Volume 12 — Iowa Reports

This suit was instituted in Webster county, upon a promissory note for one hundred and twenty-five dollars, dated October, 1858, and payable at thirty days.

Action to recover lot number one, in block number five, in the city of Keokuk. Both parties claim under James Muir,' to whom the lot was decreed in the partition of the Half Breed Reservation, prior to the respective conveyances under which the parties claim. The plaintiff claims the whole lot by virtue of a deed from Muir, dated August 22d, 1842, duly acknowledged and recorded.

The facts are sufficiently stated in the opinion of the court. Fraud is the essence of the averment, and must be alleged in terms. It cannot be presumed. Danforth Davis $ Co. v. Carter and May, 1 Iowa, 550; Lockard $ Co. v. Eaton, S' Gr. Greene, 543; Bowen, et al. v. Gilkeson, et al., 7 Iowa, 503; Mansfield v. Watson, 2 Iowa 119; Williard’s Eq. Jur. 148; Cowen & Hill’s Notes 298; Logan $ CooJc v. Att 4, 9 Iowa, 77. relied upon Drake on Attach. § 113, Code of 1851, § 2505.

<p> Appeal from Dubuque District, Court. </p> <p>The facts are stated in tbe opinion of tbe court delivered ky:</p>

The plaintiffs brought their several suits against one Hea-ton for sums due them from him, for labor performed as sub-contractors, on a dwelling house erected bj him for the defendant Childs.

Whitaker obtained a judgment in the Scott County Court, against Foster, Frazier and another. An execution issued upon this judgment, which was levied upon a yoke of cattle, as the property of Foster. These cattle were replevied by Frazier, he claiming them as exempt from execution. At the hearing of this case before a justice, it appears that plaintiff asked a continuance, and defendant demanded a new bond.

Plauítiee sued before a justice of the peace, stating his cause of action in the original notice thus: “That you accepted and agreed and undertook and promised to pay him the amount of three certain, checks or drafts drawn on you by W. B. Sweet, tw.o of which are,” &e. Judgment for plaintiff before the justice, from which defendants appealed; and being successful in the district court, plaintiff appeals to this court. to the second point determined in the opinion of the…

Dependants are sued as the guarantors of a promissory note, made by one D. to the. plaintiff. Judgment for the plaintiff, and defendants appeal. I.The character of the contract made by the defendants is fixed by §§ 953 and 954, of the Code of 1851. It is “ deemed a guaranty of the performance of the contract.” To charge the guarantors one of two things must, be done by the holder: — 1. He must give them reasonable notice of non-payment by the principal, or 2.

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

One Hellar, brought replevin against Hawley, the plaintiff in this action. A bond was executed in the usual form, signed by Hellar and Warner, and others, as his sureties.

Defendant is sued as the indorser of three negotiable promissory notes, transferred by indorsment after maturity. He answers, among other things, that he had no notice of the non-payment of said notes by the maker. To this there is a replication that defendant waived notice of non-payment 'and this is denied in the rejoinder. Other issues were joined, but the case turned upon the one above stated. Judgment for the plaintiff, and defendant appeals.

Writ of error to a justice of the peace. The defendant moved the court to set aside the affidavit of error, and to dismiss the case for the following reasons : “1. Said pretended affidavit for a writ of error in this case is not sworn to as required by law. “2. There is no basis for said writ in this, there has not been any affidavit filed for, or applying for, said writ. “3.

REPLEVIN. The petition claims “of defendants the possession of plaintiff’s certain hay mare,” &c. After stating that he is entitled to the present possession of the property, he avers that the alleged cause of detention is, that defendants purchased the said mare of some person unknown to .him. The answer denies all the allegations of the petition, and claims that defendants never had the property in their possession.

<p> Appeal from Marshall District Court. </p> <p>The material facts are presented in tbe opinion of the court.</p>

<p> Appeal from Henry District Court. </p> <p>The facts are stated in the opinion of the court delivered by: —</p>

It appears that the plaintiff was appointed administi ator of the estate of A. B. Ferrall in June 3856, of which due notice was given. In May 1857, he resigned this position, and was succeeded by one Hart, who in March 1859, was succeeded by the present defendant.

ACTION against Males and Gillespie on a joint and several promissory note.

Indictment and conviction for obstructing a highway. A motion in arrest of judgment being, overruled, the defendant appeals. contended, that § 2759, Code of 1851, was repealed by § 26 of the act concerning roads and highways, passed in 1858; that records of the courts of limited and inferior jurisdiction, must show affirmatively the facts necessary to confer jurisdiction.

A statement of the facts is presented in the opinion of the court: — The steps taken by the appellant did not in any manner relinquish the vendor’s lien. Dyer v. Martin, et al, 4 Beam. 151; McArthur v. Porter, 1 Ohio 99; Foteaux v. Lepage, efal., 6 Iowa 123; Voor-hies Co. v, JSubank, JSxeeutor, lb. 274. 1. The county court had jurisdiction of the person and the subject matter, and however irregular its judgment may have been, it is voidable only, and not void.

This action was brought upon a negotiable promissory note, dated December 16th, 1857, due six months after date and assigned to plaintiffs, May 26, 1859.

Rape. Defendant was tried and convicted of “ an assault with intent to commit a rape;” obtained a new trial; was again tried and convicted for the same offense, from which he appeals.

The facts are stated in the opinion of the court. contended that the notice was insufficient, and that the motion to quash the same should have been sustained, .citing HarTeins v. Bdivards &¡ Turner, 1 Iowa 296; Dams v. Burt, et al. 7 Iowa 56; Stone v. Murphy, 2 lb. 35.

Mobley brought an action of replevin for certfún.(goods, against Hayden, sheriff, giving bond with the Richards, as his surety. Hayden succeeded in that'Setiiip, and this suit is brought on the bond by MaSon, (a party ir^ terested,) against Mobley and Richards.

