Volume 14 — Iowa Reports

On the third day of February, 1852, John Haney purchased of the school fund commissioners of Alamalcee county, the land upon which the' town of Lansing, in said county, is situated, the legal title of which was conveyed to the said Haney, by the Governor of the State, on the 22d of March following.

Bill in equity, to set aside certain conveyances made, as it is alleged, to hinder and delay complainants, as the creditors of Thomas Wheeler. Held: that where a deed purporting to have been made on a moneyed consideration is attacked as being fraudulent as against creditors of the grantor, it cannot be propped up by proof of an antecedent indebtedness to the grantee, such consideration being inconsistent with that expressed on the face of the deed.

The facts are fully stated in the opinion of the court. I. The Washington College was not an incorporation before November 12, 1858, when the acts required by law to constitute it such were completed. Ang. & Ames Corp., 81-85; 1 Bla. Com., 468, et seq.; Code of 1851, §§ 673, 675; Carey v. The Cincinnati and Chicago Railroad Company, 5 Iowa, 337; McDonald v. Gray, 11 Id., 508. II. The burden of showing an incorporation is upon the plaintiff.

.Plaintiffs sold to defendant a mill and water power in Butler county, for the sum of ten thousand dollars. . Five thousand dollars were paid, and a payment of three thousand dollars due in eighteen months, and a remaining one of two thousand dollars due in two years, being unpaid, this action was brought to recover the same, with interest, and to foreclose a mortgage given upon the said mill property, to secure the same.

P'laintiff declares upon the following instrument: “$347.78. “April 8, 1861. “ To Franklin Mussetter, Treasurer of District Township of Dayton: “ Pay B. N. Cross, or order, the sum of three hundred and forty-seven and dollars out of the school-house fund, for labor performed and material furnished in the erection of a school-house iu sub-district number seven, formerly of District Township of Dayton, in the county of Iowa, and.State of Iowa, as per contract made with John…

<p>1. Presumption of waiver. When the record shows that a motion was made to strike a pleading from the files, and fails to show that the attention of the court was ever called to it, or that any action was ever taken thereon, it wiil be presumed that it was waived.</p> <p>2. Plea in ear. The pendency of an action at law, brought by the original payee of a note secured by mortgage, is not a bar to a proceeding in chancery by an assignee to foreclose the mortgage.</p> <p>3. Objection made below. The Supreme Court will not consider objections to evidence which were not presented to, and acted upon by, the court below.</p> <p>4. Instruction. The court below did not err in refusing instructions not warranted by the evidence.</p> <p>5. Foreclosure oe bond by assignee. The assignee of notes executed for the purchase money of real estate may, after acquiring the legal title of the original payee, maintain a proceeding to foreclose a title bond executed to the maker, by such payee, for a conveyance upon the payment of the notes.</p> <p>6. Same : tender op deed and demand op payment. When time is made the essence of a contract to convey real estate, a tender of a deed and demand for payment at the maturity of the notes executed for the purchase money is not essential to the obligor’s right to foreclose the bond as a mortgage.</p>

<p> Appeal from Linn District Court. </p> <p>The facts are stated in the opinion of the court.</p> <p>relies upon Ham-son y. Kramer, 3 Iowa, 557; Campbell v. Ayres, 6 Iowa, 339; Pierson y. David et al, 4. Iowa, 410.</p>

<p>1. School tax: curative act. A school house tax levied at a school district meeting which was not held at the time prescribed by § 10 of chapter 52 of the Laws of 1858, was not rendered valid by the provisions of the curative act passed by the Board of Education, December 15th, 1862.</p> <p>2. iHJUNCTlOir. An injunction cannot be granted in an action at law.</p>

. About the first day of September, 1857, defendant purchased of plaintiffs a tract of land for $3,200, paid $1,200 down, and executed and delivered to the plaintiff, Lutecia Peck, wife of Daniel A. Peck, two notes of $1,000 each, payable in one and two years.

<p>1. Estoppel by judgment. A judgment is conclusive as an estoppel only between tlie same parties, as to the same subject matter, and where the parties are mutually bound.</p> <p>2. Railroad bonds: case followed. The State of Iowa, ex rel. The Burlington and Missouri River Railroad Company v. The County of Wapello, 13 Iowa, 388, cited and followed.</p>

Action of right to recover the undivided one-fourth of lot five in section 11, also of the N. E. a and N. a of S. E. £ and E. a 1ST. W. a of section 23, all in Township 82, N. Range 1, West. The action is founded upon the following, as the substance of the facts agreed upon between the parties: 1. That the plaintiff has the legal title to all of the above described lands, except what the defendant claims as a homestead. 2.

Plaintiff sued (in September, 1859,) upon a non-negotiable note, made by Woodbury to Strabm, and assigned to him before due. Woodbury moved a change of venue, upon the ground that he was a resident of Marshall county, and a statement that the transfer of the note was fraudulent, and for the purpose of suing him away from the county of his residence.

<p>1. Corporations : injuries. A municipal corporation is liable for the neglect or carelessness of its agents in the construction of public works on the same principle that a natural person is liable for damages resulting from his carelessness, unskillfulness, or wrong doing: following .Cotes & Patchin v. Tlie City of Davenport, 9 Iowa, 227.</p>

<p>1. Promissory note : release of indorser. The release of an indorser of a promissory note does not discharge the maker.</p>

The petition avers that plaintiff had money in the hands of one Freyberger, in the State of Ohio, to the amount of one hundred and forty dollars; that Freyberg’er brought it to Iowa to pay it to plaintiff; that not seeing plaintiff, he handed it to defendant in a package sealed up, directed to plaintiff; that defendant promised and agreed with said Freyberger to deliver it to plaintiff; that he failed and refused to do so; that it has been demanded, but that defendant has…

A decree was entered in this cause, in the Johnson County District Court, finding a certain sum due to the plaintiff, and directing the sale of certain property therein named, to pay said sum, and for the purpose of carrying out the said decree of the court, the sheriff of said county was appointed a commissioner to sell said land, and to report his action to court.

<p>1. Re-apportionment: continuance. Tlie District Court may re-apportion the causes on the docket, fixing an earlier day for trial; and such reapportionment will be good ground for continuance only when a party shows that he has been taken by surprise.</p>

The complainant confessed a judgment in favor of the respondents Douglas and Watson, before the clerk of the District Court of Benton county. The statement of facts out of which the indebtedness arose is fully set forth in the opinion of this court in the case of Bernard & Co. v. Douglas & Watson, reported in 10 Iowa, p. 370.

Action of right to recover the undivided three-fourths of the fractional northwest quarter of section nine, township sixty-nine, north of range two, west. Both parties claim through Enoch Wade, the plaintiffs as heirs-at-law, the defendants as purchasers from the executors under the will. Judgment for defendants and plaintiffs appeal.

For the facts see the opinion. cited Farwell v. Tyler, 5 Iowa, 540; Maine v. Reynolds, 4 G. Greene, 187; Miller v. Meelcs, 22 Penn.

Leslie obtained a decree, foreclosing a mortgage on certain real estate, in which the plaintiff with others, had an interest. An execution issued, and the property was about to be sold, when plaintiff procured an injunction.

On the 6th day of July, 1857, the plaintiff applied for and obtained a license from the defendant to sell spiritous and intoxicating liquors for six months, ending on the 6th day of January, 1858. This license was granted agreeably to the provisions of an ordinance of the city, founded upon an act of the General Assembly, approved January 29th, 1857, and duly accepted and ratified by a majority of the legal voters of the county.

