Volume 10 — Iowa Reports

This is an agreed ease submitted for the determination of the question, whether certain lands were taxable for the years 1857 and 1858, as the property of the Des Moines Navigation and Rail Road Company. By an act of Congress of the 8th August, 1846, certain lands were granted by the United, States to the State of Iowa, for the improvement of the navigation of the Des Moines river.

The plaintiff sued on a promissory note for $185.00, dated 1st September, 1857,made by Middleton to “Mark Weaver,” payable one day after date, and wbicb was indorsed in express terms to the plaintiffs.

Information before a justice of tbe peace charging the defendant with selling and giving away intoxicating liquors, in violation of law. The defendant was found guilty, and appealed.

The action is brought upon three promissory notes, and a writ of attachment is sued out. A motion to quash the attachment, and a demurrer to the petition, filed by the defendant, were overruled; and a demurrer of the plaintiff to the answer was sustained, and judgment was rendered in favor of the plaintiffs. The defendant appealed.

Where there are several counts in a petition, and a demurrer to the whole petition, the demurrer will be overruled if one count presents a complete cause of action. Marten v. Williams, 13 John. 269; Chit. PI. 703; Gochran v. Scott, 3 Wend. 229; 12 lb. 165; 1 Blackf. 260; 3 lb. 167; Monell v. Golden, 13 Johns. 401; 3 Caines 81; Gorn-well v. Gould, 4 Pick. 446; Bahery. Sanderson, 3 lb. 353.

On the 16th June, 1856, Thomas M. Sloan with Sarah A., Ms wife, executed to Wm. E. Coolbaugh a mortgage deed on two lots in the town of Newton, in Jasper county, and on forty acres of land in the same county, to secure the payment of a promissory note to said Coolbaugh, in one year from that date, for the sum of fifteen hundred dollars.

The defendant was sued on a promissory note, dated tbe 5th March, 1857, and due in one year from date, for one thousand dollars. The defense rests upon a certain bond in substance as follows : On the date of the note, the plaintiff executed to the defendant his bond in the penal sum of one thousand and two hundred dollars, the consideration of which was the conveyance of certain parcels of land in Warren county for the consideration of four thousand and six hundred dollars.

ON the first Monday of August, A. D. 1851, James Pom-roy was elected to the office of Recorder and Treasurer of Wapello county, and qualified as Treasurer on the 13th August, with the defendants C. C. Warden, John Pomroy, A. Mudge, H. P. Graves, E. Washburn, J. W. Caldwell, M. C. Hill and D. Gephart as sureties.

PLAINTIVE sues upon a replevin bond, given by Smith as principal, and Bates and Phillips as sureties. Defendants set up, and there was evidence tending to show, that the action of replevin was dismissed by agreement of the parties upon the promise of Bates to pay to Hall the sum of one thousand dollars, sometime during the ensuing fall, but there was no ¡iroof that he paid the same.

This was an action to recover possession of lots eleven and twelve, in block tbirty-four, in Tipton.

This action is upon a replevin bond, against Elizabeth Morton the principal, and William Acton, J. E. Painter, and Wm. Snook, her sureties, to recover two thousand dollars, the penalty of the bond. The plaintiff demurred to the answer of the defendants, and the demurrer being overruled, he appealed, and assigned this ruling as error.

The material facts are stated in the opinion of the court. argued: 1. The court erred in permitting the plaintiff to file a replication to defendants’ answer to the amended petition after the jury was sworn to try the issue; Cole y. Swan, 4 G. Greene 32. 2. Also in permitting the plaintiff to show that the assignor, Shaw, did work for which no provision was made in the contract assigned to plaintiff, which is the basis of this action. 3.

The plaintiffs claim of tbe defendant tbe sum of five hundred dollars, and for cause of sucb claim allege that in August A. D. 1857, they put into tbe possession of tbe defendant a certain span of mules, to b.e sold by him for their use and benefit, and that he was to deliver over to them tbe money or property received for them.

The case is fully stated in the opinion of the court. No brief on file. cited Code of 1851, sections 104, 141, 150, Tapp. Man. 389, 400, 410, 413, 417, 439, 444; Price and Wait v. Earned et al., 1 Iowa 473.

This judgment was affirmed on plaintiff’s motion, for want of payment of the docket fee and for the failure of defendant to ■ prosecute his appeal.

The partnership of Parkhurst & Pence, made their promissory note to one of the firm (Parkhurst) who assigned the same to plaintiff. After the dissolution of the partnership plaintiff brought suit on the note, and service was made upon Parkhurst but not upon Pence. Judgment was rendered by default against both. At the next term Pence made his motion, supported by affidavit, to set aside the default and allow him to defend.

The original bill was filed by Israel Switzer, since deceased, and the present plaintiff is substituted as bis admistrator. The bill is for an injunction to restrain a conveyance by the sheriff and to settle and quiet the title to certain tracts of land in Dubuque county. The original complainant claimed as the father and sole heir at law of one Owen Switzer. The decree of the District Court was rendered in favor of the petitioner, and the respondents appeal.

The plaintiff sues on a promissory note. The defendant answered at the first term, admitting the execution of the note, but denying any indebtedness thereon to the plaintiff, and averring payment and discharge of the note at its maturity. At a subsequent term, plaintiff replied denying the plea of payment. After this, and at the same term, defendant moved for a change of venue, which was overruled and defendant appeals.

The bill ivas filed to obtain a decree for the correction of a mistake in a deed of conveyance. In March A. D. 1849, James Robinson recovered a judgment in the District Court, against Peter Moriarty, for the sum of $151,03.

The defendant was indicted jointly with one Redout, for the murder of Thomas A. Harrison, by shooting on the 2d of April, 1858.

The facts involved in this case are fully presented in the report of the opinion filed heroin at the June term 1859 — 8 Iowa 369.

<p> Appeal from Davis District Court. </p>

Samuel S. Rayburn, the father of the plaintiff being seized in fee simple of. lot four in block nine in the town of Davenport, deceased in the year 1849, leaving her bis sole beir at law. His title accrued in the year 1840. The defendants claim under Antoine Le Claire, who purchased it at the sales for taxes levied for the year 1842. The questions arise upon the proceedings relating to the taxes and the sales under them, and are sufficiently shown in the opinion of the court.

<p>1. Challenge to thb tanel os a gband jury. Held, that the refusal of the defendant to introduce evidence to sustain his challenge to the panel of the grand jury was sufficient to authorize the court to overrule the challenge.</p> <p>2. Same: pleadings. The court may require evidence to sustain the challenge though the prosecutor declines to plead thereto. The Stale v. Howard and Cress, infra, cited and followed.</p> <p>8. Opinion of a juror. An opinion formed by a juror as to the guilt of the defendant is not a sufficient cause for challenge unless it is unqualified in its character. A challenge to a juror, who answered that he had not formed an unqualified opinion as to the guilt or innocence of the defendant, was properly overruled. The State v. Hinkle, 6 Iowa 3 80, and The State v. Pearce, 8 .Iowa 231, followed.</p> <p>4. Jury may be kept together. The court, before a jury is sworn and before the cause is submitted to them, may permit the jury to separate or it may keep them together in charge of the proper officer. Code of 1851, section 3011.</p> <p>5. Witnesses in criminal actions. Chapter 109, Laws Seventh Ggneral Assembly, (1858) does not apply to witnesses called by the State in a criminal action to rebut the testimony given by the witnesses of the defendant. Rebutting testimony may be given by witnesses whose names were not endorsed by the grand jury on the back of the indictment.</p> <p>6. Evidence. Scientific works offered in evidence, in the trial of a criminal action, should not be taken by the jury to their room when they retire to agree upon their verdict.</p>

<p> Appeal from Muscatine District Court. </p> <p>INDICTMENT for larceny. The defendants challenged the panel, and moved the court to set aside the indictment, for the reason that the grand jurors had been irregularly selected, drawn and impanelled. The district attorney filed a denial. The court refused to sustain the challenge or set aside the indictment. Trial and verdict of guilty. The defendants filed their motion for a new trial which was overruled, and they appeal. The different grounds upon which the challenge and motions above mentioned were based are presented in the opinion of the court.</p>

<p>1. Instructions. Instructions not excepted to when given to the jury, will not he noticed in the appellate court.</p> <p>2. Verdict on Sunday. A judgment will not be reversed because it was rendered on Sunday, when the only evidence of that fact which is brought before the appellate court is the recitation of the clerk in making up the journal entry.</p>

. ActioN upon a promissory note made payable to Eisher & Co., and indorsed in writing to plaintiff.

INFORMATION containing three counts, filed before a justice of the peace, charging the defendant with selling intoxicating liquors. Before, the justice, the first and second counts were withdrawn by the State, and defendant was tried and convicted under the third. On appeal to the District Court he was found guilty on the first and second counts, and from this conviction appeals.

Replevin for property claimed to be exempt from execution and attachment. This property was levied upon by the defendant as sheriff, under an attachment against plaintiff and another, at the suit of one Wells. Judgment for plaintiff, and defendant appeals. to the point that tbe surety-on a replevin bond can not be used as a witness for tbe plaintiff in the' replevin suit, cited 1 Greenl. Ev. section 392 and note, and section 393 ; 2 Phil.

Bill and cross bill for divorce — the wife praying in the bill also for alimony. The plaintiff charges the defendant with adultery committed with a person named, after the separation. The defendant’s cross bill bases the prayer for divorce upon allegations of desertion by the plaintiff without reasonable excuse. The evidence shows that plaintiff left the house of defendant, and fails to show any reasonable excuse therefor.

