Volume 11 — Iowa Reports

Foreclosure of a mortgage. The notes, and the mortgage given to secure the same, were made in Iowa, between parties residing here, payable in New York, with interest at the rate of ten per centum per annum. The answer sets up, among other things, that these notes were usurious under the statute of New York, (which is set out,) and therefore void.

PROCEEDING to foreclose a tax title. The questions made relate to the admission and rejection of certain testimony, as will appear from the opinion.

The plaintiff’s petition asked for judgment on a note and for tbe foreclosure of a mortgage given to secure the same. The defendant answered, alleging, first, payment; second,, a set-off. The plaintiff demurred to the whole answer. The demurrer was, sustained, and judgment thereupon entered for the plaintiff. I. A general demurrer to a whole declaration must be overruled whenever either of the counts is good. Chambers v. Lathrop, Mor. 102. II.

PlaiNtiei? declares upon an account, for work done by the day in and about the building, of a house for defendant. The averments of the petition are denied. Defendant in addition pleads set-off. On the trial plaintiff proved this account to the amount of $320,67. Items in the • defendant’s set-off were proved and admitted to the amount of $218,19.

Action before a justice of tbe peace on a promissory note. Tbe material facts are stated in the opinion of the court. relied upon tbe Code of 1851, sections 2338, 2339. to tbe point that the clerk’s certificate is not sufficient to show that tbe note of which a copy is given in tbe transcript ivas tbe one offered in evir dence, and that it should have been embodied in a bill of exceptions, cited Harmon v. Chandler, 3 Iowa 150; The State of Iowa v. Strong, 6 lb. 72.

Upon the 5th day of April, 1858, the question of the removal of the county seat of Hardin county from Eldora to Point Pleasant, was submitted to tbe voters of said county. Upon the 9th of April, 1858, the defendants, John Jones as the county judge, Ellis Parker and Joseph Edington as justices, convened as a hoard of canvassers for the purpose of canvassing the votes cast at said election.

The jury in the District Court allowed plaintiffs $500 for the “Right of Way” asked hy the. Railroad Company over their lands.

' Plaintiff was summoned before the defendant Parker, (a justice of the peace) as garnishee at the suit of Eastman against Rutenbur. Judgment was rendered against him February 6th, 1860.

Plaintiee sues upon a joint and several promissory note made by Cannon and Scott. Pending the action, Scott departed this life.

The facts necessary to an understanding of the case are stated in the opinion of the Court. contended: 1. That the 6th section of the by-laws of the Dubuque Mutual Insurance Company did not render the policy issued to a party already assured without a compliance with the requisition therein provided, absolutely void: 2.

Certain lands, in controversy in this action, owned by one Walsh were, on the 24th day of April, 1854, sold for taxes by the Treasurer of said county to the plaintiff Byington. On the 5fch day of December, 1855, the plaintiff commenced this action to foreclose his tax title. On the 6th day of December, in the same year, the same property was sold by the sheriff of said county, as the property of Walsh, to the defendant Freeman.

. Plaintiees sue upon an injunction bond. They recovered a •verdict for $1500, which, on defendants’ motion, was set aside and a new trial ordered. Plaintiffs appeal.

Some testimony was introduced at the trial showing a payment of part of the contract price and tending to show a tender of the balance.

Replevin for 25,000 brick, which plaintiffs claim to have bought of one Moore, and which were levied upon by one of the defendants, as sheriff, under an attachment, at the suit of Leonard, against ’ said Moore. The facts attending the sale by Moore to plaintiffs are as follows: On the 27th of September, 1857, Moore was indebted to plaintiffs near the sum of $150, which he agreed to pay them out of a kiln of brick which he had made.

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

<p>1. Copartnership: bilí, in equity. As a general rule, a bill in equity by a partner for a balance due upon co-partnership business should show a final settlement of the co-partnership business, or ask the court to marshal the assets and make a final settlement between the members of the firm.</p> <p>2'.' Same: The failure to make such allegations will not be fatal to the bill on the final hearing if the answer and evidence disclose a state of facts which necessarily raises the presumption that such settlement was made.</p> <p>§. Answer of co-defendant. The answer of a defendant in a chancery proceeding does not bind his co-defendant.</p> <p>4. Evidence of co-defendants. A party in a chancery proceeding may make witnesses of one or more of his adversaries.</p>

<p> Appeal from, Webster District Court. </p>

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

<p>1. Amendment. The plaintiff may, after a demurrer to the petition for a misjoinder of parties has been sustained, amend by striking out the name of his co-plaintiff, QUcTe v. Hartman 10 Iowa 410 cited and approved.</p>

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

Eor a tort to the realty, Cotes & Patchin, on the 21st of February, 1859, obtained a judgment against the city of Davenport, for some $500. The verdict was rendered and judgment entered on the same day. Weire, the plaintiff in this proceeding, had previously obtained a judgment against Coates & Patchin, and on the day of the rendition of the judgment against the city, levied upon the same by garnishing the mayor, treasurer and clerk of said corporation.

This action is brought for work and labor done, arid materials furnished in and about the erection of a house for the use of said school. To the petition there was a demurrer which was sustained upon the ground that it failed to show that defendant was a natural person or a corporation capable of being sued. Plaintiff appeals.

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

On the 23d of March, 1857, Bridge & Bro. drew their-bill of exchange on defendants, requesting them to pay to the order of the cashier of the Platte Valley Bank the sum of $776,36. This bill was assigned to one Brown, and by Brown to plaintiffs, without date. On the 27th of July, 1859, defendants accepted said bill, payable in installments; the first one due in thirty days for $250, the second for a like amount due in sixty days, and the remainder in ninety days.

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

<p>■1. Demand and hen assignable, A demand against a steamboat for supplies furnished thereto, may be assigned; and an assignment of such a claim transfers to the assignee the statutory lien upon the boat, its apparel, &c.</p> <p>2. Constbuction. The provisions of the Code of 1851 are liberally construed when such construction is necessary to carry out the general purpose and spirit of the law.</p>

<p>1. New trial. Where a jury when they retired to consider upon their verdict carried with them a deposition which was not read upon the trial, and read and considered the same in arriving at their verdict, it was held, that as the deposition was favorable to the party for whom the jury returned a verdict, such verdict should be set aside and a new trial granted.</p> <p>2. Discretion. The discretion exercised by the District Court in ruling upon a motion for a new trial upon that ground was a legal one and can be reviewed by the Supreme Court.</p> <p>3. Affidavits of jurors. Affidavits of jurors cannot be received to impeach their verdict; but may be considered when they show the misconduct of the jury in finding the same.</p>

<p> Appeal from Mahaska District Court. </p> <p>This cause was before the court at the June Term, 1858, and will be found reported in 6 Iowa 199. At that time it stood upon demurrer to plaintiff’s petition. This court held the petition bad, for causes in said- opinion stated, and remanded the case to the District Court. In April 1859, plaintiff filed what he styles an amended petition, setting forth substantially and almost in words the matter contained in the original, ,(the original was filed April 9th 1857,) and in addition thereto averments to the effect, that in August 1858, such proceedings were had in the Fayette Circuit Court in Kentucky in said cause of Foster against Downing, that the amount credited thereon as the proceeds of said salo against Downing, and which sale or interest was defeated by the judgment in favor of Selim Downing, was annulled and canceled and said judgment against said William Downing adjudged to be in full force; and that afterwards on the 9th day of July 1859, the said judgment against the said William Downing was assigned and transferred to said defendants.</p> <p>Defendants moved to strike the amended petition from the files for the following reasons :</p> <p>1st. It is not an amended'petition and does not conform-to the rules relating to supplemental petitions.</p> <p>2d. It is predicated on matters accruing since the com-, mencement of this action.</p> <p>This motion was sustained and the suit dismissed. Plaint- - iff appeals.</p> <p>relied upon sections 1759, 1749, 1755, 1758; Harkins v. Edwards 8¡ Turner 1 Iowa 299 ; Bebb v. Preston, 3 lb. 336 ; Hunt v. Collins, 4 lb. 59; Arbuekle v. Bowman et al, 6 lb. 71.</p> <p>reviewed the authorities cited by the appellant’s counsel, and insisted that they contemplated amendments as to facts which accrued before the commencement of the action. He also cited the following authorities : 3 Paige 440 ; 3 Atkins 217; 2 Eng. Ch. R. 348 ; 4 Yates 382; 3 Marsh. 19; 1 Doug. 434; Wayne v. Cheio, 15 Penn. S. R. 323; 3 Litt. 333-; Adams Eject. 204.</p>

In chancery, complainant alleges that on the 16th day of April, 1857, he executed a bond to the Dubuque Gas Light and Coke Company, obligating himself to deed to said Company a certain lot in Dubuque, on condition that the Company would pay him $620 on or before the 6th day of April, 1858, and $8,728, on or before the 6th day”of April, 3859; which said sums said Company agreed to pay him as aforesaid; that no part thereof has been paid; that said $620, is due; that the bond…

Suit on a promissory note which plaintiff claims was made by the Plank Road Company to one Kendall and by him indorsed so that it is now plaintiffs property. The questions arise upon objections made by defendants to certain testimony, as also to the instructions of the Court, for which see the opinion.

Plaintiff sued Walker and Whitty and had certain lands attached as their property. One Hamlin appeared and moved to dissolve the attachment, which motion was sustained, and from this order plaintiff appeals.