This was a proceeding to foreclose a mortgage. The defendants plead usury, and, upon a hearing, the court rendered a decree of foreclosure against defendants for the sum originally borrowed, and ordered a sale of the mortgaged premises, to satisfy the judgment in favor of plaintiff. The court found the contract to be usurious and rendered judgment in favor of the State of Iowa for the use of the school.fund, for the-ten per cent forfeited, under the statute.

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

<p>1. Brokers: bill of exchange. Where it was shown that a bill of exchange was sent to brokers for collection, and the brokers failed to present the same for acceptance and final payment at maturity, at the banking</p> <p>. house at which it was made payable, and at which the drawees had funds deposited for its payment; that such funds were subsequently withdrawn; that from the time of such withdrawal the drawees were and continued to be insolvent; and that the brokers failed to give proper notice of nonpayment, it was held that an allegation that the drawees were solvent at the maturity of the bill was not essential to the payee’s right to recover against the brokers.</p> <p>2. Party to an action. The trustee of a voluntary association, having no corporate powers, may, under § 2158 of the Revision of 1860, maintain an action in his own name for the benefit of the company.</p>

<p>1. Practice. When a demurrer- to a defense set out in an answer was sustained by the court, without exceptions by the defendant, who on the trial offered evidence to sustain such defense, it was held, that the question as to the sufficiency of the defense could' be raised in the appellate court only on the ruling of the court below on the demurrer.</p>

This cause was before this court in 1858 (6 Iowa, 459). Miller was appointed by tbe County Court of Lee County administrator of tbe estate of Otis Reynolds. The heirs of Reynolds and others interested applied to the District Court for the allowance of an appeal, after the expiration of thirty days, under § 134 of the Code. ' A demurrer to the petition was sustained, and on the former appeal this ruling was reversed.

This action is upon a note assigned to plaintiff before maturity, payable “in currency.” By reference to 11 Iowa, 172, it will be found that tbe paper was held not to be negotiable, in the absence of some custom, to be averred and proved.

<p>1. Railro.ai> Sübsceii’tions : The State of Iowa, ex rel. The Burlington and Missouri River Railroad Company, v. The County of Wapello, 13 Iowa, 388, as to the validity of county subscriptions to the capital stock of a railroad company, re-affirmed and followed.</p>

For a statement of the facts see the opinion of the court. After the dissolution of a copartnership, one partner has no power to execute a note in the firm name for the purpose of renewing a note executed before the dissolution. Bayley on Bills, 58; Whitman v. Leonard, 3 Pick., 177 ; Barde of South Carolina v. Humphreys, 1 McCord, 188; 3 Kent Com., 70; 1 Curtis Cond. R., 186 ; -Pars. Merc. Law, 191. relied upon Kemp & Doggett v. Coffin, 3 G. Greene, 190.

Replevin. The plaintiff claims the right to the possession of the property in controversy in pursuance of the terms of a chattel mortgage executed by one Stowe. The defendant as sheriff, justifies his taking and detention by virtue of a levy under an execution issued on a judgment against said Stowe and in favor of Higgins and Kellogg.

<p> Appeal from Des Moines District Court. </p> <p>A statement of the facts appears in the opinion*of the court.</p> <p>cited 12 Pick., 81; 2 Camp., 579; 8 John., 394; 6 Cow., 113; Conyers el al. y. Minis et al, 2 Mason, 236; 2 Marsh. Ky. R, 528; Chapman v. Lothrop, 6 Cow., 110; 7 Id., 85; 21 Pick., 378; Poth. Ob. N., 151 j 11 Iowa, 30; 1 Strange, 638; 8 Mass., 261.</p>

<p> Appeal from Scott District Court. </p> <p>Plaintiffs declare upon the following bond:</p> <p>“MARY FIELD et al. v. JOHN JOHNSON et al</p> <p>In the District Court of Scott Co., Iowa, Judgment for $1,779.</p> <p>“ Know all men by these presents, that we, L. Schricher, Howard Darlington, and "William Henry Darlington, are held and firmly bound to Mary Field et al., plaintiffs in the above case, in the sum of four thousand dollars, to which payment, well and truly to be made, we bind ourselves, our heirs, executors and assigns.</p> <p>“ The condition of this obligation is such that if the above bounden L. Schricher, H. Darlington and William Henry Darlington, or either of them, shall pay the judgment rendered against said defendants in the above ease, and all damages and costs which may be awarded against them, and otherwise obey the orders of the court, on an appeal taken from said judgment to the Supreme Court of Iowa this day, then this obligation to be null and void, otherwise of full force and virtue.”</p> <p>This bond was signed by all the obligors named, and for the purposes of the ¡oresent case is treated as approved by the clerk, and filed January 81, 1859. It is averred that the case named in the bond was that of Mary and Edward Field, against Johnson, Imfey, Howard Darlington and Dillon, in the Scott District Court for the foreclosure of a mortgage — that by the writing obligatory, defendants covenanted to pay plaintiffs four thousand dollars on demand. It is further averred that said writing had a condition thereunder written, (setting it out,) that though a reasonable time had elapsed, defendants have not paid said judgment, and for further breach that said Johnson did appeal said cause to the Supreme Court, and on the 27th of June, 1859, said court dismissed said appeal, and affirmed said judgment for the sum of $1,600 — and did command, &c.— which sum of $1,600 defendants have failed to pay.</p> <p>The cause was referred to John N. Rogers, Esq., before whom, on the 29th of May, 1861, an answer was filed, the first clause of which was, in substance, this: That said bond was given in an appeal from the judgment of the District Court; that it was the intention of the defendants to make an appeal bond; that one of‘them drew it, and undertook to draw such bond, conditioned, &c., but that by mistake drew it as set forth in the petition; that it should have no farther effect; that it was drawn by mistake, and executed by oversight.</p> <p>Plaintiff demurred to this clause: 1. Because the intention of the instrument is to be gathered from its contents, and the intention stated does not appear from its face; 2. Because the mistake of the obligors alone is no bar to plaintiffs’ right to recover. The referee overruled the demurrer, holding that the instrument imposed only the obligations provided by statute in reference to appeals, and was not an absolute undertaking to pay the judgment therein recited — and that, as from the exhibits attached, the appeal was dismissed at the costs of the appellees, they had no remedy upon t£e bond. This ruling was sustained in the District Court. Plaintiffs stand upon their demurrer and appeal.</p> <p>“ The correction of mistakes in written instruments belongs to equity alone.” Adams Eq., 168, (marg.) “ The prima facie presumption of the law is that the written contract shows the ultimate intention, and that all previous proposals or arrangements, as far as they may be inconsistent with that contract, have been deliberately abandoned.” Adams Eq., 169, (marg.) Though the bond is not in compliance with the statute, it is a good common-law bond even when voluntarily made. Gathwright v. Oalliway, 19 Mo., 663 ; jPar7cs v. State, 4 Georgia, 329, and cases cited; Nunn v. Goodlett, 5 Eng. Ark., 89. And the defendants are estopped from denying that there was a judgment as set out. Smith v. Whitaker, 11 111., 417.</p>

‘ This suit is upon a promissory note given by tbe defendant to Cook and Sargent, and by them indorsed to plaintiff. It appears that tbe defendant kept with said firm a banking account in bis own name, and be agreed to pay on all overdrafts or sums borrowed twenty-four per cent interest.

The firm of Gregory, Tilton & Co., in July, 1859, recovered. a judgment of foreclosure against tbe firm of Downing & Foster, for tbe sum of $849.60. On tbis judgment, tbe mortgaged premises were sold to tbe said Gregory, Tilton & Co., for $500, at sheriff's sale.