<p>1. Boat: boxd. Under@2125 of the Code, an order for an execution against tlie principal and sureties on a bond executed in accordance with the provisions of ?¿ 2124, may he made, though there has been no formal entry of the discharge of the boat.</p> <p>2. Same : approval. A bond executed under @ 2124, of the Code of 1851, and returned by the sheriff as the bond taken by him under the statute, for the release of a boat, is valid, and should be enforced though no formal entry of approval appears thereon.</p>

Action by John Bell, as administrator de bonis non of the estate of David McClure deceased, late of Darke county, Ohio, “ against the defendant, for judgment on a promissory note, and the foreclosure of a mortgage executed to secure the same.” The defendant filed his plea in the nature of a plea in abatement, alleging that said “David McClure is not, nor ever hath been, administrator de bonis non of the estate of John McClure, deceased.” Upon this, issue was joined by…

<p>1. Statute construed. Section 460 of the Code of 1861 applies only to property listed and assessed for taxation for State and county purposes.</p> <p>2. Taxes on bank stock. The capital stock of a branch of the State Bank, doing business within an incorporated town or city, which is authorized to levy and collect taxes for corporation purposes, is not exempt from taxes for such purposes,' though some of the owners of such stock do not reside within the limits of the corporation.</p> <p>3. Statute construed. Section 462 of the Code of 1851, applies only to incorporations for purposes of internal improvement, and not to corporations for banking purposes.</p>

Plaintiee held the note of defendant, secured by a mortgage. In April, 1859, he obtained a judgment at law on this note, and subsequently, in July of that year, filed his bill to foreclose the mortgage. His petition recites the note, the mortgage, the judgment obtained thereon, avers that this judgment remains unpaid, and asks a decree of foreclosure. To this bill he makes Phillips and certain incumbrancers parties.

This cause was commenced in tbe Polk District Court and in August, 1859, tbe judge presiding having been of counsel, tbe venue was “ by agreement of parties” changed to Story County.

The facts are sufficiently stated in tbe opinion of tbe court. I. Tbe presumptions in tbe Supreme Court are in favor of tbe regularity of tbe proceedings of tbe court below. Campbell v. Ayers, 6 Iowa, 339; Shields v. Guffey, 9 Iowa, 322; Hendrie v. Bippey, lb. 351; Dunham v. Dennis, lb. 543; Hamilton et al. r. Walters, 3 Gr. Greene., 556. When tbe decree recites matters necessary to its rendition, tbis court will presume that they were made to appear in tbe proper manner.

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

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

<p> Appeal from Polh District Court. </p> <p>The material facts appear in tbe opinion of tbe court.</p>

<p>1. Construction or contract. The defendants on the 28th of November, 1858, -wrote a letter to the plaintiffs stating that one P. had placed in their hands his entire property, consisting chiefly of lands, for the . purpose of paying his debts; and expressed themselves prepared, and proposed, to secure the amount of certain claims -which plaintiffs had against P. with interest at the rate of ten per cent, if they would extend the time of payment twelve months; and referred to business men, as to their ability to secure the claims in the manner proposed. On the 26th of December, in the same year, they wrote to plaintiffs stating, that if the notes and accounts against P. were sent to them, they would immediately have them amply secured, and that they would be promptly paid, as they had under their control a sufficient amount of available property, belonging to P. to realize by the time they become due. On the áth of February, 1857, they wrote to plaintiffs a third letter, acknowledging the receipt of the claims, and assuring them that they might expect the money about the 1st of December, 1857. Held, that the defendants were liable only as trustees holding the property of'P. for the benefit of creditors ; and that they were not - liable individually to plaintiffs for the amount of their claim.</p>

BlaiNTIEE sues upon a promissory note. To the defendant’s answer there was a demurrer, which was sustained, and from this ruling he appeals.

ACTION of right for certain lands which constituted a portion of the “Half Breed Tract” in Lee County. The defendant pleaded the statute of limitations. The plaintiff established on the trial a complete chain of title from the government to himself.

Action against a sheriff for damages sustained by tbe wrongful levy of an attachment upon tbe property of tbe plaintiff. Eor the material facts see tbe opinion of tbe court. argued: 1. The verdict did not authorize tbe judgment entered; 2. Tbe judgment was not according to tbe verdict; 3. The judgment entry was illegal, having been made in vacation.

The material facts are stated in the opinion of the Court: 1. That the depot grounds of the Burlington & Missouri River Railroad Company, at Mount Pleasant, do not constitute a part of the City of Mount Pleasant; Laws of 1850, p. 195, 198; Laws of 1853, p. 39; Laws of 1855, p. 136; Laws of 1855, (special'session) p. 18. 2.

Tue facts and questions involved appear in tbe opinion. I. Tbe remedy for enforcing mechanic’s lein given by tbe Code, being in derogation of tbe common law, must be strictly pursued. Greene Bros. v. My; 2 GK Greene, 508; Logan $ Cook v. Attix, 7 Iowa, 77. II. Tbe lien of the mechanic or material man may commence when tbe furnishing of tbe material is completed and not when it commenced. Code of 1851, § 981; McCullough v. Coldwell, 8 Eng. (Ark.) R. 231. III.

In tbeir principal features these cases are alike. On the 13th of December 1856, the company insured the building of tbe “ Odd Fellows’ Hall Association,” for six years, which building was afterwards, on the 27fch of May, 1859, entirely destroyed by fire. The plaintiffs in each of these cases obtained judgments against said association, and notice of garnishment, under proper process, was served on the Insurance Company.

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

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

Appeals from Tama and Johnson District Courts. The facts are stated in tbe opinion of the Court. I. The want of authority in the county judge to issue these bonds, cannot be raised by demurrer. Held: and all contracts made in relation to it, are to be made and held, for the letter exercise of its civil and political powers. The preservation of its civil and political powers, are the main end and object of the corporation.

