Volume 16 — Iowa Reports

Action by the plaintiff as tbe widow and assignee of part of the heirs-at-law of-Samuel Laverty, deceased, to recover certain rents and profits received by the defendant, and arising from the real estate of the intestate. The defendant demurred to the petition on several grounds, and the demurrer being in part sustained, the plaintiff refused to amend and judgment was rendered against her, from which she appeals. But one question of law is presented in this case.

Plaintiff seeks to recover for a horse killed by the locomotive of defendant. In the court below tbe facts were agreed upon, judgment for plaintiff and defendant appeals. I. The facts in this case would not sustain an action at common law, and as the statute under which it is brought creates new liabilities, and limits and abridges pre-existing rights, it must be construed strictly.

The plaintiff brought this action to recover the possession of certain real estate. Both parties claim to be the owners in fee under separate foreclosures against one Fayette Phillips. Jury trial, and verdict for plaintiff.

The circumstances giving rise to this suit may be stated as follows: — lu October, 1859, the plaintiff obtained a special judgment of $1,221.12 against certain real estate therein described, to wit: Lots 6, 7 and 10, in section 21; lot 2 in section 3; all in T. 78, R. 17, west. Also the S. W. £ of the S. W. qr. of sec. 35, in T. 79, R. 17, west. A certain portion of this judgment was afterwards assigned to Cox & Shelley, of Keokuk.

From the pleadings it appears, that plaintiffs sought in the first- instance to make defendants liable, upon the ground that they had used due diligence in the prosecution of a suit against the maker, and had been unsuc: cessful, &c. To this petition there was a demurrer, which was sustained, from which ruling plaintiffs appealed to this court, where the said judgment was affirmed. 11 Iowa, 536.

This cause originated in the County Court of Warren county, and was taken by appeal to tbe District Court of the same county where the order of the County Court was affirmed.

The defendant was indicted for perjury, alleged to Have •been committed on the 2d day of April, 1861, in sweating to an affidavit for continuance; the perjury being assigned upon that portion of the affidavit which stated, “ that he, the said Lamor Farnsworth (the witness), was then temporarily absent from the State of Iowa, and was then in the county of Pike, in the State of Illinois.” Upon the trial of the case, it was proven that a suit was pending in the District Court…

Appeal-from Boone District Court. September 15,1855, Hayden, Keeler and McCall, in their individual names, made their note to the respondent, Long, for about six hundred dollars, due March 15, 1856. Prior to the April Term, 1857, of the Boone District Court, suit was instituted upon this note, the caption and body of the petition describing the makers by name.

<p>1. Stamps: appeai bond: certificate op justice. The appeal bond and certificate of a record by a justice of the peace in a cause appealed to the District Court, are a- part of the legal proceedings in the cause, and are not, under the internal revenue law, papers which require stamps to give them Validity.</p> <p>2. Default: pleading. Pleas filed when the defendant is in default should on motion of plaintiff he stricken from the files.</p> <p>3. Same : on appeal. A defendant in default, before a justice of the peace, will not be permitted to plead until the default has been set aside by a compliance with § 3150 of the Rev. of 1860.</p> <p>4. Tendee: verdict. An absolute verdict against plaintiff is inconsistent with a plea of tender which admits the defendant’s liability to the extent of the amount tendered; and upon plaintiff’s motion should be set aside.</p>

This action is brought upon a transcript of a judgment rendered by a Justice of the Peace, in Oneida county, New' York, the transcript is in these words, viz.: “ warctts par-rett- 1 v. JOHN GARRIGAN. ) -Short summons, issued October 9 11856; returnable 13th October, 1856, at 2 o’clock, P. M. Returned personally served by Thomas Dugan, constable, October 9th, 1856; fees, twenty-five cents. October 13th, parties called. Plaintiff appeared.

On Sunday, in the month of April, 1863, the plaintiff sold and delivered to the defendant eighteen thousand willow cuttings, for which the latter agreed to pay four dollars per M., making seventy-two dollars. For this sum the plaintiff brings his suit by attachment, in a Justice’s Court. Defense, plea in abatement, general denial and set-off.

L. Doggett and N. Skinner were guilty of the offense of willfully disturbing a worshiping congregation, contrary to law, &c. The parties accused were arrested and brought before the justice for trial, the offense being within his jurisdiction to try and determine. , Trenchard, the informant, not appearing, the justice discharged the defendants, whereupon the counsel for the State gave notice of and, as he was authorized to do by § 509é of the Revision, duly perfected an…

Petition by plaintiff, as the vendee of certain real éstate, to set aside the title bond, received from tbe defendants, on the ground of mistake. The cause was tried, according to the first method, for the trial of equitable issues (Rev., § 2999), and a decree rendered for the plaintiff. Defendants appeal.

This suit was originally brought in the county of Butler, and was afterwards taken by change of venue to the county of Blackhawk. The Court sustained a demurrer by defendant to the the plaintiff’s amended petition, and rendered judgment against the plaintiff for costs, from which he appeals. The facts are sufficiently stated in the opinion. cited 1 Tan Sant. PI. (2d ed.), pp. 798-803; Bev., 1860, §§2972-2977; 1 Barb. Ch Pr., 120; 1 Whitt. N. Y. Pr., 348; IChitt. PL, 264.

<p>X. Agency : evidence. The authority of an agent may he shown by parol evidence, except in special cases.</p> <p>2. Bills of exception: evidence. The safer and better practice in all cases is to set out the evidence in the body of the bill of exceptions instead of by reference; and when a deposition (or other evidence) is not so clearly and unmistakably marked and identified by the bill of exceptions as to leave no fair or reasonable room for doubt as to its fairness, it will be disregarded by this Court. \</p> <p>3. Practice : general exception to instruction. A general exception to several instructions given, raises no question for review in the Supreme Court, unless all of the instructions are erroneous.</p> <p>4. Statute of frauds: instructions. The Court below was asked to instruct the jury that the defendants would not be liable upon the default, debt or miscarriage of another, unless such promise was in writing, duly signed by them or their duly authorized agent. Meld, that as the instructions omitted the exceptions where the promise is shown by evidence of the party sought to be charged, the Court did not err in refusing to give it.</p> <p>5. Evidence : _ strongest evidence. While the faet that goods were charged on the books of the vendor to one party is strong evidence that they were not sold on the credit of another, it may not be the strongest evidence which could he produced to show that fact, and the Court did not err in so instructing the jury.</p>

In July, 1856, defendants sold to one P. B. Dorsey Gray thirty-six acres of land; lie executed back mortgages, one to each, upon tbe undivided balf of said land, to secure tbe unpaid purqbase-money. Gray died, and bis title and right of redemption afterwards became invested in one N. G. Benton, who laid off said land into town lots, as an addition to tbe city of Council Bluffs.

This action was tried before a Justice of the Peace, March 21,1862. The cause of action was a promissory note made to Bowman and Floyd, which plaintiffs claim was indorsed to one Nind, and by Nind to them. Defendant being unsuccessful before the justice, moved the cause to the District Court, by writ of error, and the judgment of the justice being there affirmed, he appeals to this Court.

The plaintiff’s claim is founded on a policy of insurance. The loss was amicably adjusted and fixed, by the agreement of the parties, at the sum of $598.35. One hundred and twenty-six dollars of this amount was paid in cash, at the time of the adjustment. The plaintiff’s suit is for the balance, claimed to be still due and unpaid.

This action was brought against the executor of John H. Shoemake, deceased, and the sureties on his official bond as treasurer. It appears that Shoemake was elected County Treasurer at the regular election next preceding the 1st day of November, 1858. By the act of 23d March, 1858, the School Fund Commissioners were required to deliver to the county treasurers all moneys, &e., belonging to their office.

On the 20th of October, 1857, Merritt brought his action in the Clinton District Court, upon the promissory notes, against William and Thomas Tibbetts. An attachment was asked and obtained, on the proper affidavit, that the defendants had absconded from the State. Defendants were not personally served, but the attachment was levied upon certain lands, a portion of which are the subject of this controversy.

The petition alleges that the plaintiff sold and, on the 5th day of August, 1856, conveyed to the defendant, Miller, the undivided half of a certain ten acres of land; and that this deed was duly recorded shortly after its execution.

Suit on the official bond of a magistrate, executed by the defendant, Brown, as principal, and his codefendants as sureties. In July, 1861, plaintiff deposited with said Brown, as Justice of the Peace, for collection, notes of hand on various persons, to the amount of $143.85; and took his receipt for the same.

There was a trial and verdict for defendant. A petition for a new trial was filed, and on the hearing thereof the Court found: “1st: The plaintiff was surprised by the evidence of defendant on the main trial, and that ordinary prudence could not have guarded against such surprise. “ 2d. That evidence, material for the plaintiff, was discovered immediately after the trial, but not in time to enable this application to be made at tbe term, at which the trial took place; and…

This suit in equity was brought by the plaintiff, who was a purchaser of real estate, against the defendants, A. Gr.