<p>1. Judicial notice. The District Court cannot take judicial notice of the fact that an affidavit offered in evidence was admitted in another cause; neither is an affidavit admissible for the reason that the court remembers that it was offered in another case and admitted, the court stating that it would be evidence in the case at bar.</p> <p>2. Record as evidence. When one party offers a part of a record in evidence, the adverse party may produce any other part of the same record and have the same read in evidence.</p> <p>3. Evidenoe oe handwhitino. Handwriting may be proved by comparison made by experts, or by the jury, with the writing of the same person ■ which is proved to be genuine. Rev. of 1860, § 3991.</p>

At a tax sale for delinquent county and state taxes, held on the 2d day of February, 1846, lot No. 4 in Bloch No. 9 in the city of Davenport, was bought by Antoine Le Claire. He bought the same lot May 2d, 1847, at a tax sale for delinquent city taxes, receiving for said lot tax title deeds.

For the facts see the opinion. 1. That Rhodes, Pegram & Co. v. Me Gormado, 4 Iowa, 368, was not conclusive as an adjudication of the question involved in this case, for the reason that in that case there was no trial of issue.

On the 9th of August, 1859, the plaintiffs rented to Adams & Bruce an undivided one-half interest in a certain pork house and appurtenances, in the city of Keokuk, for $1,750, the lease to expire July 15, 1860. December 24, 1859, the lease was assigned by the lessees to the defendants, Sequin & Johnson. By the terms of the lease, the rent was payable March 1, 1860, on which day the lessors sued Adams & Bruce, and procured an attachment under §§ 1270 and 1271 of the Code.

An action in the nature of trespass or trover, to recover damages of the defendant for forcibly taking from the premises of the plaintiff one steam boiler and chest, one pair of trucks, one flywheel and shaft, one smoke pipe, &c., being a part of the fixtures of what was a steam saw mill, before the same was burnt down.

These cases present the same questions for determi-, nation. The defendants were sued on a subscription for a college building near the city of Oskaloosa.

<p> Appeal from Marshall District Court. </p> <p>For the material facts see the opinion of the court.</p> <p>relied upon Guthrie v. Humphrey, 7 Iowa, 23.</p>

<p>1. Promissory note: transfer. When L.M., a femme sole, the daughter of J. M., loaned money for her father, took a note therefor, payable to herself, and afterwards became a femme covert, and after her death her husband transferred the note, by indorsement, to J. M., it was held that J. M., being the real party in interest, could maintain an action thereon in her own name, under § 2151, Rev. 1860.</p> <p>2. Same: quere. Would the property in the note so vest in the husband at the death of the wife, as to enable him to transfer a complete title by indorsement?</p>

Action on a promissory note. The facts appear in the opinion of the court. I. The transcript does not show affirmatively that it contains all the evidence, and unless it is shown affirmatively that all the evidence is before this court, the judgment of the District Court will not be disturbed. Napier v. Wiseman, 3 G. Greene, 246; Stockton v. City of Burlington, 4 Id., 84; Brobst v. Thompson, 4 Id., 135; Curts v. Scoles & Turner, 1 Iowa, 471; Brady v. Malone, 4 Id., 146. II.

The act of Congress, approved May 15, 1856, “ making a grant of lands to the State of Iowa, in alternate sections, to aid in the construction of certain railroads in said State,” contains these provisions: 1. “For the purpose of aiding in the construction of a railroad from Lyons City northwesterly to a point of intersection with the main line of the Iowa Central Air Line Railroad, near Macjuoketa, thence on said main line running as near as practicable to the forty-second…

<p> Appeal from Monroe District Court. </p> <p>Action on a treasurer’s bond. The material facts are stated in the opinion of the court.</p>

The complainant loaned to the defendant Carr, a certain sum of money, to secure which, Carr and wife conveyed to complainant their interest in certain real estate which the wife of Carr held by virtue of the will of her father, James Kettleman, deceased. The complainant executed to Carr and wife a bond, agreeing to reconvey upon the payment of the money loaned.

The facts necessary to an understanding of tbe questions determined are stated in tbe opinion of tbe court. First. That a judgment against a garnishee cannot be legally rendered, so as to place tbe garnishee in a worse condition than be stood to bis creditor either as to amount, manner of payment or time of payment. Bell v. Preston, 1 Iowa, 460; Williams et al. v. Housel, 2 Id., 154; Wilson y. MUrighi, 2 Gr.

Action on book account. The material facts necessary to an understanding of the issues raised in the record are stated in the opinion.

Indictment for willful and malicious injury to a cbureb. Demurrer, for causes stated in the opinion of the court, was overruled. The- jury returned a verdict of guilty, whereupon the defendant moved the court to set aside the verdict, and grant a new trial. This motion was overruled and judgment entered on the verdict. The defendant appeals.

Bill to settle and recover a balance claimed to be due under an agreement of partnership entered into in 1855. The partnership is denied in the answer, and the question of fact was referred to John A. Pitzer and others, who found in favor of complainant. This finding was affirmed by the court below, and the accounts submitted to other referees, who found for complainant the sum of $2,720, with interest from the commencement of the action, December 26, 1856.

Divorce. The facts are sufficiently stated in the opinion of the court. 1. The cause has never been appealed in the manner prescribed by the law, no notice of appeal having been served upbn the appellee; and the order of revivor was made before the court acquired jurisdiction. Code of 1851, § 1794; McClelland v. McClelland, 2 Iowa, 313 ; Lewis v. Miller, 4 G. Greene, 96; Anderson v. White, 10 Paige’s Oh. R. f 2.

This action is upon two attachment bonds given in two separate attachment suits in which Knapp was the plaintiff and Burton the defendant. Judgment for defendant and plaintiff appeals.

Replevin by John Wilson, to recover, against the defendant, Sheriff of Des Moinés county, certain personal property, upon which the defendant levied an execution, issued against the property of James A. Wilson.

In equity, to set aside and cancel a mortgage, decree in chancery, and sheriff’s deed. Bill dismissed, and complainants appeal.

In January, 1854, James Y. Parker and wife made a trust deed to Jacoby, to secure $400 due in four years. In May, 1857, they made another trust deed, covering tbe same premises, to one Williams, to secure about $350 to Harmon S. Wilcox, due in eighteen months. On the 10th of January, 1859, Chase recovered, in the District Court of Clinton County, three several judgments against the said J. Y. Parker and wife.

• This writ brings before tbis court tbe proceedings of tbe court below after the reversal of tbe cause, as reported in 7 Iowa, 189. Upon tbis reversal a procedendo issued and tbe cause was again regularly docketed in tbe District Court. Tbe defendant, after tbis, filed an answer denying tbe cause of action, and claiming of tbe plaintiff tbe sum of one thousand dollars by way of cross-claim or set-off.

This action, was commenced in the Dubuque City Court to recover the value of a reaping machine, which, it is claimed, the defendant failed to deliver, under a contract of affreightment to carry a lot of reaping machines from Dunleith, Illinois, to McGregor, Iowa. The freight was paid at Dunleith in full for the whole lot; but the defendant, it is claimed, failed to deliver the machine in controversy to. the consignee at McGregor.

<p>1. Mistake. Money paid to a municipal corporation for taxes, under a mistake as to the validity of the law under which the assessment was made, cannot be recovered in an action by the payor against the corporation: following Kraft v. The City of Keolmh, ante.</p>

<p> Appeal from Jones District Court. </p> <p>relied upon Santo et al. v. The State of Iowa, 2 Iowa, 203.</p> <p>cited Geebriclc v. The State of Iowa, 5 Iowa, 491; River v. Foster, 4 Harr., 492; Thorne v. Kramer, 15 Barb., 112 ; Bradley v. Baxter, Id., 192.</p>

Foreclosure of a mortgage. The original notice requires the defendants to “ appear and answer, on or before noon of the second day of the next term of said District Court. The defendant appeared by counsel, but filed no answer. Judgment and decree by default, and the defendant appeals. cited Des Moines Branch ■ of the State Bank v. Van et al., 12 Iowa, 528; § 2840, Rev., 1860. cited Pigman v. Denney et al., 12 Iowa, 396; McKinley v. JBetchtell, 12 Iowa, 561; Bellv.

