Volume 17 — Iowa Reports

The plaintiff, Raving recovered judgment against the defendant, Lyons City, for two thousand four hundred and eighty-five dollars debt, besides costs, upon which execution had been issued and duly returned no property found, made a written demand of the city council for immediate payment, and that they, as soon as possible, levy and collect a tax in money to pay the same; which being refused, the plaintiff brought his suit to compel the city council to so levy and collect…

<p> Appeal from Mahaska District Court. </p> <p>Indictment for nuisance. The facts appear in the opinion of the Court.</p>

The petition shows that plaintiff recovered judgment against tbe city of Dubuque on tbe 2d of December, 1862, for about $1,850; that execution issued thereon, and payment thereof was demanded of the treasurer of the city, which was refused, and that said writ was returned by the sheriff “no property found.” It also appears that said Thedinga is the mayor, and the other defendants are the members of the city council of said city-; and that in September, 1868, after the return…

^his cause originated in Woodbury county, and, by a change of venue, was-brought to Polk county. The object thereof is to annul and set aside a contract entered into between the board of directors of said district and the ^defendant for the erection of a school house, upon the ground of fraud and illegality. A demurrer was filed to the original, as well as to the amended or supplemental petition, and sustained as to a portion of the latter, from which the plaintiff appeals.

The defendant was indicted for perjury. There was a jury trial, verdict of guilty and judgment thereon, from, which defendant appeals. The further necessary facts will appear in the opinion.

<p>1. Promissory note: liquidated damages. The defendants executed their promissory note for “one hundred bushels of good, sound merchantable corn,” to be delivered ata place named in the note, the note reciting that “this corn is estimated at twenty dollars." Meld, that the damages for a non-performance of the contract to deliver the corn, was liquidated at twenty dollars, by the agreement of the parties to the note.</p>

<p> Appeal from Benton District Court. </p> <p>The defendant is indicted under § 4331 of tbe Revision, for .willfully and maliciously placing obstructions on tbe track of a railroad in operation through tbe county of Benton ; tried, found guilty, and sentenced to imprisonment in tbe penitentiary at bard labor for tbe term of two years; and thereupon appeals to this court.</p>

<p> Appeal from Des Moines District Court. </p> <p>The facts will appear from tbe opinion.</p>

The petition alleges that defendant, on the 1st of January, 1862, and on other days, &c., “ with force and arms, assaulted, debauched and carnally knew ” the said plaintiff, &c. Trial and verdict for plaintiff, and defendant appeals. The other material facts will be found referred to in the opinion.

This is a prosecution for adultery. Tbe defendant was found guilty by a jury, and after .judgment and sentence by tbe District Court, baying secured of record tbe matters which be assigns as error, prosecutes this appeal. Tbe further necessary facts are stated in the opinion.

An indictment for a nuisance created and continued at a given locality within said county, by means of selling and keeping for sale intoxicating liquors.

Defendant was indicted on the-3d .day of December, 1863, jointly with one Cower, for stealing two borses, saddles' and bridles. On tbe same day he was arraigned and counsel'appointed for tbe defense.

ACTION for the recovery of real property. Trial by jury; verdict and judgment for plaintiff, from which defendant appeals. The further necessary facts are stated in the opinion of the court.

The plaintiffs action was brought in the District Court, against the defendant, as executor óf the estate of A. S. Robinson, deceased, upon a. promissory note made by the said A. S. Robinson and one James Robinson. The defendant as such executor accepted service of the original notice, and judgment was entered by default, at the October Term, 1862, but corrected at the April Term, 1863, at plaintiff’s instance, so as to make it a judgment do bonis testatoris.

A suit to recover the sum of $1,000 with ten per cent interest thereon, being tbe amount of a promissory note, dated January 24th, 1857, payable the 1st of July, following, together with the foreclosure of a deed of trust, given to secure the same. The contract, at its inception and making thereof, was legal, and free from any taint of usury or other infirmity.