In 1856, Wright, the present defendant, brought éjectment against Craton, the present plaintiff, for certain land, part of the “ Half-Breed Tract,” so called, in Lee county, and he (Wright) was found to be the owner, and recovered judgment in his favor in May, 1859. In December, 1859, Craton still being in possession, filed his petition under the occupying claimant’s law, to recover the value of the improvements.

The petition claims that plaintiff obtained judgment against Harvey & Dinsmore, that upon an execution issued thereon, certain lands were levied upon as the property of ■Harvey; that the title to said lands is in Abigail R. Harvey, the wife of Stephen F. (of the said firm of Harvey & Dins-more); that .said lands were paid for by Stephen F., and the title taken in the name of the wife for the purpose of hindering and delaying creditors.

. On tbe 19tb day of December, 1859, tbe defendant, ¥m, L. Cook, claiming to be seised of tbe tohole of tbe 5. W. J of section 2, T. 79, R 4, W., situate in Cedar county, executed to one Yan Wyck, as trustee, a deed of trust, conveying to bim tbe above tract of land for. tbe purpose of securing to tbe plaintiff a promissory note for $1,130.61.

For five years previous tp the 1st day of January, 1860, the decedent, N. M. Day, was the recorder and treasurer of Linn county. In his settlement with the county judge, as the law required, two errors or mistakes were made, both against the county, amounting in the aggregate to four hundred and seventy-six dollars and four cents.

By the pleadings in the case, which are very voluminous, covering, with the exhibits, some seventy-six pages of the transcript, the following facts appear: On the 18th day of January, 1856, the Legislature of the Territory of Nebraska passed an act, which was duly approved by the Governor, chartering the Bank of Nebraska at Omaha, in which the said Allen, Pegram et al., were made commissioners to carry it into effect, with an authorized capital of $100,000, to be divided…

As this cause involves a rule of practice, not yet fully settled in this State, the condition of the pleadings and the facts should be stated with some particularity. The action is one of right, in which the plaintiff seeks, under the ordinary formula, to recover the title and possession of several tracts of land therein described, amounting in the aggregate to two hundred and eighty acres.

The plaintiff filed his petition, alleging an assault and battery, and claiming one thousand dollars damages; to which the defendant filed his answer, denying the allegations of the petition, and averring that what he did do was done in defense of his person and property.

The plaintiff brought tbis action at law in tbe usual form, to recover tbe possession of lot three (3), in block three (3), in the town of McGregor. Tbe plaintiff claimed, on tbe trial, to deduce his title by conveyances from and under James and Duncan McGregor. Tbe petition makes all of tbe occupants of tbe lot, parties defendant.

The transactions out of which this suit arose, may be briefly stated as follows: Burtis, the plaintiff, had, at different times, nogotiated loans of money of the… Held: that Cook & Sargent had received $25,069 for Burtis’ lands, and also at the time of said sale, that there was due Cook & Sargent from Burtis, $25,056.43, including the Mervin judgment, leaving a balance of $12,57 due Burtis; that after the sale of the lands, before the assignment of the judgment to John 0.

This is an action brought upon a bond given by the defendants to the plaintiff, for the appearance of one John Shannon, before Adolph Mauk, Esq., a Justice of the Peace, acting as a magistrate, to answer an information for the crime of an assault with intent to murder, the examination having been continued to the day fixed for his appearance, on motion of the accused. The petition is in the usual form, and contains all the necessary averments.

In equity. In January, 1849, tbe Legislature of tbe State of Indiana passed an act entitled “An act to incorporate the Fort Wayne and Southern Railroad Company,” said incorporation to continue not more than seventy-five years. The present Constitution of that State took effect November 1st, 1851, and supersedes that of 1816. All laws in force at the time said Constitution took effect, not inconsistent therewith, continued in force until they expired or were repealed.

Answer, first, in denial; second, in substance, claiming that the labor was performed under a special contract made with the minor, and alleging payment to the minor of all that was due under the contract. The court below refused to receive certain evidence offered by the defendant; and also refused certain instructions, and gave others; to all of which rulings the defendant duly excepted.

On the 19th of April, 1856, defendant sold the plaintiff a certain tract of land, giving his bond for a conveyance, to be made upon the conditions therein contained. In part payment for the land, plaintiff conveyed to the defendant certain lots in the city of Davenport, and for the balance of the purchase-money executed his notes due in two and three years. Plaintiff paid interest on these notes to the amount of thirty-eight dollars.

20 “ due him for hauling.” The defendant filed his answer in writing: 1st. Denying generally the plaintiff’s claim; 2d. Setting up a cross-claim against plaintiff for a breach of his contract, whereby he “was bound to do the hauling necessary to be done for defendant in his business of brickmaking,” for a certain compensation, and claiming damages in the sum of .fifty dollars therefor; 3d. That, by reason of plaintiff’s failure to perform his contract, the defendant “was…

The petition contains four counts. The first three counts are upon three several and distinct promissory notes made by the defendant to M. and M. Stone, and indorsed to the plaintiff. There is only one count upon each note. The' fourth count alleges a sale and delivery by the Messrs Stone, to the defendants of a threshing machine, and an assignment of the account therefor, by them to the plaintiff.

<p> Appeal from Clinton District Court. </p> <p>The plaintiff claims that prior to July 6, 1840, one Addison Philleo of Galena, Illinois, employed William Hogan to locate, and improve a “ claim ” for him, on the north half of section twenty-nine, in township eighty-two, north of seven, east, in Clinton county, Iowa; that said claim and improvement were made accordingly, and while in possession thereof, and on the date aforesaid, the said Philleo, by Hogan, made an agreement with the defendant, Elijah Buell, to furnish the money and to enter the land at the United States Land Office, for the one undivided half thereof; that Buell gave his bond under said agreement, as follows: “It is understood that E. Buell is to buy, at this land sale, the north half of section 29-82 N. and 7 E., and deed to William Hogan the undivided half of the same, in consideration of certain agreements made; on steamer Pike, at 3 o’clock p. M., 10th July, 1840.</p> <p>“D. Warren.” “ Elijah Buell.”</p> <p>The plaintiff claims that this obligation was given to Hogan, as agent, and in trust for Philleo; and that at the time the same was executed, said Hogan wrote the following indorsement on the back thereof: “For and in consideration of the sum of one hundred and twenty-five dollars to me paid, I hereby transfer all my right, title, claim, &c., in and to the within named land, to Addison Philleo, as witness my hand and seal this 11th July, 1840.</p> <p>“Wm. Hogan.” [Seal.]</p> <p>The plaintiff further claims that in 1841 said Philleo died, leaving an infant son, named Addison Philleo, jr., as his only heir-at-law; and that in May, 1861, said heir, having arrived at age, conveyed by quit-claim all his interest in said land to plaintiff, who claims to be in possession of part thereof, by his tenant. The petition alleges that in October, 1840, the defendants Daniel H. Pierce, Jonathan L. Pierce, and Jonathan L. Pierce, jr., recovered judgment in the Clinton County District Court against William Hogan, for about forty dollars, costs of suit, upon which execution was issued, and said land was sold and conveyed to Daniel H. Pierce, as the property of William Hogan; that afterwards, and in April, 1843, in a suit in equity in the District Court of Clinton county, brought by Daniel H. Pierce against William Hogan and Elijah Buell, a decree was rendered, ordering and adjudging that Elijah Buell convey the legal title to said undivided half of said land to Daniel H. Pierce, as owner thereof by his purchase, under the judgment aforesaid. The deed was made accordingly, and by agreement between Pierce and Buell, the land was divided, and each conveyed to the other by quit-claim, distinct parcels thereof in severalty. The petition further alleges that all the defendants (over thirty in number) are in possession, or claim title to portions of said real estate, which has been laid off into lots, and is situated within the corporate limits of the city of Lyons.</p> <p>The defendants (except Buell) answer, denying the title and possession of plaintiff, and deny also, that Philleo ever owned the said real estate or claim, or that Hogan was his agent, or received the title bond in trust for Philleo, and claim that Hogan held the same in his own right. They •severally claim to be purchasers of their respective portions for full and valuable consideration, without notice of any claim by Philleo or the plaintiff, and they severally deduce title of record to themselves under the execution sale and decree as aforesaid. The court below dismissedhhe petition, and plaintiff appeals.</p> <p>cited Kierstead v. Avery, 4 Paige, 14; Mooney v. Dorey, 7 S. & M., 22; Dunlap v. Brownell, 5 Id., 710; 3 Dessaus., 75; 2 Johns. Ch., 50; Ruthford v. Green, 2 Id., 122; Ad. Eq., 149, marg.; Buchan v. Sumner, 2 Barb. Ch., 165; 4 Kent., 437; Watkins et al. v. War sal, 15 Ark., 94.</p> <p>cited 2 Lead. Eq. C., pt. 1, p. 75; Jaclcson v. Town, 4 Cow., 599; Jackson v. Post, 9 Id., 120; Jackson v. Chamberlain, 8 Wend., 620; Waldo v. Russell, 5 Mo., 387; Dew v. Rick-man., 1 Green., 43; Scribner v. Lockwood, 9 Ohio, 184; The Ohio Life Insurance Company v. Ledyard, 8 Ala., 866; v. Jennings, 8 Blackf., 420; Ueisierv. Fortner, 2 Burr., 40; Hill Trustees, 269, note, and the cases there cited.</p>