Action on a promissory note. The defense is stated m the opinion of the court.

Plaintiffs - being judgment creditors of the Dubuque and Pacific Railroad Company, issued an execution, wbicb was returned, “no property found.” They then moved for an execution, with a clause directing its levy upon the private property of the defendant, an alleged stockholder. He appeared and resisted the motion, denying that he ever subscribed stock as charged. Upon this issue there was a trial by jury— verdict for defendant, and plaintiffs appeal.

On the 13th. September, 1857, James D. Denegre, tbe plaintiff and appellant, recovered judgment in tbe District Court of Clinton county, against William G. Haun & Co., for tbe sum of $1,165.81; and on tbe 8th of May, 1848, tbe same plaintiff recovered, against tbe same defendants, another judgment, for. tbe sum of $601.35.

Action by Musser & Co., against W. Hobart and Sarah A. Hobart, his wife, for balance due on account of lumber and shingles sold and delivered to said defendants.

<p> Appeal from Warren District Court. </p> <p>For several years prior to tbe 1st day of June, 1857, Andrew J. Stevens bad been doing business in the city of Des Moines, as a land agent and banker. Lambert Stern-burg, the father of plaintiff, and assignor of the account sued on, employed Stevens as his agent to locate land warrants, make time entries, and to enter lands in his name, &c., &c.</p> <p>It was agreed that the capital invested in warrants and money, deposited for the purposes above stated by Stern-burg, should be loaned or invested so as to yield 40 per cent, that Stevens should have five, per cent for his trouble. It appears from the account kept by Stevens that up to the date aforesaid, Stemburg had deposited with Stevens about $15,000; that he had returned to him $17,000 in cash, 3,300 acres of land, the title to which was absolute, and a large amount, about the title which there was some doubt; that under the contract there was yet due on the books of Stevens $1,500. The business house of Stevens was known by the name of A. J. Stevens & Co. It is averred by the plaintiff, and not contradicted, that the “ & Co.” was a mere fiction, and that there was no other person in said firm but A. J. Stevens.</p> <p>Upon the first day of June, 1857, Callanan and Ingham formed a copartnership with A. J. Stevens, in the banking and exchange business. Articles of copartnership were formed and entered into, specifying the character of business to be transacted, the rights, duties and liabilities of each member of said firm, the amount of capital to be invested, the place of business, &c., and fixing the name and style of the firm as “A. J. Stevens & Co.”</p> <p>It appears that Stevens had been doing both a land agency and a banking business, and that there were certain depositors to whom Stevens was indebted when the new partnership was formed. The accounts of certain depositors were transferred to the new books, and the liability of Stevens to them assumed by the new firm. The amount thus assumed being charged to the “individual” account of Stevens. It was soon ascertained that Stevens was insolvent. The firm having assumed a large amount of his old indebtedness and Stevens being indebted to both Callanan and Ingham, individually, as security therefor, he transferred to them a large amount of real estate and the firm was dissolved, Stevens retiring therefrom.</p> <p>It is claimed by the plaintiff that Callanan and Ingham as incoming partners both expressly and impliedly assumed to pay the balance, due Lambert Sternburg immediately after the new partnership was formed, and it is upon this assumption that this suit is founded.</p> <p>Stevens in his own behalf denies that he is indebted to plaintiff; claims that the plaintiff has received all the money he was entitled to; that the contract was usurious, contrary to the policy of the law, and for this reason plaintiff should not recover.</p> <p>Callanan and Ingham each deny that they ever assumed to pay the Sternburg account, and' that by their conduct there was ever any implied promise to pay the same; and claim that if Ingham, as the acting partner of the firm ever expressly promised to pay said debt, such promise was not binding upon the firm, as there was no consideration therefor, no promise in writing to that effect, and that it was not proper and legitimate business of the firm to assume to pay the private debts of the partners.</p> <p>Upon these issues there was a trial and judgment for plaintiff.</p> <p>The admission of certain evidence and the giving certain instructions, the refusal of others, and the overruling the motion for a new trial are the errors assigned.</p> <p>I. The court erred in admitting in evidence the copy of the petition in the case of Stevens v. Callanan & Ingham. Code of 1851, § 2437.</p> <p>II. Callanan & Ingham were not liable as incoming partners. Story, Part., § 152 ; 19 N. Y. R., 37. If incoming partners they could be made liable only upon their and each of their agreement to become so. Beale v. Mouls, 10 Adolpb. & Ell. N. R., 976 ; McOuin v. O'Halloran, Lalor’s Sup. to Hill and Denio, 86; Chit. Contr., 253; 4 Term R., 720 ; 7 Id., 720 ; Hart v. Tomlinson, 2 Yerm., 103.</p> <p>III. There cannot be an implied promise where there is an express or special one. 15 Pick., 159; 10 Adolph. & Ellis, 976; 7 John., 36; 5 Iowa, 383 ; Oartledge v. West, 2 Denio, 378 ; Crawford v. Morrell, 8 John., 255 ; Thayer v. Roch, 13 Wend., 53 ; Carter v. Bechet, 7 Term R., 204.</p> <p>IY. The alleged verbal promise is void by the statute of frauds. Westheimer v. Peacock, 2 Iowa, 528; Kddy v. Roberts, 17 111., 505 ; Lee v. Malony, 9 Iowa, 348 ; Watts v. Kirby, 15 111., 200; Story, Part., § 146; Kingsley v. Baleóme, 4 Barb., 131; Anderson v. Davis, 9 Yerm., 136; Mease v. Wagner, 1 McCord, 395; Simpson v. Patten, 4 John., 422.</p> <p>Y. The alleged agreement is void because Ingham had no power or authority to bind the firm. It was not within the scope of the copartnership business. Story, Part., § 75; Bouv. Law Diet., Part., 276; White v Langdon, 30 Yerm., 599 ; 3 Kent, 43 ; Kastman v. Cooper, 15 Pick., 276; Poindexter v. Waddy, 6 Munf., 418 ; 22 Penn., 21; Wilson v. Lewis, 2 Scott’s N. R., 115 ; Chitty on Contracts, 233; Merceiu v. Andrus & Mark, 10 Wend., 461; Colyer Part., §520; Wilson y. Williams, 14 Wend., 158; Kirby v. Lngersoll, Har. CL, 172 ; King v. Taylor, 22 Penn., 21; Wolcott v. Canfield et al., 3 Conn., 198 ; Rogers v. Batchelor, 12 Pet., 230 ; Hickman v. Reinhing, 6 Blackf., 388 ; Dob v. Halsey, 16 John., 34; Mayberry v. Baruiton, 2 Har., 24.</p> <p>reviewed the authorities cited by the appellant, and discussed the evidence presented in the record.</p>

<p> Appeal from Benton District Court. </p> <p>Complainant, as the purchaser of certain real estate from one Bergen, filed his bill in equity to set aside a judgment by confession, rendered in vacation, in favor of the present respondents, and against said Bergen. It is averred that the authority upon which said pretended judgment was rendered was insufficient for the reason that it did not state concisely the facts out of which the indebtedness arose, nor that the sum confessed was justly due, nor to become due. Respondents demurred, for the reason, among others, that there was “no copy of the statement of confession, nor excuse for not doing so,” attached to the petition. Upon this ground the demurrer was sustained, and complainant appeals.</p>

<p>1. Jurisdiction. The District Court may hear a cause and render a decree therein in vacation, the parties consenting thereto: following Townstey v. Morehead, 9 Iowa, 565; HoMenback v. Hoslcins, 12 Id., 109.</p> <p>2. Same. In a cause pending in Franklin County, the foEowing entry was made of record: “By agreement of counsel this cause is to be heard at Chambers, and is set for hearing at the town of Iowa FaUs, in Hardin County, on the 23d day of August (Friday), A. D. 1861, and decree to be entered as of this term.” It was held, that after an appearance by the parties, and hearing and decree, the respondent was estopped from denying the jurisdiction of the Court.</p>

Action oe right. ' Both parties claimed under Thomas Orr. On the 3d of January, 1859, Orr and wife conveyed the W. \ of the S. E. \ and S. E. J of the S. E. J of section one, township eighty, range five, west-fifth principal meridian, to Timothy Conley, the defendant, and Conley filed his deed for record, with the Recorder of the proper county.