Foreclosure or tax title. Plaintiff objected to the introduction of certain testimony offered by defendants, offered other testimony which was rejected, to all of which he excepted, and from the judgment for defendants he appeals.

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

In this case, after the jury had retired to consider of their verdict, the judge, in answer to an inquiry from them in writing, in the same manner sent them, by the bailiff, an instruction, material to the determination thereof. This ivas done without the knowledge of either party. The verdict being for defendants, plaintiff moved for a new trial, assigning for cause, among others, this action of the court.

<p>I. Set-oei\ In an action by an administrator for money due to his intestate, demands against the intestate and acquired by the defendant after his death cannot be pleaded as an offset.</p>

Plaintiff sues upon the following instrument, to the introduction of which, on the trial, defendants objected, and its admission as evidence constitutes the only error assigned: $170,00.

to the points that the Supreme Court will review the ruling of the District Court in granting a new trial, cited Stewart v. Ewbank 3 Iowa 191; Cook Sargent ft Cook v. Syphcr lb. 484.

On or before the 20th day of September A. D, 185'8, for value received, I promise to pay to F. R. Smalley or bearer, one thousand dollars in lumber at the market value, to be delivered at the saw mill heretofore known as Game & Smalley’s Mill. September 1st 1856. Wm F. Troutman.

On the 1st of November, 1856, Waterman and wife made their mortgage to secure to complainant two notes of even date for $1037,50 each, due in six and twelve months. The note first due was paid. On the 14th of April 1857, Waterman sold to Hopkins the mortgaged premises. The deed to Hopkins refers to the mortgage and reeites that Hoplcins is to pay said notes.

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

Replevin against the defendant as sheriff, claiming certain property levied upon by virtue of an execution against Stepton and another. The writ of replevin was directed as follows: “ The State of Iowa, County of Iowa: To William D. Loveridge, special coroner, by the clerk of the District Court in said county and State, appointed specially for the purpose of serving this writ.

The material facts are sufficiently presented in the opinion of the Court. I. When one of the joint makers of a promissory note is discharged, it operates as a discharge of all. Story Prom, Notes, section 402, 428,425 and 435; 1 Story Eq. Jur. 112. II. A judgment on a joint promissory note against one of the makers operates as a merger of the note, Dow v. Bother, 12 111. 373; Story Prom.

Landlord’s lien. Defendant moved to dissolve the attachment, which motion was overruled. He offered certain testimony which was rejected. After verdict, he objected to an order making the judgment a special lien on the attached property, and again offered the same testimony before rejected. The court refused to hear the testimony, entered judgment as asked by plaintiff, and defendant now appeals.

AffcaH from Mahaska District Court. ON the second day of April, 1858, Boyd purchased of Ellis, certain real estate lying near the city of Oskaloosa, and to secure Ellis in some deferred payments, executed at the time a mortgage on the property. On the 4th day of October, 1855, Ellis proceeded to foreclose his mortgage by notice and sale, fixing the day of such sale upon the 5th day of November.

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

Eor the facts see the opinion. I. The deed of Loren Gr. Butler to his wife was fraudulent and void on its face, as against creditors, and ought not to have been admitted in evidence. 1. The lex loci contractus must govern. 2 Kent’s Com. 575; Pear sol v. Dwight, 2 Mass. 84; Andrews v. Jerome, 4 Cow. 508, and the authorities cited in the note on page 511. 2. The common law prevails in Illinois, having been expressly adopted by statute. Purple’s Stat.

<p>1. Nuisance: punishment. Indictment under section 8 chapter 45 laws 1855, for creating and continuing a nuisance. Held that the nuisance should he abated and the defendant tried and punished under chapter 150 of the Code of 1851.</p>

reviewed Small v. The Herkimer Manufacturing and Hydraulic Co., 21 Wend 273 and 2 Com. 330 ; and held that it was not applicable to this case. They also cited 3 Hill 161, 508 ; Ang. & A. 'on Cor. 392; 2 Doug. (Mich.) 119; 19 Wend. 37; 7 Hill 49; 43 Maine 343; 35 N. H. 328; 8 Blackf. 50; 2 Carter (Ind.) 645; 19 Mo. 145. cited Ang. & Ames on Corp. section 550 ; Small v. The Herkimer Manufacturing and Hydraulic Company, 2 Com. 330.

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

The facts are fully stated in the opinion of the court. discussed tbe evidence, and J. S. Oovil, also for tbe appellants, filed_ a written argument, tbe principal portion of which was also devoted to an examination and discussion of the evidence. He presented tbe following points and authorities. I. Except in very peculiar circumstances, courts of equity will not compel tbe specific performance of a contract in regard to personalty.

contended: 1. To entitle plaintiff to recover, be must prove want of probable cause, and malice either express or implied. 2. That the evidence in this case was not sufficient to show sucb want or malice. Citing, 5 Taunt. 187; 1 Sneed’s (Tenn.) l,-228; 4 Dana, (Ky.) 121; 1 Mason 24; 9 East. 361; 3 Blackf. 445; 11 Dedell 233. 3. Malice could be implied only from a total want of probable cause. Bristoto v. ITaytoood, 2 Eng. Com.

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

This case was submitted to tbe court below and decided upon the following agreed statement of facts: Plaintiffs sue upon a contract by the terms of which defendant was to pay them $225, and they in consideration thereof were to convey to him a certain tract of land. It was agreed that this contract was made under these circumstances: Plaintiffs owned a tract of land.

The defendant moved the court to dissolve an attachment upon the following grounds: First, The writ was improvidently issued. Second, The facts alleged as the grounds for issuing said writ, in plaintiff’s petition, are, and were, when made, wholly false and untrue. This motion was overruled by the court, and the defendant appeals.

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

Appeal from, Linn District Court. The facts are fully stated in the opinion of the court. relied upon Danforih, Davis § Co. v. Carter ^ May, 4 Iowa 230; Williams v. Soutter, et al, 7 lb. 435, and GreenougTi CooJc ^ Co. v. Shelden, 9 Iowa 503.

<p>1. Nuisance: punishment. Violations of section 8, of chapter 45, of tlie acts of 1855, entitled, “ an act for the suppression of intemperance” should be punished in the manner prescribed by chapter 150 Code of 1851.</p> <p>2. Same : indictment. In an indictment under said section it is not necessary to allege that the liquors kept for sale were “kept by defendant with intent to sell the same in violation of law.”</p>

- The defendant was indicted, tried and convicted of the crime of having in his possession counterfeit money. Motion for anew trial and in arrest of judgment made and overruled. Defendant appeals.

C. & C. Harding, claiming certain personal property levied upon by the defendant, as sheriff, to satisfy the debts of said assignors. Trial, verdict and judgment for plaintiff, in each case, and defendant appeals. The substantial questions involved in the case, are: I. Had the plaintiff a right, as assignee, to bring the suit at the time he did so ? II.

George Thorn, the father, commenced his action against John Thorn, the son, claiming title to, and conveyance of, certain real estate. George W. and William Thorn (brothers of John) also commenced a like action against him.

Action for money had and received by defendant to plaintiff’s use. The answer denies the indebtedness to the amount claimed or any other sum, denies that defendant ever undertook and promised as in the petition claimed, that he has or ever had any money to and for plaintiff’s use, and all claim as set up in said petition.

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

<p>Transfer of property. A transfer by an insolvent debtor of all his property in actual payment of a pre-existing 'debt, though he have other creditors known to the transferee, is not fraudulent per se, and when unaccompanied by actual fraud is valid against other creditors.</p> <p>2. Same at common law. At common law a debtor may prefer any one of his creditors by conveying his property in payment of his debt, or by conveying in trust so much thereof as will he sufficient for that purpose.</p> <p>5. Same. Where a debtor sells all his property to a creditor for a fixed and named consideration, which such creditor pays in part by discharging the indebtedness which he holds; in part by undertaking to pay other debts of the grantor, and paying them; and the balance in money, the transfer does not constitute a general assignment, and. in the absence of actual fraud, it is valid.</p> <p>4. Onus proeanw. Where a sale is attacked on the ground that it was made without consideration and for the purpose of defrauding creditors, and the allegations of the bill were positively denied by the answer, it was held that the burden of proof was upon the complainant, and that when the cause was heard upon bill and answer alone the court did not err in dismissing the bill.</p>

Plaintiee sued and obtained judgment against defendants in their partnership name. An attachment issued, which was levied upon certain property, a portion of it being the separate property of the individuals composing the firm, and as to the ownership of the other the officer’s return is silent. Under an execution issued upon the judgment the sheriff levied upon and sold other property than that attached, the same being the separate property of one member of the firm.

<p> Appeal from Dubuque District Court. </p> <p>Mandamus. The peremptory writ was ordered and from this respondent appeals.</p>

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

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

Suit upon a note made payable by Wilson and Durham to one Burris and by him assigned to plaintiff. The note was made in July, 1857, due twelve months after date. Upon the trial before a jury, it appeared that Dunham signed the note as surety for Wilson in February, 1859.