<p>1. Execution: lien of. In this State an execution has never been a lien upon chattels prior to levy.</p> <p>2. Sale : additional consideration. A sale of goods for a certain sum, with a further agreement that if, when sold, more than said sum should be realized, the excess, after deducting expenses of sale, should be credited to the vendors. Held,</p> <p>1. In the absence of any showing of fraud, the sale should be treated as valid.</p> <p>2. That such a stipulation for an additional contingent consideration does not, ex necessitate, transmute a sale into a pledge or mortgage.</p> <p>3. Bevy of an execution upon property pledged. The right of the pledgee will prevail over the lien of an execution levied upon the property pledged by an officer with notice of the contract pledging the same.</p>

<p>1. Practice: criminal causes. Where one of two defendants in a criminal , action pleaded a former conviction, and the other a former acquittal, and the issues joined thereon were found against them, it was held, that the Court did not err in proceeding to judgment without another trial on the question of guilt.</p> <p>2. Former acquittal or conviction : when fraudulent. The judgment of a Justice of the Peace in a criminal proceeding instituted by the procurement of the defendants, in which their conviction or acquittal is secured . by fraud or collusion, may be appealed to the appellate court, or disregarded and treated as void. It is no bar to other proceedings against the same defendants for the same offense.</p>

<p> Appeal from Scott District Court. </p> <p>In this case it appears, from the agreed statement of facts, that on the 29th of October, 1860, respondent loaned to complainant $700; that the money consisted of American gold; that on the same day complainant executed his note, due one year after date, payable in “U. S. gold;” and that on the 16th of November, 1863, he tendered the full amount due on said note, in “ United States legal tender treasury notes, issued under the act of Congress of February 25th, 1862.” Respondent refused to receive the same, and thereupon complainant, keeping his tender good, brought this- bill to compel a surrender of the said note, and the deed of trust given to secure the same. Decree for complainant, and respondent appeals.</p> <p>conceded the constitutionality of the act of February 25th, 1862, but contended that it did not abrogate the principles of law governing the rights of the parties under the contract, and that under the contract the plaintiff was entitled to United States gold, or its value in currency or money; citing the cases of Meyer v. Roosevelt, N. Y. Court of Appeals, unreported.</p> <p>contended: 1. That the act making treasury notes a legal tender in the payment of debt is constitutional and valid; citing Reynolds v. The State Bank, 1 Am. Law Reg., 669; Sayne v. Powers, S. C. N. Y., Am. Law Reg., June, 1863; The Metropolitan Bank et al. v. The Bank Department, and Myers v. Roosevelt, N. Y. Court of Appeals, not reported; 2. That under said-act the tender made in this case was sufficient to entitle the plaintiff to a surrender of his note and deed of trust.</p>

Action for slander. Trial by jury; verdict and judgment for plaintiff, for five hundred dollars; from which defendant appeals. The facts of the case are sufficiently stated in the opinion. 1. The Court erred in permitting the witness to state his impresssion or construction of the words used. U Am. L. C., 165; 18 Conn., 464; 8 Car. & P., 708; 2 Greenl. Ev., § 414. 2.

The plaintiffs filed, June 2d, 1862,- their petition inreplevin, claiming certain personal property, by virtue of-a recorded mortgage thereof, made by one Gibbon, dated1 March 12th, 1862. Defendant, as sheriff, claimed the property, by virtue of levies under executions against Gibbon. The plaintiffs’ mortgage contained, inter-alia, a provision giving Gibbon (the mortgagor) “the possession of the1 said' property- until the first day of June, 1864.” Jury trial.

<p> Appeal from Dubuque, District Dourt.- , </p> <p>-Two cases of-the same-title and involving-the same-facts'.</p>

<p>1. Practice : 'amendment : error without prejudice; When the plaintiff, after the testimony and arguments were closed, asked leave to amend his petition, so as to have it conform more fully with the testimony, which was refused by the Court, but the case was submitted to the jury, upon the theory tliat the proposed amendment was immaterial, and the plaintiff had the full benefit of the facts, without amendment, it was held tliat the plaintiff was not prejudiced, and the refusal did not constitute sufficient ground for reversal.</p> <p>2. Usury: estoppel. A promise made by the maker of a promissory nota after indorsement, to the indorser, to pay the same, does not estop him from setting up usury as a defense to an action thereon by such indorsee.</p> <p>3. Promissory note : assignment. When the payee of a promissory nota assigned the same while it was in the hands of his agent, and gave an order to the assignee, drawn on the agent, directing the latter to deliver the same to the former, but no transfer was indorsed on the note, it was held that the assignee could maintain an action thereon in his own name.</p> <p>4. Promissory note: transfer: notice. The valid transfer of a promissory ' note, with notice to the maker, imposes upon the latter an equitable obligation to-pay the assignee; and though not sufficient to support an . implied assumpsit, upon which an action could be maintained, is a sufficient consideration to support an express promise.</p> <p>6. Same: levy upon. The sale of a promissory note under execution trans- ' fers to .the purchaser only the interest of the execution defendant therein at the time of the levy of the execution thereon.</p>

<p> Appeal from Clinton District Court. </p> <p>In March, 1860, the defendants recovered judgment against the Lyons Steam Mill Manufacturing Company, a corporation under the laws of Iowa, for $565 and costs, upon which execution was issued, and was levied on the manufacturing establishment, it being described as the south half of block eight in range two of Buell’s addition to Lyons, and appurtenances; and the same was advertised for sale.</p> <p>On the 27th of February, 1858, at a meeting of the board of directors of the corporation, at which Elijah Buell, president, and Bobert Buell and Bobert Spear, directors, were alone present (a quorum, under the by-laws, being the president and two directors), and they were the only stockholders at the time — the property levied upon was sold to Elijah Buell, in consideration of an indebtedness by the corporation to him of $7,647.75, for money theretofore advanced by him for the corporation in building the mills, and an agreement by him to pay other debts of the corporation, amounting to $1,872.57, which he afterwards did pay. Elijah Buell had sold the land to the corporation for $2,000, to be paid in stock, which, he claims, was not paid at the time of the conveyance to him ; and the consideration named in the deed by the corporation to him was $12,000. The property is proved to be worth, at the time of sale to Buell, between five and six thousand dollars. The deed was signed by Elijah Buell, president, and ■Bobert Spear, secretary. Elijah Buell afterwards sold and conveyed the property to the plaintiff, who brought this suit to enjoin the sale under the defendant’s execution. At the trial the injunction was made perpetual, and the defendant’s appeal.</p> <p>I.E. Buell could not be counted as a member at the time of the sale for the purpose of making a quorum, and at the same time act as a grantee in a sale made by the board at such meeting. 2 Kent., 299, marg.; Ang. & A. Corp., § 291; Rex v. Lizzard, 17 Eng. Com. L., 193; Wiggin v. The Free Will Baptist Church, 8 Met., 301; Michoud v. Girod, 4 How., 503 ; Wormley v. Wormley, 8 Wheat., 421; Davoue v. Fanning, 2 Johns. Ch., 252; Cumberland Goal Company v. Sherman, 30 Barb., 553; The Aberdeen Railway Company v. Blailcee, 1 McQueen, 461; Rollins v. Clay, 33 Me.,. 132; Cole v. Dealham, 13 Iowa, 554.</p> <p>after reviewing the authorities cited by the appellant, stated the following propositions and cited the following authorities:</p> <p>I. A purchase of land by a trustee, of his cestui que trust, is not void in equity, but only voidable at the election of the cestui que trust within a reasonable time. Costen's Appeal, 13 Pa, L. R., 292 ; Hill on Trust, 159, marg.</p> <p>II. A corporation may sell lands. Code of 1851, § 674 • 2 Kent, 282; Grant Corp., 129; Kyd. Corp., 108; Ang. & Ames Corp., § 187; The People v.Mauvr an, 5 Denio, 389.</p> <p>III. The sale to Elijah Buell was not a general assignment of an insolvent for the benefit of creditors. Cowles & Co. v. Ricketts, 1 Iowa, 582; Burrows et al. v. Lehndorff, 8 Iowa, 104; Sargent v. Webster, 13 Met., 497; Barr v. Hatch, 3 Ohio, 527.</p> <p>' IY. A contract, with sale or payment by a board of directors or a committee, to one of its own number, is valid. Sawyer v. Methodist Episcopal Church, 18 Yerm., 405; Green v. The School District, &c., 6 Id., 76; 1 Story Eq. Jur., § 308.</p>