<p> Appeal from Lee District Court. </p> <p>INDICTMENT for malicious mischief. Demurrer to samo overruled, trial and verdict of guilty, judgment thereon and defendant appeals.</p> <p>in support of the proposition that the indictment was insufficient, cited Whart. Am. Crim. L., sections 285,286; 1 Arch. Or. Pr. (Wat. notes) 85 cl seq.</p> <p>contended that the indictment was sufficient, relying upon statute 9 Geo. 1, section 1022; 3 Arch. Or. Pr. 523; 2Bla.R.721; 2 East. P. C. 1076; 3 Chit. Or. Law. 1086, note *.</p>

INDICTMENT for murder in tbe first degree, for tbo killing of Thomas Donalioe. The manner of committing the homicide is charged to hare been by striking, beating and kicking the deceased. The defendant was found guilty of manslaughter. The errors assigned, and the matters pertaining to them, appear sufficiently in the opinion of the court. cited in supnort of the instructions asked by the defendant and refused by the court, 1 Russ, on Cr.

<p>1. Evidence and instructions. The judgment of the court below will not be reversed, because of the erroneous admission of evidence, when the record shows that such evidence was so explained, in the instructions of the court to the jury, that it worked no prejudice to the appellant.</p> <p>2. Copartnership: contract. Action by the assignee of S., on an account for goods purchased by defendant, of the firm of II. & S. of which the assignor was a member, under a contract with the firm to pay defendant a certain sum in goods out of the firm store; also for goods sold defendant by the plaintiff, as assignee; Held,</p> <p>1. That plaintiff ivas not entitled to recover for goods sold defendant by the firm.</p> <p>2. That ho was entitled to recover for the goods sold by the assignee unless it was shown that he sold them in the performance of the contract of the firm with the defendant.</p> <p>3. New trial : separation oe causes op action. As a general rule a new trial when granted, is awarded for the entire case, yet when not attended by confusion, and when it will not result in prejudice to the rights of the parties, it may be .granted as (o one or more causes of action set up in a petition, and refused as to the others.</p> <p>4. Same : equities. A new trial will not lie granted upon doubtful or technical grounds, or when substantial justice has been done in the trial below.</p>

ACTION on a promissory note. The petition prays for judgment for the sum of seven hundred dollars “with interest and costs.” The defendant made a special appearance and objected to the sufficiency of the notice, for the reason that it does not give the name of the state in which the action is commenced. The objection was overruled, and defendant answered. Trial, and judgment for plaintiff, and defendant appeals.

<p> Appeal from Fayette District Court. </p> <p>INDICTMENT for an. assault with a gun with intent to commit murder. The defendant was convicted of an assault, and appeals. The facts are fully presented in the opinion of the court.</p> <p>to the point that the District Court had no jurisdiction of the offense of which the defendant was convicted, cited constitution 1857, article 1, section 11, Laws Seventh General Assembly, p. 55. To the point that an intent to kill will not be presumed, from the probable consequences of an act which does not produce death, 2 Arch. Cr. Pr. and PI. 270, note 4, 272 note 2, 278; 3 Chit. Cr. L. 826, 828, and 838. To the point that the defendant may be convicted of any degree of the offense charged, but can not be convicted of one that is merely connected with it — that assault and assault with intent to commit murder are distinct offenses, and not different degrees of the same offense; 1 Russ. Cr. 780-2; Reginav. St. George, 38 Eng. Com. L. R. 285; Regina v. Greemoood et al., 61 lb. 339; Code of 1851, sections 2569, 2570, 2591 and 2597; 2 Leach. 716, 816; 12 Pick. 503; 2 Hale 245. To the point that if the indictment is for felony, the defendant must be present at the rendition of the verdict, Code of 1851, section 3030, 1 Arch. Cr. Pr. and PL 173 note 2, 1 Chit. Cr. L. 636, 1 Wend. 91.</p> <p>contended that the jurisdiction was settled by the committing magistrate and the grand jury, and that the petit jury determined only the degree of defendant’s guilt — The Slate v. Arliv, 7 Erost. N. II. 116; that the defendant could be properly convicted of an assault under an indictment for an assault with intent to kill — Steward v. The State, 5 Ohio 241; The State v. Kennedy, 7 Blackf. 233; The People v. White, 22 Wend. 167; The People v. Jackson, 3 Hill 92 ; 1 Bish. Cr. L. section 540 and the authorities there cited; that it is not necessary in an indictment for an assault with intent to commit murder, to aver the instrument or means used by the assailant to accomplish his murderous intent — The State v. Pent, 3 Gill. & John. 8; Commonwealth v. Rogers, 5 S. & R. 463, Whart. Am. Cr. L. 817; The State r. Cherry, 11 Iredell 475.</p>

Bill to set aside a judgment rendered against tbe complainant in an action of which he had no sufficient notice ; and also to set aside a sale of certain real estate thereunder because it was the homestead of complainant. Defendant filed a demurrer to the bill, which was overruled, and he appeals.

<p> Appeal from Dubuque District Court. </p> <p>Divorce. The bill is by the husband, and is substantially as follows: The parties were married in 1831. It it alleged that a few years after the marriage respondent became overbearing in her manner to petitioner and treated him unkindly ; that for the last few years she has shamefully treated him by beating and bruising him without any good cause; that within twelve months preceding the filing of the petition she has at divers times declared that it would be right and proper for her to put poison into petitioner’s victuals ; that she has often said she would be glad if he was dead; that she would act like a fool at his funeral because she would beso much elated. Petitioner further states that his occupation is such that be is required at all times to keep certain poisons about bis bouse, that be bas been compelled to use tbe utmost caution to keep said poisons out of tbe way of respondent, for be fears if sbe could get possession of tbe same without being discovered sbe would endeavor to poison bim; that at divers times during tbe past year, respondent bas without cause as far as known to petitioner, attacked bim in a violent manner, siezed bim by tbe hair, pulled out hand-fulls of tbe same, saying that sbe only wished sbe bad power to do much more injury. Respondent is averred to be a person of unbridled passion, and when mad and excited petitioner fears and believes she would kill bim, if he should be unable to defend himself, and that if be continues to live with her bis life will be endangered.</p> <p>And finally it is stated that tbe parties have two children, that respondent is entirely unfit to bring them up and educate them because of her evil disposition, that sbe bas been in tbe habit of using profane and indecént language in their presence, and at times beats and bruises them in a shameful manner, and that by reason of tbe ill treatment and threats as stated in said petition, petitioner believes it is unsafe for bim to continue to live with said respondent. To this petition there was a demurrer, which was overruled, and from this order respondent appeals.</p> <p>cited Finley v. Finley, 9 Iowa 52; Thornburg v. Thornburg, 2 J. J. Marsh, 322 ; Bishop on Mar. & Div. chapter 23 and tbe authorities there referred to.</p> <p>cited Bishop on Mar. & Div. chapter 22.</p>

<p> Appeal from Johnson District Gourt. </p> <p>The facts and error complained of are stated in the opinion of the court.</p>

<p>1. Conversations. If a part of a conversation is given in evidence by one party, the opposing party may inquire into all of it which relates to the same subject, on the cross examination of the witness by whom the conversation is proved. Code of 1851, section 2099.</p> <p>2. Evidence in an action on an attachment bond. In an action on an attachment bond in which it was alleged in the answer that at the time the writ was sued out, the plaintiff was about to dispose of and remove his property out of the State, without leaving sufficient remaining for the payment of his debts; that he had disposed of his property in whole, or in part, with the intent to defraud his creditors; and that ho was about to remove his .property from the State with the intent to defraud his creditors, on which allegations issue was joined; it was held that evidence showing the amount of his indebtedness at the time the attachment was sued out, that for some time before he was disposing of his property, and that some two months after that time he acted fraudulently, was properly admitted.</p> <p>3. Effect of a judgment in an attachment suit. The judgment recovered in an attachment suit is conclusive evidence of the amount of the indebtedness in controversy.</p> <p>it. Same. Where the judgment recovered in such an action, is for a sum less than five dollars, it also determines that the writ was wrongfully sued out, and entitles the defendant to nominal damages, with the actual damages sustained as shown by the evidence. Such a judgment however, is not sufficient without other evidence to show that the suing out of the writ was willfully wrong and will not, therefore, sustain a verdict for fexemplary damages.</p> <p>5. Haver v. Webster, 3 Iowa 502, approved.</p>

‘Appeal from the Dubuque City Court. These cases involve substantially the same questions as those decided in Davis &¡ Bro. v. Woolnough, 9 Iowa 104. Some further positions were presented by counsel for the defendants and appellants, which will be found sufficiently stated in the opinion.

Informations charging the defendants with selling intoxicating liquors, unlawfully, after having been once convicted of the same offense. The errors assigned are stated in the opinion of the court.

Ad quod DAMNUM, tbe plaintiffs applying for authority to overflow the defendant’s lands for mill purposes. Upon the return of the jury, awarding defendant damages, plaintiffs proposed and moved to dismiss and withdraw their application, for the reason among others, that they did not desire to overflow the lands named, and withdraw all claim under their said application.

This case was before this court at the last term — 9 Iowa 140. Certain property was attached, as belonging to defendant. He moved to discharge it because of the circumstances under which the levy was made by the sheriff. To sustain his motion he introduced several ecr parte affidavits, and in opposition to it, like affidavits were introduced by plaintiff.

