Volume 15 — Iowa Reports

Action before a justice of tbe peace. On tbe 18th day of November, the day of trial, a default was taken and judgment rendered for the plaintiff. On the 18th day of tbe same month the defendant filed a motion to set aside tbe default, wbicb was on tbe same day sustained and a new trial ordered. The plaintiff removed the cause by writ of error, to tbe District Court. Tbe order of tbe court below was affirmed by the District Court and tbe cause was remanded for a new trial.

The facts are fully stated in the dpiriion of the court. G. B. Struble for the appellant, cited Latterett v. Cook, 1 Iowa, 1; Stutsman v. School District No. 2, Madison Town-* ship, Polk County, Id., 94; Brewington v. Patton and Swan, Id., 121; Sigler v. Woods, íd., 177; Porter v. Walker, Id., 456; Curts v. Scoles and Turner, Id., 471; Kiene v. Buff, Id., 482; Floyd v. Hosier, Id., 512; Madcemer v. Benner, 1 G. Greene, 157; Saum v. The Board of Commissioners of Jones County,…

In Equity. On the 22d day of June, 1858, the com-; plainants executed a deed of trust, conveying the premises in controversy to H. B. Matthews, to secure the payment of two certain promissory notes executed on the same day to Samuel 0. Young.

■ Plaintiff appeals from an order sustaining a demurrer to tbe fifth count of the petition; and overruling one to the second plea of defendant. For the substance of the pleadings see the opinion. I. The second plea does not purport to be pleaded to any particular count or counts of the petition, as (if so intended) it is required to do by § 2882 of Revision.

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

On the 16th November, 1861, plaintiff recovered judgment against one Craig for $187, and costs. $11.60.

<p>1. Delivery by sheriff to his successor. Where a sheriff actually receives property from his predecessor, or receives the writ under which it is held, and dispenses with an actual delivery, his liability for the safe keeping of the same is established without the execution of a receipt; but mere silence or inaction, unless it be'under circumstances which makes it a waiver, is not sufficient to charge the incoming sheriff.</p> <p>2. New trial: insufficiency of evidence. When the Supreme Court is satisfied that a verdict was against the weight of evidence, it may set the same aside, and award a new trial; but this power should be exercised only when the conclusion is irresistible that the verdict was not the result of a free, sound and unbiased exercise of judgment on the part of the jury, and that manifest injustice will be done if it is permitted to stand.</p> <p>3. Same. An order of the court below, overruling a motion for a new trial based on the ground that the verdict was against the evidence, will not be disturbed, unless it presents a clear case of abuse of discretion.</p>

<p>4. Res adjudicata. The judgment of a court can bo set up as a prior adjudication only, when it is shown that it determined the actual question at issue between the parties,- and that such determination must have been upon the merits.</p> <p>2. Pbesumptions. When the record shows that a demurrer presenting two grounds of objection to a petition was sustained, without stating upon which ground, it will be presumed that the decision of the court was based upon the ground which would be fatal to this action. Where one ground of demurrer is fatal to the action, by reason of misjoinder of parlies, and the other involves the merits or the right of the plaintiff to recover on his cause of action, it will be presumed that the court sustained it upon the former ground alone.</p> <p>3. Judgment in Supreme Court. Where a cause has been appealed to tho Supreme Court, and the final judgment is there entered, the judgment of the court below does not bind the parties as a prior adjudication.</p> <p>4. Guaranty. The contract of a guarantor of the payment of a county warrant is absolute, that the warrant will be paid when due and presented.</p>

<p>1. Foreclosure : parties. Where a mortgagor has conveyed his interest in mortgaged premises by a deed containing a covenant of warranty against all incumbrances, he has a sufficient interest in a suit to foreclose the mortgage to authorize his being made a party defendant thereto on his own application.</p> <p>2. Same: ítual decree. When in such a case the mortgagor is made a party, and fails to show that he has any actual interest, or it appears that the claim is not made in good faith, the court may dismiss the action as to him, making the proper order in reference to costs.</p>

<p> Appeal from, Johnson District Gourt. </p> <p>Bill' to foreclose a mortgage, given by John A. and ¥m. N. Whitlock to complainant, upon certain real estate, of date February 12, 1856. Lyon is a subsequent incumbrancer, by mortgage of June 19th, 1859. The cause was submitted to a referee appointed by the Court, upon the issues made by the bill, answers thereto, cross-bill of Lyon and amended cross-bill, and answers thereto, who reported the following facts: That there was due complainant on his mortgage, $3,609.58; that on the 26th of April, 1855, complainant and the Whitlocks purchased of one Stover the land covered by the same liens, and for a balance of the purchase money, executed to said Stover their note and a mortgage on the same lands, which mortgage was never recorded. Stover' afterwards sold and transferred this note and mortgage to one Evans. On the 12th of Februray, 1856, complainant conveyed to the Whitlocks his interest, being one undivided third, in the lands thus bought of Stover, and covered by the mortgage of April 26th, 1855, executing a deed of general warranty against incumbrances, &c. At the time that Lyon took his mortgage he was deceived and defrauded by William N. Whitlock, who represented and made him believe that there was but one lien upon the premises, to wit: the one to complainant, and he loaned his money with the understanding, expectation and belief that it would be applied to tbe satisfaction of complainant’s debt, tbe only incumbrance of record on the premises. Whitlock represented himself as acting for complainant, and that the money would be at once applied on his mortgage. The money thus received from Lyon was, in fact, paid to Evans, the holder of the Stover mortgage, and in satisfaction of it. Barber was not in any way a party in fact to the transaction or representations by which the loan was made of Lyon and paid over to Evans. Lyon foreclosed his mortgage in 1859, but to that proceeding Barber was not a party. Under a special execution issued thereon, Lyon bought the premises in 1860, believing, until after that time, that Barber had been paid with the money borrowed of him by Whitlock. From the decree foreclosing complainant’s mortgage and giving it priority over all other liens, Lyon appeals.</p> <p>I. Whitlock, having obtained the money of Lyon by fraud, made himself a trustee, and Lyon may follow and reclaim it, or its representation, in whatever shape it may be found, as against the trustee, or anjr one but an innocent purchaser for value. Story’s Eq. Jur., §§ 1255,1258, 1265 ; Carey v. The Cincinnati and Chicago Railroad Company, 5 Iowa, 368; Phelan v. Clark, 19 Conn., 421; Rogers v. Brant, 5 Grilm., 582; Ourrens v. Hart, Hardin,.37 ; Balgney v. Hamilton, 1 Amb., 413 ; Lane v. Dughton, Id., 409 ; Wallace v. Duffield, 2 S. & R, 521; Le Breton v. Pierce, 2 Allen (Mass.), 8; Lloyd v. Brewster, 4 Paige Ch., 537; Root v. French, 13 Wend., 570 ; Bank of America v. Pollock, 4 Ed. Ch., 215; Thompson v. Perkins, 3 Mason, 232 ; Moffit v. McDonald, 11 Humph., 457; Heath v. West, 6 Foster, 191; Carroll v. Rice, Walker Ch., 373 ; Cherry v. Newsom, 3 Yerg., 369 ; Hilliard Sales, 269 ; 2 Par. Cont., 277, notes g. and r.</p> <p>II. A court of equity may, after the discharge of a bond and mortgage, substitute the person who takes it up, in the place of the mortgagee, and keep it alive. Garwood v. fflr dridge, 1 Green (N. J.), 151.</p> <p>Fairall & Boal for the appellee, reviewed the propositions and authorities cited by counsel for the appellant ; and contended that Lyon cannot be subrogated to the rights of Evans, citing Banta v. Gasvio, 1 Sand. Ch., 888; James v. Morey, 6 John. Ch., 417; S. 0., 2 Cow., 246; Murray v. Catlett, 4 G. Greene, 111; Marvin v. Vedder, 5 Cow., 671.</p>