<p> Appeal from Des Moines District Court. </p> <p>This action was commenced December 12,-186-2, and is ’ brought-to recover for boarding, clothing and otherwise-providing for the infant son of defendant, at bis request, &c., from the 19th of January, 1855, until the month of June, 1857. The petition contains an allegation-that the-“cause of action still justly subsists, and did -justly subsist at the time of the commencement of this suit, as plaintiff can and will make appear and prove by defendant’s- testi-. mony at the trial of the suit." Defendant .demurred, alleging that the petition showed affirmatively that the cause of action was barred by the statute of limitations, and contained nothing to take it out of the said statute. -This demurrer was sustained, and plaintiff appeals.</p>

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

<p>1. Evidence: loss op instrument: executor: Section 3982 of the Bevi-Bion of 1860, does not exclude the oath of the plaintiff in an action against an administrator, as to the loss of the instrument, which is the - basis of the action, when the facts transpired before the death of the intestate. The prohibition of said section is intended to apply when the party offers himself as a witness to prove facts, the knowledge of which is not, from their nature, confined to himself.</p> <p>2. Same : op conversation. When a witness testified, in an action against an executor, to a conversation with the intestate, but stated that he could not remember the entire conversation. Held, that the Court did 'not err in refusing to exclude the evidence of the witness. Mays v. Beaver, I Iowa, 216; The State of Iowa y. Elliott, 15 Id. . .</p> <p>3. Promissory note: presumption against. A mere lapse of five years' time after the maturity of a promissory note does not, in the absence of other circumstances, raise a presumption that it has been paid, or that - the debt, of which it is the evidence, never had an existence.</p>

<p>1. Executor: statute oe limitations: kortOage. The bar provided by § 2405 of the Revision of 1860, as to claims against the, estate of a decedent, applies only to claims, the satisfaction of which is primarily sought out of the personal assets of the decedent, and not to claims secured by mortgage, upon which the creditor relies for satisfaction.</p> <p>2. Same. That the creditor of a decedent has not filed his claim in the County Court within the time prescribed by § 2405 of the Revision of 1860, is not a sufficient defense to an action to foreclose a mortgage executed by the decedent to secure the same.</p>

<p>1. New trial: court of equity: action at law. A court of equity rarely grants a new trial in an action at law, and will do so only when the court having jurisdiction of the cause has ceased to have power to grant a new trial, and where Sufficient ground is Shown to ■ entitle the complainant to the same in the main action, together with a clear and satisfactory reason why.the application was not made to the court having jurisdiction of the cause within the time within which it was competent to grant it.</p>

<p> Appeal from Lee District Court. </p> <p>On tbe 18th day of January, 1862, John F. Brown was held to bail by a magistrate of Lee county to answer to a charge of grand larceny. The defendants became his sureties in a recognizance, conditioned as provided by the Bevision, § 4968, as follows: “ That the said John F. Brown shall appear- at the District Court of the county of Lee, at the. next term thereof at Fort Madison, Iowa, and answer said charge, and abide the orders and judgments of said Court, and not depart without leave of the same; or if he fail to perform either of these conditions, we will pay to the State of Iowa the sum of two thousand dollars.”</p> <p>At the next term (May, 1862), the said John F. Brown appeared in said court and plead not guilty to an indictment for burglary, and on his motion, the venue was changed to Keokuk, and the accused was ordered to appear in said court on the first day of the next term thereof, which, by law, was fixed for September. At the May term, 1863, and on the eleventh day of the term, the accused was called, and failing to appear, his recognizance was forfeited.</p> <p>This suit is brought upon the recognizance, and the petition, and exhibits set forth substantially the foregoing facts. The defendants demurred to the petition, on the ground that it did not set forth facts sufficient to constitute a cause of action, and specially assigned wherein. The court below overruled the demurrer, and the defendants refusing to further answer, rendered judgment for the amount of the bond, from which the defendants appeal.</p> <p>cited the following authorities : Rev., 1860, §§ 4232-4237; Abrahams v. The Slate of Iowa, 6 Iowa, 117; Farr v. Fuller, 12 Id., 84; Theobald on Prin. & Sur., 206; Burge Suretyship, 42; File L. Guar.; The People v. Hunter, 12 Cal., 502; The State v. Town, 14 La. An., 450; Swank v. The State, 3 Ohio St., 429; Kufhaven v. The Commonwealth, 2 Pa., 240; Moss et al. v. The State, 6 Hern. (Miss.), 298; The State v. Stevens, 2 Swan (Tenn.), 308; Kiser v. The State, 13 Ind., 80; The People v. Hainer, 1 Denio, 456 ; 1 Chit. Or. Law, 105 ; Barb. Cr. Tr., 507; 2 Hawks. P. C., 173.</p> <p>cited Champlain v. The People, 2 Corns!, 82; The State v. Waverly, 8'Ala., 298; Rev., 1860, § 4990; Ellis v. The State, 8 Ala., 276.</p>

<p> Appeal from Polh District Qourt. </p> <p>Action by tbe payee against tbe drawers of tbe following instrument</p> <p>“No. 2646. Tbe Branch of tbe State Bank of Iowa, at Des Moines.</p> <p>“ Des Moines, May 22d, 1861.</p> <p>“ Pay to tbe order of Philip Pilmer, in currency, one hundred and thirty six Tyu dollars.</p> <p>“ Hoyt Sherman, Cashr.”</p> <p>“ To Marine Bank, Chicago, 111.”</p> <p>Tbe petition alleged due demand, protest and notice of non-payment to tbe defendant. Tbe answer admits tbe drawing of tbe bill by tbe defendant, and sets up tbe following defense, viz.:</p> <p>That on tbe 8th day of May, 1861, tbe plaintiff made with defendant a special deposit of exchange on Chicago, payable in currency, on presentation, that is, payable (as alleged) “ in tbe currency of tbe banks of tbe State of Illinois, which were much depreciated, and which were of tbe value, upon tbe average, of seventy-five cents on tbe dollar; but this deposit was made with tbe express agreement that the plaintiff should be entitled to exchange on Chicago, which should draw currency of tbe same character as that called for by tbe deposit made by him.” That tbe draft in suit was drawn in accordance with this contract; that when presented the drawee tendered currency of the same character as that called for by the draft which plaintiff had. deposited with defendant, and the holder refused to receive the same; and that defendant has still on deposit with the drawee said currency, subject to the presentation of the said draft.</p> <p>Another defense upon which, however, no question arises on this appeal, was want of dilligence in the presentation of the draft in suit. Issue was taken upon these defenses and the cause tried by the court, who found for the defendant. The errors assigned relate to the reception of certain evidence by the court, the refusal to exclude certain evidence, and to certain special findings, and the final judgment of the court. Plaintiff appeals.</p> <p>L It is not the duty or province of the Court to ascertain what the parties may have meant by the word, currency, ás contradistinguished from what the word itself expresses, but simply to determine the meaning of the word. 1 Greenl. Ev., §§ 275-278; Carter v. Hamilton & Scott, 11 Barb., 147; 2 Pars. Cont., 60; Harkins v. Hdwards & Turner, 1 Iowa, 426; Walker & Bros, v Manning, 6 Id., 519; Dugan v. Campbell, 1 Ohio, 115; Keith v. Jones, 9 Johns., 121; Smith v. Goddard, 1 Ohio, 178.</p> <p>II. The notice and dedimus under which the deposition of Dox was taken does not specify the name of a witness. It should have been suppressed.</p> <p>I. The word currency is to be interpreted in the sense in which the parties used it. 1 Greenl. Ev., §§ 277, 278; 2 Phil. Ev., Cow. & Hill’s Notes, 263; Bich v. Bich, 16 Wend., 663; Thompson v. Sloan, 23 Wend., 71</p>

<p> Appeal from Dubuque District Court. </p> <p>The case is this: In April, 1859, plaintiffs sold to the defendant James McHugh, a farm for the sum of $5,250. The release of Jacob’s wife’s dower, not being satisfactory, it was agreed that $750 of the purchase-money should be retained and placed in the hands of Timothy Sullivan, until the dower should be properly released. In August, 1861, this suit was commenced to recover the $750, alleging the relinquishment of said dower through one John W. Findley, the legal sufficiency of which is denied in the answer of McHugh. After this, and while this suit was pending, the attorneys of the plaintiffs, O’Neil and Harvey, notified McHugh that they claim an attorney’s lien upon the money in his hands due to plaintiffs, to the amount of $150. Also, McHugh was garnished for $125, being the amount of a judgment obtained by Knapp, Stout & Co. against Jacob Myers. In this attitude of affairs, Knapp, Stout & Co., by paying to Mary Ann Myers, the wife of Jacob, obtained from her a relinquishment of her dower to the property sold as aforesaid, that was satisfactory to the defendant, McHugh, who thereupon withdrew his first defense to this suit, but filed a new answer, claiming of the plaintiffs costs of suit up to the date of said relinquishment, to wit, the second day of October, 1863; also stating that he had received a notice of O’Neil and Harvey’s attorneys’ lien for fees and had been served with notice of garnishment in favor of Knapp, Stout & Co., judgment creditors of Jacob Myers, and asked that these parties might be required to come forward and establish their several claims, to the end that the rights of all might be duly adjusted. This was accordingly done; O’Neil and Harvey answering and setting up a claim of $150 for professional services; Knapp, Stout & Co., the amount of their garnishee claim above stated, and the costs thereof, $34.50, and the .$100 paid for the release of the dower. The plaintiffs demurred to this last item, which was overruled. At the trial the Court made the following decision, and entered judgment accordingly: That plaintiff should have a judgment against McHugh for $750, and costs since the November term, 1863. The money to be paid into court and distributed as follows: First. The costs of suit up to the date of the release of dower, taxed $21.90; Second. Knapp, Stout & Co.’s judgment against Myers, including costs, $459.50; Third. To Knapp, Stout & Co., $100, amount paid by them for a release of dower; Fourth. To O’Neil and Harvey, $75; the balance to plaintiffs. From this decision the plaintiffs and O’Neil and Harvey appeal.</p>