<p>1. Evidence: bes gesie. In an action of replevin by a judgment defendant against a Sheriff to recover the possession -of property taken in execution, the declarations of such defendant at the time of the levy are not admissible as a part of the res gesim.</p> <p>2. Practice. The Supreme Court will not consider an objection to the ruling of the Court below, made for the first time in the appellate Court.</p> <p>3. Verdict against evidence. The Supreme Court will not reverse a judgment on the ground that it was rendered on a verdict which was against the law and the evidence when the record does not purport to set forth all the evidence submitted to the Court below.</p>

The defendant,- Applegate, being the owner of a certain mill property in Jackson county, and a farm adjoining, sold tbe same to Wilkins and Zeigler for $9,000. One thousand dollars were paid down, and notes, for $1,000 each, were executed by tbe purchasers for tbe balance due, payable semi-annually thereafter.

<p> Appeal from Lee District Court. </p> <p>Foreclosure. The facts are sufficiently stated in the opinion of the Court.</p> <p>cited Pomroy & Co. v. Parmlee, 9 Iowa, 146.</p> <p>cited O' Connor v. Mullen, 11 HI., 59; Lyon v. Boilvin, 2 Selw., 629 ; Róbb v. Bostwich, 4 Scam. 116; Rev., 1860j §§c8498-3500.</p>

Complainant and others were the sureties upon the bond of one McDonald, who was elected Sheriff of Clinton County in 1851. For an alleged non-feasance, Maclay sued on this bond in 1854. The principal and his sureties severed in their defenses. A demurrer of the sureties .in that action to the reply of the plaintiff was overruled, and judgment was rendered against them. On the trial of the issues between Maclay and the Sheriff, the latter succeeded.

Creel made his note to Parsons & Co., the complainant indorsing the same. To a suit on the same, Creel plead usury, and Potter a general denial. By agreement the pleas were all withdrawn and a judgment entered for the amount of the note and interest, assessed at $336.60, with a stay of execution for nine months. This was in September, 1859. Potter was at that time out of the State, negotiating a loan of money.

An action on promissory notes executed by E. E. Budd for “E. B. Budd, M. B. Warner, Carl Cook and Andrew C. Dill, a firm doing business under the name and style of E. E. Budd.” Trial and judgment for the plaintiffs. The record shows that on the day the verdict was returned into Court, a motion to set the same aside was filed. No farther proceedings were had in the case until the following term, when the motion was sustained for reasons stated in the opinion of the Court.

The petition in tbis cause was as follows: Your petitioner, David H. Sherrill, claims of the defendant, Horace A. Fay, the sum of two thousand six hundred and fifty-five dollars, as money justly due him from said defendant, and for cause of such claim states, that heretofore, to wit: On the night of the 16th day of November, A. d. 1860, the said defendant, at Madison Township, Jones County, Iowa, did willfully and maliciously destroy buildings and other property belonging to…

The plaintiffs in this action seek to recover damages for injuries done them in the year 1857, by the city of Muscatine, in wrongfully digging up and carrying away tbe earth to the depth of three feet below the established grade in front and upon the north side of plaintiff’s property, whereby it was injured, &c. Another count alleges that the damage was done under a pretended change of grade, which grade was never in fact effected.

<p>1. Promissory nóte: notice of protest. Notice of tlie non-payment of a promissory note may be oral or yerbal, or it may be in writing.</p> <p>2. Pleadings: undented allegation. An allegation in the petition, which is undenied in the answer, will be regarded as admitted.</p>

In Equity. Complainants are tbe beirs of George Lamb Bowers, wbo departed tbis life in' December, 1838.

The statement of the petition in this case is in substance as follows: That in March, 1856, George W. Bonsall being indebted to Isett in the sum of $1,915.33 gave his note for that amount, to secure which he and his wife gave a mortgage on their farm in the country. It is alleged that the wife did not sign this mortgage in person, but did authorize her husband to affix her name thereto; nor did she appear before the notary and acknowledge the execution of the same.

In March, 1858, Hattenback sued the complainant Hos-kins in trespass, and afterwards in October, 1859, recovered judgment for about $2,400. In 1860 (October), this bill was filed for a new trial. All of the pleadings in the law action are set out.

Appeal from Warren District Court. Forcible entry and detainer. A statement of the facts are presented in the opinion of the Court.

The case made by the plaintiff in his bill is this: That on the 8th day of June, 1860, he recovered, in the District Court of Wapello County, a judgment for $158.80, together with costs of suit, taxed at $15.15, against the defendant Sheets; and that on the same day and term of the court, the said Sheets recovered a judgment of $216, together with costs, taxed at $48.85; that the rendition of this last judgment, although on the' same day, was subsequent in point of time to…

Chancery. A statement of tbe facts as disclosed by tbe record is presented in tbe opinion of tbe Gonrt. The counsel for the appellants, in addition to a discussion of the evidence, presented the following points and authorities : 1. The heirs of Alexander MacGregor are necessary parties to this proceeding, and they must be before the court before the decree can be entered. There is also a demand for a money decree, and the executors are necessary parties. Story Eq.

Scire facias against the defendant as a stockholder of the Dubuque Times Company Corporation, on a judgment of the plaintiffs against said corporation, recovered in tbe City Court of Dubuque. Defendant’s demurrer to the petition was sustained, and judgment rendered against the plaintiff, who appeals. cited Müldam Foundery v. Hovey, 21 Pick., 455; and Gurtis v. Harlow, 12 Met., 8.

Plaintiffs sue ■ defendant, as a common carrier of passengers and freight, for damages by the breaking of the arm of the wife while a passenger on a trip from Dubuque to St. Paul and back in September, 1857. Trial and verdict for $3,000. Motion for new trial overruled, and defendant appeals. 1. The carrier’s risk terminates with the trip. Conceding that the contract was for the round trip, the defendant is not liable for an injury while lying at St. Paul.

Gibbons and wife, on the 16th of July, 1857, made their mortgage with power of sale to complainant to secure near $800. This mortgage was upon three distinct tracts of land, including the homestead of the mortgagors. Subsequently Gibbons made two mortgages to his correspondents, Hammond and O’Neil & McNulty. In these the wife did not join. After this, complainant filed his bill in equity to foreclose his mortgage, making Gibbons and wife parties respondents.

.Appeal from Woodbury District Court. In Chancery. Bill to set aside and cancel certain judgments and remove a cloud from the title of land owned by the plaintiff. Issue was joined and the cause was heard and decree rendered for the defendants from which plaintiff appeals. The record contains the finding of facts by the Court, but does not set out any of the evidence submitted on the hearing below.