The foundation of this action is the following instrument in writing: “In consideration of a sale this day made by Henry Courtney to Levi Goodpaster, of the following described property, viz: (describing a section of land as being in E. 84, T. 28) for which the said Goodpaster has paid the said Henry Courtney the sum of two thousand dollars; Now we, the undersigned, in order to induce the said Levi Goodpaster to purchase the above described property, do hereby guarantee to…

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

: This action was brought upon a warrant issued by the School District in favor of one Johnson. Pending the action the warrant was assigned to Burton & Stapleton and they 'were substituted as plaintiffs.

<p> Appeal from^ Fremont District Court. </p>

This action was commenced, and judgment rendered for plaintiff, in a justice’s court. The defendant removed it to the District Court by writ of error, and in that court the judgment of the justice was reversed. Erom this judgment the plaintiff appealed to the Supreme Court, and at the December Term, 1859, (see 9 Iowa 301,) the judgment of the District Court was reversed, and a procedendo issued commanding the District Court to affirm the judgment of the justice.

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

to the point that at common law a note payable in bank bills is not a promissory note with the ordinary incidents of negotiability, cited Irvine v. Lowry, 14 Pet. 299; Jones v. Pales, 4 Mass. 252; McCormack v. Trotter, ID Serg. & R. 94.

Action contended that this is not a controversy between a purchaser and lien-holder; that the question to be determined is,, which has a priority of lien.

<p> Appeal from Des Moines District Court, </p>

■Appeal from Lee District Court. Injunction commanding the defendant to remove a dam which plaintiff alleges diverted the water from its natural course over his, defendant’s, land, and caused it to run over plaintiff’s to his great damage &c. The other facts material to an understanding of the point decided are stated in the opinion of the court.

<p>1. Pleadings: copy op account. In an action for a balance due upon a settlement of accounts, it is not necessary, to append to the petition a copy of plaintiff’s account.</p> <p>2. Same: demukeeb. A demurrer to a petition .which strikes alone at the sufficiency of the copy of account annexed thereto does not admit the truth of the other averments of the petition;- and'upon a failure ; by defendant to answer after such a demurrer, the plaintiff’s right to. recover should be established by evidence, as upon a default.'</p>

B. Myers. The trust debt not being paid, the trustee was proceeding to sell the property conveyed, when complainants procured an injunction to restrain said sale. All the respondents answer under oath, denying expressly all of the fraud, and fraudulent circumstances stated in the bill. The case standing upon the .bill and their answer, respondents moved, to dissolve the injunction, which motion was sustained, and from this order complainants appeal.

<p>1. Amendment op an attachment bond. Where an attachment bond recited that the proceedings were being had in the District Court of a county which was not the one in which the suit was actually commenced ; Held, that the defect could be cured by an amended bond.</p> <p>2. Waives, op variance. An appearance by a defendant in an action, operates as a waiver of any variances between the original notice and petition; and after such an appearance, the petition, and not the ’ notice, governs as to the amount claimed.</p> <p>3. Admissions op a co-partner. The general rule is that the .admissions of a co-partner will not bind the firm of which he is a member, in the absence of evidence proving the co-partnership,</p> <p>4. Co-partner as witness. A co-partner may be called as a witness by his adversary, under section 2390, Code of 1851, for the purpose of establishing his own liability and showing his membership in the firm.</p> <p>5. Record : certipicate op clerk. A certificate by the clerk of the District Court will not be considered to impeach a record entry.</p>

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

This action was brought upon several promissory notes signed as follows: “R. H. Abbott & Co. per Wm. Sullivan.” The answer, not sworn to, denies that defendants or either of them, “executed said notes, or authorized Wm. Sullivan to execute them or either of them.” A motion for a continuance, based upon certain affidavits, was overruled. Gn the trial, plaintiff offered the notes in evidence, and rested his case.

<p>1. Setting aside award : newly discovered evidence. Newly discovered evidence which is merely cumulative in its character does not' afford sufficient ground for setting aside an award of arbitrators.</p>

<p>X. Waiver oi? demurrer. Wliere after demurrers to the original and to the amended petition iu a cause were sustained by the court, the defendant filed his answer and submitted the cause to the court upon the pleadings, whereupon judgment was rendered for defendant; held that the Supreme Court would not reverso the judgment for any error preceding the answer.</p>

<p> Appeal from Pollc District Court. </p> <p>In the Spring of the year 1851 the defendant sold to plaintiff an interest in a patent right, styled “L. Brown’s Mammoth Self-feeding Lath Machine;” receiving in payment therefor six hundred dollars in cash, and the notes of plaintiff for the balance of the purchase money. Upon the 23d day of October of the same year the parties agreed to change the original contract and a new one was entered into by which the defendant in consideration of certain covenants to- be performed by the plaintiff agreed upon his part to convey to said plaintiff on or before the 10th day of the following November by deed of general warranty, a good and perfect title to the undivided half of Lot 1 in Block 1 in South Eort Des Moines, and also the undivided half of the said patent right for certain counties therein named.</p> <p>Upon the day named in the contract the plaintiff was ready and willing to perform upon his part. The defendant tendered to plaintiff deeds duly signed and acknowledged for the lot and the patent right, both of which were refused for the reason as alleged by- plaintiff, that the defendant-had no title to said property and no right to convey the same. The plaintiff thereupon declared the contract rescinded and brought this action to recover back the six hundred dollars paid to defendant for said patent right.</p> <p>A trial by jury was waived and the cause submitted to the court, and it was considered that the defendant upon the day the contract was to be performed' had no such title either in the lot or the patent right as would enable him to tender t.o plaintiff such a deed as he had obligated himself to make, and that plaintiff had a right to declare the contract forfeited and recover back the money advanced to defendant, and rendered judgment accordingly.</p> <p>I. The statute requiring the recording of an assignment of a patent is directory only; and the recording is not essential to the validity of the assignment. It is intended only for the protection of purchasers. Boyd v. Mo Alpine 3 Me-Lean 427; Peek y. Bacon 14 Conn. 877 ; Case v. Bedfield 4 McLean 526; McKerman v. While 6 Inch 428; Pitt v. Whitman 2 Story; Curtis on Pat, 315 note 1, and section 190, note.</p> <p>II. Generally contracts can be rescinded only by tbe consent of all the parties; 2 Par. Cont 192. Possession of property under an executory contract bars the party from rescinding. Breed v. Blanford 2 Y. & Jer. 278; Hunt v. Silk 5 East 449; 2 Par. Cont. 192 note. If a party can perform a part of his contract the other cannot rescind but is left to his action for damages Franklin v. Miller 4 Ad. & Ed. 599; 2 Par. Cont. 43 note.</p> <p>III. In the absence of proof the presumption of law is, that copartners have equal interests in the copartnership property. Story Part. sec. 261 and 26 and notes; Collyer Part. sec. 167, note 3 and sec. 168 ; Faner v. Beswick 1 M. & Rob. 527 ; Gould v. Gould 6 Wend. 263; Cornvüle v. Landidge 5 Dana 211; Lee v. Lashbrook 8 lb. 214; Jones v. Jones 1 Ird. Eq. 332; House v. Colmesnill 1 J. J. Marsh 506.</p> <p>I. What is it necessary for the defendant to prove in order to show title to a patent right in himself ? He must show an unbroken chain of title to the patentee, which can be done by,</p> <p>1. Producing the original deeds of assignment and proving their execution; or secondary evidence of their contents after accounting for their absence; 2 Greenl. Ev. 557.</p> <p>2. Showing that all deeds of title through which he claims have been duly recorded in the United States Patent Office; Curtis Pat. sections 190, 191, 260, 317, Higgins v. Strong 4 Blaekf. 182; 7 lb. 136; Bliss $■ Co. v. Negus 8 Mass. 46, 49 and the cases there cited 4, Mason 15; 2 Greenl. Ev. sec. 491; Curtis Copy Rights 216, 235.</p> <p>II. The lot in controversy is shown to be the property of a co-partnership, and there is no proof showing the interest of the co-partner, that the co-partnership business has been settled, or that there are no co-partnership debts which are liens upon the property. Coll. Part, section 135; Story. Part, sections 92, 93. A title depending on a question of. fact should not be forced upon a vendee. 1 Sug. Yen. 609, 613.</p> <p>III. The court did not err in holding that the contract was rescinded. Benedict v. Waterman, Mer. 491; Chit. Cont. 731; Story’s Eq. Jur. section 776 and note on 1060; 4 Pet. 313; Dart’s Yen. & Pur. 209; 2 Par. Cont. 179, note and 197; Trash v. Venson, 20 Pick. 455; McArthur v. JPadd, 5 Ohio 554; 10 East 359; Bitch v. Casey, 2 G. Greene 307; 1 Sug. 602, 609.</p>

<p>1. Indorser: notice. The general rule is, that an indorsor of a promissory note, when once discharged by want of notice or other laches of the indorsee, can be made liable again only by his voluntary act or agreement, done or made with a full knowledge of the facts.</p> <p>2. Same : burden os prooe. In an action upon an indorsement the burden of showing a waiver of laches, and that it was made with”a full knowledge of the facts, is upon the holder of the note.</p>

<p> Appeal from Montgomery District Court. </p> <p>This was a proceeding before the county court of Mills county, to charge the defendant with the maintenance of an illegitimate child. The defendant appealed from the judgment of the county court to the District Court of Mills, The venue, upon the application of defendant, was changed from Mills to Montgomery county. -Upon a trial by jury, the defendant was found guilty, and a judgment entered against him, from which this appeal is taken.</p>