<p>1. Selection of jurors. That the lists of grand and petit jurors selected by the judges of election in the several townships of the county, and accompanying the proper election returns, are not authenticated by a formal certificate, is not, in the absence of fraud, sufficient cause for setting aside an indictment.</p> <p>2. Indictment : naming offense. When an indictment charged a defendant . “with the crime of nuisance,” it was held to be sufficient to designate the' name of the offense, when the language of the charging part of the indictment described the offense defined by § 1564 of the Rev. of 1860.</p>

<p>1. Replevin: levy. The owner of property seized in execution to satisfy a judgment against a third party, may maintain an action of replevin against the officer, notwithstanding the property at the time of the commencement of the action is in the hands of his bailee.</p>

<p> Appeal from Scott District Court. </p> <p>The defendant was a member of tbe firm of W. W. Skinner & Co., doing business m tbe city of Davenport. This firm became indebted to Cook & Sargeant, for money advanced upon their bank account. For the sum of their indebtedness, with usurious interest added thereto, Skinner & Co. gave their notes. These notes were renewed from time to time, including illegal interest and credits given for payments made thereon. After these several renewals and payments, W. W. Skinner sold out his interests in said firm to the defendant, he, defendant, agreeing to pay all of the debts of said firm, and to keep the said Skinner free from any of said liabilities. After this agreement was made and when the firm notes to Cook & Sargeant became due, the defendant took up the same and gave his individual notes therefor. Krum sets up, as a defense to plaintiff’s action, that the money was originally obtained by the firm upon a usurious contract, and that illegal interest was added into said notes, when renewed, e'ach time.</p> <p>The admission of evidence to support this defense, and the instructions of the Court, to the effect that the defendant had the right to interpose this plea, is the principal error assigned.</p> <p>There are two classes of cases in which the plea of usury cannot be interposed:</p> <p>1. When the defendant is not in privity with the contract, as when a subsequent grantee seeks to set up usury in a prior mortgage.</p> <p>2. Where the money has been placed in the hands of the defendant to pay the usurious debt, as where he purchases subject to the lien of a usurious mortgage, and expressly agrees to pay it off, as part of the purchase money. Sands v. Church, 2 Seld., 347; De Wolf v. Johnson, 10 Wheat., 392; Frost v. Shaio et al, 10 Iowa, 491; and Hollingsworth v. Sioickard, Id., 385.</p> <p>Krum was a party to this contract, and up to the time he assumed the payment of the entire debt, had the right to interpose this plea. When did he lose that right ? The cases cited by appellant are not applicable. The renewal of the note did not purge it of usury. Campbell v. McHarg, 9 Iowa, 355; Smith, Twogood & Co. v. Coopers & Clarice, 9 Iowa, 377.</p>

<p> Appeal from Scott District Court. </p> <p>The report of referee, finding for plaintiff, was confirmed, and defendant appeals. From this report the following facts appear: The action is upon two notes, made by' defendant to Cook & Sargent, and by them indorsed to plaintiff; one for $2,600, and the other for $1,800, dated October 22, 1859, due in six months. As to the first note, there is no defense. The $1,800 note was defended by Krum, who received no consideration on account' of its execution, but made it for the accommodation of Cook & Sargent, to enable them to raise money, by discounting it at some eastern bank.</p> <p>November 15, 1859, plaintiff (a bank in Boston) discounted said note, at the request of, and received the same from, Cook & Sargent, through one of the firm, George B. Sargent, they duly indorsing the same. On.the 28th of March, 1860, the indorsers transferred to plaintiff certain real estate in payment of said note, and some other indebtedness owing by them to the bank. At the same time, and simultaneously therewith, the said firm, through Sargent, assigned the $1,800 note to plaintiff, as collateral security for the payment of two promissory notes then executed by them to the bank, for over $4,000 each, payable in six and twelve months. These two notes were given for an antecedent debt owing by Sargent and one Dixwell to plaintiff, and which was then due and payable; and time of payment was extended, as shown by said notes, inconsideration of the assignment of said note for $1,800, together with others, as collateral security.</p> <p>At this time defendant’s note was not due, but plaintiff had notice that it was accommodation paper merely. The understanding between the parties, when the note, was made, was, that it was given to enable the payees to raise money thereon for their benefit, by having it discounted at some bank at the east; but plaintiff had no notice of said particular understanding, but did know that it was “accommodation paper.” The two notes of $4,000 each have not been paid, and are still held by plaintiff.</p> <p>For the questions made by counsel upon the above facts, see the opinion. *</p> <p>I. An accommodation note having been once discounted, and afterwards paid and taken up by the party accommodated, becomes void in their hands, and the subsequent transfer of it to a third person, with notice of the facts, cannot impart validity to it, but such third party, takes it subject to all equities existing between the original parties. Sledding v. Warren, 15 John., 269; Denniston v. Bacon, 10 John., 198; Woodhull v. Holmes, Id., 230; Brown v. Taber, 5 Wend., 566; Hasson v. Smith, 8 Wend., 437; McFadden v. Maxwell, 17 John., 188; Amory v. Merryvoether, 2 Barn. 6 Cres., 573; Evans v. Kymer, 1 Barn. & Adolph., 528; ■Harrisburg Banlc v. Meyer, 6 Serg. & Rawle, 537; Steers v. Lashley, 6 Term R., 61; Bayley on Bills, ch. 12, p. 512 (5th ed., 1880); Story on Promissory Notes, 223, § 190.</p> <p>II. That an accommodation note, pledged as collateral security for a pre-existing debt, is not discharged of equities. Coddingtonv. Bay, 20 John., 636; Swift y. Tyson, 16 Pet., 1; Slallcer v. McDonald, 6 Hill, 93; Trustees of Iowa College v. Hill, 12 Iowa, 462; McFadden v. Maxwell, 17 John., 188; MecJcles v. Calvin, 4 Barbour, 304; Bank of St. Albans v. Gilliland, 23 Wend., 313; Bank of Salina v. Babcock, 21 Wend., 499; Bank of Sandusky v. Scoville, 24 Wend.,. 115;- Furniss v. Gilchrist & Co., 1 Sand. (N. Y..), 53; Story on Prom. Notes, § 190.</p> <p>I. When a man signs a note for the accommodation of another, he assumes all the liabilities of a maker for value as to all the world, excepting only the party accommodated ; and this is true, even though it be known that it is accommodation paper. Story Prom. Notes, 231; Chit. Bills, 85, and the cases therein cited; Raggett v. Axmdr, 4 Taunt., 734; Murray v. Judah, 6 Cow., 484; Fentum v. Pocock, 5-'Taunt., 192; Bailey Bills, 166 (5th ed.)* Story Prom. Notes, 552; Bennett v. Manley', Gilmer (Ya.), 365; Walker v. Montgomery County Bank, 12 Serg. & -R., 382. The fact that the note had been once taken up by the' payees does not change the application of the rule. Chit. Bills, 223; Burbridge v. Manners, 3 Camps.-, 194; Kerbury v. Bates, 1 Ala., 303; Agawam Bank v. Strever et al., 18 N. Y., 502. .</p> <p>II. That an accommodation note, passed as collateral security for a pre-existing debt, without any other or further consideration, is not discharged of equities, we admit to be the correct rule of law; but where there is a consideration moving between the parties at the time of the pledging of the collateral, the indorser is protected as a holder, for value. The extension of time on the principal debt is a valuable consideration, and that it makes the indorser of the collateral thereto a holder for value is well settled by the authorities. 1 Am. L. 0., 336, note to Swift v. Tyson ; Petrie v. Clark et al., 11 S. & R., 377; Bufau v. Wadding-ton, 6 Whart., 220; Fellows v. Prentiss, 12 S. & M., 462; Trustees of Iowa College v. Hill, 12 Iowa', 478.</p>

The plaintiff in his petition claims that defendant sold to him eighty acres of land, that he pointed out the same to plaintiff, and represented that the land he thus pointed out, was the same he was about to convey, and that he would insure it to be such. . The deed for the land thus sold, was, at the request of plaintiff made to one E. E. Phillips, as plaintiff, wished to convey the land to said E. E. Phillips in security for a debt owing by him.