Information for a writ of mandamus. In tbe year 1853 tbe county of Johnson subscribed fifty thousand dollars to the capital stock of tbe Lyons Iowa Central Railroad Company, to assist in constructing that road, which was to run through tbe above county. Tbe county issued her bonds to tbe above amount, they being for one thousand dollars each.

This action was brought to recover the amount of certain coupons, or interest warrants, attached to certain bonds of the county of Johnson, issued upon a subscription of $50,000 to tin capital stock of the Lyons Iowa Central Railroad Company.

ON the 24th. of December, 1858, the electors of the county of Scott, by a majority vote, authorized the county judge to subscribe $275,000 to the capital stock of the Davenport and Cedar Valley Railroad Company, and $100,000 to that of the Le Claire and Davenport Railroad Company. By this vote lie was also authorized to levy a tax to pay the principal and interest of the bonds, not to exceed one per cent in each case in any one year.

Plaintiees sue for goods sold and delivered, work and labor done, money advanced, &c., for defendant’s use, to the amount of about three hundred and eighty dollars.

<p> Appeal from Dubuque City Court. </p> <p>cited the Const, art. 5, section 8; Nichols v. The Burlington Louisa Blank Hoad Company, 4 Gr. Greene 42, 8 Bouv. Inst. 187.</p> <p>(No brief, on file.)</p>

This action is brought against Silas Foster and eleven others, his sureties, on his official bond, as treasurer of Iowa City. The breach alleged is the not accounting for moneys which came into his hands as such treasurer. A statement of facts is agreed upon, from which the following appears: Foster was elected treasurer at the April election, A. D. 1857.

Appccil from Buchanan District Court. JOHN Hill made Ms two promissory notes to the defendant Frink.

The plaintiff, entitling himself a “commissioner appointed by the court for the purpose of collecting the notes and accounts which were placed in his hands by William Greene and S. D. Carpenter, assignees of Ward, Bryan & Co., for the use of the creditors of Ward, Bryan & Co., and in pursuance of said order, &c,” brings suit against the defendants on a promissory note payable to “Wm.

Peeeeer and Horchy made their note payable to Inbody or order. The payee indorsed it in blank and the defendant Walker indorsed it in a similar manner. The holder brought suit against the makers and Walker. At the first term all the defendants demurred to the petition, and the cause was continued.

IN Equity. The bill alleges that complainant purchased of one Torrence two lots in the city of Keokuk, that he paid for them and took the title in the name of his wife; that the wife died leaving six minor children, and that they as her heirs hold the title, in part, to those lots ; that she held this title in trust for complainant, and that they take it in the same manner or subject to the same trust.

IN CHANCERY. The bill charges that in 1850, one Moore purchased of the United States, among other lands, the E. -J of the S. W. -£ of N. E. | of Sec. 23, Town. 80, Range 8; that in 1854 he sold and conveyed this tract, with others, to the respondent Douglass; that in 1855, Douglass sold and conveyed the same to petitioner, that the grantees in each case took actual possession of the premises, of all which the defendant McGillicuddy had notice.

This action was commenced in February, 1858. The issues were fully made up, but at the first term, by agreement of defendants, plaintiffs had judgment for the full amount of their claim. At the same term, on application of defendants, this judgment was set aside. In June, 1859, they moved for a continuance of the cause, on account of the absence of a material witness. This motion was overruled and from this ruling they appeal.

Action on a promissory note. Defendant answered, admitting the execution of the note sued on but alledging that it was usurious and that it ivas substituted for another note which was also usurious. On these allegations issue ivas joined, and on the trial the court excluded all of the testimony of the defendant which related to the note for which the one in action was substituted.

The indictment charges that the defendant on, &c., at &c., “ about the hour of two o’clock on the night of the same day, with force and arms, at and in the City of Davenport, in the county of Scott, aforesaid, the dwelling house of Geo. IT.

ActioN on a promissory note, payable to Havens or order. The defendant answered, averring that the note was assigned after maturity, and setting up by way of set-off, an account for work and labor done, &c.,by- him for the payee, and held at the time of tho assignment. To this answer there was a demurrer, which was sustained, and judgment rendered for plaintiff.

The plaintiff brought an action against the defendant for money deposited with him by the plaintiff on a wager. Judgment for defendant and plaintiff appeals. cited Stacy v. Foss, 1 Appleton 385 ; Forest v. Mart, 3 Murphey 458; Vischerv.

<p>1. Mandamus : injunction. An injunction restraining a county judge from removing the offices and records of the county from one town to another, is not in conflict with the mandate of writ of mandamus, requiring him and the other members of the board of canvassers to canvass the returns of an election on a proposition to remove the county seat to the same town, and to recount certain returns which will determine the result in favor of such removal.</p> <p>2. Same. In such cases the office of the mandamus is to compel ministerial officers to discharge their duty by a canvass of the returns, while that of the injunction suit is to determine the validity of such returns.</p> <p>3. Approval or daws. Printed copies of the approval by the Governor of the several laws published in a volume issued by the authority of the State, are not essential in order that the laws may take effect.</p> <p>4. Notices or election. The provisions of chapter 46, laws of 1855, “An act in relation to county seats,” prescribing the time and manner of giving notices of the presentation of a petition for the holding of an election on the removal of the county seat, are directory merely, and the absence of such notice will not invalidate an election of which the people were duly notified.</p> <p>5. Same. An election will not be invalidated by the omission of some duty by an officer charged with giving notice thereof, when such election has been duly ordered and held.</p> <p>6. Returns. In determining the validity of election returns, the recitals of the returns and of the certificates of the judges and clerks appended thereto will be considered together.</p> <p>7. Adjudication. A board of canvassers cannot adjudicate upon the sufficiency of election returns, but a court of justice may and will go behind the returns, and determine the regularity of the election, and of the manner in which it was conducted.</p> <p>8. Bribery. The giving of facilities for the public convenience of the whole county, as an inducement to'remove a county seat, or the offering of a public advantage to an entire community, as an inducement to the members of such community to vote for such removal, does not constitute bribery within the meaning of sections 2047-2657, Code of 1851.</p>

<p> Appeal from, Johnson District Court. </p> <p>ACTION on promissory notes. The facts are stated in the opinion of the court.</p>

The plaintiff, Mullany, was a member of the firm of Lee-man, Keenan & Mullany. The defendant was the surviving partner of the firm of Leeman & Keenan, which assumed the name above mentioned, when the plaintiff was admitted as a member. The other facts are stated in the opinion of the court. cited Coll, on Part, sections 207, 245, 264, Story on Part, section 218, Story’s Eq. section 659-665, 3 John. Ch. 362,25 Wend. 450,19 lb. 424,13 East. 7, 2 Cramp. & M. 361.

<p>1. Misjoindeb or babties. Two parties liable on the same obligation, one as the maker and the other as the guarantor of the payment of the same, can not, when the contract of guaranty is by a separate instrument, be joined as parties defendant, in an action to recover the amount due thereon.</p> <p>2. Section 1681, Code of 1851, cited and construed.</p>

<p>1. Judgment in replevin. 'When the verdict in an action of replevin is for the defendant, judgment cannot be rendered against the principal and sureties on the bond for damages.</p> <p>2. Several judgments. Judgment may be rendered against one or more of several defendants sued jointly on a joint and several contract. Semble, that a judgment of the District Court against several defendants, may be reversed as to one and affirmed as to the others.</p> <p>3. Judgment eor eetuen. In replevin the judgment for the defendant should order a return of the property. A judgment for damages alone, is erroneous, unless the reasons why a return of the property is not ordered are therein stated. Funk § Sardman v. Israel, 5 Iowa 140, explained.</p> <p>4. Pleadings in replevin. The allegations of a petition in replevin, if in the language of the statute are sufficient; and the denial thereof raises an issue which is divested of the technical effects that followed pleadings in replevin at common law.</p>

To establish the liability of Rogers as endorser of a promissory note, plaintiff introduced tbe note and tbe certificate of a notary to tbe effect that it bad been duly presented and was protested for non-payment. This being all tbe evidence, tbe defendant objected to its sufficiency, upon tbe ground that there was no proof of notice of the dishonor to tbe in-dorser. The objection was overruled and defendant appeals.

<p> Appeal from Fayette District Court. </p> <p>Aotion on two promissory notes. Judgment for the plaintiff and defendant appeals.</p>

PiAEfTlFE sues for a violation of a town ordinance, prescribing a penalty for keeping a ball alley, without being licensed therefor.

<p>1. Variance. A variance in the amount claimed between the original notice and a petition is not sufficient cause for reversing a judgment when it is shown that the defendant was not prejudiced thereby.</p> <p>2. Juegment. where the petition prays for judgment for the principal due on a promissory note and for interest, interest should be computed only from the commencement of the action,-</p> <p>3. Remittitur. When the judgment below is excessive, the Supreme Court may, on the filing of a remittitur, render judgment for the amount actually due.</p>

IN Chancery. The bill charges that complainant, in 1851, employed the respondent, Hampton, as an agent for the sale and location of land warrants, and that he furnished him with a large number of warrants from that date until July, 1855.