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

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

<p> Appeal from Dubuque District Court. </p> <p>as to the first ground of demurrer, cited Code of 1851, section 975; Linder v. Lake, 6 Iowa 164; Towsley v. Olds, lb. 526; as to the second ground, Brown v. Curtis, 2 Cow. 225; Morris y. Wads-worth, 11 Wend. 100; Compton v. McNair, 1 Wend. 457; Allen v. Rightmere, 20 John. 365; Douglas y. Howland, 24 Wend. 35; 3 Kent Com. 124 (marginal;) Farmers § Mechanics Bank y. Kercheval, 2 Mich. 505; Williams v. Granger, 4 Day 444; Breed v. Hillhouse, 7 Conn. 523; Blanchard v. Wood, 26 Maine 358; Bead, et ad, v. Cutts, 7 Greenl. (Me.) 186; Train $ Co. v. Jones, 11 Yerm. 444; Union Bank v. Caster, 1 Sand. S. C. 563; Cobb v. Little, 2 Greenl. (Me.) 261; Lane v. Levillian, 4 Arkansas (Pike) 76; Brown y. Curtis, 2 Com. 225, McDougal v. Calef, 34 N. II. 534.</p>

<p>1. Waiver: demurrer. A defendant, by answering to a petition, waives his right to complain of an order overruling a demurrer to the same.</p> <p>2. Record : presumption : bill op exceptions. When in an action on foreign judgments, the bill of exceptions showed that transcripts “sued on” were offered in evidence, but did not identify them in a more particular manner; He Id, That the Supreme Court will not presume that those attached to the petition were the ones offered.</p>

This was a proceeding by scire facias upon a bail bond. Judgment in favor of the State. Defendants appeal. The material facts are stated in the opinion. I. On appeal, the jurisdiction of the court over the parties must appear affirmatively. It is not sufficient that the journal entry shall state that the court found that due ser vice was made by publication.

On the 10th day of September, 1856, Kingman & Smith executed and delivered to one Horner a mortgage on personal property, to secure certain notes amounting to $14,000. Horner, on the same day, assigned the notes and mortgage to one Findley.

Replevin for two horses and a set of harness, which plaintiff claims as exempt from execution. The proof upon the only controverted point was this: “Plaintiff, before the seizure of the property, rented a farm and moved on to the same with his brother and his brother’s wife, he; plaintiff being unmarried. The two brothers worked the farm on shares, with no express agreement as to the amount each was to receive.

I. Cassiday, after the dissolution of the firm of Lough-ridge & Cassiday, being in possession of the note, and it indorsed in blank, is presumed in law to be the owner. Kelly v. Ford, 4 Iowa 140; Goddard v. Cunningham, 6 Iowa 400; Gordon v. Pitt, 3 Iowa 390; Temple v. Kays,. Morris 9; Voleile v. Parker, Í6 Wend. 619. II.

The plaintiff in this action seeks to recover damages of the defendants, on account of their failure to comply with the conditions of a written contract, by which, as is claimed, the defendants agreed to deliver to plaintiff a quantity of flour. In their answer the defendants deny the indebtedness as alleged in the petition, and deny under oath the execution of the writing sued on.

• The defendant was tried before a justice of the peace on an information charging five distinct offenses of selling intoxicating liquors, in as many counts; was found guilty “as charged in the information,” and fined $20. From this judgment he appealed to the District Court.

The plaintiff seeks to enjoin the sale of certain property under the deeds of trust executed by him, to secure to the defendants two several sums of money, evidenced by promissory notes.

This was an indictment under section 2634 of the Code, charging defendant with having in his possession counterfeited coin, in the similitude of the gold dollar, knowing, &c., with intent &c. Yerdict of guilty and from this defendant appeals.

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

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

Action of replevin by Henry Wisner & Co. to recover the possession of a stock of merchandise, consisting of dry goods groceries and queensware; upon which the defendant, as sheriff o'f Webster county, had levied a writ of attachment issued out of the District Court of said county, in an action wherein Barrett, King & Co. were plaintiffs and Woodbury & Dawley were defendants. The petition alleged that the plaint-^' iffs purchased said goods of Woodbury & Dawley.

<p> Appeal from Dubuque District Court. </p> <p>Eor the year 1857, taxes to the amount of one hundred dollars and over, were levied upon the real estate of the relator, situated in Dubuque County. On the 4th of August, 1860, these taxes remaining unpaid, he tendered to the treasurer and collector the amount so levied, without interest, and demanded the usual receipt therefor. This the treasurer refused, and thereupon the relato.r filed his petition in the District Court, asking for a writ of mandamus compelling said treasurer to receive the amount so tendered and to give him a receipt in full for the taxes so levied. A demurrer to the petition was overruled and a peremptory writ ordered, requiring the collector to receive and receipt as prayed for by the relator. Respondent appeals.</p> <p>I. On general principles all rights and remedies which are created by statute and are not perfected but are in fieri at the time of its repeal are forever bound unless protected by a saving clause. MeGuilken v. Roe, 8 Blackf. 581; Blackwell Tax Titles, section 33, p. 553; Dwar. on Stat. 676.</p> <p>II. This general principle is however not in force in this State, but on the contrary the Code provides that the repeal of a statute shall not affect any right which has accrued, any duty imposed or any penalty incurred under and by virtue of the statute repealed, and therefore a saving clause is unnecessary. Code section 26; Stale v. Church, 8 Iowa 252.</p> <p>III. At the time the Code of 1851 was adopted there were delinquent taxes for the years 1847-8-9-50 due and unpaid and the revenue law of the Code contains no saving clause on old taxes. The Code also only made provision for the collection of the taxes of the prior year, (see section 496.) Yet we find the General Assembly in the session of 1852-3 recognizing the old taxes as still existing, for they then passed a special act for their collection and this court has recognized the legislation as constitutional, which would not be the case if the repeal of the old law without a saving clause was a relinquishment of the tax. See chapter 74 Acts of 1852-3 ; Gaylord v. Scarff, 6 Iowa 186; Bleidorn v. Abel, et al, lb. 5.</p> <p>IY. By the Revision of 1860, it is expressly provided that -the sale shall be for the tax and interest and costs of this year and preceding years. In other words the statute has expressly provided for the’- collection of interest on. past years as well as future ones and therefore without any other saving clause the right is amply secured in the body of the act. Rev. of 1860 section 763.</p> <p>Y. The construction claimed by the appellee would not only sweep away the interest, but the tax itself, for they stand on the same principle, and the language in each case is the same. Sec. 763, Rev. 1860.</p> <p>presented in his argument a history of the legislation of the State concerning interest on delinquent taxes, and suggested the following propositions :</p> <p>1. The right or power of taxation is an incident of sovereignty to be exercised by the law making power of the State through legislative constitutional acts.</p> <p>2. The right to levy and collect taxes, either before levy, or after, is not in the nature of contract between the tax payer and the State; but is an arbitrary right to take, either with or without the consent of the particular person whose property is taken, and is not therefore a debt.</p> <p>3. This right is one which the legislature may exercise, or not, and, after levy, there is no greater right vested in the State, as to taxes, than there was before the levy. After the money is collected, then a right is vested to the particular thing.</p> <p>4. There being nothing in the nature of a contract in the levy and collection of taxes, the State may yield up, and not enforce the right, as well after levy as before.</p> <p>5. Taxes can only be levied and collected by virtue of a constitutional legislative act.</p> <p>6. A repeal of the law under which taxes have been levied, and may be collected, yields up to the tax payer all rights acquired by the levy, and leaves no power to collect the tax in the particular case, where it has been levied.</p> <p>7. The law of 1860 absolutely repeals all pre-existing laws for the levy and collection of taxes; and it is conceded, that, by such repeal, all power to act under the repealed laws is gone; that these repealed statutes are as no statutes, areas though they had never been enacted, except so far as they may be affected by section 26 of the Code of 1851.</p> <p>8. There is no saving clause in the act of 1860, as to levy and collection of taxes, levied prior to the taking effect of this act; neither does the act distinctly state, that any of the prior tax shall be continued, or revived, nor does it state the object to which it is to be applied, and therefore does not come within section 7 of article 7 of the constitution of the State, which is a limitation upon the legislature in regard to the taxing power of the State.</p> <p>9. The sections of the revenue law of 1860, which authorize the collection of taxes, are all fully met by referring them to taxes levied under said law; and there are no terms used in said law, which, from necessity, relate to interest upon delinquent taxes prior to July 4th, 1860.</p> <p>10.' A law creating a penalty cannot have a retrospective operation; at any rate, unless the law, in express terms, refers to a past time, or transaction and includes the same.</p> <p>11. The interest on past taxes is not saved, in any section of the law of 1860, as a right, nor is it saved as a right accrued, or penalty incurred, because it is neither, under section 26 of the Code; and therefore the same cannot be collected under the general provision of the law of 1860, authorizing the collection of interest due on delinquent taxes due and unpaid.</p>

- Defendant appealed to the District Court, and upon the trial there, the court, against his objection, instructed the jury: “If you are satisfied that the defendant warranted the horse to be sound, and he was at the time in fact unsound, plaintiff will be entitled to the full value of the horse, as he would have been if free from disease; and upon this subject you will not be confined to mere compensatory damages, but you may return such an amount as will make the plaintiff…

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

<p>1. Notice. Wherea purchaser of real estate executed a mortgage back to secure the payment of the purchase money, but by mistake described an entirely different tract of land, it was held that a subsequent purchaser was not charged with constructive notice of recitals in the deed which should have placed him upon his inquiry, when such recitals did not appear in the index which the recorder is required by law to keep.</p>

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

The defendants, William Ilockenberry and Isaac Brandt, were indicted for wilfully and maliciously injuring and defacing the dwelling of one Oliver Lundy. Defendants demurred to the indictment, assigning as cause therefor that it charged two distinct offenses in the same count. This demurrer was overruled. Plea, “ not guilty.” On the trial the defendant asked certain instructions to the jury which were refused by the court.