On the 13th day of November, 1857, the complainant, Samuel B. Munson, and one Harvey Munson, since deceased, entered into a written contract with the. defendant, David Sears, of which the following is a copy: “Articles of agreement made by and between David Sears of the first part and Harvey Munson and S. B. Mun-son of the second part, witnesseth: That the said David Sears hereby agrees and binds himself, his heirs and executors and administrators to make a good and…

The facts appear in the opinion of the court. The return of the sheriff to the original notice shows no legal service upon Thompson. It does not show that Mrs. Ann Thompson, with whom the copy was left, was a member of the family of said Thompson. The statute requires this, Code of 1851, § 1721. See also, Converse, Administrator v. Warren, 4 Iowa 158 ; Pilkey v. Gleason, 1 lb. 85; Davis v. Burt etal., 7 lb. 56; Neally v. Redman, 5 lb. 387.

<p> Appeal from Polk District Court. </p> <p>The material facts are stated in the opinion of the court delivered by: —</p>

The facts are stated in the opinion of the court. relied upon Kuhner v. Butler, 11 IoAva 419, and Story Eq. Jur. §§ 64 e, 300, 301, and contended that Phelps v. Pierson, 1 G. Greene 127, is inapplicable.

Judgment by default. The notice was served October 26th, 1860, returnable to the next term, which was by law fixed for the 1st Monday, the 5th of November. Defendant appeals. I. The defendant in this case, was served personally, and within the county, and was entitled fto ten days between the day of service and the first day of the next term. Without such service he was not compelled to appear at the next term. Rev. 1860, § 2815, Sub-div. 1.

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

Replevin for a box of books. In setting out tbe alleged cause of detention, tbe plaintiff, in his petition, states that the books were shipped to him at Davenport, from a point in New York; that upon their arrival in Davenport, ho applied for the same, paid the freight, and delivery was refused “ because plaintiff refused to sign a receipt that the said goods were received in good order, until he had a chance to examine the said property, which he believes has been damaged.”…

The petition alleges that on the 27th day of January, 1858, the plaintiff and his brother, David Jenkins, who is one of the defendants, were seized in fee of certain real estate therein described as situated in the county of Dubuque; which it is alleged was worth the sum of $1,500; that at said time, and until the 5th day of January, 1860, the plaintiff was a minor; that on the 28th day of January, 1858, he, and the said David, united in the execution of a deed conveying…

<p>1. Evidence: party as a witness, where in the trial of a cause before 3980, 3981 of the Reyison of 1860 took effect, the defendant was called as a witness by the plaintiff, it was held that he was not thereby rendered competent as a general witness in the case, and that his counsel could only cross-examine him as to those matters called out in the examination in the chief.</p>

One Lester sued Howe, the plaintiff, in replevin before the defendant Mason, a justice of the peace. Iiowe succeeded in that action and now sues Mason and his sureties on his official bond for talcing insufficient sureties on the re-plevin bond, alleging that he knew the sureties to be worthless, and accepted the same carelessly, negligently, wilfully and corruptly. The answer is in denial, generally and specifically.

In July, 1851, Thompson, of the firm of Chapline & Thompson, made what purported to be an absolute deed of certain real estate to the respondents, Jewett and others. On the 10th of September of the same year, complainants obtained a judgment in tbe Polk District Court, against said firm, and this remaining unsatisfied, they filed this bill to set aside the deed to Jewett and others, and to subject the property conveyed to their execution.

<p> Appeal from Scott District Coicrt. </p> <p>Oke Noxon recovered judgment against Grace, tbe petitioner, and tbe execution issued tbereon being returned unsatisfied, he obtained an order from tbe county judge of Scott county, for tbe appearance before bim of said debtor, for examination, under chapter 126 of tbe Rev. 1860. Upon this examination it was found by tbe county judge that tbe debtor bad money in bis possession, which be refused to deliver up, to be applied towards the satisfaction of tbe judgment, though ordered so to do. Tbe debtor persisting in bis disobedience to this order, it was directed that be be imprisoned until be comply with tbe same. Grace then applied to tbe ;Iíon. Jno. E. Dillon, for his discharge from custody; being restrained of bis liberty by tbe jailor of the county. Tbe writ of habeas corpus issued, and upon tbe hearing thereof, Grace was discharged, from which Ackley, (the jailor,) and the District Prosecutor, on behalf of tbe State, appeal.</p> <p>I. Proceedings for contempt can be reviewed only on cer-tiorari. Code of 1851, § 1606; Dunham v. The State of Iowa, 6 Iowa 252; Plait v. Hansen, sheriff, lb. 79, and tbe cases there ciited.</p> <p>II. Tbe county court is an independent tribunal, having well defined powers; and tbe judgment of one tribunal will not be reviewed by another, on habeas corpus. The People v. Cassell, 5 Hill 167; Platty. Hansen, Sheriff, supra-, Yates v. Laming, 9 John 414.</p> <p>III. Tbe provisions of chapter 126 Revision of 1860, are not inconsistent with §§ 9, 10, and 19, art. 1, Const. 1857.</p> <p>1. It does not provide for taking property without due process of law. The right to take the debtor’s property was determined by the judgment for the amount of the debt, and this is simply a more effective execution. Steward v. Biddleeum, 2 Com. 107; Spear v. Wordell, 1 lb. 144; Berthelow v. Belts, 4 Hill 577.</p> <p>2. The provisions of § 10 of the constitution, do not, and can not from the very nature of things, apply to contempts. They relate to suits regularly commenced in courts to try questions of fact. Livingston v. The Mayor of New York, 8 Wend. 102. In the matter of Smith 10 lb. 456; Yates v. Lansing, supra, Const, of h/ew York, art. 41; Patrick v. Warner, 4 Paige Ch. 397.</p> <p>S. Courts must of necessity have, the power to punish for contempts without the intervention of a jury. Plait v. Hanson, supra; Saylor v. Moclcbie, 9 Iowa 209 ; The State of Lowa v. Dunham, supra.</p> <p>3. It is evident from the language of the constitution, and. the bill of rights, that this section (10,) was intended to apply only to the case of a fugitive slave. 1 Debates Const. Convention 64, 201, 651.</p> <p>4. There is no question of fact to try. 1. It is not a criminal charge. 2. It is not a question of life. 3. It is not a question of liberty.</p> <p>5. No jury was demanded. It can not be with propriety claimed that a jury trial was refused, when it was not demanded,</p> <p>6. It is a proceeding to reach property, and is not therefore inconsistent with the provisions of § 19 art. 1 of the Const. 8 Rev. Stat. of New York (5th ed.) 126. Steward v.Biddleeum, 2 Cow. 103; Patríele v. Warner,ATzkgo 397; Spear v. Wordell, 1 Conn. 144; Bartholomew v. Beits, 4 Hill 577 ; Hieher v. Dresser, 13 How. Pr. R. 331; S. C. 14 lb. 465 ; Dresser v. Van Pelt, 15 lb. 494; Ross v. Lansing, 14 lb. 161; Platt v, Hansen, supra, Saylor v. Modkbie, 9 Iowa 209.</p> <p>[No argument on file.]</p>