<p>1. Injunction! eecord. The Supreme Court will not interfere with an order of the court helow dissolving an injunction, when the record does not show that it embraces all the affidavits upon which such order was founded.</p>

In May, 1858, Green, Thomas & Co., being the owners of a building and safe therein, leased the same to Lauman, Hedge & Co., for three years. In November, 1858, the Randolph Bank recovered judgment against Green, Thomas & Co. for about four hundred and seventy-seven dollars. In July, 1859, an execution issued on said judgment, and Lauman, Hedge & Co. were garnished thereunder.

On the 25th day of February, 1858, Robert W. Kerr executed, acknowledged and delivered to George S. Lewis a power of attorney, authorizing the said George S. Lewis to take possession of his property, real and personal, and in his name to sell, rent and convey the same, sue and receipt for debts, &c., &c. This power of attorney was duly recorded in Page County, where the parties then lived.

Briefly, the plaintiffs made tbe following case: That in February, 1860, they recovered a judgment against defendants for $274; in September, 1861, levied and sold lots 5 and 6 in block 21, of the second survey of the town of Albia, as the property of defendants; which was bid in by plaintiffs, to whom the officer gave a certificate of purchase; but that in the levy, as returned on the execution, and also in the certificate of purchase, the above property was described ,as…

This case after being remanded (see 15 Iowa, 435), was beard, upon tbe issues joined, by tbe court sitting as a jury, and decided in favor of defendant, and plaintiff appeals.

Plaintiffs claim tbe property under a chattel mortgage made by A. & B. Wilner, of September 8th, 1861. Defendants claim under an attachment against the mortgagors, issued in December, 1861; insisting that the said mortgage was fraudulent and void. By the terms of the mortgage, the property (consisting of ready made clothing) was sold and conveyed to plaintiffs-, for the consideration of $2,772, owing by the mortgagors to them.

In October, 1863, tbe county, by mistake or wrongfully, sold a tract of land at tax sale to tbe plaintiff. He brings this action under section 785 of tbe Revision, to recover tbe amount thus paid, witb thirty per cent penalty, and also ten per cent interest on tbe whole amount. Tbe only question raised by the record is, whether tbe county, under the section above cited, is required to pay tbe thirty per cent penalty, and ten per cent interest on tbe amount of such penalty.

<p>Lien: judgment and unrecorded deed. An unrecorded deed takes priority of a subsequent judgment; and a redemption by sueb subsequent judgment creditor from a prior judgment creditor, whose lien attached before the purchase, does not defeat such priority.</p> <p>2. Redemptions judgment liens: Where a subsequent purchaser redeems from one whose judgment is senior to a sale of real estate by the debtor, the purchaser may redeem from the junior creditor by paying the amount due the prior judgment creditor. He is not required to pay the amount of both judgments.</p> <p>3- Appeal; record: trial: The Supreme Court will not try the issues of fact in an equitable action de novo where it is not shown by the recitals of the decree, by bill of exceptions, by the certificate of the clerk, or in some other competent manner, that the record contains all the evidence submitted in the case.</p>

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

<p>1. Judgment or Supreme Court. A judgment of the Supreme Court cannot he collaterally impeached, on the ground that the court, in the opinion filed in the case, directed that a different judgment be entered.</p> <p>2. Executors; statute or limitations. "When an action is commenced in the District. Court, upon a claim against an executor of which such court has jurisdiction, within six months after the publication of the notice of • the appointment of the executor, the judgment, when rendered, should be allowed and paid, as a claim of the third class, notwithstanding the judgment is not filed in the County Court until after the expiration of one year and a half after such publication.</p> <p>3. Jurisdiction OP COURTS. The District Court has concurrent jurisdiction with the County Court in the allowance of mere money demands against an estate; and has exclusive jurisdiction when a lien is to be enforced.</p> <p>4. Executor: leave to sue in District Court, while a mere money demand may be prosecuted in the District Court, only upon leave granted by the County Judge, the failure to obtain such leave must be set up as a defense to the action, and cannot be asserted for the first time against the judgment.</p>