Action for an amount claimed by plaintiff as a balance due him from defendant on account and on a promissory note. The defendant pleaded, in addition to a specific denial of the allegations of plaintiff’s petition,' an offset.

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

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

Letters of administration were granted to the defendant Jewett and another, on the estate of Elijah Eaton, deceased, on the 13th of March, 1855. On the 18th of June of the same year plaintiff filed in the probate office his demand against said estate, sworn to, of which the administrator’s had notice, but no formal order of allowance was made of the same by the court until the 17th of August, 1857, as hereinafter stated.

<p>1. Pleadings and evidence. Allegations in an answer by way of avoidance, upon which issue is joined by the replication should be sustained by evidence, unless their truth is not apparent upon the face of the pleadings.</p>

Dependant moved to dissolve the attachment issued at the time of the commencement of this action, for the reason that it appeared from the petition and papers that the allegation contained in the affidavit for the writ zvas false. This motion was sustained and plaintiff appeals.

At the December Term, 1860, of the Wapello District Court, a decree was entered in favor of the plaintiff, foreclosing the defendant’s equity of redemption in certain property by him mortgaged to the plaintiff, to secure certain promissory notes, and ordering the sale of the same. A special execution was issued commanding the sheriff to sell the mortgaged premises pursuant to the decree.

<p>1. Rights of mortgagee of personae property. The right of the mortgagee of personal property to take and retain the possession of the same ceases when the debt secured by the mortgage is wholly discharged.</p> <p>2. Verdict against evidence. A judgment will be reversed on the ground that the verdict was against the evidence only in a olear case.</p>

The facts are fully stated in the opinion of the court. The right of the District Court to control the order of testimony is undoubted, and like the exercise of any other discretionary power it will not be reviewed by the appellate court unless grossly abused. The Philadelphia and Trenton Railroad Company v. Simpson, 14 Pet. 448; Van Burén v. Wells, 19 Wend. 208; 1 Hill. 300; 14 Penn. S. R. (2 liar.) 91; 17 lb. 844; 35 Maine 198; 14 Ala. 198; 20 Ala-294; 14 Geo. 55.

1. The'statute (Code § 2619) makes certain acts of embezzlement, &c., larceny, and it is essential to constitute larceny that the act should be done and charged to have been done feloniously, Whart. Am. Cr. Law 198; Bouv. Law Die. “Feloniously,” 561; Archibald Cr. Pr. & PL 47. 2.

<p>1. Evidence op co-paetneesuip. The sufficiency of evidence offered to prove co-partnership, discussed and determined.</p>

<p>1. Verdict : evidence. The Supreme Court will not review a verdict on the grounds that it is against the evidence and allows excessive damages when all the evidence introduced in the court below is not embraced in the record.</p> <p>2. Instructions. The Supreme Court will not review instructions alleged to have been given in the court below, when the record does not</p> <p>' show that they were given and that the party complaining, at the time excepted thereto.</p> <p>3. Assignment of error. The Supreme Court will not consider questions presented in argument which are not raised in the assignment of errors.</p>

<p> Appeal from, Polk District Court. </p> <p>Eor the facts see the opinion of the court.</p> <p>I. The bill of exceptions was filed in open court on the 29th day of March 1860. It may be filed after the trial by consent,. “ and where a bill of exceptions is subsequently filed, such consent shall be presumed unless the contrary is shown by the record.” Code of 1851, section 1805; Bae. Abr. Title, 'Bills of Exceptions; Beauchamp v. Mudd, Hardin’s Ky. R. 166.</p> <p>II. The instructions given for plaintiff are contrary to law. In the case of Holmes v. Clark, 10 Iowa 423, it is made the settled law in this State, that to sustain “ an action of damages for a false representation or fraud, three circumstances must combine: first, it must appear that the representation was contrary to the fact; second, that the party making it knew it to be contrary to the ’fact; and third, that it was the false representation which gave rise to the contracting of the other party.” Apply these rules to the case at bar. The first instruction for plaintiff concludes thus: “But if the representation is made through mistake, carelessness or ignorance, the result is the same, and is a fraud.”</p> <p>The second instruction defines a “fraud” to be “every misrepresentation of a material fact ” which the other party “ did not have equal means of knowing or ascertaining its falsity; ” or if the buyer actually reposed confidence in the vendor’s statements, &c.</p> <p>The third indicates the liability of the defendant for erroneous statements if he was not “careful to state it as an opinion, and not as a fact.”</p> <p>It will be observed that the entire theory of these instruc.tions is in conflict with the law as settled in Holmes v. Clark, and is identical with the first instruction in Holmes’ case, as quoted in the opinion of this court, and for which that case was reversed. Here is the same confusion between a case upon warranty, and one for fraud and deceit. The defendant’s instructions asked and refused being the converse of these, it is not necessary to review them.</p> <p>I. The trial was had at the September Term of the District Court, 1859. Judgment was rendered at that term in favor of the plaintiff for $2,860. No exceptions were settled and signed at that term of court. During the next term in March, 1860, a bill of exceptions was settled and signed. This bill of exceptions we moved to have stricken from the record, it having been settled and signed in vacation without any agreement or consent on the part of plaintiff. Section 1805 of the Code provides, “That either party may except to any decision or opinion of the court. If for matters occurring during the trial the exceptions must be taken and reduced to writing before the verdict is rendered unless otherwise arranged by consent; and when a bill of exceptions is subsequently signed such consent shall be presumed unless the contrary is shown by the record.” In Claggett v. Gray, 1 Iowa 20, the Supreme Court place a construction upon this statute. "Wright, C. J. in delivering the opinion says: “We can not believe that in the absence ot an express agreement or consent, it was designed that the time for settling the exceptions ivas to be extended beyond the term. And in the absence of such express agreement the court can not after the adjournment sign the bill of exceptions.”</p> <p>II. We do not think that, upon inspection, the court will find the instructions obnoxious to the objections urged against them. Whatever may have been the doctrine formerly, in cases of fraud, in regard to the necessity of proving a guilty knowledge, we claim that the modern doctrine is as laid down in the case of Monroe v. Pritchard, 16 Alabama 785, which was an action on the case by the vendee of land against the vendor for false and fraudulent representations as to the boundaries and extent of the land sold, and it was held, “ that although the plaintiff was bound to show that such misrepresentations were fraudulently made, yet it is not indispensable that the party making them should at the time have known them to be false. It is sufficient that he made them recklessly, not knowing them to be true, and for the purpose of influencing the other party making the purchase.” Again, in Story on Sales, section 165, the doctrine is laid down as follows: “ That any misrepresentation of a material fact made by one party with a design to deceive the other party to his injury is a fraud; nor does it matter whether the party making the misrepresentation knew it to be false or was utterly ignorant in respect to the fact that he stated, provided that it was material and the other party had a right to rely upon'it, and was deceived; since the affirmation by a party, that a fact is true which he neither knows or believes to be true, is no better in morals nor in law than to tell an absolute lie.” See also, 12 Metcalf 549. Again, “ When false representations are made operating as material inducement to the contract, it is not necessary to give proof of a fraudulent intent by the party making such representations.” Story on Sales, section 165; 12 Metcalf 549; 1 Barb. Reports 471.</p> <p>It does not matter then, we contend, whether Carr had knowledge of the things regarding which he made representations. If he made them to the plaintiff with the intention of influencing him he was bound to know that they were true, because the plaintiff had a right to rely upon such representations, and the proof is that he did rely upon them, which was known to defendant at the time of the trade.</p>

Action for libel. The petition alleged: “ That on or about the 19th day of March, 1859, at the Town of Sidney, in .Fremont County, Iowa, the defendant falsely, wickedly, &c., did compose and publish and caused to be composed and published of aDd concerning the plaintiff, and of and concerning his official conduct when he was county judge of said county, a certain false, malicious, scandalous and defamatory libel, containing among other things, the following words: • “We feel…

Plaintiff sued before a justice of tbe peace upon a note made by Wasbburne to Gaines & Co. or bearer, dated March 11, 1858, due six months from date, which the defendant on the 14th of May, 1858, endorsed as follows: “ I guaranty the collection of the within note.” In the District Court plaintiff proposed to prove that after the note matured defendant told him not to sue it; that he, by parol, waived the requirement of law to sue the maker, and the use of diligence in the…

This was an. action against the Dubuque & Pacific R. R. Company, as the drawers, and Mason, Bishop & Co. as the indorsers of certain bills of acceptance, payable at the office of said company in the City of New York. Objections were made by the appellants, Mason, Bishop & Co., to the admissibility in evidence, of the notary’s certificate, and to the sufficiency of the authentication of the commissioner before whom an affidavit, in proof of notice to the indorsers, was made.