\ Action for damages against defendant as administrator de son tort of the estate of William Littler, deceased, for .the breach, of a covenant of warranty. The plaintiff, in his petition, represents that defendant has obtained money belonging to the deceased which he, plaintiff, now seeks to subject to the payment of his claim for damages. The defendant filed a demurrer to this petition which was sustained by the court, and from this ruling plaintiff appeals.

This is an action upon the covenants of a deed made by defendant to plaintiff. The grantor in the deed covenanted that he is lawfully seised; that he has a good right to convey ; that the premises are free from incumbrances; and that he will warrant and defend.

Action upon a bond entered into by the defendants (twelve in number), in which they agree to abide by and pay in full an awafd to be made by arbitrators, in relation to certain trespasses committed by defendants upon the premises of plaintiff. The answer of defendants is not in the record.

- Defendants were indicted for burglary, in entering, in the night time, the house of one Eambo, with intent to commit a felony. Trial and verdict of guilty, and they appeal.

Appeal from Tama District Court. Injunction to stay the execution of a judgment at law. Tbe material facts are stated in tbe opinion.

Ajypeal from Dallas District Court. Crim. con. Verdict for plaintiff, $1,200. Motion for a new trial sustained, and plaintiff appeals. I. The record in this cause shows that one motion for a new trial had been made and disposed of by the Court, and no second motion can in sucb case be made. Powers v. Bridges, 1 G. Greene, 235. II.

In equity to enforce an alleged parol agreement to enter for and convey to complainant a certain forty acres of land. For the other material facts see the opinion.

.Plaintiff sued upon a promissory note, and defendant answered, that it was obtained by fraud and false representations; that there had been an entire failure of consideration; that there had been a partial failure; that the note was obtained without consideration; and he asks to set off, after (deducting certain payments) the difference between the actual value of the goods, notes, accounts, &c., forming the basis of the consideration and their value, as represented,…

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

Replevin for a piano, levied upon by the defendant as Sheriff, under an attachment in favor of Stevens against D. A. Day. The cause was referred to three referees, who found and reported the following facts: On the 1st of February, 1857, D. A. Day executed to plaintiff his promissory note for $350, payable in six months.

Plaintiff filed a petition in equity, in the District Court of Lee County, at Fort Madison, December 18, 1861, to foreclose a certain mortgage executed by J. D. Eads and Minerva, his wife, and filed for record, January 2d, 1857, conveying to plaintiff lots 108, 109,110, in Fort Madison. MeMurphy is made a defendant, and the petition alleges that he claims title to lot 108, under a sheriff’s sale thereof, upon a judgment in favor of Hesser & Hale, to enforce a mechanic’s lien.

The defendant, Hedges, as Sheriff, levied upon a lot of lard, as the property of one Reddington, to satisfy an execution against him and in favor of King and Lumerty. The property, at the time it was seized, was in the possession of plaintiff. She claims to be the owner thereof, by virtue of a sale from Reddington to her.

<p> Appeal from Lee District Court. </p> <p>Thé facts sufficiently appear in the opinion of the Court.</p>

<p>1. Illegal voting. Voting in a township of which the voter is not a resident, is an offense under § 4331 of the Revision of 1860.</p> <p>2. Same: peejury. An indictment for illegal voting in a township of which the accused was not a resident, is not affected by the fact that he is also liable for perjury.</p> <p>3. Same: indictment: judicial notice. The courts take judicial notice of the day upon which the general election for the current year is held, and of the officers to be voted for at such election.</p> <p>4. Same : indictment. In an indictment for illegal voting it is not necessary to allege that candidates for any particular office were voted for, or the names of the persons voted for.</p> <p>5. Residence in a township. To gain a residence within a township, within the meaning of our election laws, the elector must have the intention bona fide of making it his home. Remaining within the township with the purpose to leave as soon as some temporary object is accomplished does not establish a residence.</p> <p>6. Evidence. The sufficiency of evidence to sustain a verdict of guilty on the trial of an indictment for illegal voting considered.</p>

This action, was commenced in October, 1862. Defendant, by bis attorney, made tbe proper showing tbat he was in tbe actual military service of tbe United States, and moved for a continuance. Plaintiff resisted tbe motion, upon tbe ground tbat tbe statute authorizing sucb continuance was unconstitutional, and also because no plea or answer bad been filed. He also moved for judgment for want of plea. This motion was overruled and tbe continuance granted.

Suit by attachment commenced in July, 1861. The cause was continued till the July Term, 1862, at which time counsel for the defense moved the court for an order to release the property attached, on the ground that the defendant was in the actual military service of the country. The motion was sustained, and the plaintiff appeals. I. The act upon which the appellee relies does not apply to goods held by virtue of an attachment. See Laws 1862, p. 128.

An action of slander commenced by attachment, under an allegation that the defendant was a non-resident. A motion was made by the defense for a continuance of the cause and a dissolution of the attachment, upon the ground that the defendant was in the military service of the country, being a member, as shown by affidavits, of Company R, of the 28th regiment of the Iowa volunteer infantry.

<p> Appeal from Iowa District Court. </p> <p>For the'material facts, see the opinion.</p>

Slander. The plaintiff’s cause of action was words used by the defendant, charging him with “pilfering,” “stealing ” and “ taking without leave,” hay, lumber and other articles, the property belonging to the defendant. Trial and verdict for plaintiff. The defendant moved the Court to set aside the verdict and grant a new trial, assigning as ground therefor the giving and refusing to give instructions to the jury.

Judgment by confession. The statement sets out and describes several promissory notes, and recites the consideration as cash advanced by the plaintiff to defendant for the purchase of hogs, “sundry articles of dry goods,” and “ a bill of groceries.” Upon this statement a judgment was entered by the clerk in vacation, and the judgment entry was approved and signed by the Judge in open court.

<p>1. Judgment in equity. A court of equity will not disturb a judgment on a promissory note executed by a firm and another "party, on the ground that the judgment is against one member of the firm and their co-defendant, instead of being against the firm, when it appears that it was entered by agreement, and it is not shown that the party complaining has been prejudiced thereby.</p>

This action .is brought to recover the interest due upon a note given for money borrowed of the School Fund. The defendants who answer and appeal were sureties.

<p>1. Sworn pleadings. An answer to a verified petition in an attachment suit, which was not sworn to, as required by § 2904 Revision of 1860, was properly stricken from the files, on the motion of the plaintiff. Rev., 1860, § 2916.</p>

Action for damages for injuries to the person of the plaintiff, by the falling of a bridge belonging to the defendant. The defendant demurred to the petition for reasons which appear in the opinion of the Court. This demurrer was sustained, and from the' ruling of the Court thereon the plaintiff appeals.

Suit upon a promissory note signed by all the defendants as principals, payable to “The Des Moines County Savings Association,” and assigned to plaintiffs.

In 1854 defendant’s intestate sold to plaintiff a farm, for which there was to be paid $2,250. A bond was given, which recites the payment of $50, at the time of the contract, and that notes were given for different sums, the last one maturing Marchvl, 1861. Plaintiff was to have full possession on the 1st of May, 1855, and the notes drew interest from date at six per cent.

On the 6tb of May, 1856, Webster and wife made tbeir mortgage to Kearns, npon certain real estate, to secure a note of $1,690. January 5th, 1857, Webster sold the real estate to Perry. In March, 1860, Kearns, under the-power given in tbe mortgage, was about; to sell the property, when Perry obtained a writ of injunction restraining this sale, upon tbe ground that tbe contract was usurious, and that an amount tendered tbe mortgagee was all that was due him.

The words charged in the petition, to have been spoken by defendant are, that “ Elizabeth Hatfield had destroyed a child, and I can prove it. She tried to get medicine from Dr. Comstock to produce abortion, and he refused to let her have medicine. She then tried everything she could, and failed until the last resort, and that was lifting at a large ladder, and that done the work.

Action against the principal and sureties upon a constable’s bond. Trial before arbitrator, who found for defendants. The plaintiff appeals.