IN CHANCERY. Complainant represents that he is a judgment creditor of one Mark G. Fifield, and that a certain deed from the said Mark G. to his co-respondent Gaston, was made to hinder and delay creditors. The prayer is, that this deed be set aside, and the land conveyed declared subject to complainant’s judgment.

<p>1. .Forciüee entry and detainee: pdeadinos and evidence. Tilt! plaintiff's complaint alleged Uiat defendant acquired possession of the premises in controversy, by fraud, and stealth; and the answer denied the allegations of the petition, and set up as a defense a special contract. Held,</p> <p>1. That a demurrer to that portion of the answer setting up the special contract was improperly sustained.</p> <p>2. That it was competent for the defendant to show by evidence that he entered into the possession with plaintiffs consent, under a contract of purchase.</p> <p>2. Demurrer. on appear. On appeal from a judgment of a justice of the peace, t.he erroneous ruling of the justice upon a demurrer may be reviewed and disregarded.</p> <p>3. Instructions : pacts. It is the province of the jury to find a verdict upon the evidence, and it is not competent for the court to instruct a jury to find a defendant guilty of forcible entry and detainer, even in the absence of evidence for the defendant.</p>

I. The appeal from the decision of the justice was perfected, and the parties treated the cause as appealed. The law provides that upon filing the recognizance all further proceedings shall be stayed, and the cause will not be deemed in the District Court until the record is certified to the clerk. Codé of 1851, §§ 83, 2336, 2337. II. The court could not affirm the judgment against the defendant Norris, and it cannot therefore be affirmed as against his sureties.

PlaiNTIEF sues upon two notes made by R. W. Steele, and defendant to one R. A. Steele, or order, dated September 20th, 1856, for one thousand dollars each, due, on September 1st, 1857; the other on a corresponding day in 1858. These notes were assigned by the payee to David B Horseman, and by him to plaintiff. The action was brought against the makers and Steele, the assignor. Defense was made by Todhunter, and all the questions in the case arise thereon.

The relator appeals from the order of the court below overruling his motion to amend and enlarge the peremptory writ of mandamus to correspond with the judgment, and to issue a new writ, entered at the April Term, 1860. He also appeals from an order made at the June Term, 1860, overruling his demurrer to the return of the county treasurer to the said writ. The questions involved sufficiently appear from the opinion.

1. That a rail road corporation has no right to use a public street or highway, to build their rail road on, unless expressly authorized to do so by the legislature; and when so authorized the highway is so far vacated as may be necessary for the purposes of the railway. 2. That the building and operating of a railroad in a public street without legislative authority creates a nuisance. 3.

The facts are, that in 1841, the town (now city) of Davenport was laid out; certain streets, alleys and public grounds were laid down on the map, and the map recorded in recorder’s office of the county of Scott. There is a street known on the map as Eifth street. In 1856, the Mississippi & Missouri Railroad Company laid down their main track, with side-tracks and switches, through this Eifth street.

<p>1. Practice : reference. The issues in an action commenced under the Code of 1851, were referred to a referee, under ¡5 3090 of the Ke-vision of 1860, against the objections of one of one of the parties: it, was held that the reference could be made only in accordance with the provisions of the Code of 1851, and was therefore erroneous.</p>

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

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

This action was commenced in the county court, to recover from the estate of Harwell Hays, deceased, a sum of money for the board, lodging, clothing &c., of his wife Elizabeth, after, as is alleged, her desertion by her said husband. On tbe trial in October, 1860, sbe was offered as a witness by the plaintiff, to prove his account, was objected to, and the objection overruled.

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

REPLEVIN for a horse bought in the life time of plaintiff. Pending the action, plaintiff’s death being suggested, his administratrix was substituted. On the trial, which took place in May, 1860, the administratrix was offered as a witness, to sustain plaintiff’s action. To the introduction of this witness defendant objected, and the objection was overruled. Yerdict for plaintiff, motion for a new trial overruled, and defendant appeals.

<p>1. Mechanics’ lien : priority. The failure of a mechanic to file his statement for a lien within the J time prescribed by g 1 of the act appi-oved January 29th, 1857, operated to postpone the lien only as io subsequent purchasers, or incumbrancers whose liens accrued without notice of the mechanics’ lien, after the expiration of the time within ■which the statement should have been filed and recorded.</p>

<p>1. Statute CONSTITUTIONAL. The act to regulate the foreclosure of mortgages, approved April 7th. 1860, was not inconsistent with the provision of the constitution prohibiting the enactment of laws impairing the obligation of contracts.</p>

Exeoution issued on a judgment in favor of plaintiffs against John Clark.

The petition in this case is founded upon a policy of insurance issued by defendant to Messrs. Berry & Playter, on the 20th day of October, 1857, to secure them to the amount of two thousand dollars against loss by fire. The interest insured was a mechanic’s lien upon the premises, on which the St. Cloud Hotel was erected in the city of Dubu-que. The loss occured in January, 1858, a statement of which, duly verified, was at once presented to defendant.