Action on promissory notes executed by defendant to plaintiff. Defendant pleaded a set off of six hundred dollars, and alleged as cause therefor: “That he signed as security and became liable upon a certain promissory note executed by one P. Gr.

Plaintiff declares upon a note, on account, and for damages sustained by the malpractice of defendant as an oculist ; answer in denial, and also setting up in throe several pleas, a set-off for slanderous words spolcen by plaintiff of defendant, before the commencement of the action, in relation to his skill as such physician. A motion was made to exclude these pleas on the ground that damages of this character could not be set off or claimed in a cross-action.

The defendant Safford Savery, leased of McLott, Corbin & White, certain premises in the city of Des Moines, for a term of years. A written lease was entered into, in which, for the use of said premises, the defendant Safford Savery, agreed to pay the said lessors an annual rent, payable quarterly ; and the defendant James . C. Savery joined in the execution of said lease and guaranteed upon his part, that the payments of rent should faithfully be made as they became due.

In chancery. The bill charges that on the 4th of February 1858, complainant purchased at the U. S. Land Office the land in controversy, by locating thereon a military land warrant and obtained the usual certificate, bearing date February 26th 1858; that in April afterwards the respondent, intending to defraud complainant and to deprive him of of his title, fraudulently entered said land at the same office by a pretended pre-emption right thereto; that respondent’s settlement…

The defendant, J. C. Haskins, as the sheriff of Woodbury County, had placed in his hands for service a .writ of attachment against the property of Heinman & Gambert, and in executing the same seized and levied upon the property of one Isaac Hattenbaeh. For this wrongful seizure and levy Ilattenbach recovered judgment against Haskins alone, which judgment was assigned to plaintiff.

The facts are fully stated in the opinion of the court. I. Railroad mortgage bonds are peculiar instruments intended to form a part of currency of the country, and are not to be regarded as ordinary bonds and promissory notes. As such, the company by whom they were issued may own its own bonds in the same sense that bank bills may be owned by the bank which put them in circulation. Greer, J. in McCoy v. The County of Washington, 7 Am. Law. Reg. 196; Carr v. Lefever, 27 Parm.

<p>1. Verdict against evidence. The Supreme Court will not reverse a judgment on the ground that the verdict was against the evidence' when the record does not disclose all the evidence that was received in the court below.</p> <p>2. Presumption in favor of regularity. The Supreme Court will presume when the record is silent that the jury in a criminal trial when they retired to consider upon their verdict were in charge of a sworn officer.</p> <p>3. Instructions. It is not improper for the court in giving instructions asked by a party to append thereto a note directing that they shall be considered in connection with other instructions given by the court.</p> <p>4. Same. Where a jury after considering for a time upon their verdict reported to the court that they were unable to agree, and the court was further informed by one of the jurors that they could not agree upon the law of the case, held that the giving of further instructions was not erroneous.</p>

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

Rhodes brought replevin against Buck and filed the usual bond. At the return term, owing to some informality, ho withdrew his action, which was followed by an order for the return of the property. Buck then brought this action on the bond. An answer was filed setting up property in the goods replevied, in Rhodes, and that they came into the possession of Buck wrongfully, setting forth particularly the circumstances. To this answer there was a demurrer, which was overruled,.

Indictment for murder in the second degree. Defendant was tried, found guilty of manslaughter, and appealed to this court. The cause was reversed and remanded, and upon a second trial he was found guilty of the same offense, from which ho again appeals. Eor the facts, and errors assigned, see the opinion.

Complainant states, that on the 14th day of February, 1857 he sold to respondent eighteen lots in Everett’s addition to the town of Council Bluffs, and made him a deed for the same; that at the same time he sold him nineteen other lots and gave him a bond to convey upon the terms therein stated, that part of the consideration of said sale was a promissory note made by respondent to him, or order of that date, due on the first day of July, of the same year; that on the 13th…

On the 29th day of October, A. D. 1860, the relator presented to the respondent, who is the clerk of the Scott District Court, his original petition and asked that the same should be filed and the cause treated as pending in said Court. This the clerk refused to do without the pre-payment of $2,50, as required by section 2527 of the Code of 1851.

<p>1. Joinder op parties. The makers and guarantors of a promissory note-may he joined as parties defendant in an action thereon.</p> <p>2. Pleading : actions against guabantoks. It is not necessary in an notion against tie maker and guarantors, (who were the payees) of a promissory note to allege presentment and notice of non payment. ■</p>

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

The complainant by his bill seeks the foreclosure of a mortgage given by the defendants to secure the payment of certain promissory notes, executed by John Hoey alone. Hoey and wife in their answer claim the mortgaged premises as their homestead, and deny the right of the complainant to a foreclosure as prayed for.

The plaintiff by her action of replevin seeks to recover from defendant the possession of sixteen hundred and fifty head of hogs, and one hundred and fifty head of cattle, which she claims defendant wrongfully detains from her.

On the 8th of April, 1857, the city council of Mt. Pleasant passed an ordinance, the 9th section of which provides for the punishment of any one who shall keep any gambling device &c., declaring it a misdemeanor, and providing in another place for the punishment thereof. The defendant in May, 1859, was arrested and brought before a justice of the peace for a violation of this oí dinance, the prosecution being in the name of the city.

The defendant was tried and convicted of the crime of rape. A motion in arrest of judgment and for a new trial being overruled, the defendant appeals. The Supreme Court may set aside a verdict and grant a new trial in a criminal case on the ground that the verdict was against the evidence, when the court below refused the same. Whart. Am. Cr.

<p> Appeal from Cedar District Court. </p> <p>Action on a promissory note. The material facts are presented in the opinion.</p>

An information was filed against defendant for a violation of an ordinance of the City of Dubuque, entitled “An ordinance to regulate the sale and occupancy of stalls in the Central and First Ward market;” which among other things, provided “that any person who shall use or occupy any stall in the Central or First Ward market for the purpose of selling meat, poultry, fish or any other article of provision without authorty expressed in a lease duly signed and attested, shall…

Foreclosure. No personal service was effected upon Edinger and wife, the mortgagors; adequate proof however of notice by publication was made. Judgment of foreclosure by default, and defendants appeal.

The plaintiff brought his suit to recover $554.69 as the amount due on a promissory note. Defendant pleaded payment and set-off founded upon the following receipt to-wit: . , Received, Dubuque, August 6th, 1857, of John Hurley, two orders on the treasurer of Dubuque City, both orders dated August 4th, 1857. One is numbered 4146 calling for five hundred dollars; the other is No 4148 calling for two hundred and fifty dollars.

The defendant was indicted for maliciously maiming and disfiguring an ox, the property of one JDolph. A new trial having been refused the defendant appeals.

Information before a justice of tbe peace charging the defendant with having violated the liquor law. Being convicted and fined by the justice, and upon appeal to the District Court, judgment again being rendered against him, the defendant appealed to this court.

Bill in Chancery for the foreclosure of a mortgage. The answ'er admits the execution of the note and mortgage set out in the bill, but alleges that the note is tainted with usury, and sets out particularly the history of the transaction in which it was executed. To this answer the plaintiff filed the following exceptions: 1. That said defendant seeks the aid of equity and does not offer to do equity. 2.

In December, 1858, the plaintiff filed his petition to recover of defendant damages for severe physical injuries which he had sustained under the following circumstances: He had been employed, with others, on division No. 9, of said road, by said defendant, for the purpose of passing over that portion of the track of said road in a hand car, in advance of the regular train, that the condition of the track might be ascertained and all obstructions removed.

Aypecd from Hoivard District Court. Foreclosure of a mortgage. Judgment by default against the defendants who appeal. The original return of the sheriff on the notice showed that it was served on the defendant ■Harlow, “by leaving a copy at his usual placo of residence,, •on the 13th day of October, 1859, with a member of the family over fourteen years of age, a daughter of defendant, &e.;;> The decree was entered on the 25th day of October, 1859.

It is not competent for a subsequent mortgagee' to set up usury in the prior incumbrance. That is a personal defense and can be made only by the borrower, his sureties, his devisees and representatives or those persons who are bound by the original contact to pay the sum borrowed. Sands v. Church et al, 2 Seld 847 ; Mechanic s Bank v. Edwards, 1 Barb.

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

<p>1. Taxes in Muscatine. Held, that an out lot situated within three hundred feet of the old city limits and within the new city limits of the city of Muscatine ; which lot was not used for agricultural purposes and was so situated that it was protected and benefited by .the municipal government of said city, was not exempt from city taxes-under the rule laid down in Morford v. Unger, 8 Iowa 83.</p>

On the third day of March, A. D., 1858, the plaintiff in this, action sold and conveyed to the firm of Shelly & Grosvonor of the city of Dubuque, two thousand and eighty acres of land situated in the State of Wisconsin, for the consideration of four thousand one hundred and sixty dollars, and took therefor their two promissory notes, each for the sum of $2,080, one payable in six, the other in twelve months after date.

Accounts, settlements and receipts are open to explanation and correction. Byrne v. Schwing, 6 B. Monroe, 199. And parol evidence is admissable only to show that by fraud or mistake, something was inserted, or omitted to be inserted, in the instrument, contrary to the intention of the parties. Jarvis v. Palmer, 11 Paige 650; Bing v. Ashworth, el al, 3 Iowa, 452.