<p>1. Enroma by the court. A finding by the Court, under § 3088 of the Revision of I860, should state the facts found and not the evidence upon which they are found.</p> <p>2. Partnership: payment. When a copartnership was by written agreement dissolved, one partner contracting to pay all copartnership debts, and after such dissolution the other partner paid one half of the amount due on an outstanding judgment against the firm, after execution had issued thereon, it was held that tho copartner who assumed the liability of the firm under the agreement of dissolution was liable for the amount thus paid.</p> <p>3. Same: interest. The written agreement being silent as to interest, the plaintiff is entitled to recover on the amount so paid, interest at six per cent.</p>

<p>1. Decree bt consent. That the report of a master in chancery was confirmed by the Court, the attorneys of the appellant being present and making no objection, is not a sufficient showing that the decree was entered by consent of parties.</p> <p>2. Mortgage : mechanic’s lien. A mortgage which is senior to a mechanic’s lien, takes precedence in the application of the funds arising from a sale in foreclosure.</p>

The petition, in equity, ayers that on the 29tb of December, 1859, complainants sold to respondent, 'White, a certain lot of land, describing it; that as a part of the consideration said respondent sold and assigned to them a noté of one Wheeler, and a pretended mortgage accompanying the same, which note was dated October 23d, 1856, and due in sixteen months from date, for the sum of $2,000; that said respondent, for the purpose of securing the pay•ment of said note,…

<p>X. Eoroible entry ahd detainer : parties. At common law, an executor or administrator could not maintain an action of forcible entry and detainer for tlie possession of the lands of his intestate; but § 3954 Revision of I860 (§ 2364, Code of 1851), enlarges the rule, and permits'the bringing of the action by the administrator. This action does not deprive the heir of his common law right to maintain the action.</p>

Afterwards, with leave of the Court, the plaintiff filed a supplemental petition, alleging that since the commencement of the suit, the city had fully paid off all the notes indorsed by defendant. To this supplemental petition the defendant demurred, because it showed, as it was alleged, that the cause of action did not accrue till after suit brought.

A SUIT brought to recover a balance claimed to be due upon a lease, in which the plaintiff failed, and comes here on various exceptions to certain rulings made by the Court on the trial. cited Collins v. Vandever, 1 Iowa, 573; Bennett v. Nye, 4 G. Greene, 410; Wither v. Paine, 1 Ohio, 251; Bari of Aylesford’s Case, 2 Strange, 783; Jones v. Peterman et al, 3 S. & R., 543; Grant v. Ramsey, 7 Ohio S. R., 157; Rev. 1860, § 2942; Aclcer, Sheriff, v. Withered et al, 4 Hill, N. Y.,…

Bill in equity to subject certain lands to the payment of a judgment in favor of complainant, against respondent Smith. The facts are briefly these: Smith owned a steam mill and forty acres of land. In March, 1859, he sold the same to McCormick for $10,000, receiving pay in real estate $1,000, and McCormick’s notes for $9,000. In May, 1860, complainant recovered his judgment. By the terms of the contract, McCormick was to have a deed upon the payment of the purchase money.

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

The Davenport Mutual Saving Fund and Loan Association filed their bill in equity enjoining the defendant, Schmidt, as Supervisor, from opening a certain road through a tract of land owned by said company. ' A demurrer to the petition was sustained, and the plaintiff appeals. cited Cooper v. Sunderland, 3 Iowa, 114; Morrow y. Weed,, 4 Id., 78; Little et al. v. Sinnett, 7 Id., 324; Frazier y. Steenrod, Id., 340 ; The State of Lowa v. Berry, 12 Id.,- 58; Jjong et al. v.…

The defendant Thorington was sued upon a note, by attachment, before a justice of the peace, in which the appellee was garnished. All indebtedness being denied by answer, the plaintiff filed a special replication thereto, to which was interposed a demurrer. Upon hearing, this demurrer was overruled. The pleader standing thereon, a judgment was rendered, both against the principal and the garnishee, for the amount of the note.

Replevin. Plaintiff claims, under a chattel mortgage, made to him by Langworthy, in June, 1861, purporting to secure a note of $700, due in two years. Defendant (as sheriff) claims and justifies, under an execution against said Langworthy, in favor of Freeland, Squires & Co., insisting that the mortgage to plaintiff was executed without consideration; that such disposition was unreasonable and made to defraud, hinder and delay the creditors of the mortgagor.

Bill in equity to set aside certain conveyances upon tbe ground that they were made to defraud creditors. Decree for complainants, and respondents appeal. I. At voluntary conveyance executed by a grantor, while he is not in debt, and without any fraudulent intention, is valid as against subsequent creditors.

<p>1. Oral instructions. It is erroneous to orally explain or modify instructions given to a jury.</p> <p>2. Jury may take instruction. The jury may.take the instruction of the Court with them when they retire to consider^ upon their verdict.</p> <p>3. New trial: oral instruction. When the Court orally explained the instructions which were given to the jury, and the appellants, supposing the explanations were in writing, took no exceptions either to the explanations or the manner of giving them, and where, after the verdict was returned, but as soon as the appellant was apprised of the fact that the explanations were not in writing, he moved the Court to grant a new trial on this ground, which motion was sustained by the Court, it was held that the Supreme Court would not interfere with the discretion of the Court below.</p>

Complainants ask tbe foreclosure of a trust deed made by Kingsbury and wife to secure tbe note of Mason, Magill & Denton. Tbe grantors resist tbe foreclosure, upon tbe ground that tbe deed is void, and Stone, a subsequent purchaser, denies all notice of said incumbrances. Tbe bill was dismissed as to Kingsbury and wife and tbe subsequent purchaser, and judgment rendered against tbe maker for tbe amount due on' tbe note.

A proceeding in chancery, in wbicb tbe following case is made. Plaintiff in May, 1856, sold to one Turbnsb on a credit of five years, lot 11 in Martin’s addition to tbe city of Dubuque, and gave a title bond for a deed on payment of the purchase money.

Thomas Krogan, a native of Ireland, died intestate and ■without issue, in Dubuque county, Iowa, in May, 1860, seised of certain real estate described in the petition.

<p>X. Conflicting teems of court. Where the record shows that a judgment was rendered by the District Court of one county, three days after the date of the commencement of the term in another county in the same district as fixed by statute, it was held that the jurisdiction of the court would be presumed, though it did not appear affirmatively of record that the term as fixed by law had been adjourned.</p>

<p>1. Amendment: VERmOATiOisr. The Court may permit the plaintiff to amend, a petition which is not sworn to, after answer, by adding a verification to the same; and after such amendment, if the defendant refuse to verify his answer or to file a verified answer within the time allowed by law to plead, a default may be granted against him.</p>

Complainant seeks to foreclose a mortgage made by W. H. Berkshire and wife to one Kahler, in March, 1860, upon certain lands held in the name of the wife. The respondent, Lemon, claims to be a bona fide purchaser of the same premises, without notice of complainant’s mortgage, under a deed of September 8th, 1860. On the hearing, respondent’s position was sustained, and complainant appeals.

Action on an account. The facts necessary to an understanding of the question decided are stated in the opinion of the Court.

Before the Board of County Supervisors the plaintiff claimed damages, in the matter of vacating and re-locating a part of what is known as the Bluff road, leading from Marengo to Kosta in said County. From the decision of said Board in the premises the plaintiff appealed to the District Court.

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

A proceeding in the nature of a creditor’s bill. Tbe complainants’ statement is, that on the 10th day of July, 1861, they obtained a judgment by confession against James McKissiek, for the sum of $640, together with costs of suit; that in the fall of 1860, the said James McKissiek purchased of one George Eoe the north half of the northwest quarter, and the southeast quarter of the southwest quarter, section 17, township 72, N. E. 16 W., paid for the same, and took the title…

Appeal from Appanoose District Court. Dependants appeal from an order overruling their application for a new trial. For the facts see the opinion.