Action founded upon tbe following agreed state of facts, to-wit: It is agreed by the parties to this suit, in order to settle the questions in controversy between them therein, as provided by chapter 108 of the Code of Iowa, that the following are the facts in the premises : I. Said defendants have, by attachment, the oldest lien upon the lots in dispute, as the property of Silas Scott, viz : lots 2 and 7 in block 8, lots 4, 5, 6 and 7 in block 4, and all of block 5, in all,…

Beatty was summoned as garnishee, at the suit of plaintiff against one Jackson. From his answer, it appears that he made his note to one Johnson or order, or bearer, (and which it is not remembered;) that long after the same was due, it was the property of Jackson, duly assigned and presented to the garnishee for payment. It was not paid, nor did the garnishee know where it ivas, or who owned it at the time he thus answered.

The facts are sufficiently stated in the opinion of the court. Usury once paid can be recovered bach, both at law and in equity. Smith v. Bromly, Doug., 696; Browning v.. Morris, Cowp., 790; 1 Story Eq. Jur., § 302; Smeedv.

William G-. Haun, on the 1st clay of July, 1852, made bis mortgage on certain parcels of real estate, to secure Ms creditor, Mary A. Milliken, in' a note of $8262, that day given to her, due five years from date.

Plaintiee declares upon a promissory note payable to one Warren or bearer.

<p>1. Allegations in eeflevin. In replevin the wrongful detention is the gist of the action, and a failure to allege it in the petition may he taken advantage of by demurrer, in arrest, or upon error.</p> <p>2, Practice: where a defendant in replevin, on the hearing in a justices court, joins issue upon tho allegations of a petition which is substantially defective, he can raise objections to such defects only by motion in arrest of judgment after trial, on appeal, in the District Court. Wrigiit, J., holding that such objections cannot be taken even in that way.</p> <p>3. Pertinent instructions. The court should refuse instructions which are not pertinent to the issues joined in the pleadings.</p>

Wm. Russell on the 8th of September, 1854, was the owner in fee of lot 14, in block 63, in the city of Davenport, and on that day leased the same to Wm. Wood for fifteen years, terminating September 8th, 1869, reserving a ground rent of $150 per annum. On the 31st of January, 1855. Wood sub-let to Lewis E. Shelley for the full term acquired from Russell, Shelly covenanting to pay rent at $258 per annum and to deliver possession to Wood on the last day of the term.

<p>1. Sworn pdeading as evidence. A verified replication in response to an answer which did not demand a replication under oath, was not, under the Code of 1851, equivalent to the evidence of one witness.</p> <p>2. Co-dependant Competent witness. A defendant who has permitted judgment to be rendered against himself for the amount of plaintiff’s claim, is a competent witness for his co-defendant, following Danforih, Davis $• Co. v. Carter and May, 4 Iowa 230; Greeiiotigh, Cook $ Co. v Shelden et al., Ib; 559.</p>

<p> Appeal from Davis District Court, </p> <p>The facts 'are stated in theopinion of the court delivered by:-</p>

At tbe February Term, 1860, a judgment of foreclosure was rendered against Parmleé and wife, tbe mortgagors, and a return of “ not found ” having been made as tó tbe defendant White, a junior incumbrancer, the cause was continued for service as to him. In June following, White was personally served in the city of Baltimore, agreeably to the authority of § 1718 of the Code of 1851.

Mandamus. From the information and alternative writ it appears, that on the 23d of February, 1860, the relators recovered a judgment against the city for • over $10,000, on the coupons or interest notes of the city; that an execution issued upon this judgment, which was returned “No property found; ” that it was the duty of certain officers of the corporation to provide for the payment of said judgment, and to levy a tax for that purpose; that though requested they had…

<p> Appeal from Premont District Court. </p> <p>The essential facts are stated in the opinion of the court delivered by :</p>

<p> Appeal from Fayette District Court. </p> <p>The facts are stated in tbe opinion of the court.</p> <p>relied upon Purington v. Frank, 2 Iowa 565; Welsh v. Savery, 4 lb. 241; The State of Iowa v. Cox, 10 lb. 351.</p>

ACTION by a judgment creditor against a deputy sheriff and his sureties, for a breach of his official bond, in refusing to pay over moneys collected on execution against the property of a judgment debtor.

Plaintife claims $300 as damages for the wrongful and careless act of defendants in running over, and killing two of his horses. Answer in denial; trial and verdict for plaintiff; judgment thereon, and defendants appeal.

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

Actioít against the maker and guarantor (who was the payee) of a promissory note. The defendant demurred to the petition; the demurrer was overruled and the defendant appeals. contended that the contract of the guarantor is separate and distinct from that of the maker and indorser, and that they can not be sued jointly,. on the note. Edwards on Bills & Prom. Notes, 219-221, and the authorities there cited. relied upon Marvin v. Adamson et al., 11 Iowa 371.

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

COMPLAINANT seeks the foreclosure of a mortgage. Lansing, a lien creditor, as he claims, was made a party, and appeals from the decree, for causes stated in the opinion. contended that the defect in the acknowledgment was material and fatal. made the following points : 1. The acknowledgment of, the mortgage is sufficient. Bell v. JSvans et al., 10 Iowa 353. 2.

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

Dependant was indicted for permitting gaming contrary to the provisions of § 2721 of the Code of 1851. The indictment charges that the persons playing were unknown to the grand jurors.

Parties met before the justice and had a contested trial. The justice’s transcript failed to show any formal denial of plaintiff’s claim, or that any pleadings oral or otherwise were filed or made by defendant. On appeal in the District Court, he was denied the right of introducing evidence, and the judgment below was affirmed for the amount of plaintiff’s claim with interest; a sum larger than that recovered before the justice. Defendant appeals.

The defendant -was treasurer of Johnson county, and as such, executed the requisite bond. This action is brought thereon and several breaches are assigned.

The facts are sufficiently stated in the opinion of the court. relied upon Manix v. Ma-loney, 7 Iowa 81: and Rubble v. McDonald, lb. 90.

Action on a promissory note; defense, usury. Erom tbe testimony of one of the defendants it appears that defendants had of plaintiff $800, for which they gave their note for $345, payable in one year. At the expiration of this time they paid him $100 on the principal, and $45 interest ; took up the original note, obtained an extension of time for another year; and for the balance executed the note in suit for $220, with interest after due.