<p>1. Change or venue. The Supreme Court mil not interfere with an order of the court below, overruling a motion to redocket a cause after a change of venue, on the ground that the transcript fees were not paid to the clerk within the time prescribed by § 2810 of the Revision of 1860, when it does not appear affirmatively that such fees were not secured as required by said section.</p> <p>2. Highway: evidence. That a road is used and traveled by the public as a highway, that it is recognized by the public authorities as an established road, and that the county has constructed thereon bridges, and has done other work to put it into the condition of a highway, may be shown by parol, and, until rebutted, are sufficient to establish the existence and public character of the road.</p> <p>3. Bridge: warning to the public. That the authorities of a county caused a written notice warning the public of the dangerous character of a bridge to be posted thereon, and also caused an obstruction to be placed across one end thereof, both of which were subsequently removed, leaving the bridge open to the public, is not a sufficient defense to an action against the county for damages sustained by a party, by reason of the falling of the same, while he was crossing it, without knowledge of its condition. The notice posted or obstructions established, to discharge the county, must be effective.</p> <p>4. Evidence : credibility op witnesses. The rule that the credibility of a witness is to be determined by the jury, applies when a party is a witness for himself and is contradicted by another witness who has no interest in the event of the suit. 1</p> <p>5. Verdict : damages por personal injury. When the jury, in the light of all the facts, has returned a verdict estimating the damages sustained ■ by a personal injury, which the court below has refused to set aside, the Supreme Court will not interfere, unless an abuse of discretion is made manifest.</p>

<p> Appeal from Scott District Court. </p> <p>This is an amicable suit, founded upon an agreed state of facts, tbe purpose of which is to obtain a judicial determination of the question, whether the plaintiff for the yeár 1862 possessed the power to levy and collect a tax upon the property of the defendant for general municipal purposes, that is to say, upon the road bed, depot grounds and buildings situated within the city limits, and the rolling stock belonging to the road or company. The facts agreed upon essential to the consideration of the question submitted are, that the city assessment of the depot grounds and buildings was fixed at $150,000; the road bed within the city, at $80,000; all the rolling stock used in operating the road, 170 miles, $129,000, yielding a tax at the rate per cent levied of $2,513, for the collection of which a warrant was placed in the hands of the city marshal. That said railroad company kept its principal business office in the city of Davenport; that the locomotives, passenger and freight cars thus assessed and taxed for city purposes, were all the rolling stock which said company had to operate their entire line of road; that the same is used by the company on and along the whole distance of their road at the various stations and towns upon it, as necessity requires, the engines, cars, &c., sometimes remaining for passengers and freight at Iowa City, Muscatine, Washington, and other places, as well as Davenport.</p> <p>Upon these facts, the Court below held, and so decided, that the city had the power to levy and collect a tax for the purposes of a city revenue upon the road bed, depot grounds and buildings within the limits thereof, but not upon the rolling stock of the road, the same not being, in the judgment of the Court, situated within the city in the proper meaning and sense of the law, so as to subject it to a municipal tax. To this decision both parties except, and from which both appeal.</p> <p>Two questions are presented for the consideration of the Court.</p> <p>1st. Under the law, as it was in August, 1862, can the city of Davenport levy a tax for revenue purposes on the property, real and personal, of the railroad company ?</p> <p>And if so,</p> <p>2d. Can it assess it as property, or must it not levy the tax on the income or earnings, as specified in the law of 1862.</p> <p>We take the position that the railroad company was not subject to a tax for revenue purposes for the year 1862, and both questions will be considered together, as the authorities to which we may refer will, in the same case, cover both questions. Session Laws of 1862, § 16, p. 227; Charter of the City of Davenport, § 1, art. 5, approved February 5th, 1851.</p> <p>A city may have power to levy a tax, to build sidewalks, or pave and grade streets in front of property, without the power to levy a tax for revenue on the same property. This distinction was not clearly presented. The Burlington and Missouri River Railroad Company v. Spearman et al., 10 Iowa, 125: see The Mayor, So., of Baltimore v. Green Mount., 7 Md., 517; The City of Baltimore v. The Society for establishing useful Manufactures; 4 Zab., 386; Lefevre v. The Mayor, &c., of Detroit, 2 Mich., 586; In the matter of the Mayor, &c., of New York, 11 Johns., 77; McBride y. The Gity of Chicago, 22 HI., 573; The City of Peoria v. Kidder, 25 111., 351; The Town of Mi Pleasant y. Kost, 29 HI., 490.</p> <p>The act of 1842 is constitutional. Faxton y. McCosh, 12 Iowa, 530 ; Tollman y. The Treasurer of Butler County, Id., 531; The City of Davenport et al. v. The Mississippi and Missouri Bailroad Company, Id., 539.</p> <p>As to both the constitutionality of the law and its scope and operation, we cite the following authorities: The Milwaukee and Mississippi Railroad Company y. The Supervisors of Waukesha County et at, 3 Am. Law Reg., 679; The Ontario Bank y. Bunnell, 10 Wend., 195: The City of Buffalo y. Le Coutreaux, 15 N. Y., 451; The State Bank of Indiana y. The City of Madison, 3. Ind., 43; Gardner, Assessor, y. The State, 1 Zab., 557; The Illinois Central Railroad Company y. The County of McLean el at, 17 111., 291; The New York and Erie Railroad Company v. Sabin, 26 Pa. St., 243! The Case of the Slate v. Beng et at, 2 How., 80; The Camden and Amboy Railroad Company y. Hillyas et at, Id., 11.</p> <p>We claim that if the law of 1862 does not govern and bind the city, then one of two propositions must follow: either:</p> <p>1st. That the property of railroad companies is to be taxed through the shares of the stockholders; or,</p> <p>2d. There is no law in the State of Iowa authorizing the taxing of railroads.</p> <p>The railroad company does not reside in Davenport, and its personal property, if taxable at all, is not all taxable in Davenport. The Bangor and Piscatagua Railroad Company, 21 Me., 533; Baldwin y. The Mississippi and Missouri Railroad Company, 5 Iowa, 518; Bristol y. The Chicago and Huron Railroad Company,'15 111., 436.</p> <p>The property of railroad companies is taxable. It is not claimed by the defendant that this class of property is wholly exempt from taxation; but that the effect of chap. 173 of the acts of the ninth General Assembly is to modify the charter of the city of Davenport so as to take away the right in the city to tax this species of property.</p> <p>The title of this act is, “An act to amend chapter 45 of the Revision of 1860, being an act in relation to revenue.”</p> <p>Chapter forty-five relates exclusively to revenue for State and county purposes.' The amending act also relates exclusively to revenue for State and county purposes.</p> <p>Section 16 of the act of 1862 provides that railroad companies shall be taxed one per cent on their gross receipts— one half of this tax to be apportioned to the several counties through which the road runs; and the other half to be retained by the State. And it is further provided that this act “shall be.in lieu of all taxes for any and all purposes on the road bed, track, rolling stock and necessary buildings for operating their road.”</p> <p>The obvious construction of the phrase “ all purposes,” requires that the meaning of the phrase should be limited to the general purposes expressed in these acts. And we have seen that the entire purport of both acts relates to revenue for State and county purposes. The Burlington and Missouri River Railroad Company v. Spearman et al, 12 Iowa, 112.</p> <p>The new Constitution requires that all laws shall be general and of uniform operation (art 2, § 30), and that the property of all incorporations for pecuniary profit shall be subject to taxation the same as individuals (art. 8, § 2.) The old Constitution was different, and the laws of 1851 and 1858 were enacted under and construed with reference to it.</p> <p>The defendant is an inhabitant of the city of Davenport, and its personal property is there taxable. Rev., I860, ch. 3; Armstrong v. Pierson, 5 Iowa, 318; Ang. & A. Corp., § MO; The Ontario Bank v. Bunnell, 10 Wend., 186; The City of Davenport v. The Mississippi and Missouri Bail-road Company, 12 Iowa, 517.</p>