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

<p> Appeal from Woodbury District Court. </p> <p>This was an action of replevin brought against the defendants for detaining a pair of portable French mill burrs, claimed by the plaintiffs as their property; for whom, on trial, a judgment was rendered, and the defendant, Hall, appealed, claiming to be the rightful owner as a bona fide purchaser under his co-defendant, Metcalf.</p> <p>The cause was tried by the Court which made a special finding of the following facts:</p> <p>1. That the plaintiffs being the owners of the property in question, in the spring of 1860, sold the same, together with a belt and some fixtures to the defendant, Metcalf, for the sum of $325.00; that said Metcalf delivered to plaintiffs one pair of cattle and a wagon at one hundred dollars in part payment, and the residue was to be paid in one year.</p> <p>2. That the sale and delivery of the burrs were made on the express condition that defendant, Metcalf, should give plaintiffs a note for the residue of the purchase money; that the same should be secured by a bill of sale or mortgage on the burrs; and that they should not become the property of Metcalf until paid 'for.</p> <p>8. That Metcalf failed to give a note and mortgage, and failed to pay for said burrs, and before this action was commenced, plaintiffs demanded possession of them from the defendants, which was refused.</p> <p>4 That Hall, one of the defendants, while the burrs were in Metcalf’s possession, purchased the same, before the demand, in good faith, knowing that they had not been paid for, but without any knowledge of ^ the condition annexed to the sale made to Metcalf; and gave Metcalf his note for the same, amounting to $175.00, which is not yet due, and remains unpaid, with the exception of some ten or fifteen dollars.</p> <p>Upon these facts Hall excepted to judgment in favor of plaintiffs, as being contrary to law.</p> <p>cited the following authorities : Vincent v. Cornell, 13 Pick., 294; note to Wilbrahand v. Snow, 2 Saund., 47; Paine et al. v. Whittaker, R. & M., 99; Rose v. Story, 1 Barr, 190; Haggerty v. Palmer, 6 John. Ch., 438; Keeler v. Field, 1 Paige, 315; Smith v. Lynes, 1 Seld^, 41.</p> <p>relied upon Bailey v. Harris, 8 Iowa, 331; Robinson v. Chapline, 9 Id., 91.</p>

Suit brought before a justice of the peace-to recover about thirty dollars, being the balance due on the follow: ing note: “$561.

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

<p> Appeal from Muscatine District Court. </p> <p>Complainant, by his bill, represents that on or about the first days of July, 1855 and 1856, “ The Mississippi & Missouri River Railroad Company, a corporation created under the laws of this State, was largely indebted, and desired to raise money to aid in constructing and equipping a railroad; that for the purpose of raising means they issued bonds to the amount of near four millions of dollars, and to secure the same, executed to complainant, as trustee, certain mortgages or trust deeds, on the following property; the said railroad constructed and to be constructed, together with all and singular the railway lands procured or occupied for right of way, together with bridges, fences, privileges, rights and real estate owned by said Company, or which shall hereafter be owned by them, and all the tolls, incomes, issues and profits to be had from the same, and all the lands used and occupied for depots or stations, with all the buildings standing thereon, or which shall be procured therefor, together with all the locomotives, engines and tenders, passenger cars and freight cars, shops, tools and machinery, including all the property of the Company, real and personal, and all the rights, credits and franchises of said Company.” It is also shown, that these trust deeds were duly recorded in September, 1855, December, 1856, and January, 1857; that the gross earnings of the road have not been sufficient to pay the ordinary operating expenses, keep the road in repair and pay the interest on the outstanding bonds; that there is due and unpaid interest on said bonds to the amount of over four hundred thousand dollars, and for operating expenses, about twenty-six thousand dollars.</p> <p>The bill also shows that in October, 1861, the respondent Isett, obtained a judgment against the Company for near $3,000, that he caused execution to issue thereon, and certain persons in the employ of the Company, and others indebted for freight to be garnished.</p> <p>Complainant insists that as such trustee he has the first and paramount lien on all the property of the Company, including tolls, incomes and earnings; that the same is not subject to execution or garnishment, until said bonds, including principal and interest are paid, and prays for an injunction.</p> <p>After argument the inj unction was granted. Despondent (Isett) answered and filed his motion to dissolve. This was overruled, to which he excepted, and from that order now appeals.</p> <p>I. The demurrer to the petition should have been sustained, and this court should sustain it and dismiss plaintiff’s bill:</p> <p>1st. Because there is no averment in the petition that said deeds of trust were made in pursuance of any statute of the State of Iowa, or any authority derived from any action of the proper authorities; nor is any record authorizing such deeds or the issue of said bonds by the directors of said Railroad Company, set out in said petition, nor is the same referred to.</p> <p>2d. Said petition shows upon its face that plaintiff has a full, adequate and complete remedy at law. An action at law can be maintained against said defendant, Isett, and Sheriff Gordon ; if they are trespassers they must respond in damages. There is no averment that any of said defendants are insolvent, or unable to respond in damages, nor is there any averment that this suit is brought to prevent a multiplicity of actions.</p> <p>3d. Because the petition does not allege that said defendants have in any manner disturbed plaintiff in the enjoyment of his property; nor does it aver that defendants have disturbed said Railroad Company in their pursuits or possessions, further than to garnish their credits in the hands of third persons, and this I claim defendants had a perfect right to do, there being no stipulation in said deeds of trust, or in the statute giving said plaintiff, as trustee, any right to claim said moneys, or any of the property conveyed until default made; and until such claim is made said trustee cannot be a party to any suit against defendants, for reason that said deeds of trust leave the whole matter in the hands of the Railroad Company until default “ and demand of the interest, and a lapse of sixty days, and then upon request of the holder of one of said bonds,” &c., he shall take possession. None of these matters being averred in said petition, plaintiff is not in the position to ask the relief he -is now seeking.</p> <p>II. The deeds of trust under which plaintiff seeks to claim said moneys and to assert his claim, are made without authority and are absolutely void. Pierce v. Phnery, 32 N. H., 507, and the cases cited on page 508; Shelford on Railways, 155 (marg.); Pennie v. The Delaiuare and Ohesapealce Canal Company, 9 How., 172; Tippetts v. Walker et al, 4 Mass., 596.</p> <p>III. Our third point is, if the Company had no authority to mortgage their franchise, they could not make a conveyance of the tolls or earnings of their road. Pierce v. Emery, supra; Phillips, &c., v. Winslow, Trustee, 18 B. Monr., 431; 3 Green Ch., 377; In re Ship Wall, 8 Price, 269 ; are cases under statutes conferring the power; Wellesly v. Wellesly, 4 Myl. & C., 560; and Metcalf v. The Arclibishop of York, 6 Lev., 224, are old cases, and have not been followed in this country; and Pennock et al. v. Coe, 23 How., 117; Jones v. Richardson, 10 Met., 481; Howe v. Freeman, 14 Gray, 566; do not hold that the right exists independently of the statute.</p> <p>IY. If the grant must be made before a valid mortgage could be made, then, unless the giving of mortgages was confirmed by the Legislature, by some act in direct terms, no validity is given to them by the act passed before the execution of the mortgage made to Jessup in the Dubuque case. Sedgwick Stat. and Const. Law, 188.</p> <p>Y. Our next point is, that admitting the Railroad Company could mortgage for the purposes and upon the terms claimed in said petition, and that such mortgage would be good upon subsequently acquired property, .yet the case as made by the petition, does not call for the aid of a Court of Equity.</p> <p>argued: 1. In reply to appellant’s first point, that the Court will take judicial notice of the law authorizing the act to be done, and it is not necessary to set it out in the petition: 2. In reply to the second proposition, that the power to execute deeds of trust is conferred by the statute, § 1151, Rev. of 1860, which is but a reprint of § 674, Code of 1851; Jordan v. Posten, 1 Watts., 385; Porter v. Oreen, 4 Iowa, 571; Hall et al., Trustees, v. Sullivan Railway, Redfield on Railways, 578, note; Leary v. Stubbs, 12 Ga., 437; 3 Dutch., 185: 3. That independent of any statutory provisions, a ‘corporation created for Railroad purposes may issue bonds and mortgages, and they will be valid and binding; McCollough v. The State of Maryland, 4 Wheat., 316; Ang. & Ames Corp., 253 and 256; The Attorney-General v. Life and Fire Insurance Company, 9 Paige Ch., 470; Moss v. Oakley, 2 Hill, 265 ; Kelly v. The Mayor of Brooklyn, 4 Id., 263; Union Bank v. Jacobs, 6 Humphrey, 515; Allen v. The Montgomery Railroad Company, 11 Ala., 437; 15 Id., 491: 4. In reply to the third point, that the Railroad Company had the power to mortgage both the franchise and the toll and earnings of their road; Jessup et al. v. Budge, Trustee, 11 Iowa, 573; Pennock et al. v. Coe, 23 How., 117; Galena & Chicago Union Railroad Company, Garnishee, v. Menzies, 26 Id., 121.</p>