The prayer of the petition vas'-' for an injunction and the allowance of damages for the injury done. The defendant denied the charges, and set up title to the same land by virtue of a pre-emption from the general govcrnment. On the trial the court found the issues in favor of the plaintiff, awarded him one hundred dollars for his damages, and made the injunction perpetual.

<p>i. Taxing costs to -prosecuting wittness. The District Court have authority under chapter 24 laws of 1853, upon the ignoring of an indictment by the grand jury, to tax the costs then accrued to the prosecuting witness, when it is shown to the satisfaction of such court that the prosecution was instituted without probable cause.</p> <p>2, Practice. The Supreme Court will review an order of the District ..(lourt-taxing costs to a prosecuting witness only when the evidence court acted is properly made of record.</p>

The plaintiff sues the defendant on several promissory notes, amounting in the aggregate to one thousand and ninety-four dollars. The service on the defendant was defective. He waived this by appearing on the first day of the term and filing a plea denying his indebtedness to plaintiff, and also informally setting up a claim by way of set-off for a large amount of grain, which he had before that time sold and delivered to plaintiff.

■■ Consolidated actions against S. E. Locke & Co., on account. The verdict was for the plaintiff. On defendant’s motion a new trial was granted, for reasons which appear in ’the- opinion of the court. The plaintiff appealed from the ■order granting the new trial. 1.

<p>1. Authority or an attorney to arpear. Questions as to the authority of an attorney to appear for a party to an action must be determined upon the evidence, and are peculiarly within the province of the District Court; and this Court will not interfere with the finding of the court upon such an issue where the record does not disclose all the evidence submitted.</p> <p>2. Excessive judgment. Where the petition prayed for judgment for seventy dollars and did not ask for interest, and the appeal bond filed in the cause was in the sum of seventy-five dollars, it was held that a judgment against the principal and surety for the sum of eighty dollars and fifty cents was excessive.</p>

The facts of this case will sufficiently appear in the opinion of the court. An action cannot be maintained on a joint contract against one of the joint obligors; neither can an action be maintained on such an instrument by one of several joint obligees. 1 Greenl. Ev. section 50, 64; Abb. PL & F. 466 ; Bouv. Law Die. 620; Hoop v. Seaton, 4 G. Greene 252.

Trespass for seizing and selling goods which did not belong to the defendant in the execution. Judgment by default against defendant, who, two days thereafter, moved the court to set aside said default, which motion was based upon several affidavits showing a meritorious defense, and what was claimed to be a reasonable excuse for having made such default. Motion sustained and default set aside.

The plaintiffs in their petition claim of defendants five hundred and sixty-one dollars as the balance due on a contract for doing the carpenter’s work on a church at Holy Cross. The defendants pleaded various defenses, and after an issue was made up, the cause was referred to Timothy Sullivan and Jas. A. Chapline, who awarded the plaintiffs $350 on their claim; which award was returned into court, and defendants moved to set it aside : 1.

The plaintiff’s claim of $1,742,20 against the county of Fremont, consisted of the following items, to-wit: 1. $100, being the rent of a building from the 24th of November, 1857, to the 1st of January, 1858.

Where an instrument has been altered it is incumbent upon the party offering it in evidence to explain the alteration.-1 Greenl. Ev. 697; 4 Kent 5 .'0, note3 ; Morris v. Vandorin, 1 Dal. 67; Dervost v. Gratz, Pet. 0. C. 369; Gibbs v. Os-lorn, 2 Wend. 555; Acker v. Sedgwick, 8 Barb. 514; Jackson y. Jacoby, 9 Cow. 125 ; Hills v. Barnes, 11 N. II.

Action before a justice of the peace, for entering upon the close of the plaintiff and taking therefrom certain per-i sonal property. An answer denying a portion of the allegations of the petition and setting up matter in justification as to the others, was filed; trial and judgment for the , plaintiff. The defendant appealed to the District Court.

cited the first two clauses of section 1240, Code of 1851; Co. Litt. 345c.; 'Glick v. Gregg, 19 Ohio 57; Lessee of Shaler v. Magin, 2 Ohio 236; and reviewed the authorities cited by counsel for appellee. relied upon Pratt v. Churchill, 24 111. 477 ; Varney v. Stevens 22 lb. 331 Treat v. Strickland, 23 HI. 238; Gibson v. Hutchins, 12 Louis. 546; 2 Calf. 148.

This was a suit upon a joint and several promissory note, signed by W. A¡ Scott and others. Scott in his life time, with the other defendants, filed their answer to the claim of plaintiff. Before judgment Scott died, and by order of court, the suit was revived as against his administrators* The administrators moved to dismiss the cause as against them, for the reason that plaintiff could not prosecute this suit against them jointly with the other defendants.

<p> Appeal from Des Moines District Court. </p> <p>The facts are fully stated in the opinion, of the court.</p>

<p>1. Parties. A steamboat cannot be a party plaintiff to an action on a promissory note.</p>

Appeal from Henry District Court. Action on a promissory note. The material facts are stated in the opinion of the court. cited Young v. Mumm'a■, 3 Iowa 140; McConnoughey v. Weider, 2 lb. 408.

in an elaborate argument upon the construction of the statute considered in the opinion of the court, cited the following authorities: Sedgw. Stat. & Con. Law 576 ; Walker v. Caldwell, 4 Louis. An. R.' 298 ; The State of Iowa ex rel.

On the 12th of October, 1857, defendant confessed a judgment before the clerk of the District Court for the sum of three hundred and nine dollars and fifty cents, being the supposed balance due the plaintiff on a fifteen hundred dollar note, dated the 21st of July and payable in six months.

On tbe 22d day of September, 1858, Parker & Spearing, who kept a livery stable in the city of Davenport, were indebted to plaintiff on two promissory notes executed by them, as follows: One for $75, dated March 9, 1858, and payable in ten days thereafter; and the other for $950, dated August 4th, 1858, and duo thirty days thereafter.

Appeal from Muscatine District Court Injunction to restrain the erection of a levee over defendant’s land. The facts necessary to an understanding of the case, are stated in the opinion of the court.

<p>1. Instructions. An instruction which is not applicable, should be refused by the court.</p> <p>2. Sworn pleadings. Under the Code of 1851, an answer under oath was evidence only as to those allegations which were responsive to the petition.</p> <p>3. Tender of a deed. When the party to whom the tender of a deed is made makes no objection to the terms of the instrument tendered, or fails to specify the kind of a deed he is willing to accept, defects therein will be considered as waived.</p>

Action for the recovery of real property. Thé cause was tried by the court, and upon the facts found and made of record judgment was rendered for defendants. Tbe plaintiff appeals.

<p>1. Allegation : cokpokation. In an action of tresspass against a railroad company it should he alleged in the petition that it is a corporation or co-partnership or that it acts as such.</p>

Action on an order drawn by Theodore Mix on A. L. Collins. Demurrer to petition overruled, and the defendants appeal. The draft is payable to the order of John B. Collins, and the copy set forth in the petition does not show any transfer from, or indorsement by, John B. Collins to plaintiff. It is therefore prima facie the property of John B. Collins, and shows no right of action in plaintiffs. Maynard v. Raymond, 4 G. Greene 187.

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

<p>1. Instructions. It is the duty of the jury to find a verdict according to the law .as given in the instructions of the court. Where instructions are erroneous, the remedy of the party prejudiced thereby is by exception and appeal.</p>

The facts are stated in the opinion of the court. relies upon the following authorities: Barb. S. C. E. 370; 1 Wend. 355; 2 Eich. 317; 8 Ire. 441; Pars. Cont. 40, 41, 42; 2 Kent 620; 15 John. 41; Ripley v. Gelsten 9; John. 208; 2 Smiths L. C. 343 and the cases there cited. The action for money had and received lies against a mere intruder or trespasser: O’ Oonley v. Natchez, 1 Sm. & Mar. 31.

contended, 1. That the plaintiff having the legal title to the subscription sued on was the real party in interest; The Slate of Iowa v, Butterworth, 2 Iowa 158; Parwellv. Tyler, 5 lb. 540; Fear v. Jones, 6 lb. 170. 2. That the principle is well settled that loss or disadvantage to the promisee reasonably relying upon the promise is as good a consideration as benefit or advantage to the promissor; 1 Par.

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

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

to the point determined by the opinion of the court, cited Brink v. Morton, 2 Iowa 422. reviewed Brink v. Morton, supra, and contended that it is inapplicable to the case at bar.

On the 10th day of November, 1858, plaintiff recovered a judgment of $477.63 and costs, against the firm of Green, Thomas & Co. Two days thereafter the said firm of Green,. Thomas & Co., recovered a judgment in the same court against John II. Armstrong, for $404.52 and costs. Immediately after this last judgment was rendered, and on the same day, Ed. II.

The Dubuque Gas Light and Coke Company was organized September 21,1854. In the same month, or about that time, Ross & Hoy made a contract with the company, and entered upon the performance of the same, to-wit: building • the gas works, laying pipe, &c. At the February Term, 1858, of the Dubuque District Court, Ross, as the assignee of Ross & Hoy, commenced suit against the company, and in December, of the same year, recovered judgment with an •order for a mechanic’s lien.