The facts are stated in the opinion of the court : A promissory note cOuld be introduced and admitted as evidence under the common counts, at common law, Buford $ Co. v. Bunk, 4 Gr. Grreene 498; Eyser v. Weissgerber 2 Iowa 268 ; Eeéher v. Geeseeker, 6 lb. 472. The defendant by his answer waived his defense on the ground of the existence of another suit on the note. Starr $ Wilson v. Burgess, Morris 438; Lau-■mer v. Jones $ Co. 1 Gr. Grreene 185.

<p>1. Res Adjudicata. In the purchase of certain property, the defendant executed two promissory notes. In an action on the one which first matured, he pleaded as a defense a breach of a covenant of warranty made by the plaintiff in the sale, and claimed damages therefor, also a failure of consideration, and on the trial recovered a judgment for damages and for costs. In an action on the second note, Held,</p> <p>1. That the demand for damages for a breach of the covenant was adjudicated in the first action, and was not a defense to this.</p> <p>2. That the plea of a failure of consideration in the first action, and the judgment thereon, did not preclude the same defense to the action on the second note.</p>

PROCEEDING to foreclose a mortgage, commenced in August, 1860, decree pro eonfesso entered in March, 1861, from which defendants appeal. I. The court had no jurisdiction of the defendants. The notice stated that the petition was then on file, when in fact there was none filed for some days thereafter.

• Bill IN equity to quiet title. Complainant claims under a deed made by Lougbridge & Cassidy, of April lltb, 1854. The respondent, as alleged in the bill, claims under a judgment and execution against Cassidy, in virtue of which the premises were sold on the 17th of November, 1857. The acknowledgment of the deed from Lougbridge & Cassi-dy to complainant, is as follows: State of Iowa, 1 gg Mahaslea County.

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

<p> Appeal from Lee District Court. </p> <p>This action was commenced in January, 1861. Judgment by default in February, and in March defendants appealed to this court.</p>

<p>1. Constitutional law : repeal. Chapter 147 of the Code of 1851, remained in force after the adoption of the constitution of 1851, (and until the enactment of banking laws in accordanoe with the provisions of article 8 thereof.) In the exercise of the power conferred by said article, the legislature may prohibit, as well as permit banking.</p> <p>2. Post notes. Post notes, issued by a corporation to circulate as money, which were void under the Constitution of 1846, were not rendered valid by the provisions of the Constitution of 1867.</p> <p>3. Void contracts. Contracts which have for their object any thing which is repugnant to the common law, or contrary to the provisions of any statute, are void and will not be enforced.</p> <p>4. Same: Dubtjque Habbok Company, The consideration of a note, •secured by deed of trust, which was executed in 1857, was a certain sutn represented by the “post notes of the Dubuque Harbor Company.”</p> <p>Held, 1. That the notes were absolutely void in the hands of any person.</p> <p>2. That a contract supported by such a consideration will not be enforced.</p>

<p>1. Service by publication. When service of notice was made by publication in an action commenced under the Code of 1861, proof that copies of the notice and petition were sent to the defendant, at his usual place of residence, was essential to the authority of the court to render a judgment: following Carr v. Kopp, 3 Iowa 80; Foley y. Connelly, 9 lb. 240.</p> <p>2. .Revision construed. Under § 4172 of the Revision of 18G0, actions commenced before the date of the taking effect of such Revision, must be conducted to final adjudication under the provisions of the Code of 1851.</p>

In April of 1858, the plaintiff was elected to the office of county superintendent of common schools for the county of Delaware, for the term of two years. Held: of county superintendent of common schools for this county; you will, therefore, please accept this as my resignation, to take effect from and after Jan. 5th, 1859.

On the ninth day of April, 1859, the district board of directors of the Tipton school district, township of Centre, in Cedar county, at a regular meeting of the board, of that date, estimated the per centum of tax necessary to be raised in addition to the teacher’s fund in order to support the several schools of said district for the current year, as required by law; and by resolution directed that the same should be certified to the county judge, which was accordingly done…

From tbe bill and exhibits it appears that defendant is the illegitimate son of one Catherine, who afterwards intermarried with Peter Huff. During coverture she purchased from the U. S. the tract of land in controve-sy, with her own means, in her own name and as her own property. This land she afterwards, by her own deed, her husband not joining therein, conveyed to one Jordan, taking a mortgage back in her own name to secure the purchase money.

A complaint was filed against the defendant, in the county court, charging him with being the father of a bastard child. On the trial, which ivas in June, 1860, he offered himself as a witness, and his evidence ivas refused. He then applied to the District Court, by petition for a writ of certiorari, to correct this alleged error in rejecting his testimony. The writ was refused, and he now appeals.

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

Action on a promissory note. The error assigned relates to the sufficiency of the service of notice, and is fully stated in the opinion of the court. relied upon Chitten-den SfCo.v. Hobbs et al., 9 Iowa 417; Davis v. Burt et al., 7 lb. 56; Converse Adm. v. Warren, 4 lb. 158.

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

contended, that while it is true that an endorsement on a bill or note, like the note itself, imports a consideration, it is equally well settled by the authorities, that as between the original parties, or where the note has been endorsed after dishonor, or when the holder takes the note or bill with notice of the facts impeaching its validity, or with sufficient information to put him upon his inquiry, the want of consideration or other invalidity may be shown.

<p> Appeal from Scott District Court. </p> <p>The plaintiff seeks to recover damages done to his premises in the City of Davenport, by reason of a change of grade.</p> <p>Judgment for defendant, and plaintiff appeals, assigning for error the action of the court below in receiving testimony, giving certain instructions and overruling his motion for a new trial.</p> <p>I. The court will not permit a witness to give his opinion in answer to an inquiry which embraces the whole merits of of the case and leaves nothing for the jury to decide. Whit-more v. Bowman, 4 G. Greene 148 ; Palamourges v. Clark, 9 Iowa 16, and the cases there cited; Wyman v. The Bail-road Company, 18 Met. 326 ; Campbell v. Busch, 9 Iowa 327.</p> <p>II. The jury were told that under § 8 of the amended city charter of Davenport, they could consider only the damages done to the improvements viewed separately from the lot. This construction of the statute is erroneous.</p>

<p> Appeal from, Lee District Court. </p> <p>The facts are presented in the opinion of the court.</p>

The material facts appear in the opinion of the court. I. An appeal from the judgment of the District Court to the Supreme Court does not affect a judgment lien. Code of 1851, §§ 2485-2489. The active power of a judgment may be held in abeyance, while its binding or encumbering force remains in effect. Nothing but a satisfaction will cancel the .judgment rendered in the District Court.