<p>1. RepI/Eyut. That the legal title to the property in controversy is in a third party, is not a sufficient defense to an action of replevin when the plaintiff claims, in his petition, only the right of possession.</p>

This cause was submitted to the Court, and upon the evidence introduced the following finding was made: 1. That defendant made, April 6th, 1858, a loan of one A. M. Yedder, through the plaintiff as the agent of Yedder, of $950; agreeing to pay fifteen per cent interest to Yedder, and ten per cent to the plaintiff, and gave Yedder his note, dated 6th April, 1858, for $1,200 secured by deed of trust on fifty acres of defendant’s farm. 2.

<p>1. Instructions. The refusal of the Court to give an instruction asked by a party is not good ground for reversal, when the record shows that the same instruction was substantially presented in the charge of the Court.</p> <p>2. Verdict: misconduct oe jurt. When jurors, in arriving at their verdict each marked the amount he was willing to return, and the sum of the amounts thus marked divided by twelve produced a quotient which was returned as their verdict, it was held that the verdict should be set aside and a new trial, granted.</p>

Action for the partition of certain real estate, an interest in which the plaintiff claimed as the heir of Thomas O’Connor, deceased. The defendant claimed the title to all of the land in controversy, under certain conveyances which were set out in the answer. Judgment for the complainant, and commissioners appointed to make the partition. The respondent appeals.

The first case was appealed from Benton District Court, the second and third from Clayton District Court. Held: within the district, for that purpose.” The question now under consideration counsel for appellant dismiss by saying that it has been fairly raised and settled by the Supreme Court of Wisconsin, and settled, too, in their favor. Such is not our understanding of the ■opinion.

In November, 1858, the defendants in this cause ordered and purchased of the plaintiffs, at the city of New York, a bill of goods consisting of intoxicating liquors and other merchandise, amounting to $4,444.2;!, including insurance and some items for cartage, on which was paid at the time, cash $425.11. These goods were shipped by plaintiffs to defendants at Iowa City, and duly received about tbe 1st of December, 1858, by defendants, who paid the charges of transjDortation.

Plaintiff claims to recover a balance clue on three drafts. Defendant denies due presentment and notice. These drafts were drawn in the city of Dubuque, in this State, and the indorsement of the name of the payees was written on them at the same place. They were payable in New York, to which place they were sent to .plaintiff for collection or credit.

Th;e case, as stated by appellant’s counsel, is this: Daniel Yirdin owned an undivided two-fifths of certain lands. While such owner, he incumbered the same by mortgage, and afterwards brought his action of partition. To this proceeding the mortgagee was not a party. Under an order of court, the entire lands were sold by referees, one Isaac Yirdin purchasing the lands in dispute, and sold the same to defendant Atkinson.

Levins executed to Graves his promissory note for $5,750. The note was negotiable, and secured by a mortgage on certain real estate in the city of Dubuque. No consideration passed between Graves and Levins, the object being, as is alleged, to enable Graves, by negotiating these securities, to raise money in the east for the benefit of Levins.

<p>1. Discharge or surety. A surety seeking to discharge himself from liability on a promissory note, in the method provided by chapter 15 of the Revision of 1860, must comply fully with the requirements of the statute.</p> <p>2. Same. Under the statute, the payee or holder of a note'may, upon receiving proper notice from the surety, elect to either sue on the note himself, or permit the surety to do so.</p> <p>3. Same: note. A note from a surety to the payee of a note, demanding-only’that the payee shall commence an action against the principal, is not sufficient, under the statute, to discharge such surety, if the creditor neglects or refuses to comply with the demand.</p>

<p>1. New teial. The Supreme Court will interfere with an order of the District court granting a new trial on the ground that the verdict in the cause was against the evidence only when it is manifest that the discretion vested in the court below has been abused.</p>

<p>1. Judgment against gaenishee. The right to recover against a garnishee is dependent upon the recovery of a judgment against the principal; and a judgment against the garnishee, before judgment against the principal, is erroneous. {Beam v. Barney ¡ Scott Go., 10 Iowa, 498; Barton v. Smith, Id., 85.)</p> <p>2. Extent oe liability. The liability of a garnishee to the judgment plaintiff is measured by his liability to the judgment defendant.</p>

The plaintiff, in July, 1860, bought of defendant a lot of hogs, and it was agreed that they were to be delivered in Chariton, Iowa, between the first and tenth days of August following; that they were to weigh two hundred and fifty pounds each; that plaintiff was to pay a certain rate per hundred pounds therefor when weighed and delivered. Upon this contract plaintiff advanced to defendant the sum of forty dollars.

Suit against the principal and sureties upon an administrator’s bond, to recover the proportion coming to the plaintiff as assignee of one .of the heirs of the estate, found upon settlement made between the administrator and the County Judge, and entered of record, as due the estate.

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

78, payable at six months, with interest, which, by the said Martin, was indorsed on the 6th of September, 1861, to Honora Boyle, who indorsed the same in blank to plaintiff. At th§. date of the note it was also indorsed in blank by Gr. L. Bass as guarantor. On the 7th of March, 1862, the note was legally protested for non-payment. In an action on the note, Thompson, the maker, and Bass tbe guarantor are sued.

Plaintiff claims the amount due upon certain coupons, set out in his petition, and alleges that the county of Henry issued the bonds, to which said coupons were attached, in accordance with the vote of the electors of said county, at a special election held for that purpose, pursuant to law; the object being to assist in the construction of a railway through said county. Demurrer to petition sustained, and plaintiff appeals.

<p>1. Parol evidence to show mistake. While parol evidence is admissible lo show that a written agreement, on account of fraud, accident or mistake, fails to state the whole or true contract, it is well settled that this fact must be established and made clear by the most satisfactory proof.</p> <p>2. Same. In equity and at law parol evidence of previous or - contempora^ neous negotiation, stipulations or terms, not incorporated in a written agreement, will not be admitted to vary or contradict its terms, unless it is made to appear that at the time'of executing such agreement it was intended and understood by the parties thereto that such stipulations or terms should be incorporated therein, and that the same were omitted by accident, mistake or fraud.</p>

3. Dubuque : mortgage. Section 25 of the charter of the City of Dubuque invests the city council -with the full control of the city property, real,… Held: on demurrer to the answer, that the value at the time of the purchase, as set out in the answer and not the time of the filing of the answer, was contemplated by the terms of the mortgage. Appeal from Dubuque District Court. A demurrer to tbe answer of one of tbe respondents (Tbe Dubuque Harbor Company) was overruled.

The defendant was indicted for voting illegally, was convicted and appeals. The facts necessary to an understanding of the questions determined, appear in tbe opinion of tbe Court. cited The Commonwealth v. Agían, Tbatcber’s Or. C., 412; 9 Met., 270; The Commonwealth v. Wallace, Tbatcber’s Cr. C., 596. cited The State v. Boyett, 10 Ind., 336; McGuire v. The State, 7 Humph., 54; Morris v. The State, 7 Blackf., 607.

This cause was referred to a referee, who found and reported the following facts: 1. In October, 1849, plaintiff sold to defendant a “ claim ’’ on the public lands belonging to the United States. • 2. There were no improvements on said “ claim,” but the boundaries were defined by staking around the same. 3.