<p>1. Color op office-: habeas corpus. Where the incumbent of an office holds it by color of right, though he is not an officer de jure, his right will not be inquired into on habeas corpus. It can be determined only in a direct proceeding instituted for that purpose.</p> <p>2. Same. But if a mere usurper should, without color of right, attempt to imprison a person, the legality of the restraint could be inquired into on habeas cwpus.</p> <p>3. Election: contest of municipal elections. It is competent for a city council, acting under a charter making them the judges of the election returns, and qualification of their own members, to provide, by ordinance, for contesting the election of city officers, and to make the council the tribunal for the trial of the same.</p> <p>4. Same: ordinances continued in force. The -reorganization of a city government, under chapter 51 of the Revision of 1860, does not have the effect to repeal an ordinance, lawfully .enacted under a former charter, making the council the tribunal for the trial of contested municipal elections.</p> <p>5. Contested mayoralty election. An ordinance conferring upon the city council jurisdiction to try .and determine a contested election for mayor, is not inconsistent with chapter 51 of the revision of 1860.</p>

<p> Appeal from Cedar District Court. </p> <p>This is an action at law, brought by Carl,.the plaintiff, against Knott, the defendant, on an account.</p> <p>Knott and Carl, the plaintiff and defendant, formed a copartnership in the mercantile business, about the first day of January, A. D. 1857, and continued in business as partners until about the twenty-third day of January, A. D. 1858. Their place of business was Tipton, in Cedar county.</p> <p>About the twenty-third of January, 1858, they sold out to one Tomlinson. Knott soon afterwards left the county and went to Carson Yalley.</p> <p>At the time of the dissolution and selling out to Tomlinson, the firm was largely indebted. The assets of the firm, on the face of them, were nominally sufficient to pay their debts and, by agreement of both parties, the assets were placed in the bands of one Joseph K. Snyder to collect and pay tbe debts of tbe firm.</p> <p>It turned out that tbe assets were not sufficient to pay tbe debts, and Carl claims that be bad to pay some of tbe debts out of bis own private funds.</p> <p>Knott wrote to Snyder, tbe agent of both parties, and proposed that Carl should take tbe assets and property of tbe firm, and pay all tbe debts except one; and that be, Knott, would pay tbe debt due to Ad. Knott, being two judgments amounting to about eight hundred dollars. Carl accepted, tbe proposition and took possession of tbe assets and property and paid tbe debts.</p> <p>Knott failed to pay tbe Ad. Knott debt at tbe time, as be proposed. On tbe return of Knott, and on tbe third day of April, 1861, Carl filed a bill in Chancery, on tbe equity side of tbe District Court of Cedar County, against Knott, setting forth tbe previous partnership, and praying for a dissolution of tbe same, and that tbe affairs thereof might be adjusted, and for a decree for tbe sum of four thousand three hundred and fifty dollars, that sum being tbe amount claimed to be due from defendant, on tbe various items charged, a copy of which items is annexed to tbe bill and marked “schedule B.”</p> <p>An answer was filed by Knott to this bill, and tbe cause was referred to the Honorable William H. Tuthill, to bear tbe evidence and report bis findings of facts and conclusions of law. Tbe referee beard tbe case, and reported in favor of a decree for Carl for eight hundred dollars, being tbe amount of tbe Ad. Knott debt, which, by agreement, tbe defendant Knott was to pay, and also reported: “That tbe proposition of Knott and acceptance of Carl constituted a contract, and, as between themselves, submerged tbe previous liabilities of tbe two contracting parties to each other in matters appertaining to said copartnership.” He further reported: “ That all tbe remaining assets of tbe firm of Knott and Carl shall be the property of Carl, and that Carl should pay all the outstanding - debts or liabilities of the firm.” A decree was entered in accordance with the recommendation of the report, and it was also ordered: “ That the said Carl pay all the outstanding dues, debts and liabilities of the firm of Knott and Carl, now remaining due and unpaid; and that the said George Carl have all the remaining assets of said firm, of whatever kind or nature; and that all remaining notes, accounts or claims of said firm remaining due to them on notes, book accounts or otherwise, from all persons whomsoever, be the property of said George Carl, and that he have the right to bring action 'thereon, in his own name, for the recovery thereof.”</p> <p>After this, plaintiff brought this action on the individual account of Knott to the late firm of Knott and Carl, claiming it as part of the assets, under the terms of the foregoing decree. Knott answered, setting up a former adjudication on the same accounts in the said proceeding in equity. Trial and verdict for plaintiff, and defendant appeals.</p>

At the January Term, 1861, of the District Court of said county the plaintiffs obtained a judgment of foreclosure against the defendant for $5,049.69. In April- thereafter the defendant appealed the same to this Court, executing a supersedeas bond with approved security in the penalty of $11,000. At the December Term, 1862, of-this Court, tbe judgment aforesaid was affirmed.

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

On tbe 15tb day of December, 1855, tbe above named defendant, Robert Wilson, obtained a judgment against one M. Mobley. Afterwards, viz., on the 15th day of May, 1858,. Mobley executed to the plaintiff, Massie, a mortgage on certain real estate in the city and county of Dubuque, on wbicb the judgment of Wilson.was a lien.

A judgment was rendered against Spaulding, which became a lien on the real estate in controversy. After the lien attached, Spaulding conveyed the property, by deed absolute, to one Holland, the deed “ containing full covenants against incumbrances and of warranty.” After this conveyance, execution issued upon the judgment against Spaulding, and the real estate which had been conveyed to Holland was sold by the sheriff to the plaintiff.

A suit in-equity, arising out of the following facts and. circumstances, as shown by the record. First. That on the 19th-day of-April,.one. E. Gr. Rolf purchased of John Thompson-a lot. of ground, twenty feet in width, situated on fractional block-five-.in .-the town .of.

<p>I. Costs. The failure of the prosecuting witness to appear at the District Court, to further prosecute a party who has been required, upon his complaint, to enter into a recognizance to keep the peace, is not sufficient ground to relieve the defendant of costs then accrued.</p>

McDonald to enter on time for him one hundred and sixty-two 68-100 acres of land, in section seven, township eighty-nine, range thirteen west. The defendant furnished a small portion of the entrance price at the time, and gave two notes, one for fifty-five dollars, and the other for one hundred dollars, both payable July 5th, 1850, and took a lease and agreement for sale, both in one instrument, to which were annexed conditions of forfeiture of the “ strictest sect.”.

<p>1. Tendee: case followed. Warmbold v. SchlicUng, ante, as to contracts for the payment of gold coin, cited and followed.</p> <p>2. Dower : party. A wife will not be ordered by the decree of a court of chancery, in a proceeding to which she is not a party, to release her dower interest in real estate.</p> <p>3. Specific performance: dower. In a proceeding against the obligor alone for the specific performance of a bond for the conveyance of real estate, in the execution of which bond the wife did not join, it was held, that in the absence of evidence showing the value of the wife’s dower interest, the court erred in ordering that one-third of the purchase-money should be retained by the clerk until a proper and sufficient relinquishment of dower was executed.</p>

P. Brazleton (the son) made to plaintiff (tbe father) a mortgage on the property known as the “Brazleton House,” in Mount Pleasant, to secure four notes of $2,500 each, payable three months from said date. This mortgage was filed for record February 3d, 1859. April 10, 1858, W. P. Brazleton made his bond to the defendant, Whiting, conditioned for the payment of $10,000 due, in equal payments, on the 10th of the same month, in the years 1859, 1860 and 1861.

<p>1. Contract: mortgage. It is not necessary that a contract of sale should he in the form of a mortgage to preserve the lien of the vendor or his assignee. Notwithstanding a contract is not technically a mortgage, equity will recognize and sustain it as such, when it appears therefrom that it was so intended.</p> <p>2. Supplemental pleading. A supplemental pleading, setting out notes, which constitute a part of the transaction, which is the basis of the hill, and which matured after the filing of the Same, is unnecessary, where the bill is so framed as to seek a remedy on all notes which should mature before final decree.</p> <p>3. Application of payments. When moneys are paid by a debtor to a creditor holding several demands against him, he may direct the application of the same. If he fails to make such direction, the creditor may make the application, and if he fails, the law will make a fair and just application.</p>

Action on replevin bond. Under section 8089 of tbe Revision of 1860, tbe cause was referred for trial to W. H. McHenry, Esq., sole referee. On tbe coming in of his report (which was in favor of tbe plaintiff), the defendants excepted to tbe same, and moved to set it aside. These motions being overruled, tbe defendants again excepted, and tbe court having rendered judgment on tbe report, they appeal.

This is an action for the recovery of real property. There was a jury trial, with verdict and judgment for plaintiff, from which defendant appeals. The facts, so far as necessary, are stated in the opinion of the Court.