<p> Appeal from Clinton District Court. </p> <p>TrtE town of Lyons was platted, certified and recorded, by tlie owners of tlie land upon wliicli it was situated, in 1840. Upon tlie petition of the citizens of said town, tbe General Assembly of tbe State of Iowa, by an act passed January 19fcb, 1845, (Session Laws 1845, page 109) granted to David W. Eislier, a certain parcel of land in Water street, described as follows : “to commence one hundred and eighty ■feet due cast of the south, ea'st corner of lot one, block five, in Lyons, and north, of Main street, tlience running one hundred and fifty feet due north, thence east one hundred and twenty feet to the place of beginning, containing eighty rods more or less.” This grant was coupled with a condition “that said Fisher shall, within one year and six months from the passage of this act, build or cause to be built, a warehouse thereon, at least thirty by sixty feet, two stories liigb.” A warehouse of the size required by tbe condition was erected by Eislier, the south west corner of which was on the north line of Main street, one hundred and eight feet eastwardly from tlie south-east corner of lot number one in block number five.</p> <p>In 1855, the City of Lyons was incorporated by an act of the General Assembly, conferring upon the corporation the control of the public streets, alleys and landings on the</p> <p>river. In May, 1857, the city council directed the marshal to serve a notice upon the appellants, requiring them to remove said warehouse as an obstruction to the landing, and further directing that officer, if the building was not removed within the time fixed, to remove it at the expense of the owners. On the application of the appellants an injunction was granted, restraining the authorities of the city from interfering with, or disturbing said building. The locality described in the grant to Eisher, and in the pleadings is represented in the following diagram:</p> <p> </p> <p>The appellants claim that as the calls of the grant are inconsistent, the words '‘one hundred and eighty feet due east of the south east corner of lot one,” should be disregarded ; that the location of the land granted should be ascertained by a survey commencing at the point where the north line of Main street intersects the low water line of the Mississippi River (designated by the letter A on. the above diagram), running thence along the line of Main street, west, one hundred and twenty feet to the point marked B (at the south west corner of the warehouse,) thence in a northerly direction, one hundred and fifty feet to the point marked C, thence eastwardly one hundred and twenty feet to the low water line of the Mississippi, at the point marked D, thence with said line to the place of beginning. The appellee claims that the survey should commence at the south east corner of lot number one, marked E, running. thence due east one hundred and eighty feet, to the point marked/ which is the south-west corner of the land granted, thence north one hundred and fifty feet to the point marked g, thence east to the low water line at the point marked h, thence south with said line one hundred and fifty feet to the point marked i, thence to the place of beginning at/.</p> <p>Appellants’ bill alleges that the petition of the citizens of Lyons, asking for the grant, was accompanied by a plat of the town; that the petition particularly pointed out the locality of the tract upon which the warehouse was subsequently erected, which description as to place is identical with the one now claimed by them; and that the place occupied by the building was marked upon the map. It is further alleged that it was generally supposed at the time the grant was made that “ Main street run due east and west,” but that an accurate survey makes it run fifteen degrees south of east.</p> <p>Upon the hearing the injunction was dissolved, and the bill dismissed. The plaintiffs appeal.</p> <p>insisted that as the calls of the grant are inconsistent, the entire grant must be reasonably construed, and in such manner as will not make it void. 1 Greenl. Ev. section 301; Boardman v. Reed & Ford’s Lessees, 6 Pet. 328, 345. That where a description is ambiguous or doubtful, parol evidence of practical construction, by occupation or otherwise, will be received, 1 Greenl. Ev. section 301, note 2. A statute will be construed against its letter when necessary to arrive at its true sense, Sedg. Stat. and Const. L. 298; Canal Company v. Railroad Company, 4. Gil. & John. 152; Brown v. Joneswick, 8 Maryland 444; Bac. Abr. Stat. 1; Jackson v. Collins, 3 Cow. 89; People v. Utica Insurance Company, 15 John. 358 ; Henry v. Tilson, 17 Verm. 479. When a legislature passes an act upon a petition, and the interpretation is doubtful, the petition can be resorted to for the purpose of ascertaining the meaning of the legislature, Furman v. The City of New York, 5 Sand. S. C. 17. Where a deed calls for the line of a river as a boundary, it must have that boundary, though it does not correspond with established corners and monuments, Shelton v. Maupin, 16 Mo. 124. 2 Hil. Real Prop. 346, goes to the point that where two or more monuments are named, one only of which may be designated, pa-rol evidence is admissible to show which was intended.</p> <p>to the point that course and distance must yield to known and fixed monuments Avhen they can not be reconciled, cited Howe et al. v. Bass, 2 Mass. 380; Peswam v. Wead, 6 lb. 131; Revere v. Leonard, 1 lb. 91; Brick v. Young, 11 N. H. 485; Mayhew v. Horton, 17 Pick. 357; Frost v. Spaulding, 19 lb. 445; Mann v. Toles Pearson, 2 John. 37; Allison v. Allison, 1 Yerg. 16; Preston Heirs v. Bowman, 6 Wheat. 588; Mclvers Lessee v. Walker etal., 9 Cranch. 173; to the point that the courts will not correct mistakes in description made by the legislature, Fletcher v. Peck, 6 Cranch. 185; The Miners Bank v. The United States, 1 G. Greene 565.</p> <p>The following questions were elaborately discussed by counsel: 1. Can the legislature grant a part of a public street in an incorporated city to an individual? 2. Has the legislature the power to grant the soil between high and low water mark in the Mississippi to an individual ? As these questions are not passed upon or discussed in the opinion of the court, the authorities cited by counsel in support of their* respective positions, are omitted.</p>

Plaintiffs claim upon an account for goods sold and delivered. An attachment was issued, upon the ground, as stated in the petition, that defendants had disposed of their property and were about to dispose of their property with intent to defraud their creditors. The action was commenced in December, 1857, and is for a debt due. In July, 1859, the defendants’ motion to quash the atachment was overruled, and their demurrer to the petition sustained.

An attachment was prayed for and issued upon the alleged ground that he “ had absconded so that the ordinary process could not be served upon him.” Upon this writ certain persons were summoned as garnishees, and beyond this no property was attached. Whether the persons garnisheed had property of his in their hands or were indebted to him, does not appear. Defendant appeared and moved to change the venue to Des Moines county.

DEPENDANTS made a mortgage to one Fields, to secure a note payable to him or order. Before the note matured, Fields, for value received, assigned all his “right, title and interest” in said mortgage to plaintiffs. They bring this bill to foreclose, and aver that the note, as well as the mortgage, is their property, hut it isnot assigned. Defendants answer that the consideration for which said note was given (specifying it) has entirely failed.

Bill in equity to foreclose a mortgage. The respondent answered, but not under oath. After this respondent filed what is called a cross-bill, or “ an answer by way of cross-bill.” Complainant moved to strike tho answer from the files, because it was not sworn to. This motion was sustained. Decree in favor of complainant, and respondent appeals. relied upon Meld v. Scriffelin, 7 John.

Depeitdant introduced as a witness one Hammond, and proposed to prove certain admissions made by plaintiff to him, or a conversation had between them upon the subject matter of this suit.

<p> Appeal from, Muscatine District Court. </p> <p>The plaintiff recovered a judgment against defendant in a justice’s court for the sum of $90, for damages sustained by reason of injui’ies done to an ox belonging to plaintiff, by a train of ears in charge of the servants of defendants while passing over their road. On the trial of the cause in the District Court, on appeal, the defendant excepted to. the rulings of the court on instructions given and refused, and assigns the same as error. The instructions are presented in the opinion of the court.</p> <p>cited Perkins v. Pastern Railroad Company, and Boston Maine Railroad Company, 29 Maine 307; 1 Am. Railway C.144; Commonwealth v. Wilkinson, 16 Pick. 175 ; 2 Eng. L. & E. R. 289 ; 12 lb. 520; Great Western Railroad Co. v. Thompson, 17 El. 131; Illinois Central Railroad Co. v. Reedy, lb. 580, lb. 541.</p>

The facts are stated in the opinion of the court. contended' that there was no authority to substitute, and that the action after the in-dorsement should have been continued in the name of the original plaintiff. Code of 1851, sections 1698 and 1699. As to the points raised on the pleadings and instructions, he cited chapter 108, section 1, Laws of 1852-3; .1 Greenl. Ev. section 26; 1 Barb. 526 and 537; 1 Stark. Ev. 127; 23 Wend. 425; 9 Cranch. 388; 1 John. 97; 1 Phil.

Action on promissory notes. Answer, and demurrer thereto, for causes stated in the opinion. The demurrer was sustained and defendant appeals.

The petition alleges that defendants are indebted to plaintiff in the sum of sixteen hundred and twenty-one dollars; that he holds their note upon which said amount is due and unpaid ; and that one of them executed a mortgage to secure the same. It is further averred that the property mortgaged is not sufficient security for more than five hundred dollars of the sum claimed.

ACTION on a promissory note against maker and indorsers. The maker pleads that after the indorsement of the note, and after the same became due and before the commencement of this suit, in the District Court of Ilardin county, the plaintiff impleaded the defendant Grreer of and for the same identical note and cause of action mentioned and described in plaintiff’s petition, and such proceedings were had that the plaintiff by the consideration and judgment of said court…

Bill in equity to set aside certain conveyance^ made by Pairo & Nonrse, and Charles W. Pairo to ffls^e spondent, Edes, and to establish tbe lien of complainant# judgment thereon. The cause was heard on the pleadings and proofs, and a decree rendered in accordance with the prayer of the bill. Respondents appeal.

At a regular term of the District Court in Marion county, commencing on the 1st day of November, 1858, it was ordered that a special term should be held, commencing on the last day of the… Held: commencing on the last day of the month, and that all causes, motions, &c., not otherwise disposed of should be continued to said term. On the 4th of that month, plaintiff recovered judgment against defendant before a justice of the peace, from which defendant appealed on the 10th.