The defendant leased to plaintiff stall No. 2 in the Market House in Dubuque for one year ending May 1st, 1858. The legal title to the stall was in the city of Du-buque.

Appeal from Washington District Court. Malicious mischiee. Defendants were convicted, and appeal. For the material facts, see the opinion.

<p>1. Recording act : index entry. In the registration of a mortgage the property conveyed was described in the proper column in the index as certain lots of land,” and the record in other respects was complete. Held, that it was sufficient to impart constructive notice to subsequent purchasers.</p>

relied upon Code of 1851, §§ 2084, 2085; 1 Grreenl. Or. Tit. 15, chap. 1 § 15; note; Cooley v. Hobart et al., 8 Iowa 358; Rodemyer v. Rodman, 5 lb. 429. argued: 1. That the return is only evidence of the service, and if the service was actually made, the evidence may be supplied at any time.

Assumpsit upon a promissory note for $8,629 81, paya- ■ ble to the order of Joseph Lambrite, and transferred to plaintiff before maturity. The defense is, in substance, a want of consideration, the answer further averring that plaintiff had notice thereof, or if not, that the note was not transferred in due course of trade for value. Upon the issue thus made, there was a trial, verdict and judgment for defendant, and plaintiffs appeal.

<p> Appeal from Johnson District Court. </p> <p>The facts are stated in the opinion of the court delivered by,</p>

<p> Appeal from Henry District Court. </p> <p>Larceny. Defendant was convicted, and appeals.</p> <p>contended; 1. Tbe defendant was entitled to a continuance through one vacation to enable him to prepare his defense, § 3006, Revision of 1860. 2. The court erred in refusing to change the venue on the application alleging prejudice in the mind of the court. Truloclc v. The State of Ioioa, 1 Iowa 515; Gordon v. The State of Iowa, 3 lb. 410; The State of Iowa v. Mooney, 10 Iowa 506. 3. The venue should have been changed on the ground of the prejudice of the people. The State of Iowa v. Mooney, supra, The State of Iowa v. Hash and Redout, .7 Iowa 347. 4. A jury should have been called to determine the question of insanity. Revision of 1860, § 5015. 5. The jurors who heard the evidence on the question of insanity, should not have been permitted to act in the trial of defendant, Revision of 1860, §§ 4770,4773. 6. The evidence as to rumors attributing particular acts of petit Iaz’-ceny to the defendant should have been excluded. Gordon v. The State of Iowa, 3 Iowa 410.</p> <p>Unless the District Court abused the discretion vested in it in refusing a change of venue, this court will not interfere. Gordon v. The State of Iowa, 3 Iowa 410; The State of Iowa v. Barrett, 8 lb. 537. The opinion which disqualifies a witness must be an unqualified one. Code of 1851, § 4771, part 8 ; The State of Iowa v. Thompson, 9 Iowa 188.</p>

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

■ UPON the hearing of the application to admit to probate the will of Henry Coffman, in the county court of Marion county, some of the heirs of the said Henry resisted the application, alleging as cause therefor, that at the time of making said will the testator was not of sound mind; that when it was executed, he had been sick of typhoid fever for about twenty days; that on the night previous to the execution of the same, he beoame suddenly worse with a hemorrhage of the…

<p>1. Doties or justices. The duties of justices of the peace are both judicial and ministerial in their character.</p> <p>2. Comuption in ofeice. A justice of the peace is not liable on his bond for error of judgment when acting in a judicial capacity; aliler as to acts committed through fayor, fraud or partiality.</p> <p>3. Effect of appeai. An appeal from a judgment of a justice of the peace waives the right to raise any questions in the District Court as to the erroneous rulings of the justice; but does not operate as a waiver of his right to recover damages for the corrupt acts of such justice in the trial of the cause.</p>

The defendant and one Lucy Stone were jointly indicted under § 4351 of the Revision. The defendant was cone victed, and the court having overruled a motion in arrest of judgment, he now appeals. 1. Section 4789, Revision ;1860, provides for separate trial of defendants jointly indicted. Appellant claims that separate trials are granted only on application of defendants, in case of felony as matter of right; and in other cases ex gratia.

<p>1. Road tax: cities: statute construed. The proviso in ? 12 Chap. 154 Laws of 1858; deprives the townihip trustees of the power to levy road taxes in incorporated cities which had, prior to the passage of that aet been erected into road districts. The power to levy such taxes is now vested in the proper authorties of such cities, weight, J., dissenting.</p>

ACTION on a bill of exchange. The notice was served by a person who was not a party to the action. Judgment by default and the defendant appeals.

<p> Appeal from Fremont District Court. </p> <p>A statement of the facts is embodied in the opinion of the court.</p>

1. The indebtedness of Finley upon which Dietrich’s judgment was obtained was of a date subsequent to the selection and occupancy by Finley of his homestead. The homestead law was in full force when the debt was contracted, and entered into, and formed a part of the contract. Bridgman v. Wilcox, 4 G. Greene 563. 2. By chap. 41, p. 103, Code of 1851, an individual proprietor of land is authorized to lay out a village plat thereon.

<p> Appeal from Greene District Court. </p> <p>Foreclosuke of a mortgage, commenced in July, 1860. Complainant asks a foreclosure of the equity of redemption of the mortgagors, and a judgment and execution against the maker of the note, (Richard Manchester,) for any balance unpaid after the sale of the mortgaged premises. Respondents reside in Webster county, the land is in Greene. They appeared, and moved a change of venue to Webster, which was refused; decree of foreclosure prayed, and respondents appeal.</p>

These cases involved the same questions. The original notices were issued and served in June, 1861.