Defendant was indicted, tried and found guilty of “cheating by false pretenses.” On his motion the judgment was arrested, for the reason that no offense against the laws of this State was charged in the indictment, and the State appeals. cited The People v. Babcock, 7 John., 201; The People v. Johnson, 12 Id., 292; Moore v. The Commonwealth, 3 Barn., 260; The People v. Haynes, 14 Wend., 547. cited Rev. 1860, §§ 4394, 4856 ; 2 Bish. Or.

Plaintiee seeks to recover of defendant (as a usurer), tbe full amount paid by Mm for certain notes, less tbe principal money, as allowed by section 1792 of the Revision of 1860. As shown by the petition, the facts are, that in 1857, defendant loaned to T. S. & D. S. Wilson, $665.58 at 80 per cent interest, talcing their notes therefor. They paid $200, the first note was surrendered and a new one taken from T. S. Wilson for $967.50, with 15 per cent.

In the year 1857, Levi, Karrick & Jones were engaged as partners in mining. In that year Levi became dissatisfied, filed his bill in equity, in the District Court of Dubuque County, for a dissolution and a settlement of the partnership account. Thomas Waters was made a party defendant, and it was sought to charge him as a debtor to the said partnership.

<p> Appeal from, Marshall District Court. </p> <p>The facts are sufficiently stated in the opinion.</p>

The Grand Jury of Polk county, in the discharge of their duty, were examining testimony tending to implicate some one in the crime of killing or altering a bull, contrary to the provisions of section 4318 of the Revision of 1860.

<p>1. Non-resident plaintive: costs: justice’s court. The provisions of chapter 136 of the Revision of 1860, requiring non-resident plaintiffs, in' certain cases, to give security for costs, applies only to proceedings in the District Court.</p> <p>2. Proof of indorsement. When the genuineness of an indorsement is admitted by an answer, with an allegation that it was made for a fraudulent purpose and without consideration, proof of such indorsement is not necessary to entitle the plaintiff to recover.</p>

This action is against defendants as partners upon a partnership note. Sypher, who appeared in behalf of the firm, admitted the. execution of the note, and stated in his answer that the consideration therefor was two bills of merchandise purchased by defendants of plaintiffs, the aggregate amount of which was $950.81; that in giving the note for the amount supposed to be owing to plaintiffs, there was a mistake of about one hundred dollars.

<p>1. Separate school district. Article 4, chapter 88 of the Revision of 1860 confers upon incorporated cities the power to organize as separate school districts; and the same power is conferred, by article five of the same chapter, upon towns and villages containing not less than three hundred inhabitants.</p> <p>2. Same. Article 5, chapter 88 of the Revision of 1860 is an amendment of a law enacted by the Board of Education, and is not inconsistent with article 9, section 8 of the Constitution of 185*T.</p> <p>3. Pleadings : action by school district. In an action by a school district it is not necessary to set out at length, in the petition, the manner in which the district was formed; and the legality of acts leading to its formation cannot be raised by demurrer.</p> <p>4. School district: extent of territory. The extent of the territory which may be added to a town or city district, for school purposes, is not limited by the law.</p>

To the action (which is founded upon a promissory note), defendant pleaded payment. The referee, to whom the cause was submitted, found for plaintiff. This finding against defendant’s objection was confirmed, and he appeals.

Tbe gravamen of tbe bill is that said Goodrich was tbe guardian of complainant, and, as such, received a sum of money, which be invested in tbe lands in controversy, taking the ti tie in bis own name. Tbe prayer is, that' respondents shall be declared to bold said land-in trust for complainant.

<p>1. Collateral assignment. The assignee of negotiable paper, receiving it in good faith, from the payee, before maturity, as collateral security for a a pre-existing debt, is not a holder for value in due course of trade, and takes the same subject to all equities existing against it in the hands of the payee. Aliter, where he parts with a new consideration, or stipulates for delay or credit.</p>

Motion in the court below to retax costs after final decree in tbe Supreme Court. Tbe motion was overruled, and tbe mover appeals. Tbe appeal brought tbe whole cause to tbe Supreme Court, and tbe District Court bad no jurisdiction. McGlaughlin v. O’BourJce, 12 Iowa, 459; Pierson v. Wilson et al, 2 Id, 20 ; Stoclauell v. David, 1 G. Greene, 115.

Defendant held two notes against one Bothwell, payable to himself or bearer, which he indorsed in blank to plaintiff. This action is brought against him, as such indorser. The defense is a want of demand and due notice. To this plaintiff responds, that defendant waived such demand and notice. Tried by the court; judgment for plaintiff, and defendant appeals. cited Tebbetts v. Dowd, 23 Wend., 378; Pars. Mer.

As to one and the principal question involved, these cases are alike, and it is agreed by counsel that they may be so treated. In the last case other errors, are assigned. For all material facts see the opinion. cited the following authorities: 2 Phillips’ Ev. (4th Am. ed.), 671; 1 Story’s Eq.

Plaintiff claims damages fox a breach, of warranty, and for deceit in the trade of horses.. Verdict for defendant; motion for a new trial, based upon the misconduct of the jury, overruled, and plaintiff appeals.

In May( 1861, an execution issued on this judgment, and was levied upon some two hundred and forty acres of land in Decatur county. The object of this proceeding is to enjoin said sale, upon the ground that complainant's had, by a verbal contract, sold to respondents one hundred and eighty acres of the land, which they were to receive in full satisfaction of the judgment.

Plaintiff and one Herman owned a tract of land, which was sold, and the entire consideration received by Herman. Herman resided in Polk, and plaintiff' in Johnson County. The portion belonging to plaintiff, Herman desired to transmit to Iowa City. Defendant offered to pay it there, through his brother, with whom he represented he was in partnership.

An ordinary action upon a written contract to recover the balance of tbe purchase-money on the sale of certain mill premises, in which the plaintiff obtained a j udgment of $959.77, and the defendant appeals.

Plaintiff declares upon two notes, the first reading as follows: “ $280. • Dubuque, June 22, 1858. Three months after date we promise to pay to the order of S. W. Wheelock, two hundred and thirty dollars, at Dubuque, value received. For the Dubuque Times Co. Feed. S. Winslow, Treasurer.” The other is for $171.50, of date August 4, 1858, due in three months, of the same tenor, and signed, “Ferd. S. Winslow, Treas., Dub.

Action to recover on certain promissory notes executed for the purchase money of real estate. One of the defenses set up in the answer was an allegation that plaintiff could not make a good title to the property which was the consideration of the notes. Defendant offered to prove that the property had been sold to satisfy judgments against the plaintiff An objection to this evidence was sustained by the Court.

The facts sufficiently appear from tbe opinion. I. A bill is multifarious wbicb gives distinct and independent matters; wbicb recites matters perfectly distinct and unconnected against one defendant; or several matters of a distinct independent nature against several defendants. Story Eq. PL, §§ 271 and 530; Boyd v. Hoyt, 5 Paige Cb. R., 65 ; Jaclcson v. Frost, 2 Bail. Cb. R., 576; Newland v. Bogers, 3 Id., 432; Cammel v. Young, 3 Iowa, 297. II.

<p> Appeal from Des Moines District Court </p> <p>.Replevin. Verdict and judgment for defendant, and plaintiff appeals.</p>

The plaintiff sued the defendant, Fayette Phillips, at law, on two notes. After purging the same of the usury found to be therein, a judgment was rendered in the sum of $1,200 for the plaintiff, and for costs in favor of the defendant, against.whom, also, was a judgment in favor of the school fund. These notes had beén secured by a mortgage upon certain lands, on which were other junior liens and incumbrances.

Mortgage Foreclosure. Anna E. Hays, the wife of John Hays, appeals from the decree, she claiming £o be a subsequent purchaser, without notice of the plaintiff’s lien.

Complainants made a deed of trust, to Hager and Ives, to secure a debt to tbe respondent, Dickinson. Hager, one of tlie trustees, was proceeding to sell tbe property named in tbe deed, by due advertisement, when tbe debtors (complainants) applied for and obtained an injunction restraining tbe sale. After answers bad been made by tbe creditor and trustee, tbe injunction was, on motion, dissolved, and complainants appeal.