<p> Appeal from Polk District Court. </p>

Suit in justice’s court, and judgment for the defendant. The plaintiff appealed to the District Court. The judgment was rendered on the 10th of May, 1859. The next term of the District Court, (which appellant alleges was a special term,) was commenced on the 5th day of July, 1859, and was adjourned to the 10th of August of the same year. On the 6th August, the transcript was filed in the office of the clerk of the District Court.

The suit was against John Hyde & Co., a firm composed of John Ilyde, John Bryant and W. A. Scott. The notice was served on Hyde, and at the August term, 1858, defendants filed their answer to the petition.

Suit brought in the District Court of Polk county to foreclose a mortgage executed by defendant, who was a resident of said county, on property situated in Madison county. Defendant demurred to the jurisdiction of the court; and the demurrer was sustained and the cause dismissed. Plaintiff appeals. relied upon sections 1701, 1703,1704,1855,1858,1888 of the Code of 1851. submitted the cause without argument.

The plaintiff, by ber petition, claimed of “the defendants, Mathew Chambers and Mary Chambers, a judgment of the foreclosure of a mortgage,” and “judgment against Mathew Chambers, for the sum of $550 on a promissory note executed by him to plaintiff.” The original notice notified the defendants that plaintiff claimed of them judgment on a note and a foreclosure of the mortgage, “given to secure the payment of the same.” Defendants moved to quash the notice, because it did…

This suit was commenced on the 1st day of February, 1858, against Henry Burgett and Jacob Miller, “ composing the firm of H. Burgett & Co,” on a draft drawn by said firm against themselves, and in favor of the plaintiff. The petition also prayed for an attachment, which was issued and levied upon the individual property of Miller, tvho subsequently released it by the execution of a delivery bond.

This was a proceeding to foreclose the defendant’s equity of redemption in a certain tract of land, wbicb bad been sold by the treasurer of Iowa county, to petitioner, at a tax sale for delinquent taxes for the year 1857. Service of tbe original notice was made by publication, and a decree entered by default against defendant. Defendant appeals. I.The clerk has no power to order the publication of notice ; that order should be made by the county judge.

The defendant was indicted for tbe crime of seduction. A demurrer to the indictment, and also a motion to set aside the same, were filed, and overruled by the court. Plea of not guilty, trial by jury, and verdict of guilty. Motion in arrest of judgment, and for a new trial overruled by the court. Judgment rendered against defendant, from which he appeals. The errors assigned (necessary to be passed upon,) appear in the opinion.

This was an action against tbe makers and indorsers of a non-negotiable promissory note. The District Court held that J. W. H. Test, one of said defendants was not liable as indorser, and rendered judgment accordingly, from which plaintiff appeals. relied upon Long y. Smyser Hawthorne, 3 Iowa 266; Wilson v. Ralph et al., Ib. 450; Hall y. Monahon, 6 Iowa 217.

This was a proceeding in chancery to compel the specific performance of a contract.

<p> Appeal from Mahaska District Court. </p> <p>A statement of the facts involved in tbis case, is presented in the opinion of tbe court.</p> <p>I. The first levy was made under the direction of the judgment creditor, Casady, and it was upon property which he did not own, and was void.</p> <p>II. Myers had a right to return the first execution, and •the right to order the issuing of another follows as a matter of course. 3 Bac. Abr. 375, et seq.</p> <p>III. It has been held by some authorities that a levy on personal property operates as a satisfaction of a judgment, but upon this point there is conflict. It is different, however, with a levy upon realty. Neither the right of property nor possession passes to the plaintiff, and a levy does not discharge the judgment. Loio v. Smith, 4 Porter 56; Fletcher v. Reach, 2 Doug. (Mich.) 14 Wend. 260; 5 Ohio 107; Greene v. Burhe, 23 Wend. 490.</p> <p>I. When an execution has been levied on land with the assent of the execution plaintiff and defendant, and returned without sale by the order of such plaintiff, no new or alias execution can issue, nor can a new levy be made on other and different property. Shepperd v. Rowe, 1 Pet.; 14 Wend. 260; Borland v. Borland, 5 Cow. 417; 7 Cow, 13; 6 Wend. 562; Greene v. Burhe, 19 Wend. 499; Compton v. Field, 3 lb. 382; Cain v. Smith, 8 John. 337; Bown v. Burt, 1 Wend 89 ; 3 Bac. Abr. (Title, executor) 707.</p> <p>II. When a levy has been made, a new execution cannot be issued, nor a new levy be made, unless it is is shown that the first levy has been legally disposed of. Starr $ Smith v. Moore, 3 McLean 364; Hoyt v. Hudson, 12 John. 206; James v. Joliffe, 9 lb. 380. Nor is there any difference between levies on real and personal property, McIntosh v. Chew, 1 Blackf. 290; Steele v. Murray, lb. 179; Hophins v. Chambers, 7 Monroe 262; Arnold v. Fuller’s Heirs, 1 Ohio 203; Arnold v. Fuller’s Heirs, 1 R). 466; Ladd v. Blunt, 4 Mass. 302; Qass v. Adams, 3 Ohio 223.</p> <p>III. The rights and property of bona fide purchasers can not be affected by the second execution, levy and sale until the levy made by virtue of the first execution has been legally disposed of.</p> <p>IV. The judgment plaintiff should exhaust the property' of the defendant in execution, before resorting to other property upon which the judgment may be a lien. Bates v. Ruddiek, 2 Iowa 424.</p> <p>V. The execution creditor is the purchaser and is chargeable, under the circumstances of this case, with notice of all irregularities in the sale, and of the equities between the parties, 2 Blaekf. 1, and the authorities there cited.</p>

The defendant was prosecuted before a justice of the peace, for a violation of the act for the suppression of intemperance. lie plead guilty, was sentenced to pay a fine of $20, and be imprisoned sixty days. He appealed to thb District Court, where be asked leave to withdraw his plea of guilty, which the court refused and imposed the same fine ana imprisonment. This refusal is the only error assigned in this court by the defendant, who appeals.

In February, 1857, plaintiff and defendant formed a copart-nership in the grocery and provision business in the city of Keokuk, each of said partners agreeing to furnish his share of the capital stock and share equally in the profits of their firm business. The copartnership thus formed was dissolved in December 1857. The stock in trade was sold and placed to the credit of plaintiff on the partnership account.

This was an action against W. IT. & R. Wooster, as tbe makers, and Wooster, Templin & Co., as the indorsers of a promissory note. Judgment was rendered by the District Court against both the makers and indorsers, from which defendants appeal.

<p> Appeal from Jones District Court. </p> <p>. ACTION on an attachment bond. Plaintiff claims to have sustained damages by reason of tbe defendants wrongfully suing out an attachment against bis property; and in bis petition alleges that tbe same vras wrongfully, willfully and maliciously sued out, and for tbe purpose of causing it to be believed in the neighborhood that plaintiff was not an honest and reliable man; that in consequence of tbe issuing of said attachment, be has been injured in bis standing and repútation in society, to Ms damage in the sum of nine hundred dollars. Defendants specifically deny every averment in the petition, and upon the issue thus joined, there was a trial and judgment for plaintiff, from which defendants appeal..</p> <p>I. The character of the parties is not involved in civil actions, except in actions for slander, seduction, and similar cases. 2 Greenl. Ev. section 269; 2 Bla. Oom. 101; Coke Litt. 161, and note; 2 Saund. PI. 175.</p> <p>II. A suit on an attachment bond can not, be maintained until the attachment is dismissed or the attachment suit has been terminated by judgment for the defendant therein. Q-orion v. De Angells, 6 Wend. 418; McCormick v. Sisson, 7 Cow. 715. The attachment proceedings are auxiliary to the principal suit. (Section 1854.) Suit may be brought on the bond before the principal suit is disposed of, but the attachment must be determined.</p> <p>As to damages see Webster v. Haven, 4 G. Greene. 427.</p> <p>I. It is not sufficient to reverse this case to show that an objection to an improper question was overruled. The record should disclose the answer. 1 Barb. S. C. E. 155; 3 lb. 548; 8 Ird. 376, 470, 499; 7 lb. 17.</p>

INDICTMENT charging defendant with lewdly and lasciviously cohabiting with a woman who was not his wife.

A statement of the facts involved in this case, appears in the opinion of the court. relied upon Harrison v. Kramer, 3 Iowa 558; Fartoell v. Tyler, 5 lb. 539, Code, section 1750, 1744-1746^ 2177; Stannard v. Mather, 7 Howard Pr. R. 4; Treadwell v. Fassett, 10 lb. 184; Hulbardv. National Protection Insurance Company, 11 lb. 149; Mead v. Gleason, 13 lb. 309; Wilkins v. Gilman, lb. 225. I. The first demurrer should be disregarded as too general.

The facts involved in this case are fully stated in the opinion of the court. I. The pleadings should all be in and the issues made up before the jury is sworn. Swan v. dole, 4 G. Greene, 32; Code section 1742. relied upon Cannon v. Folsom, 2 Iowa 101'; Adams v. Foley, 4 Iowa 44; Code section 959.