The facts are stated in tbe opinion of the court. The power does not exist in the legislature to levy or cause to be levied a tax on persons and property, when both are out of the jurisdiction of the State, and beyond its territorial limits. 1. The stock in a-roalroad corporation is personal property, and attaches to the person of the owner.

INJUNCTION to restrain tbe county treasurer from collecting certain taxes levied upon lands, deeded to complainant, July 6th, 1859. The land is a part of that granted to this State, by an act of Congress of May 15th, 1856, for the purpose of aiding tbe construction of a railroad from Du-buque to tbe Missouri River. The title was in tbe Company, (if not in tbe United States or this State,) until tbe execution of the deed of July 6,1859.

The object of this proceeding is to determine whether certain real estate is subject to taxation for the years therein named. The right to tax was sustained by the court. below, and plaintiff appeals.

The agreed statement of facts is embodied in the opinion of the court. I. The State of Iowa and the City of Davenport have tho power to tax a mortgage on property situated in, and protested by their laws, when the owner of the property is a non-resident. Acts of 1858, p. 305, §§ 2 and 3 ; Charter of the City of Davenport, Art. 1, § 1, p. 127 ; Rev. Ord. Feb. 1851, Art. 5.

Patrice ThorNTON Jr. died July 4, 1849, without issue, leaving a widow, Anne Thornton, the daughter of respondent Margaret Mulquinne. The father of Patrick survived him, but departed this life in September, 1849. The widow of Patrick Jr., died in September, 1851. Patrick Jr. died siesed of certain real estate now in controversy in this suit. Complainants are the brothers and sisters of said Patrick, and claim the property, as such heirs.

<p>1. Correction op error. The Supreme Court will not review a ruling granting a default before a motion to set the same aside, has been made in and overruled by the court below, following Pigman v. Denny, ante.</p> <p>2. Appearance term, when the defendant in an equitable action fails to appeal at the term at which he is required to appear by the notice, the notice having been served ten days before the beginning of such term, a default for want of appearance may be entered, notwithstanding the sixty days contemplated by § 2852 of the Revision of 1860 had not elapsed since the completion of the service.</p> <p>3. Same: appearance and pleading. The defendant in an equitable action can avail himself of the sixty days contemplated by § 2852, only by an appearance at the appearance term, when one intervenes, and an intimation that the time is desired.</p>

ACTION to enforce specific performance of a contract for the purchase of lands. The answers of the several defendants set up allegations as to the validity of the sale, but asked for no affirmative relief.

<p>1. Deputy may administeb oaths. The deputy of the clerk of the District Court has power to administer oaths; and it is not necessary to his authority to show the inability or absence of the principal.</p> <p>2. Same: jukat: seal. Il is not necessary that the signature of a clerk or his deputy to the jurat appended to a pleading should he authenticated by his official seal.</p> <p>3. Same : approval op bond. The deputy clerk may approve an attachment bond and issue the writ.</p> <p>4. Liability op wipe. Held, that an action is maintainable against the husband and wife for cooking utensils bought for, and used for the family. Section 1455, Code of 1861; Rodemeyer v. Rodman, 5 Iowa 426.</p>

<p>1. Application eoe. continuance. The sufficiency of a showing for a continuance, under chapter 7, Laws of the Extra Session, 1861, considered and determined.</p> <p>2. Same: when piled. TJnder § 3014, an application for a continuance should be overruled if not made the second day of the term, or does not state facts constituting a sufficient excuse for the delay in making it.</p>

<p> Appeal from Dubuque District Court. </p> <p>Plaintiffs commenced tbeir action and procured a writ of attachment against T. and J. Smith. The property attached was released, upon the defendants therein executing a bond signed by themselves and the present defendant and another as sureties, payable to the sheriff having the writ, conditioned that said Smiths “shall produce said goods in satisfaction of [the] judgment in said action or pay such judgment as may be rendered against them in said action.” This action is now brought on this bond.against Collins, one of the sureties. The points made and determined in the court below will appear from the opinion.</p>

<p>I-. Co-partnership. The method of making the property of individual members of a firm liable for the satisfaction of a judgment rendered against the firm is by scire facias. Sections 1690 and 1691 of the Code of 1851, ? 2785, Revision of 1860.</p>

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

Defendant’s demurrer to the petition was sustained, and plaintiff appeals. f By the fraudulent act of defendant in conveying to a third person the property which he had conveyed to Batch-elder, the plaintiff lost his security for the payment of his debt. Such a conveyance, under such circumstances, was a tortious act resulting in the damage and injury of plaintiff in the amount of his claim, for which the defendant is liable in this action.

<p>1. Assignment ov errors. The assignments of error wore as follow s “1. The court erred in admitting improper and incompetent testimony. 2. There was error in the instructions to the jury.” Meld, That under £ 3546 of the Revision of 1860, (which is the 18th Rule of Practice in the Supreme Court), the assignments were too general and should he disregarded.</p> <p>2. Patent: breach or warranty. A breach of warranty entered into by the vendor of a patent right, in the sale of such right, may be shown as a defense to an action on notes executed in payment therefor.</p>

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

I. The rule is well settled that the delivery of possession is necessary in a conveyance of personal property as against every one but the vendor. Lampear v. Sumner, 17 Mass. 110; Lamb et al v. Durant, 12 Mass. 54; Caldwell v. Ball, D & E. 205. In all cases of constructive or symbolical delivery, the circumstances must be such that the vendee can have entire or immediate control of the property.

Bkieely, the facts of this case are as follows: Plaintiff sues upon certain coupons attached to bonds issued by the County of Johnson, to aid in the construction of the Lyons Iowa Central Railroad. Among other pleas, it is averred: 1st. That the County never executed the coupons, &c. 2d. That they were obtained by fraud; 3d. That the consideration had failed; of all which plaintiff had notice before his purchase.

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