<p> Appeal from the Warren District Court. </p> <p>The defendants Laverty and Igow, with one Kitchell, since deceased, as the trustees of the Methodist Episcopal Church, Palmyra, Iowa, gave their promissory note to Samuel Laverty for $120, the one sued on. Samuel Laverty died soon thereafter. The plaintiff was appointed administrator of Ms estate, and as such brought this action to recover the amount of said note. The defendants answer, admitting the execution of the note, but claim an accord and satisfaction by the said administrator, agreeing to receive in payment of said note a certain note given by said deceased to one Wells, and by him assigned to the defendant Lyon; that said administrator had agreed to accept said note, and had received the same with the difference in money paid by said Kitchell, but had nev^ given up the note sued on as he had promised to do.</p> <p>Defendants claim that they are entitled to have the amount of the note thus assigned set off against the note in the hands of the plaintiff. To this answer the plaintiff replies, denying the agreement to take said note in payment of the one due the estate, and alleging that prior to the commencement of this action eighteen months had elapsed after notice had been given of plaintiff’s appointment as said administrator; that defendant had failed -to have said note filed as a claim against said estate, and that under the statute it was barred by limitation, and could not be set off as a claim against the note sued on. To this portion of the replication there was a demurrer which was sustained. Trial by jury as to the other issue. Yerdict for defendant. Plaintiff appeals.</p>

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

<p>1. Conveyance oe a homestead. Where a deed of trust was substantially as follows: “Eor the purpose of securing to S. L. S. the sum of, &e., &c,, I., J. C. B., of Polk county, Iowa, do hereby sell and convey, &e., &c., and if the said sums of money, to wit, &e., are not promptly paid, &c., then I hereby authorize, &e., &e. In witness whereof the said J. C. B., with ......his wife, have hereunto set their hands, this 22d June, 1851," which deed was duly signed by both the husband and the wife; it was held, that there was not such a concurrence of the wife as would make it operative as a conveyance of the homestead interest, and that it could be construed only as a relinquishment of dower. (Grapengefher v. Fejervary, 9 Iowa, 163; Shaffner v. Grutzmacher, 6 Id., 13Í ; Westfall et ux, v. Lee, 1 Id., 12; Larson v. Reynolds and Packard, 13 Id., 519, cited and explained.)</p>

<p> Appeal from Pottawattamie District Court. </p> <p>Replevin. The facts are stated in the opinion of the Court.'</p>

<p>1. Evidence. Parol evidence is not admissible to contradict a mortgage.</p> <p>2. Same: understanding. The understanding of a witness as to what property was to be included in a mortgage is not admissible, to show fraud in the execution thereof, especially where it is not shown when the witness had the understanding.</p> <p>3. Declarations of conveyancer inadmissible. The declarations of the conveyancer who drafted a mortgage are not admissible against a mortgagee to show fraud.</p> <p>4. Judgment in replevin. In an action of replevin commenced under the Code of 1851, a judgment could not be rendered for defendant and against the plaintiff and the sureties on his bond. Jansen v. Effey, 10 Iowa, 228.</p> <p>5. Same. In rendering judgment on a verdict in favor of defendant in replevin, it is not error to allow interest on the value of the property from the time it was wrongfully taken from the defendant.</p>

This suit is upon a note given, as it is alleged, by defendant, in consideration of tbe lease of certain real estate owned by tbe plaintiff. The defendant pleads: first, that he never signed said note, and this denial is under oath; second, a failure of consideration in this, that the plaintiff at the time of the alleged contract was not entitled to the possession of the demised property, and that defendant therefore never took possession under him.

Bill in equity to foreclose a mortgage. The complainant sues as the assignee of the note and mortgage. A copy of the assignment on the mortgage is set out in the petition, but not of the note. The defendants, after answering, demur to the petition, and allege as a cause of the demurrer the want of assignment of the note. This was sustained, and complainant appeals.

Bill in chancery to quiet and confirm the title to certain real estate. Upon tbe final bearing the bill was dismissed, and tbe plaintiff appeals. contended that tbe filing of a transcript of tbe judgment rendered by tbe justice in Henry eounty, in tbe office of tbe Clerk of tbe District Court of Lee county caused it to attach as a lien on tbe real estate in said county. Code of 1851, §§ 2487, 2320. 2.

<p>1. Waiver by answering oyer. The filing of an answer after the overruling by the Court of the defendant's demurrer to the petition waives any •error in the ruling of the Court.</p> <p>2. Bah.: oountt judge. The County Judge has power, under the statute, to admit to bail any person held to answer by another magistrate for a bailable offense; and a bail-bond accepted and approved by the County Judge of another county from the one in which the accused was examined and committed is not void for want of authority in that officer to accept and approve such bonds.</p> <p>3. Same: killing. When a bail-bond recited that the defendant was charged with “feloniously killing two persons,” it was held, that as the offense was not necessarily punishable with death, the bond was not void under § 3211 of the Code of 1851.</p> <p>it. Same: evidence slight. When a defendant is accused of a capital offense he may be admitted to bail by the examining magistrate when the evidence is slight or tends to show that it was committed under mitigating circumstances and would not be punished with death.</p> <p>5. Same: forfeitures. The District Court cannot, on the failure of the defendant to appear, order a forfeiture of the bond when it is not on file in the office of the Clerk, and is not in possession of the Court.</p> <p>6. Same: when bight of action accrues. A right of action does not accrue on a bail-bond before its forfeiture is properly ordered by the Court having jurisdiction.</p> <p>V. Appearance to challenge. The failure of a defendant held to answer for a criminal offense to appear and challenge the grand jury operates only as a waiver of his right to challenge, but does not authorize a forfeiture of his bond.</p>

Replevin. The justice before whom the cause was tried resided in one'township, while the parties resided in others. The property replevied was also found in another. On defendants” motion the cause was dismissed for want of jurisdiction. This judgment was affirmed in the District Court, and the plaintiff appeals.

<p>1. Pkoperty op the wife. Tlie personal property of the wife, when in the joint possession of the husband and wife, is regarded as under the control of the husband and subject to his debts, unless notice of her ownership is filed for record in the manner prescribed in § 1450 of the Code of 1851, §2502, Revision 1860. (Smith v. Hewett, 13 Iowa, 94.)</p> <p>2. Same. The personal property of the wife in the control of the husband is subject to the debts of the husband contracted before notice of her interest is filed in the manner prescribed by § 1450, Code of 1851. (§ 2502, Revision of 1860.)</p>

In February, 1857, complainants owned tbe premises in dispute, and sold tbe same to one Yogt. One-tbird of tbe purchase money was paid at the time, and a bond given for a deed upon the payment of the balance -in two» installments. The first installment was met, and-in May/1859, complainants obtained a judgment at law for the; amount due on the last note. Upon an execution issued on'this judgment, the premises were sold to complainants in April, 1860.

<p>1. Decbee isr boeeceosube. A decree in the foreclosure of a mortgage should order a sale of only so much of the mortgaged premises as may be necessary to satisfy the mortgage debt and costs. It is error to order a sale, of the entire premises, and a payment of the balance remaining after satisfying such debt and costs into Court.</p> <p>2. Redemption: mortgages. The provisions of “an act to provide for the redemption of real estate sold on foreclosure of mortgages,” (chap. 103,, Laws 1860, p. 810, Revision 1860) are, so far as they affect contracts entered into before its enactment, unconstitutional and invalid. (Hosier v. Sale, 10 Iowa, 410, and the authorities there cited.)</p> <p>3. Decree in eavor of school eünd. The mortgagor is not prejudiced by, and cannot complain of, a decree declaring an amount due the school fund as penalty for usury in the mortgage contract a lien upon the mortgaged property from the date of the execution of the mortgage.</p>

To an action of right to recover a part of lot 1, block 17, in Lyons city, the defendant pleaded as follows: 1.