<p> Appeal from Davis District Court. </p> <p>ON the 25th day of November, 1858, under an agreement entered into between the parties, the plaintiff exchanged one hundred and sixty acres of land, situated in Davis county, Iowa, which he valued at eighteen hundred dollars, for two hundred acres of land situated in Putnam county, Missouri, which he claims, was represented to him, by defendant, as good tillable land, of tbe first quality; that eighty acres of it was finely timbered, and that the whole of it was worth $6 per acre. That defendant agreed that if the same was not such land as represented he, the defendant, would pay the plaintiff the difference between the value of said land as represented, and the real value as it should turn out to be. Deeds of conveyance were exchanged, and the plaintiff claims that the lands which he obtained, he had never seen at the time of the tradethat they were not at all in quality or in value what they were represented to be, and that the difference between the value of the lands as represented and what they were really worth, was $800, and for this sum he claims judgment. Defendant admits the trade but denies all the material allegations in plaintiff’s petition, and sets up a counter claim of $1000 damages sustained by false representations made by plaintiff, in regard to the character and quality of the land he had received in exchange from him. Plaintiff claims the new matter set up in the answer. Trial and judgment for $380, for plaintiff. Defendant appeals.</p>

The defendant was indicted for stealing horses, found guilty by the jury, and sentenced to an imprisonment of five years in the penitentiary. Motion for a new trial and in arrest of judgment filed, and overruled by the Court, from which ruling an appeal is taken to this Court.

<p> Appeal from Madison District Court. </p> <p>The plaintiff claims to be the owner of the north-east quarter of section number two, township seventy-five, range twenty-six, west, in Madison county, by virtue of a title from Isaac C. Smith to Milton Smith, bearing date August 2d, 1854, recorded February 22,1859; and by deed from Milton Smith, to plaintiff, dated December 12th, 1854, recorded February 26tb,1859. Upon, the 15th day of October, 1857, one Alexander. Roberts recovered judgment in the District Court of said county against the said Isaac 0. Smith, and one Jesse C. Young,; which judgment was assigned on the 2d day of February, 1859, to the defendant Vawter, who caused execution to issue thereon, by virtue of which said defendant Evans, as sheriff, levied upon said described real estate as the property of said Isaac 0. Smith, and advertised the same for sale on the 16th day of April, 1859, to satisfy said judgment.</p> <p>The complainant filed his petition in the District Court of said county and obtained an injunction against defendants, restraining them from selling said lands, which was duly served on the 26th day of February, 1859; and upon a bearing in the District Court of said county, the injunction, by order of said court, was made perpetual, from which order defendants appealed.</p> <p>I. A judgment lien takes precedence of a prior unrecorded deed. Broim v. Tuthill, 1 Gr. Greene 189; Hopping v. Bur-nam, 2 lb. 89; Hervey v. Ohampin, 11 Hump. (Ya.) 569; Clements, v. Barg, 11 How. U. S. R. 398; Erothingham y. Stacker, 11 Mo. 77; Meed y. Austin, 9 lb. 722; Irving v. Campbell, 6 Einn. 118.</p> <p>II. Real estate can be acquired only by descent or purchase. Any person who acquires an interest in realty, by his own act is a purchaser. Porter t. Green, 4 Iowa 571.</p> <p>IH. The certificate of acknowledgment of the deed is fatally defective in not stating that the grantors were personally known to the officer who took the acknowledgment, as the identical persons whose names are affixed to the deed as grantors, and the court therefore erred in permitting it to be read in evidence. Gould v. Woodward, 4 Gr. Greene 82.</p> <p>I. An unrecorded deed is valid against all persons except purchasers for a valuable consideration without notice. A judgment creditor is not a purchaser within the meaning of that section. Jackson v. Burgett, 10 Johns. 461; Jackson v. Dubois, 4 lb. 216; Jackson v. Long, 13 lb. 471; Jackson v. Town, 4 Cow. 606; Jackson v. Post, 9 lb. 120. Section 1211 of Code, is similar to the New York law, which is modeled after Statutes of 2 and 3 Anne, ch. 4; conflicting decisions are invariably based upon statutory provisions different from the Code.</p> <p>n. The deed conveys the interest of the grantor, and is valid without an acknowledgment as between the parties. If the judgment debtor has conveyed ‘ real estate before the rendering of the judgment, he has no title or interest in it after the delivery of the deed, upon wliich a judgment lien will attach. Code section 2485.</p> <p>III. The acknowledgment is in substantial compliance with the statute, which is sufficient. 1 Iowa 413.</p>

The facts are stated in the opinion of the court. to the point that the application of the surplus remaining after the satisfaction of the mortgage debt to the execution against plaintiff was valid, cited Hendry Y. Dobbin, 12 John. 220 ; 1 Craneh 117; Dawson v. Holcombe, 1 Ohio 275; 3 Mass. 295; 3 Scam. 452; that leaving property unsold after levy, does not vitiate the sale when made, as between the parties, Leroy v. Wallis, 4 Dal. 168; Chancellor v. Phillips, 4 lb. 218 ; 20…

<p> Appeal from Monona District Court. </p> <p>The material facts are stated in the opinion of the court.</p>

INDICTMENT for seduction. The record recites that the defendant appeared and plead not guilty, but no written plea appears among the papers transmitted to the Supreme Court. Trial.and verdict of guilty. The defendant appeals.

On the 28th day of February, 1859, one J. W. Plummer filed in the office of the clerk of the District Court of Benton county, a statement for a judgment by confession, in favor of Douglas & Watson. A judgment was entered by the clerk upon the judgment docket of said court.

Appeal from Warren District Court. The material facts are stated in the opinion of the court. See also the same case, 5 Iowa 352.

At the September term, 1851, of the .District Court of Marion county, John Carnes recovered a judgment against Anson Crandall. On the 22d March, 1852, the defendant was duly appointed and qualified as the administratrix of the estate of Crandall, whose death was then suggested to the court. On the 1st day of August, 1857, this proceeding to revive said judgment was instituted.

Tiib following state of facts is presented in this case: Proceedings were commenced by plaintiff before a justice of the peace under the first clause of section 2362 of the Code. The plaintiff filed his petition, claiming the immediate possession of a certain store room owned by plaintiff and occupied by defendant, situated upon second street in the city of Dos Moines, alleging that defendant wrongfully and forcibly entered the same.

This is a proceeding to foreclose a mortgage upon a certain real estate, given to secure the payment of a note executed by defendant to plaintiff, May 16th, 1857, for $882. Defendant pleads usury.

Action on a promissory'note for tbe sum of $250, bearing date of November 1st, 1857, and payable ninety days after date. On tbe 21st day of September, 1859, judgment was rendered in favor of plaintiffs for tbe principal sum loaned, ($230,) and in favor of tbe State of Iowa, for tbe use of the School Fund, for tbe interest thereon, at tbe rate of ten per cent per annum to tbe date last above mentioned.

Trial before a justice of the peace, and verdict of the jury for the plaintiff. No judgment was rendered on this verdict by the justice. Defendant upon the return of the jury appealed to the District Court. At the next term of the District Court for Webster county, the plaintiff obtained a rule upon the justice to amend his transcript. Under this rule, he proceeded to enter up judgment for the plaintiff, and returned a new transcript from bis docket thus amended.

Action on a promissory note executed by Pace and twelve others, who are defendants. All of the defendants except Pace answered, that they signed the note as sureties upon the express understanding and agreement that it should not be delivered to the payee, (the decedent) until it was signed by twenty persons ; of which agreement and understanding it was further alleged that said payee had notice when the note was delivered to him.

This is a writ of error to a justice of the peace. The facts, as they appear from the justice’s return, are as follows: Plaintiffs brought suit on a note; the notice was returnable July 23d, 1859, at one o’clock P. M. At 11 o’clock of said day, the agent of plaintiffs and the attorney of defendant, were in the justice’s office. Defendant’s attorney prepared an answer in said cause, claiming a set-off, and handed the same to plaintiff’s agent.

The plaintiff obtained a judgment against defendant in the District Court of Decatur county, and caused a copy thereof to be filed in the office of the clerk of the District Court of Boone county.

Action of right. Trial by jury and verdict for the defendant. Motion by plaintiff for a new trial for the reason that the court had erred in giving certain instructions to the jury, as asked by defendant, and in refusing to give certain instructions as asked by the plaintiff; also in excluding from the jury certain evidence offered by the plaintiff. This motion was sustained and a new trial granted, from which order defendant appeals.

Appeal from, Lucas District Court. [Tbe Reporter has not been able to find in tbe record of tbis case any memoranda of tbe names or arguments of counsel.]

<p> Appeal from Keokuk District Court. </p> <p>The facts are sufficiently stated in tbe opinion.</p> <p>cited The United States v. Hudson $ Coodwin, 7 Orancb. 32; BrooJcer v. Coffin, 5 Jobn. 188; Burton v. Burton, 8 G. Greene 316; Abrams v. Boshee et ux., 3 Iowa 274.</p> <p>cited Wbart. Or. L. 81, authorities there cited; 1 Buss, on Cr. 49 ; The State v. Jessee, 1 Gill. & Jobn. 290 ; Turnpike Boad v. The People, 15 Wend. 267; Commonwealthr. Sickle, lBrightlj69; Commonwealth y. Holmes, 17 Mass. 335; Commonwealth v. Morse, 2 lb. 139 ; The People v. White, 22 Wend. 167; O’Perrall y. Simplot, 4 Iowa 381; Arnold y. Cost, 3 Gill. & John. 219; Linvill y. Earlywine, 4 Blackf. 469; Stout v. Wood. 1 lb. 71.</p>

Action against Hedge. & Heaton as the makers, and W. H. Hervey as the indorser of a promissory note. Hervey filed his separate answer denying the indorsement, and also denying that he had been notified of a demand, and of non-payment by the maker thereof. Upon the issue thus joined there was a trial by jury, and a verdict for tbe plaintiff for the amount of the note, whereupon the defendant, Hervey, moved the court to render judgment in his favor non obstante ver-edicto.

