. Held: that the plaintiff was entitled to the use of the money for life, under the agreement. From this judgment the defendant appeals, and assigns for error, the rendition of the decree for the payment of the money, and the ten per cent, interest.

This suit was brought on a judgment rendered in 'the Court of Common Pleas of Union County, Pennsylvania, and at tbe commencement thereof, the plaintiffs procured the auxiliary process of attachment.

At tbe return term, defendant appeared by attorney, and applied for a change of venue to the latter county, and also claimed compensation for trouble and expense occasioned by attending in the wrong county. Pending this application, plaintiff asked leave to dismiss his suit, no answer having been filed. The defendant had not attended in person at Polk county. Tbe court granted tbe change of venue, and awarded twenty dollars’ expense, for attending in tbe wrong county.

<p> Appeal from the Pollc District Court. </p> <p>At tbe March term, 1855, of tbe Polk District Court, tbe plaintiff recovered a judgment against tbe defendant, for tbe .sum of one hundred and twenty-five dollars. At a special term, held in May afterwards, tbe defendant filed a motion in arrest' of judgment, and for a new trial, because of tbe alleged erroneous rulings of tbe court, and because tbe verdict was against law and evidence. The bill of exceptions shows, that plaintiffs objected to tbe filing of this motion, which was overruled, for tbe reason, that the court bad told counsel for defendant, at the’ March term, that they could have until tbe special term to file the motion. Tbe motion being beard, was sustained, tbe verdict set aside, a new trial granted, and tbe cause continued. To these rulings plaintiffs excepted, and now assign them for error.</p>

<p> Appeal.from ■the Dubuque District Court. </p> <p>This suit was brought by Collins, against George Kelley, as administrator of Francis Kelley, to compel tbe specific performance of a contract for tbe sale of certain real estate, made by F. Kelley in bis lifetime. Tbe petition states, that tbo deceased, being tbe owner of a tract of land adjoining the town of Dubuque, which he intended to lay out into lots, when he should have paid off some, incumbrances which were upon it, some years ago entered into a verbal agreement with Collins, the petitioner, that Collins, might build a bouse upon a certain part of tbe tract, and that, ■when Kelley should lay it out into lots, Collins should have ■that on which he should build, at the same rate as he, K, got for the rest, and that, upon Collins paying him, he .would convey the lot 'to him; that Collins, relying upon the agreement, built a bouse and made other improvements, not only with the knowledge of K., but K. lived with him some time, in the house, as a boarder; that, at the time of the agreement, no precise description or boundaries of tbe lot were agreed upon, but it was stipulated tliat it should consist of one acre, at least, in quantity; that Collins should pay partly in work and labor, when. K. desired, and the remainder should be paid in cash at such time, and in such •amounts, as might be convenient to Collins; that in the spring of 1853, K. caused the said lands to be surveyed into lots, running the lines so as to accommodate the houses of those with whom he had other similar agreements, and run out the lot of Collins by metes and bounds, and recognized and affirmed the bargain with C.; that the lot was laid out to contain one acre, and the price was fixed at two hundred dollars, and C. paid eight dollars in work. Afterward K. died, and George Kelley was appointed administrator. C. paid one hundred and fifty dollars to the administrator, and avers that he has called upon said Kelley, administrator as aforesaid, who would not agree that he should receive a deed for said land, and seeks now to set aside the agreement above set forth, with said Francis Kelley in his lifetime; and also to charge said Collins the full price which said property has enhanced since the making of the agreement. He then avers the bringing the remainder of the money due into court,- and prays that the administrator may be decreed to make a conveyance to him of the lot. *</p> <p>The administrator answers, denying the contract as stated, but admits that deceased might have given C. permission to build on the lot, but avers that it was upon the condition that C. should pay the taxes, and such reasonable price as the parties might agree to. He denies the price alleged by C., and that it was to be paid partly in labor, and that C. did work for K., and that the size of the lot was to be one acre, and that its locality and description were fixed by the survey. He admits the payment of one hundred and fifty dollars to him, on account of said lot, but denies that it was paid under and by virtue of the contract as alleged, and reiterates that C. was to pay a reasonable sum when the land ■ was surveyed into lots, and avers that the lot is worth one thousand dollars.</p> <p>Since this pleading, William Yandever has been appointed administrator de bonis non of Francis Kelley. The cause was heard on the bill, answer, replication, and depositions, and a decree rendered for the complainant, from which the respondent appeals.</p>

The plaintiffs sued defendant before a justice of the peace. Jury trial, and a disagreement. Cause continued,, and a venire issued for another jury. When the parties appeared on the second day, and before the jury was sworn,, or the trial bad commenced, the plaintiffs made the proper affidavit, and applied for a change of venue, for the reason, that, the justice was a material witness for them. The change of venue was granted, to which defendant objected.

■ . This was art action of replevin, to recover certain goods from tlie possession of tbe defendant, wbo, as sheriff of Du-buque county,, bad attached the same, as the property of one Eussell, to secure a demand in favor of one Mobley., The plaintiffs claim by virtue of a sale by Eussell, made to them on the 26th day of March, 1855 ; the attachment having been levied on the 29th.

This suit whs brought by Baltzell and others against Nosler, on a judgment rendered in the state of Indiana. Judgment was rendered against the defendant. The facts are sufficiently stated in the opinion of the court.

Appeal .from the Muscatine District Court The defendant, as marshal of tbe city of Muscatine, dis-trained certain personal property of tbe plaintiff, for tbe payment of taxes, claimed to be due and owing from bim to said ■city. Tbis action of replevin, was brought by plaintiff, to •obtain said property.

This case originated before a justice of tbe peace, and was taken to tbe District Court by appeal. Suit was brought on a due bill, payable in flour on tbe day of the date thereof. On tbe day of tbe date of tbe due bill, tbe flour was demanded, and a part was paid, and tbe then full price of tbe residue, was tendered by tbe defendant. Between that time and tbe time of tbe commencement of this suit, flour rose in tbe market.

This suit was commenced before a justice of the peace, on a promissory note payable to one Laning or bearer.