In April, 1850, complainant being about to leave his home in this State for California, made to his brother-in-law, the respondent, F. H. Lee, a power of attorney, authorizing him to lease, rent, mortgage, or sell certain lands therein described, and owned by him, and to generally take charge of his business, and to do and perform all matters and things in the same manner as complainant would ' or could do if personally present.

<p> Appeal from Johnson District Court. </p> <p>The complainant filed bis bill in equity enjoining tbe respondents from proceeding to enforce a judgment against bim on tbe ground that there were certain credits tbat should be allowed on said judgment, and wbicb respondents refused to have entered thereon. The respondents answered, and admitted that there should be a credit of $105 on said judgment, but averred tbat they bad always been ready and willing to allow the same. Tbe Court beard tbe cause on bill and answer, directed tbe credit of $105 to be made on tbe judgment, and dissolved tbe injunction. From this order tbe complainant appealed to tbe Supreme Court, giving the proper appeal bond, &c. The judgment of the District Court was affirmed, and a procedendo, issued directing proceeding to be bad as though no appeal had been taken. The cause was again docketed in the District Court, and notice served on the complainant that the respondents would move the Court for an assessment of damages upon the injunction bond. In pursuance of this notice the parties appeared, and the Court upon hearing assessed the respondents’ damages at $190, and rendered judgment accordingly, from which the sureties in the injunction bond appeal. It appears that the injunction was dissolved five days after it was issued.</p>

<p>1. Pleadings: intemperance. In an action to recover the value of goods exchanged for intoxicating liquors in violation of law, the plaintiff may treat the contract of exchange as void, and if it is set up as a valid defense, he may then show that it falls within the statutory prohibition.</p>

Lyman Allen and W. L. Allen, with the complainant, executed to the respondent Lyon their joint promissory note for $750.50, payable in one year from date, &c. As collateral to this note the Allens gave a mortgage on a certain lot in Iowa city. After maturity Lyon brought suit on the note and mortgage, making the Allens and Johnson defendants.

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

In June, 1857, defendant bought of plaintiff about 155 acres of land, located in three distinct subdivisions. The purchase money was near two thousand dollars, payable in one and two years. The purchaser executed a mortgage to secure the same, signed and acknowledged by himself, but not by his wife. He was, at the time, the head of a family, and designed making the land so purchased his home.

The caption of the indictment in this case is as follows: “District Court of the County of Wapello. STATE OF IOWA 1 vs. WM. GURLOCK. ¡ Indictment for the crime of i-Nuisance for selling intoxicating ¡ iiqUOXS in violation of law. “ The Grand Jury of the county of Wapello, in the name and by the authority of the State of Sowa, accuse,” &c., and alleges that the place kept for the sale of liquors was in the town of Ottumwa, Wapello County, Iowa.

The defendant was indicted and found guilty of the crime of burglary; motion in arrest and for a new trial being overruled, he now appeals. cited Whart. Am. Cr. Law, 299, 996. cited Roscoe’s Cr. Ev., 50.

In Equity. The bill alleges that complainant sold and conveyed to respondent forty acres of land near Dubuque; that payment was made by assigning to him certain notes, and a mortgage given to secure the same, on one Cooley; that respondent represented these notes to be perfectly good, and the mortgaged premises to be clear of all prior incumbrance; that such representations were fraudulent, known to be so ; that they were relied upon; and various other matters showing fraud,…

Indictment — Nuisance. The offense is thus charged: “ The said John M. Schilling and David Twiggs, on the 1st day of July, A. D. 1860, and from that time until the finding of this indictment, at the county aforesaid, did then and there use a certain frame building, under his control, as a place for the sale of intoxicating liquors, and did then and there keep intoxicating liquors in said building with intent to sell said intoxicating liquors in said building, to the common…

Action on a promissory note, of which the following is a copy: “$1,000.00. On demand, I promise to pay to William Picket the sum of one thousand dollars, with interest, at six per cent per annum. Yalue received. March 27th, 1857. John D. Hawes.” On the back of this note the defendant made the followindorsements: “D. P. Hawes.” “I will extend my name on the within note to March 27th, 1861.

Action before a Justice of the Peace, and judgment for the plaintiff. The defendant appealed to the District Court, where the cause was tried before a referee, who found for the plaintiff in a sum less than the judgment of the justice. The plaintiff moved the court to set aside the report of the referee for the reasons: 1. That the finding was against the law and evidence: 2. Because of newly discovered evidence which would render a different finding certain.

<p>1. Notary public. A notary public is a public officer, and when acting de facto his acts affecting third persons cannot be collaterally assailed.</p> <p>2. De facto officer. A public officer duly appointed or elected, but who has in some particular failed to qualify in the manner prescribed by law, acts de facto, and his acts as to third persons are entitled to credit.</p> <p>3. Same. Where a notary public was duly appointed by the executive, but failed to file a bond in the manner prescribed by law, it was held that he was an officer defacto but not dejwre.</p>

<p> Appeal from Woodbury District Court. </p> <p>Hattenback recovered a judgment against Hoskins, as sheriff of Woodbury county, for the wrongful act of said sheriff, in levying an execution on the property of plaintiff to satisfy the debt of Heinaman & Gambert. This judgment remaining unsatisfied, Charles, who holds by assignment, brings this action upon the official bond of said Hos-kins, against the principal and his sureties. The defendants filed separate pleas, to which there were demurrers. These were overruled, judgment thereupon rendered for defendant, and plaintiff appeals.</p>

The facts are stated in a former report of the same case in the sixth volume of Iowa Reports (p. 496), and in the opinion of the Court.

In January, 1857, Edward Kilbourne sold certain real estate situated in tbe city of Keokuk, to one Bertram, who gave his negotiable note to the grantor for the purchase money, and executed a mortgage on the premises to secure the same. Bertram sold the property to Rhodes, and Rhodes afterwards sold and conveyed to Thomas and Young, the appellants.

The defendant was indicted for stealing a horse. The Court below charged the jury, that if the horse was stolen by the defendant in the State of Missouri, and brought by him into Wapello county, that he might be indicted and convicted in this State. This ruling is the error assigned. The bringing of stolen property into this State does not constitute the crime of larceny in the county into which- it is brought. 1 Moody, 349; 38 Eng.

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

Replevin for a cow. Spinsly leased of Eads a farm, the term commencing in March, 1861, and continuing one year. The rent was payable quarterly in money. In May or June, 1861, the tenant sold to the plaintiff the epw in controversy, who purchased in good faith and paid a valuable consideration.

The petition, makes substantially tbe following case: That the plaintiff, by purchase, became the owner of certain lands therein described, chiefly valuable for the timber growing thereon; that the defendants, without authority, had trespassed upon the same; that they had entered upon said land, cut and carried away a large amount of timber, and still continued to commit their trespasses upon said land of the like character, to his damage five hundred dollars, for which…

Plaintiff sues upon a note made to the decedent, Samuel C. Oliver, or bearer. The decedent, was, at the time of the execution of the note, the husband of Ruth, who had been the widow of Lewis Barlow.