<p>1. Evidence: party executor. When the plaintiff in an action on a promissory note died before trial, and the action was revived in the name of Ms administrator, it was held that the defendant was not a competent witness to prove that at the time of the commencement of the suit, the note was not tils' property of the decedent.</p> <p>2. Death: presumption op death. When the record in the Supreme Court shows that the death of the plaintiff was suggested in the court below, and his administrator substituted, it will be presumed that the order of substitution was made upon sufficient evidence of the death.</p>

<p> Appeal from Lee District Court. </p> <p>This was an action by Charles Parsons to recover for certain improvements under the occupying claimant law. It is alleged in bis petition, and admitted in tbe answer, that on the 14th day of September, 1863, the defendants in tbis action (D. B. and W. Moses) recovered a judgment in an action of right against tbe present plaintiff (Parsons), for the title and possession of eighty acres of land in Lee county, and also $200 damages for use-and occupation.' Thereupon, on the same day, the present plaintiff brought this action, claiming pay for improvements made by him and those under whom he claims. The petition contained the necessary averments under the statute, and allegéd that the improvements had been made in good faith during a period of twenty-five years.</p> <p>Answer, 1st. In denial, except an admission by the defendants- that they had recovered judgment against the plaintiff in an action of right and $200 damages; 2d. That the plaintiff had never personally and actually occupied the premises; 3d. By way of set-off, the said judgment of $200 recovered in the action of right; 4th. A claim for use and occupation of the land for fifteen years prior to 1857, and for use and occupation after the date of the judgment in the action of right. Jury trial. Yerdict for the plaintiff. The errors assigned will be referred to in the opinion. Defendants appeal.</p>

<p>1. Homestead: actual occupation. Property owned by the head of a family is not invested with the character of a homestead before it is actually occupied as a home.</p> <p>2. Same. After the head of a family acquired certain real estate, but before its actual- occupation, he contracted debts on which judgments were rendered after its occupation. Meld, That it was not exempt from judicial sale to satisfy such judgments. Cole, J., dissenting.</p> <p>3. Same : other property. When the owner of a homestead, or his mortgagee, seeks to restrain the sale of the homestead, to satisfy a judgment on a debt for which it is liable, on the ground that the debtor has other property which is not exempt, and which should be first- exhausted, he must make the fact appear affirmatively.</p>

<p> Appeal from Marshall District Court. </p> <p>The proceeding is one in tbe nature of a creditor’s bill. On tbe bearing tbe Court found in favor of tbe defendants, dismissing tbe action at tbe costs of the complainant who appeals.</p> <p>cited Bryan v. Walsh, et al., 2 Gilm., 557.</p> <p>cited Hilliard Real Estate, 279 ; McKinny v. Bhoads, 5 Watts, 543 ; Hannah v. Swainer, 8 Id., 9; 5 Kent., 499 ; Willard’s Eq., 263 ; Story Eq. Jur., §§ 706-793 a; Hulick v. Bcovill, 4 G. Greene. 159.</p>

Agreed case. Defendants recovered two several judgments against plaintiff, issued executions thereon, and levied upon certain real estate, upon which there were prior incumbrances to the amount of $869.75. Said real estate was duly appraised at $8,000, and it was agreed that the creditors should bid the same off at .two-thirds of the appraised value, exclusive of the incumbrances.

• Appeal from Dubuque District Court. The petition, as amended, shows the following facts; Nutter obtained judgment against Ricketts in the District Court of Dubuque county for over $500. Ricketts appealed to the Supreme Court, Smith and others (the present defendants), signing the appeal bond as his sureties. In the appellate court, the judgment below waif affirmed.

Action by plaintiff for breach of marriage promise. Answer: 1st. In denial; 2d. General bad character of the plaintiff for chastity, in ignorance of which the defendant’s promise was made; 3d. That after the making of the promises alleged in the petition, the plaintiff, on divers occasions and with divers persons, conducted herself “in an unchaste and improper manner, and wholly unbecoming a chaste and virtuous woman, and so as to render her an unfit companion for defendant;…

The case and the nature of the suit -will best be understood, by stating the facts out of which they have arisen. In December, 1857, the defendants, Joshua H. and Mary Ann Legg, gave their mortgage on certain real estate to William Eobison, to secure two notes of $141.90 each, payable in one and two years. In January, 18é0, they gave another mortgage on the same land to one Isaac Dillon, to secure to him a debt of about $200.

Actions oe right. Plaintiffs derive title through and under the decree, partitioning the “ Half Breed Tract, in Lee county. Defendants rely upon their plea of the statute of limitations. Conceding the validity of the “decree” (with which we have nothing to do in these cases), the fee simple to the lands is in the respective plaintiffs.

Petition alleges that the sheriff of Lee county has in his hands two executions, one in favor of the plaintiff against the defendant John Tarbell, and one A. Robertson, and the other in favor of said Tarbell, and against the plaintiff, the latter of. which writs has been levied upon the plaintiff’s property by the sheriff, “who cannot find property upon which to levy the plaintiff’s execution, and 'who declines to set off the one against the other, on the ground that the…

The subject matter of this controversy was referred by tbe chancellor to a master wbo reported the facts found by him, out of which the same arose, together with his conclusions of law thereon, as follows : “ To the District Court of Scott County: I, the undersigned, to whom the above entitled cause was referred by an order of said Court, to hear and determine the same and report my conclusions of fact and law, do hereby report that, in pursuance of said order, the said…

<p> Appeal from Tama District Court. </p> <p>This action was brought by the plaintiff to recover possession of lots 2 and 3, in block 4, in McRobert’s second addition to the village of Toledo. The plaintiff claimed .under a tax deed, and judgment was rendered in his favor by the Court below. The questions made will appear in the opinion. Defendant appeals.</p> <p>cited 13 How., 472; 1 Scam., 338: 3 Id., 238; 2 Eng. (Ark), 424; 11 III, 428; 2 G. Greene, 26: 10 Yerg., 70; 2 Pet., 653; 10 Wend., 393; 1 Gilmer, 131; 4 Hill, 140; 4 Barb. S. C. R., 483; 4 Denio, 15; 2 How., 43; 1 Hill, 130.</p> <p>cited 7 Pet., 769 ; Gwynney. Neiswanger, 18 Ohio, 400; Heinman v. Posse, 1 Gilm, 131.</p>

<p> Appeal from Decatur District Court. </p> <p>This is a motion made by defendants to set aside a sale ■under execution. The facts are, that plaintiff brought suit ■to foreclose- a mortgage made by defendants to him, and at the April Term, 1861, recovered judgment for six hundred dollars besides costs, and special execution was awarded. The sheriff being a son of defendants, the special execution was, at plaintiff’s request, issued to the coroner, and delivered to him on the 25th day of June, 1862; and was by him, on the 12th day of July, 1862, levied upon the land described in the execution, it being the west half, and the west half of the east half of section twenty-six, and the southwest quarter and west half of the southeast quarter of section twenty-three, township seventy, range twenty-four west. The officer advertised the land for sale by posting three written notices, one -in the township, where the land was situated, one on the court house door, and one in another township, and also advertised for four weeks in a newspaper published in the county, but did not serve- the defendants, who were in the actual occupation and possession of the land, with written notice, stating that the execution was levied on the land, and mentioning the time and place of sale, as required by the Bevision. § 3318.</p> <p>The return shows the sale of all 'the lands to Dan. & A. 33. Stearns for the sum of twenty-one hundred and fifty dollars, it being the highest bid made therefor, seven hundred and eighty-two dollars of which was paid to plaintiff in full for his judgment, interest and costs; nine hundred and forty-six dollars and fifty-nine cents was applied in satisfaction of another execution, in the coroner’s hands, in favor of William Laer, and four hundred and nineteen dollars and forty-three cents was applied in satisfaction of another execution in his hands in favor of Lewis Schtitz, and the costs are returned as forty dollars and fifty-nine cents. The defendants served notice of their motion to set aside the sale, on the plaintiff Jensen, and on the purchasers at the sale, Dan. & A. B. Stearns, who appeared and resisted the motion, but did not serve notice on Laer or Schütz, the other execution plaintiffs, whose executions were satisfied, as aforesaid, by the surplus proceeds of the sale, nor did they appear. Upon the hearing the Court overruled the motion and défendants appealed.</p>

On tbe 14th day of January, 1858, the defendant, Martin, as sheriff, sold on execution a certain eighty acres of land belonging to the plaintiff’s testator.

The County Court has exclusive jurisdiction in the appointment of guardians. Rev. 1860, §§ 2505, 2345, 2551; Young v. Qammel, 4 G. Greene, 211; and may also remove a guardian for. good cause. Rev. 1860, § 2562 ; 2 Story Eq. Jur. § 1339. 2. The guardian does not have a personal interest in his trust, he acts without profit, as the agent of the public. 2 Kent 229, (Marg.); 2 Story Eq. Jur., §§ 1388, 1339; Ball et al. v. Humphrey et al., 4 Gr.

This action was brought in the Jones District Court to foreclose a mortgage made by tbe defendants to secure the following note: “ $100. On the 1st day of January, 1863, I promise to pay to Mary Ann Doyle one hundred dollars. Dated December 13th, 1861. . Patrick Doyle.” The plaintiff claims that the note was transferred by the payee to one Holt, and by Holt to him.