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

<p> Appeal from Dubuque Oily District^ Court. </p> <p>Action on a promissory note. The material facts are stated in the opinion of the court.</p>

On the 28th day of April 1854, Charles Miller was the legal owner of lot 96, situated in the city of Dubuque, and donated and transferred a title by deed of conveyance to the city of Dubuque to twenty feet of ground off of the north end of said lot, for the purposes of a market place, to revert when it ceased to be used for that purpose. It was used for that purpose up to 1858, when it was abandoned.

Action on a constable’s bond. The petition, alter setting out the bond, alleged, that on the 11th day of August, 1857,' he caused a certain execution to be issued by a justice of the peace, that he delivered the same to the defendant who was acting as constable; that the defendant levied said execution upon one iron axle lumber wagon, and two breaking plows; that afterwards the defendant “freely and voluntarily permitted the said property, to become wholly out of his…

The case made by the original and amended petitions is, that in the summer of 1858, the plaintiffs sold $297,32 worth of pine lumber to the defendant Tracy, who was a Catholic priest and an authorized agent to purchase the same for the Catholic Church at Council Bluffs, under a contract that it should be used in the erection of a church building on lot X in Block 15 in Bayliss’ first addition to the town of Council Bluffs; and that it was delivered and applied for that…

Action op right. The plaintiff sought to recover tho possession of certain real estate which ho had purchased at a tax sale. The material facts appear in the opinion of the court.

Defendant is the marshal of Dubuque City. By virtue of an execution issued from the Dubuque City Court against plaintiff, he levied upon a bell and clapper, and took the same into his possession. Plaintiff brings this action of replevin, claiming that the property is exempt from execution.

Action on a promissory note executed by Kubler & Hart-well to the defendants, and by them indorsed to the plaintiff. The petition averred that the plaintiffs “have used due diligence in the prosecution of a suit against the makers of said note, but that they have been and are still unable to collect the same, or any part thereof.” The defendants’ demurrer to the petition was sustained and judgment rendered for defendants.

Action on a promissory note executed by Myers & Turner, Lafayette Cheney and E. M. Wadley. Among other matters in defense, the defendants alleged that the note in suit had been paid by the execution of notes by John H. Myers, a member of the firm of Myers & Turner, at the request of the plaintiff, in payment of the note in suit. Issue joined by plaintiff’s replication.

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

<p>1. Presumptions. When the record showed that in an action against two defendants, both appeared and filed a demurrer to the petition; that at the same time plaintiff appeared by his attorneys, and one of the defendants by his attorney, and that by agreement judgment was rendered against the defendants, Held, that the Supreme Court, in the absence of any showing to the contrary, must presume that the District Court had authority to enter the judgment.</p>

<p> Appeal from Lee District Court. </p> <p>Tiie plaintiffs appealed to the District Court from an assessment made by Cleghorn, Creel and Connable, commissioners appointed by the council of the city of Keokuk to assess the damages caused by the extension of Third street in said city. Said commissioners awarded to Hiatt & Harr bine, for injuries to their property, the sum of $19,500; and assessed the property of those benefited thereby with the amount of such damages. The plaintiff’s property having been charged with a portion of this assessment, they complain of the action of the commissioners, which, upon appeal, was set aside by the District Court; and from this ruling Hiatt & Harbin appeal.</p> <p>I. The questions raised by the plaintiffs, in tho court below, in the motion to set aside the award of the commissioners, were determined adversely to them in the case of Hiatt ly Harbin v. The City of Keokuk, 9 Iowa 488.</p> <p>II. In taking tho appeal from the award, the parties waived all technical errors in the former proceedings, and bring up the cause for hearing on the merits :</p> <p>1. The word appeal, by force of its legal signification, implies taking the case to a higher tribunal for trial on the merits. 1 Bouv. L. Did. Appeal.</p> <p>2. By analogy to appeals from justices to the District 'Court. The language of the act giving the appeal, is, “ Said appeal shall be heard and determined as other appeals are hoard and determined in said court.” The other appeals heard in the District Court, are, 1, from justice of the peace; 2, from the county court; 3, from special proceedings for the right of way. Code of 1851, sections 2343, 2344; Voorhies $ Go. v. Bubonic, 6 Iowa 274; The Mississippi ft Missouri Railroad Company v. Rosseau, 8 lb. 373; Borland v. The Mississippi $ Missouri Railroad Company, lb. 148.</p> <p>I. Statutes in derogation of the common law must be strictly construed. 16 John. 7; 2 Giim. 184, 429 ; 4 Binney 116; 4 Mass. 476.</p> <p>II. The statute of 1853 was in derogation of the common law. It conferred the right of eminent domain, and when that right is delegated by the legislature to a corporation, it must be strictly pursued. Keary v. Louisville, 4 Dana 154 ; The State v. Jersey City, 5 Dutch 309.</p> <p>III. Neither consent nor appeal gives a court jurisdiction. Jurisdictional facts must appear. Nicholas v. Bridg■port, 23 Conn. 189; Mitchell v. Kirkland, 7 lb.; Chapman v'. Griffin, 1 Rust 190; Metcalf v. Gilchrist, 5 Conn. 400; Gilbert v. Columbia Turnpike Co., 3 John. C. 107.</p> <p>IV. These facts do not appear in the case at bar.</p> <p>1. There is an absence of notice to the parties.</p> <p>2. It does not appear that the commissioners were disinterested freeholders. 23 Conn. 189; 7 lb; 1 Root 196; 5 Conn. 400.</p> <p>8. The names of the parties benefited, do not appear. It should show that the assessment was made against the property of the parties benefited.</p> <p>V. The assessment was rejected by the council. Stat. 1853, chap. 77, sec. 9.</p>

Action against Benjamin Rupert and tlie sureties of his official bond, to recover moneys paid to him as Clerk of the District Court of Dubuque County. On the 2nd day of March, 1855, an attachment was sued out by Danforth, Davis & Co., against the property of Carter and May. Goods to the value of $1103.82, were attached. A portion of the property being perishable, it was sold by the sheriff, and the proceeds amounting to $404.60, were paid to the defendant as clerk.

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

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

The facts necessary to a clear understanding of the questions raised in these cases are fully stated in the opinion of the court. • I. The Code of 1851, Section 1578, provides that entries made in vacation shall be read, approved and signed at the next term of the court. Until this was done the entry could not have the effect of a judgment, and if not done at the succeeding term it could not he done at all. II.

Nicholas and William N. Hansen, entered into a contract with the defendant Kirtley, for the lease of a ferry across the Wapsipinicon river. The agreement was in writing, and so far as material will be found referred to in the opinion of the court.

A statement of facts agreed upon between the parties is embodied in the opinion of the court. relied upon Story’s Equity Jur. 1018, 1004, 1005, 1012 and 1013; Jackson v- Van Valkenburg, 8 Cow. 260. cited 4 Kent’s Com. (8th ed.) 144, 148 and note; 2 Barb. S. C. R. 28; 4 Denio 493; Montgomery v. Chadwick, 7 Iowa 114; 2 White & Tudor’s L. C. in Eq. part 2 page 437; Terrier v. Buzick, 6 Iowa 258; Cochrane v. Saville, 3 G. Greene 37; Baker v. Thrasher, 4 Denio 493 ; Will. Eq.

Dependants obtained a judgment against the D. & P. R. R. Company, and issued an execution and levied the same by garnishment upon the treasurer, freight agent and conductor of the company. This execution the plaintiffs enjoined. A motion to dissolve the injunction was overruled, and the defendants appeal.

Injunction restraining the sale of certain lands for taxes. The petition shows that the plaintiff was the assignee of land warrants issued to soldiers for services rendered in the war of 1812, and is the patentee of the lands in controversy, which were entered with such warrants.

Love and others made their three notes to L. & W. T. Allen, and secured the same by mortgage on certain property in Iowa City. These notes were due in one, two and three years.

<p>1. Texaxtcy at will. The defendant held and occupied a stall in a public market, as the tenant of the plaintiff, for the term of one year, and at the expiration of the term he retained the possession, and entered into an agreement to lease the premises for another year, but refused to pay the rent in accordance with the terms of the agreement: Held that he was a tenant at will, and not from year to year.</p> <p>2. Amendment os Dubuque cmr ob.dinance. In 1858 the City of Dubuque by ordinance provided for the sale, on the first day of each year of the right to occupy stalls in the public market, for “cash or city issue; and on the 16th of May 1860 the city council directed the sale of stalls “for cash.” Held, that a tender of city scrip, as a payment for the right to use a stall, under an agreement made after the last mentioned date, was insufficient.</p> <p>3. Dubuque citx charter. Chapter 210 laws of 1857 confers upon the city council of the City of Dubuque the power to lease the stalls in the public markets of the city, without submitting the proposition to lease to the legal voters of the city.</p>

<p>1. Tendee os deed in equity. A vendor of real estate who seeks a specific performance and foreclosure of a contract containing mutual and dependent covenants, is not required, as at law, to tender a deed to the vendee before filing his bill.</p>

In May, 1852, tbe complainant, to secure to tbe defendant, Scott, the sum of seventy dollars and interest thereon, conveyed to him by deed of trust certain real estate. Under this deed, Scott advertised and sold the land. This bill is filed against Scott, the purchaser, and those subsequently taking title to the land, to set aside the sale, all subsequent deeds, and to redeem. Eor the material facts, see the opinion. Respondents appeal.