Mandamus. The petition alleges that the plaintiffs recovered a judgment against the defendant in the District Court of Scott county, on the 14th day of February, A. D. 1860, for the sum of two thousand one hundred and sixty-four dollars; that $2,100 of said judgment was for interest on the bonds of said city, issued prior to January 22d, 1855; that four executions had been issued thereon, and returned nulla bona; “that by the laws of this State, in relation to said city, it…

<p>1. Bank notes. In an action on bills issued by a banking firm to circulate as money, by a holder thereof against such firm, evidence showing that the holder purchased the bills at a discount is inadmissible.</p> <p>2. Jury: instructions. It is the duty of a jury to take the law as given in the instructions of the Court. (Savery v. Busiclc, 11 Iowa, 481.)</p> <p>3. Liability of bankers. When several banking firms united to establish a bank of issue, the notes of which were sent to the said several stockholders for circulation, and were placed in circulation without any designations showing where they were so issued; and said firms published a card signed by each one of them, announcing that they were individually responsible for jts issues, that its bills wpuld be redeemed jp <?oin at Ik? bank of issue, and in eastern exchange and in coin at certain rates named at their several banking houses, it was held: 1. That each or all of said firms were liable for a failure to redeem any of said bills by either. 2. That an action could be maintained against all after a demand upon and refusal by either one to redeem. 3. That a presentation to one co-partner in one of said firms was sufficient after the firm; by closing its doors, had rendered it impossible to present bills at their counter.</p>

Injunction. The petition shows that on the 27th day of September, 1857, the complainant owned certain bboks containing abstracts of title to lands in Pottowattamie county, one undivided half of which he sold to respondent, the said respondent agreeing to take charge of said books and such new ones as they should purchase, and to keep said abstracts correctly posted; that the complainant, “under the impression and belief” that said books had been correctly kept and were…

In September, 1856, plaintiff obtained a judgment against defendants for $303.06. In March, 1861, he caused the court to be informed in writing that upon this judgment he had an execution issued by the clerk of the court, and placed in the hands of the sheriff, who has failed to return, having lost the same, and that said judgment and execution are still unsatisfied, prays the court for a rule on the clerk to issue an alias execution on said judgment.

This action is upon the official bond of the defendant, Mason, as justice of the peace. The breach assigned is the careless, negligent, willful and corrupt discharge of the duties of said office. It appears that one Teeter brought an action of replevin against the plaintiff, for the possession of a colt. The defendant as justice, issued the writ of replevin, under which the officer took possession of the colt and delivered it to Teeter.

<p>1. Vendor's foreclosure. The vendor of real estate may, upon the maturity of a portion of the debt of the vendee for the purchase money, if it remains unpaid, file his petition, asking the court to require the vendee to perform his contract, or to foreclose and sell his interest in the property. Rev. 1860, §§ 3611, 3612.</p>

Hayward borrowed of Yail one thousand dollars, and executed a trust deed to Powers'upon a certain tract of land to secure said loan. Powers died, and Munger, by tbe order of the County Court, was substituted as trustee. The said trustee was about to sell the land when Hayward brought this bill, upon the ground that he ha'd paid and tendered all that was owing upon said debt. Decree for complainant, and respondent appeals.

Kelley owned a house and lot in the town of Waterloo. He purchased it in 1856, and resided therein with his family, until in the summer of 1858. He then left it and removed to his farm some twelve miles distant. In March, 1860, he removed from his farm to Dubuque, for his wife’s health and to go .into business, with no definite idea when he should return. In June of the same year, he returned to Waterloo, and in September moved into the premises which he formerly occupied.

Action op Right. The facts, as agreed upon by the parties, are as follows: In October, 1857, one Nathan Cole was tbe owner in fee of tbe lands in controversy, and sold tbe same to defendant, received about $700 of the purchase money, took two notes for tbe balance, and gave a bond for a deed upon tbe payment of said notes.

This suit was brought before a justice of the peace, upon a note payable in brick at the kiln of defendant. The defendant in his answer sets up: 1. That he was ready and willing fb deliver the brick at his kiln on the day the note matured. 2. Set-off. 3.

The plaintiffs holding a judgment at law against James P. Drake, Sen., obtained in Indiana, brought a suit on a transcript of the same in this State, and at the September Term, 1861, of the District Court of Iowa county, procured a judgment for the amount thereof by default.

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

<p>1. Practice. The Supreme Court will not review a judgment rendered by the court below on the trial of a cause without the intervention of a jury, when no findings of fact and conclusions of law thereon were made by the court, and no motion was made for a new trial. (Warner v. Pace, 10 Iowa, 391; Corner & Go. v. Gaston, Id., 512 ; Pobison v. Sawiders, ante, and the cases there cited; Byington v. Woodward cfc Watrde, 9 Iowa, 360.)</p>

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

Action of replevin. The defendant justifies the taking of the property in controversy, under certain writs of attachment against Carl Cook, A. C. Dill, M. B. Warner, and E. R. Budd, partners under the name of “ E. R. Budd.” Plaintiff claims that he was the owner, and entitled to the possession of the goods when seized by the sheriff. Issue being joined, a trial was had, which resulted in favor of the plaintiff. Defendant appeals.

Anderson mortgaged liis real estate to Mobley, to secure certain negotiable notes. Before these notes were due, Mobley sold and transferred them to plaintiff, but did not assign the mortgage. After this Anderson paid these notes to Mobley, by conveying to him the mortgaged property, whereupon Mobley in his own name, satisfied, -by proper writing upon the margin of the record, the said incumbrance.

On the 17th day of November, 1858, Eliza A. Toll made her promissory note, payable to Milo Smith, at the banking house of Green, Dakin & Co., in Clinton. On the 21st day of November, 1859 (the 20th being Sunday), a notary residing in Lyons (two miles from Clinton, the place of payment), presented the note at the banking house of Green, Dakin & Co., and demanded payment, which was refused.

The defendant, Shays,-in April, 1861, executed a mortgage to the complainant upon lot two, in block thirteen in the town of Newton. This proceeding is to foreclose said mortgage. The appellants, the State of Iowa and Jasper County, are made parties for the purpose of quieting the title to said premises.

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

<p>1. Joinder of parties. As a rule, it is only where two or more persons are jointly entitled to,'or have a joint interest in, the property affected, or damages to be recovered, that they can unite in an action.</p> <p>2. Same: malicious prosecution. Two or more persons cannot maintain a joint action for personal damages for malicious prosecution.</p> <p>3. Same : when objection mat be taken. The defendant may take objection to a misjoinder of parties plaintiff at any stage of the case, when such misjoinder appears.</p>

In April, 1858, complainant borrowed of respondent, Skeel, $500, and secured the same by deed of trust on eighty acres of land. The loan was for seven months, with interest at 25 per cent per annum. When the note matured the time was extended for nine months, at the same rate of interest. The debt was not paid and the trustee sold the property to Skeel for $650.

Action to recover the penalty prescribed by the statute ,for refusing to verify the assessment list furnished by the defendant to the assessor.

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

<p>Appeal from Hardin District Court.</p> <p>continuance : presumptions : note assigned by administrator.</p> <p>Action on a promissory note.</p>

<p> Appeal from, Jasper District Court </p> <p>ERROR SHOULD BE CORRECTED BELOW.</p>

<p> Appeal from Johnson District Court </p> <p>RAILROAD BONDS INVAlID</p> <p>Injunction.</p>

<p>Appeal from Henry District Court</p> <p>CONFESSION OF JUDGMENT.</p>

<p> Appeal from Johnson District Court </p> <p>BILL OF EXCEPTIONS: EVIDENCE AND INSTRUCTIONS: NEW TRIAL : DENIAL OF EXECUTION OF NOTE.</p>

<p> Appeal from Jones District Court </p> <p>MOTION TO SET ASIDE A DEFAULT.' FAILURE OF CONSIDERATION.</p>

<p> Appeal from Page District Court </p> <p>BILL OP EXCEPTIONS.</p>

<p> Appeal from Linn District Court </p> <p>EXCEPTIONS TO OVERRULING A DEMURRER.</p>

<p> Appeal from Monona District Court </p> <p>CHANGE OF VENUE.</p>

<p>Appeal from Johnson District Court</p> <p>ANSWER OF A GARNISHEE.</p>

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