Motion — Bill of Beview. The main cause, thus entitled, was decided against the defendants at the December Term of this court, 1862. It will be found reported in 14 Iowa, 326. On the 15th day of October, 1863, the defendants in that cause, Gardner, et al., filed in this court a “petition in the nature of a bill of review and supplemental bill,” so styled.

. Action to recover possession of real property. Both parties claim in fee. Upon the trial, plaintiff showed title in one A. McDaniel, and then offered in evidence the record of a foreclosure suit, in which one Fred. W. Prince was plaintiff, and L. W. Jackson, the said A. McDaniel et al, were defendants, in which suit a mortgage was foreclosed upon the property in dispute. .

On the 7th day of April, 1857, plaintiffs (father and son) loaned to Bergen $2,000, taking his two notes for $1,000 each, due April 1, 1859, one note being payable to Henry (the father), and the other to the son Albert. Bergen and wife made their mortgage to plaintiffs to secure said notes upon one hundred and sixty acres of land, which was duly recorded September 26, 1857.

<p>I. Confession of judgment. On February 19th, 1859, B. confessed judgment in favor of G. T. & Co., by a statement which, did not concisely set out the cause'of the indebtedness, but the judgment entry recited that the statement did make such showing; the judgment entry was read and approved, March 11th, 1859, B. sold certain property, upon which it was a lien, to V., who had knowledge of such judgment; after which it was levied upon and sold under the judgment. Held:</p> <p>1. That the judgment is good as between the parties to it.</p> <p>2. That the plaintiff having purchased with actual knowledge of said judgment, after it had been read, approved and signed by the judge, and that the judgment entry recited the matter claimed to be essential — and at the time knowing nothing of the actual contents of such statement — stands in no better position than a party.</p>

<p> Appeal from Cedar District Court. </p> <p>This is an appeal from an order of tbe Court, sustaining a demurrer to the plaintiff/s petition, which had been filed to set aside an administrator’s sale of real estate. The case made is as follows:</p> <p>' 1st. The petition recites that James Gr. Morrow died intestate, in Muscatine county, on the 6th day of June, 1845, leaving real estate in Muscatine county, and the lands now in controversy in this suit, in Cedar county.</p> <p>2d. That on petition of widow, James L. Parmer, was appointed administrator of the estate of Morrow, on the 17th day of June, 1846.</p> <p>3d. That there were personal assets, more than double the amount of debts due from the said estate.</p> <p>4th. That on the third day of July, 1846, and before the administrator had had sufficient time to make an effort to collect the debts due to said estate, and without attempting to collect the same, said administrator petitioned for license to sell all of the real estate of the decedent, falsely and fraudulently representing its worth to be $450; and that the personalty was insufficient to pay the debts due from the said estate; and that said representations were made, and the- order of sale was procured by collusion with Lyman Pulton and John Lemp, and other creditors of the estate of said Morrow, deceased, all of which acts and doings were fraudulent.</p> <p>5th. That instead of those representations being true, the truth was, that after said Parmer had ceased to act as administrator more than $2,000 was collected from the personalty belonging to said estate.</p> <p>6th. That on the 25th day of July, 1846, a warrant of sale issued to Parmer from the Probate Court, which is copied in the petition. This order or warrant of sale required, that said administrator should give “ twenty-one days' notice of such sale, by printing notifications thereof in the Bloomington Herald for three successive weeks.” That he did not give “ twenty-one days'" notice, as required, but that the notice was published on the 31st of July, the 7th of August, the 14th of August; and the sale took place on the 15th day of August, 1846, in the town of Bloomington, thus giving but fourteen days' notice instead of twenty-one, as required. That the sale was absolutely void, for want of notice as required.</p> <p>7th. That said order could not, and did not, confer any power to sell the land in dispute; that no notice of sale was ever published in Cedar county; that the pretended sale took place in Muscatine county; that the land was never offered for sale in Cedar county; and that all of the pretended acts of the Probate Court and the administrator respecting the land in controversy in this suit, were and are, fraudulent and void.</p> <p>8th. That said land never was sold at public sale, but that at the pretended sale at Bloomington, S. C. Hastings bid off the same at $227, but refused to take it; that in January, 1847, said administrator, without any authority in law or any order of court, sold the said land to Fulton and Lemp, for $210, at private sale.</p> <p>9th. That subsequent to the deed from the administrator to Fulton and Lemp, said Fulton sold his undivided interest to Lemp, who sold said land to Shaw, who sold the same to Culbertson, who sold to Ford, who is now the person claiming to own the same, under said administrator’s deed, and that all of said conveyances are void as against petitioners, and that petitioners have never-been divested of their title in and to said land.</p> <p>10th. That at the date of said sale, petitioner, Mary I., was but three years old, had no legal guardian, nor was there any guardian ad litem appointed for her, by the court, nor was she in any legal or proper manner made a party to the proceedings.”</p>

<p>IMPERFECT RECORD NOT SUFFICIENT GROUND FOR DISMISSING APPEAL.</p> <p>To the transcript filed in this cause two certificates are appended one bearing date of April 1st, 1863, running as follows:</p> <p>“State of Iówa, Lee County, ss: I, Charles Doerr, Clerk of the District Court in and for said county, certify that the foregoing pages» numbering from one to sixty-nine inclusive, contain a true and correct transcript of the record in the foregoing entitled cause, as the same now remains of record in said court; except of plaintiff’s instruction, in said cause, to which I cannot certify — the original instructions of plaintiff being missing or lost.” Witness my hand, &c.</p> <p>The other bearing date the 5th of October, and running as follows;</p> <p>“ State of Iowa, Lee County, ss: I, Charles Doerr, Clerk of the District Court of Lee county, Iowa, at Keokuk, do hereby certify that the annexed transcript in the above entitled cause, was prepared for the purpose of perfecting the appeal in said cause, just before the last term of the Supreme Court at Davenport, but was not then sent up, because, when I came to compare the same, several of the original papers could not be found, and I could not therefore certify the same to be a true copy. Said lost or missing papers have not yet been found, and I am still unable to give the usual certificate to this transcript ; but hereby state that so far as compared, I found same to be correct, and think the whole to be a correct and full transcript.”</p> <p>In witness whereof I have hereunto, &c.</p> <p>Appellant’s counsel moved the Court:</p> <p>1. To dismiss the appeal because the transcript certified is imperfect.</p> <p>2. To strike the transcript from the files “ because it is not the transcript provided for by law, and, because according to the clerk’s certificate, it is wholly imperfect.”</p>

In 1856, Powers, as the agent of the respondent Vincent, loaned to one Vanduzer a sum of money, and to secure the same, took a deed of trust on certain real estate now owned by complainant. Powers was named as the trustee, Vincent the beneficiary. When this debt matured, the borrower paid the same to Powers. This was in June, 1857, and Powers died in Pebruary, 1860. Complainant bought the land of Vanduzer in October, 1860.

<p>Appeal from, Union District Court —</p> <p>MOTION TO SET ASIDE A DEFAULT.</p>

Appeal .from AllamaJcee District Court — PRACTICE-BILL OF EXCEPTIONS. One count of the plaintiíf s petition' is in equity, for the settlement of an alleged partnership; and the other as at law, or as in “ ordinary actions. No objection was made that the actions were misjoined. The court below found generally for the defendant, and the plaintiff appeals.

Motion to dismiss appeal, on the' ground that it was not taken within one year after the decree was made by the court below, the appellee contending that the decree was entered November 6th, 1862, and the notice of appeal was served on November 7th, 1863.

<p>Appeal from Lee District Court —</p> <p>PRACTICE — EXCEPTIONS.</p>

<p>Appeal from, Des Moines District Court—</p> <p>EXCEPTIONS TO ORDER SUSTAINING DEMURRER.</p>

<p>Appeal from Lucas District Court —</p> <p>FIXTURES.</p>

Motion to submit the cause on its merits. The appeal was taken July 5th, 1860, and the transcript filed in this court on the 21st of April, 1864.

ANDERSON, 14 IOWA, 544, FOLLOWED. On the 23d of January, 1856, one Coleman executed to the defendant, N. W. Burris, thrée promissory notes for $600 each, payable in-six, nine and twelve months, and executed a mortgage on certain real estate in Louisa county, which was duly recorded, to secure the payment of the notes. On the Ilth day of February, 1856, Burris sold and assigned.said;notes to the plaintiff, McClure.

<p>Appeal from Marshall District Court —</p> <p>REPORT OF REFEREE REVIEWED.</p>

<p>Beard and decided by Mr. Justice Dillon, at his chambers in the city of Davenport.</p> <p>The facts will appear in the opinion.</p>

Heard and decided by Mr. Justice Cole, at his Chambers, in the city of Des Moines. The writ in this case was issued July 19th, 1864, on the application of Captain Robert Lusby, of Company “K,” of the 10th Regiment of Iowa Infantry, directed to H. M. Bush, Sheriff of Polk county, commanding him to produce the body of John McRoberts, together with the day and cause of his detention.