The defendants appealed from the judgment of a justice of the peace, and filed their transcript in the office of the clerk of the District Court upon the 10th day of September, 1858.

<p> Appeal from Butler-District Gouri. </p> <p>The facts are stated in tbe opinion of tbe court.</p>

-Foreclosure of a mortgage. The material facts are stated in the opinion of the court. Defendant appeals. contended that the suit was commenced by a person who had no legal existence. 1 Chit. PI. 28-29; that under the Code the wife is prima facie unable to contract, and sue and be sued. Rodemeyer v. Rodman, 5 Iowa 428. reliedupon Roop v. Ciarle’s Guardians, 4 O. Greene 294; Stmt v. Collins, 4 Iowa 56.

In Chancery. Bill by tbe wife against her husband for an account of money and property received by him from ber during coverture, and for a decree for the amount of the same. The motion of the defendant to dismiss the bill was overruled, and he appeals. Other material facts are presented in the opinion of the court. cited chapter 84, Code of 1851, 2 Story Eq. Jur., title “ Married Women.”

<p>1. Costs, when, after the commencement of an action, the defendant tendered the amount claimed, -with clerk’s and sheriff’s costs, which was accepted by plaintiff, it was held that the defendant was not liable for additional costs.</p>

The defendant failed to appear, a default was entered and judgment rendered for the plaintiff. Defendant appeals. The material facts are stated in the opinion of the court. relied upon Converse, Admr. v. Warren, 4 Iowa 158, and cases there cited; Winchester v. Cox, 4 Gr. Greene 121; Foley v. Connelly, 9 Iowa 240; Carr v. JLopp, 3 Iowa 80.

Action on a certificate of deposit. Tbe petition was filed on tbe lltb day of August, 1857, and set forth sufficient cause for an attachment. On the same day an attachment bond in tbe sum of $685 was filed and a writ of attachment issued, directed to the sheriff of Polk county. Under this writ the sheriff attached certain personal property of defendant.

Action for damages sustained by reason of false and fraudulent representations alleged to have been made by tbe defendant to tbe plaintiff in tbe sale of certain lands. Issue joined, trial, and verdict for tbe plaintiff. Defendant appeals. I. There can be no recovery for false representations made in a sale, unless they were known to be false by tbe vendor, and were made with tbe intention to deceive.

The plaintiff in Ms petition claimed six hundred dollars, as damages sustained by him by reason of the failure of the defendant to comply with the conditions of a certain bond, by which defendant had, in consideration of $800, agreed to convey to plaintiff, by a certain date, certain real estate therein named, by deed of warranty. The day upon which defendant had so agreed to convey, had passed previous to the commencement of this suit.

Bill to foreclose a mortgage. The material facts are stated in the opinion. cited Story Eq. PL section 193, note 3, and note 1 on page 227; 3 Iowa 199.

ACTION on a promissory note. Defense, usury; judgment for plaintiffs, and defendants appeal. relied on 2 Par. Oont. 385, 400-4 and notes; Smith, Ttvogood Sf Co. v. Coopers $ Clarice, 9 Iowa 376. cited Cower &; Bolt v. Carter $ Shattuele, 3 Iowa 244.

ACTION in replevin. The plaintiff offered as a witness one William Mahaffey. Defendant objected, on the ground that the witness was a surety on the bond was filed in the action. The objection was overruled, and the witness permitted to testify, to which defendant excepted. Judgment for plaintiff, and defendant appeals.

The defendant was indicted for resisting a constable in the execution of a writ of attachment issued by a justice of tbe peace. The defendant demurred to the indictment on the ground that the writ under which the officer was acting, and the execution of which the defendant resisted, did not upon its face show any of the statutory causes for issuing the same. The demurrer was overruled, and defendant pleaded not guilty.

ACTION on a promissory note. The answer alleged, among other defenses, that on the 11th day of November, 1857, John 0. Bishop gave the plaintiff an order for the sum of twenty-five dollars, on one James Griffith. The other facts are stated in the opinion of the court.

The plaintiff brought her action of replevin to obtain the possession of certain property taken by defendant Leech, as sheriff, to satisfy an execution in favor of the defendant Graham against the “Keokuk Post Company.” The plaintiff in her petition claimed that she was the owner of the property levied upon by the sheriff, entitled to the immediate possession thereof, and that the same was wrongfully detained by the defendants.

<p> Appeal from JacJcson District Court. </p> <p>The facts are stated in the opinion of the court.</p>

AotioN for the interest due on a promissory note. The defendants in their answer set out a mortgage which they allege was executed cotemporaneously with the noto, and as a part of the same contract; that it was stipulated in said mortgage that the plaintiff’s remedy for the enforcement of the collection of said note should be and was limited to the mortgaged property; and that ho was not entitled to recover a general judgment on said note against defendants.

<p>1. Service or notice, when the defendant waived the reading of an original notice by the sheriff, he will not he permitted to take advantage of that waiver, by objecting to the sufficiency of the service for that reason.</p> <p>2. Same: evidence: return. When the defendant waives the reading of an original notice, the sheriff’s return will be sufficient evidence of such waiver.</p> <p>3. Service upon a pirm. Service upon one member of a firm, in an action against the firm, is sufficient to give the court jurisdiction as to all the copartners.</p> <p>4. Demand or copy op petition. When a defendant demands a copy of the petition, he should designate the place to which he wishes it sent, and if the return of the officer does not show that such place was designated, the demand may bo .disregarded.</p>

The indictment charged that the defendant forged and counterfeited gold and silver coin, and that he had in his possession counterfeit coin, knowing the same to be false and counterfeited, and with intent to utter and pass the same as true, &o. Trial- and verdict of guilty. The defendant appeals, and assigns the errors presented in the opinion of the court. relied upon The State v. Abrams, 6 Iowa 117; Sturgis v. Commonwealth, 6 Met. 241; 1 Bish. Or. L. section 148.

<p> Appeal from Dubuque City Court. </p>

The defendants were indicted for the crime of burglary. Separate trials were granted, and the defendant Quick found guilty and sentenced to two years imprisonment in the penitentiary. The defendant excepted to the giving and refusing of certain instructions to the jury, and appealed to this court.

INDICTMENT for keeping a bouse resorted to for gambling purposes. Trial and verdickof guilty. . The proceedings in the trial below of which the defendant, who is the appellant, complains, are fully presented in the opinion of the court. contended: 1.

<p>1. Appeal: writ op error. A judgment rendered by a justice of the* peace, on default and without sufficient notice to defendant, should be taken to the District Court by a writ of error, and not by appeal.</p> <p>2. Same: issues. Appeal cases must be heard in the District Court upon the same issues tried in the justice’s court.</p>

The defendants appeal. contended that the engine and machinery were fixtures, a part of the freehold, (Teaff v. Hewett, 1 Ohio State 511,) and that the subsequent mortgagee of the realty had a direct interest in the subject matter of the suit.

James Craig was sued as the drawer and B. C. Hoffman as the indorser of three certain bills of exchange, drawn at Mount Pleasant, Iowa, and upon the Continental Bank of New York. The plaintiffs were the indorsees and holders of the bills at maturity. The drawee refused to accept or pay the bills thus drawn, at maturity, and the plaintiffs by this action proceeded to recover from the defendants as the maker and the indorser.

The defendant agreed with plaintiff to carry certain freights brought over the line of plaintiff’s road; to take such freight from the terminus of said road at East Burlington, and to deliver the same to the consignees thereof at various points up. and down the Mississippi river.

<p>1. Actions against schooi districts. A contract entered into by a school district prior to the “Act for the public instruction of the State of Iowa,” of 1858, should be enforced by action agains'O the proper township district.</p>

MOTION by the defendants to set aside a sale made by the sheriff of Fayette county, under an execution issued from the Supreme Court. Held: that a law enacting that sales of estates under mortgage, should be made on a credit of two years, unless the mortgagee would accept notes on the Bank of the Commonwealth in payment, and also that the estates should be valued before sale, and should bring at least three-fourths of such valuation, was unconstitutional as to a previous…

The defendants were indicted, tried, and convicted of the crime of larceny. It was alleged in the indictment that the grand jury found the value of the property stolen tobe thirty dollars. The petit jury which found the defendants guilty, determined the value of the property stolen to be ten dollars and twenty-five cents.

The defendants, Ira Shaw and wife, executed .to plaintiff their mortgage upon certain real estate, subsequent to the date of which, they sold the property thus mortgaged to the defendant, Philip Simmons. The plaintiff filed his petition to foreclose the mortgage, in which he makes Simmons a party, for the purpose of foreclosing his equities in the mortgaged premises. Shaw and wife failed to answer.

This action was commenced on the 21st day of March, 1859, on a judgment rendered in certain attachment proceedings between the same .parties, in the Circuit Court of Morgan county, Indiana, on the 21st day of August, 1844. The plaintiff, by an amended petition, also, set up the note upon which said judgment was rendered, as an additional cause of action. The note was executed upon the 14th day of January, 1841.

PlaiNTIEE declares upon a judgment recovered before a justice of the peace, in the State of Ohio. The questions made, as will appear from the opinion, relate to the sufficiency of the authentications of the transcripts of said judgment. Judgment for defendant, and plaintiff appeals.

Tiie plaintiff brought suit against one D. C. Bancroft, and also caused an attachment to issue for the purpose of securing his claim. A notice of garnishment was served upon one J. P. Scott, who at the time of such service was a member of the firm of Barney, Scott & Co., the appellants. The notice was directed to and served upon J. P. Scott, not as a member of said firm, but as an individual. The answer is by Scott in bis own behalf, not as a member of said firm.