Bill in equity to restrain the authorities of the city of Keokuk from assessing or collecting a tax to pay certain bonds issued to aid in the construction of several railroads therein mentioned. A demurrer to the bill was overruled ; respondents excepted and appeal.

<p> Appeal from Des Moines District Court. </p> <p>Creditor’s bill. Decree for complainants, and respondents appeal.</p> <p>cited the following authorities: Arnold v. Grimes & Chapman, 2 Iowa, 3; Mansfield v. Watson, Id., Ill; Cheaveie et al. y. Mason, 4 G. Greene, 231; Adams v. Foley et al., 4 Iowa, 54; Miller v. Bryan, 3 Id., 58; De France v. Howard et al., 4 Id., 529; 1 Barb. Ch., 105 ; Adams v. Foley et al., 4 Iowa, 51; Code of 1851, § 2388 (Revision of I860, § 3978); Code of 1851, § 2390; § 4, art. 1, Constitution; Story’s Eq. Jur., § 1529; 2 Maddock, ch. 437; 1 Barb. Ch. Pr., 257, 260; 2 Eonbl., 460, 463; 2 Barb. Ch. Pr., 293; Biggs v. Murray, 2 Johns. Ch. Cas., 565; 4 Johns. Ch., 687-691; 2 Paige, 566; 1 Id., 637; 1 Am. L. Cas., 528; 15 John., 571; Wakeman r. Grover, 4 Paige, 24.</p> <p>cited the following authorities: Burrows etal v. Lehndorff, 8 Iowa, 96; 1 GreenL- Ev., Ill; 2 Pet., 354; De France v. Howard et al., 4 Iowa, 524; McDermutt et al. v. Strong et al., 4 John, CL, 687; Corning v. White, 2 Paige CL, 566; Edmestonv. Lyde, 1 Id., 637; 1 Am. L.C., 55; Mist's & Coulson v. The Zanesville and Maysville Turnpike Company, 13 Ohio, 197; Par-melee v. Egan et al., 7 Paige, 610 ; Weed et al. V. Pierce, 9 Cow., 722; 2 Kent’s Com., 553 ; 1 Am. L. C., 528 ; Shepard v. Ford, 10 Iowa, 502 ; Blakemore and Dawes v. Allen, Id., 550; Falconer v. Freeman, 4 Sand. CL, 565; Doolittle .V. Bridgman and Partridge, 1 G. Greene, 265; Posilewait et al. v. Howes et al., 8 Iowa, 365, 383; O'Brien v. Coulter, 2 Blackf., 421-423; Bussell v. Clark's Executors, 7 Cranch, 89; McCalmont v. Lawrence, 1 Blatch. C. C., 235.</p>

Equity. Bill to correct mistake, and postpone judgment lien. It is averred in the petition, in substance, as follows: On the 20th day of March, 1860, the defendant Tizzard, was indebted to the plaintiff, in the sum of $500, and owning lot 2, and the south twp-thirds of lot 3 in block 969, in the city of Burlington, agreed to secure the plaintiff by a deed of trust thereon.

In March, 1856, the parties resided in the neighborhood of Piqua, Ohio. Held: and so found, that the evidence supported the answer, and dismissed the plaintiff’s bill, and thereupon he appeals. for the appellant, filed a written argument discussing at length the evidence in the cause, and citing, in support of the proposition that the earnings of the wife during coverture become the absolute property of the…

This is a suit in equity, brought to set aside and cancel a Sheriff’s sale and deed of certain real estate in Johnson County. On or about the first of March, 1860, the plaintiff traded farms with one Lucas, both farms being situated in Johnson County; the plaintiff giving his farm and nine hundred and fifty dollars cash in exchange for the real estate in controversy.

This is an action brought to foreclose a mortgage upon lot 12, block 29, City of Keokuk, executed by Jonathan McCarty to Marsh, Lee & Delavan, for balance of purchase money, and which has now become the property of petitioner. k The mortgage was dated 23d of October, 1847, duly acknowledged 25th of October, 1847, filed in the Eecorder’s office of Lee County for record on the 17th day of December, 1847, and was recorded at large on the 7th day of January, 1848, in book 2,…

On the 13th day of October, 1856, plaintiff sold to defendant one hundred acres of land, for the sum of two thousand dollars, nine hundred of which was paid down, and eleven hundred was to be secured by mortgage on the premises sold.

WlNNE owned lot nine, block fifty-nine, in tbe city of Keokuk, and executed a mortgage thereon to Heimstreet. The mortgagor afterwards conveyed the lot to Bickey, who mortgaged the same to Bowley. Heimstreet foreclosed his mortgage, bought the property under the special execution, obtained a deed, conveyed to Ten Eyck, and they have, since the sheriff’s sale, enjoyed and received the rents and profits. To this proceeding of foreclosure Bowley was not a party.

On tbe 29th clay of March, 1853, David B. Little executed to Charles Mason, his mortgage on three tracts of land, in Lee County, to secure $2,400 of the purchase-money therefor. This mortgage was duly acknowledged, was filed for record with the Becorder on the 31st day of March, 1853, and recorded at length in Book No. 3 of Mortgages, at page 546; being in its proper order and placed in the record book.

Mandamus. It appears from tbe pleadings and the agreed statement of facts,- that the plaintiff was elected to the office of District Attorney for the 5th judicial district for four years from, the first day of January, 1859. He was duly commissioned, qualified, and entered upon the discharge of his duties.

The defendant subscribed to a contract or subscription list for five shares of stoplc in the Burlington and Missouri River Railroad Company, and “ agreed to pay the same when.called for,” &c., ,&c., “provided, the town of Fair-field is made a point on said road ; and that said road is put under contract in one year from, the first day of September, 1853 ; provided also, that said stock is not to be called in faster than five per cent per month on the whole amount, and no…

Plaintiffs filed their claim iu the County Court against the executor of the estate of Eli Bond. The cause of action was a note purporting to be made by Collins & Bond. The claim was allowed in the County Court; but on appeal to the District Court there was a verdict for defendant, judgment thereon, and plaintiffs appeal.

This is an action on two promissory notes — one executed directly to the plaintiffs, and the other to Mrs. Ann Cotes, and by her indorsed to plaintiffs. The two notes amounted to tbe balance due Coolc & Sargent upon a series of usurious transactions, embracing more usury than the balance due.

of $500 each, issued by the City of Keokuk, dated February 1st, 1859, ^and payable two years after the date thereof to J. W. Davis or the holder. The answer admits that the plaintiffs’ intestate became in his lifetime the assignee of the said bonds, before maturity and for value.

This cause was before this Court, at the December Term, 1859. 10 Iowa, 49. Held: that plaintiff was entitled to recover; which finding was affirmed and the defendants appeal.

This is a suit in equity to caneé! a deed for lot 5 in block 40 in Fort Bodge, made by Jennie J. Williams and William Williams, her husband, to the defendant, June 4th, 1857. Decree for plaintiff and . defendant appeals. The facts axe sufficiently stated in the opinion.

<p>PRACTICE-ISSUES.</p>

<p> Appeal from Tama District Court </p>

<p>Appeal from Tama District Court—</p>

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

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

<p> Appeal from Jones District Court </p>

<p> Appeal from Clay ton District Court </p>

<p> Appeal from Fayette District Court </p>

<p>EXCEPTIONS TO FINDING OF FACTS AND CONCLUSIONS OF LAW.</p>

<p> Appeal from Ducas District Court </p>

<p> Appeal from Washington District Court </p>

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

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

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

<p>STATEMENT OF ACCOUNTS ! RENTS AND PROFITS AND IMPROVEMENTS.</p>

<p>waiver of demurrer: record of rulinss of tee court and of. EVIDENCE.</p>

<p>NEW TRIAL GRANTED BY SUPREME COURT.</p>

<p>PRACTICE: FINDING OP PACTS: MOTION FOR NEW TRIAL.</p>

<p>VERDICT AND EVIDENCE.</p>