<p> Appeal from Johnson District Court. </p> <p>cited Code of 1851, sections 1734-1744; Story Eq. PI. sections 874 and 875; Paige Cb. R. 504; Danl. Cb. Pr. 272; 3 Gilm. 317.</p> <p>It has been decided again and again, that tbe Code does not apply to chancery practice; and by that practice the plaintiff was entitled to an answer under oath. 7 John. 558; 1 Barb. Cb. Pr. 96; 4 Bouv. Inst. 477; Coopers Eq. PI. 325; 6 Paige Ch. R. 96; Van Valtenberg v. Alberry ante; 3 G. Greene 433.</p>

<p>1. Practice: bills oi? exceptions. Chapter 148, Laws 1855, does not authorize the signing of bills of exceptions by the attorneys of par- | ties taking the same. A bill of exceptions refused by the court and signed by two or more attorneys or officers of the court not interested in the cause wherein the same is taken, may be admitted of record under the provisions of that chapter.</p>

At tbe November term of tbe District Court for Dubuque county, for tbe year 1859, Edward Mooney was indicted for tbe murder of one Charles Wood. At tbe same term be was tried, convicted and sentenced to be executed. The defendant appeals. Tbe questions presented by tbe appellant necessary to be passed upon by this court appear in tbe opinion.

Trial by the court. The record presents a statement of facts found and the conclusions of the court thereon. Judgment was rendered for the defendant, and plaintiff appealed to this court. The appellee moved the court to dismiss the appeal, for reasons stated in the opinion.

00 and the other in April, 1840, for $60. On the 7th of August, 1843, Suiter commenced his action on these notes, and on the 10th of September, 1844, recovered judgment for $409.60 and costs. Execution was issued in the same month, and on the 5th November following, the real estate in controversy was sold thereon to complainant. On the 17th of April, 1856, the sheriff made him a deed, which was duly recorded. This land was sold as the property of said Turner.

<p> Appeal from Polio District Court. </p> <p>cited Harrison v. Kramer, 8 Iowa 555.</p>

<p>1. Recoed oj? a deed : notice. Where the, index entry of a mortgage contained the names of the grantor and grantee, the date of the filing, the date and character of the instrument, and the book and page where it was recorded, but instead of a description of the property, referred to the record of the instrument which was made on the day the index entry was'made, held that the registration was sufficient to impart constructive notice to subsequent purchasers.</p>

The 'plaintiff brought an action of replevin before a justice of the peace, to recover the possession of a two-horse wagon taken by the defendant, as sheriff, by virtue of a levy under an execution against the plaintiff. The justice rendered a judgment in favor of the plaintiff. The defendant removed the cause to the District Court by writ of error, where the judgment of the justice was affirmed. From this judgment the defendant appeals to this court.

<p>1. Appearance. The decree of the District Court recited that the cause came on for hearing, “ in the presence of counsel, both for plaintiff and defendants, &c.” Held, that it was sufficient to show an appearance by all of the defendants.</p> <p>2. Judgmexi'. The character of a judgment entry in foreclosure discussed.</p>

ACTION on a promissory note. The facts are presented in the opinion of the court. cited Greenough, Coolc Co. v. Sheldon, 9 Iowa 503; Cavender v. The Heirs of Smith, 5 lb. 157; 2 Hill 333: 10 N. II 444; 12 John. 444. cited Kramer v. Reiman, 9 Iowa 114; Scott v. Simeral, lb. 388; Tomlin-son v. Mmston, 1 G. Greene 545.

<p> Appeal from Boone District Court. </p>

I. The plaintiff by bringing his action against both of the makers of the note elected to treat it as a joint obligation, 3 Cow. 374, and in an action on a joint contract he must recover against all of thé defendants or none. Greenough, Cook II. If the plea is one that might inure to the benefit of all the other defendants, then the plaintiff cannot withdraw his suit as to the defendant filing the same. 3 Cow. 374; 9 Wend. 433; 1 Bur. Pr. 386; 5 Wend. 228; 20 John.

ACTION by McCampbell on a promissory note executed to him by Yastine. The defendant by his amended answer claimed an offset of five hundred dollars, damages sustained by reason of an alleged breach of covenant, as follows: “That on the 11th day of February, 1859, said plaintiff and his wife executed to the defendant a deed for a tract of land, * * * thereby covenanting to this defendant a good and sufficient title to one hundred and twenty acres of land therein described.

Pt.atNttbt? sues in an action of trespass for the act of defendant in entering upon his land on the 1st of January, 1855, and divers days since that time to the day of the commencement of this action, breaking .up the ground therein, grading the same for the track of a railroad, &c. The answer denies a liability to the amount claimed, $10,000, but admits an indebtedness in the sum of $1600, with interest from November 28th, 1856; avers that by authority of the act of the…

ActxoN on a promissory note. After the second day of the first term, the defendant filed an answer, denying “each and every allegation in said petition contained, fully and specifically.” This answer was stricken from the files, and a default taken against defendant. Judgment for the plaintiff, aijd defendant appeals. cited Kellogg v. Church, 8 Code Rep. 39; 4 Pr.

The plaintiff brought an action against the defendant, Groome, for damages sustained by plaintiff for the seduction ■of his daughter by said defendant. Trial by jury, and verdict for the plaintiff for $1,000. The defendant moved the court to grant a new trial, on the ground that the verdict was against the vfeight of the evidence, and against the instructions of the court.

Ajopeal from Seott District Court. The complainants filed their bill in equity as against Stephen T. Allen et al., as respondents, in which they expressly waive an answer under oath. Allen and wife, two of said defendants, answer jointly and under oath.

<p> Appeal from Lee District Court. </p> <p>cited Graham on New Trials, 111, 173, 180,182, 183; 7 Wend. R. 62; 2 J. J. Marsh. 575; 1 lb. 52.</p>

<p>1. Service or notice: return. Tlie return on an original notice must sliow tlie manner in which service thereof was made.</p> <p>2. Same. When personal service was made upon a defendant, the return must show whether or not a copy of the notice and petition was demanded.</p>

ActioN in a justice’s court, for damages sustained by the breach of a contract in writing for the performance of certain services and labor. A judgment was rendered for the plaintiff, and defendant appealed to the District Court. On the trial in the District Court the plaintiff offered in evidence the written contract which was the basis of the action. Objection was made by the defendant, on the ground that the contract had not been filed by the justice as required by law.

<p> Appeal from Story District Court. </p> <p>cited Loclcart ft Co. v. Eaton 3 G. Greene 543; Danforth ft Davis v. Carter ft May, 1 Iowa 546 ; Boiuen et al v. Qilkeson et al., 7 Iowa 503.</p>

ACTION for slanderous words, alleged to have been spoken by the defendant Margaret R. Burroughs, of and concerning the chastity of the plaintiff Nancy Eletcher. The answer denied the allegations of the petition. On the trial the plaintiffs, who are the appellants, excepted to certain rulings of the court, which are presented in the opinion.

ÁCTI0N for slander. The material facts are stated in the opinion of the court. contended — 1. That this court will take notice of the relative location of counties, Code of 1851, section 1708. 2. That the court erred in altering the order changing the venue, by annexing a condition thereto, after it was made of record, and in the absence of the counsel for the appellant, Davis v. Fish, 1 Gr.

ACTION by the purchaser of property at a tax sale, against the treasurer who sold the same, under section 509, Code of 1851. The material facts are stated in the opinion of the court. contended .that under chapter 152, Laws 1858, (section 63,) the defendant was liable for the principal, interest, and costs incurred.

<p>1. Title to personal property. When it was the custom of the proprietors of a merchant and exchange flouring mill to receipt for wheat delivered at the mill without special agreement, which receipt entitled the holder to receive at the mill, wheat, flour or bran, as he should elect; and it ivas the further custom of the proprietors of the mill to place all wheat thus receipted for in a .bin, in which was deposited the wheat belonging to them, which customs wore known to the plaintiff, who delivered wheat to the mill and received the usual receipt therefor, without any special agreement; it was hold that the title to the wheat vested in the owners of the mill.</p>

The material facts are stated in tbe opinion of tbe court. contended — 1. That tbe evidence of Marshall as to bis conversations with other persons, showing a feeling of animosity toward defendant, was admissible for tbe purpose of impairing tbe weight of bis evidence in tbe estimation of tbe jury, citing 7 Conn. 66; 2 Phil. Ev. (2d ed.) 486; 1 .G-reenl. Ev. sec. 450; 1 Starlde Ev. 164-172 ; 2 Comp. 637; 2 Starhie R. 116-114; 11 East. 311. insisted, 1.

<p> Appeal from Dubuque City Court. </p> <p>The material facts are stated in tbe opinion of tbe court,</p>

<p> Appeal from Floyd District Court. </p>

The plaintiff brought suit against Acts as the maker, and Lowenthal, the appellant, as the indorser of a promissory note. The original notice was served upon the appellant in the county of Rock Island, State of Illinois, by the sheriff of Scott county, of this State.

The plaintiff brought his action to recover damages, which he claimed to have sustained on account of the unskillful and negligent treatment of a fractured leg, by defendant, as a physician and surgeon. Judgment for the defendant in the District Court, from which the plaintiff appeals. The errors assignéd relate to the admissibility of certain evidence, and the giving and refusing certain instructions to the jury, in the trial below.