<p>1. Partition' parties. Where a defendant in an action of partition “ disclaims and disavows any right, title or interest in and to the premises claimed by the plaintiff at the time the action was brought or afterwards, and he is not in possession, or doing any act inconsistent with the disclaimer, he is entitled to be dismissed with his costs.</p> <p>2. Executors! WHEN-ONE MAY ACT. Under the Revised Statutes of 1843, chap. 162, page 674, where the widow was one of two joint executors of the estate of her former husband, upon her marriage with another her power as executor was extinguished, and it was competent for the remaining executor to proceed to act without the appointment of another executor to succeed the widow.</p> <p>3. "Will: sale op real estate. When the testator by his will directs the sale of real estate upon the marriage of Ms widow, without reference to the condition of the assets of the estate, a showing of an insufficiency of assets to pay debts is not necessary to the validity of a sale upon the ocsurrence of the contingency named in the will.</p>

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

Bjectmekt — Mining Bights — Nature and extent of Licenses — when revocable, when not — Custom of MINERS, &c. It will be necessary carefully to state this case, in order to understand the questions presented.

The petition alleges that tbe defendant, Tbe City of Dubuque, levied taxes, directly against tbe plaintiff, upon tbe track, depot grounds, and equipments, rolling stock, machinery, and tools necessary for the road,- and right of way, &c., for tbe years 1857, 1858, 1859, 1860 and 1862, amounting, with interest claimed, to about six thousand and four hundred dollars; that on tbe 2Sd day of September, 1859, tbe plaintiff paid the taxes as assessed for 1857 and 1858, exclusive…

CONSTRUCTION OF CONTRACT — CONSIDERATION. By '■written contract, the defendant agreed with the plaintiff to erect a main dam in place of an old one washed away; to repair race, head gates and wing planking of embankment, and to erect what is styled a coffer-dam, all for the sum of $1,000; of which $100 was payable when the cofferdam was finished, and the balance as the work progressed and when completed.

lit junction to restrain a sale under an execution from this court. Graves, against complainant’s objection, was allowed to intervene as defendant; claiming to be the owner of the judgment upon which the said execution issued. After this order was made, upon his motion, the action was dismissed, and from these orders complainant appeals.

Appeal, from Des Moines District Court. The defendant was indicted and tried for the crime of murder, in killing one Henry Haynes. He was found guilty of manslaughter, sentenced to the penitentiary for seven years, and to pay a fine of ¡$500. To reverse this judgment, he prosecutes this appeal, and assigns ten errors, which, so far as material, will be found referred to in the opinion of the court.

<p>1. Criminal law: concealing- stolen property. Being present where stolen property is concealed, knowing it to be stolen, and keeping silent and refusing to give information to officers searching for the same, is, when unexplained, conduct sufficient to warrant a conviction, notwithstanding the evidence does not show that the accused was in the physical possession of the property secreted.</p>

<p> Appeal from Dubuque District Court. </p> <p>Equity: Mining privileges — nature and extent ' OE. The defendant, Eiffes, being the owner of certain land, about one hundred and sixty acres, in Dubuque county, in August, 1860, gave' to Nicholas Tarter, Charles Linden, and E. J. Cramer, a parol license to mine for lead ore; they paying for the privilege, one-fifth part of all mineral raised. The extent of this privilege is one of the principal matters in dispute, and the controversy in this respect will be further referred to in the opinion.</p> <p>The plaintiffs, Upton and Swivel, claim to be the assignees of the original license granted to Tarter, Linden and Cramer. They further aver that they, and those under whom they claim, had been in the possession of said premises, working and enjoying the benefit of this mining right or privilege, until about August, 1862, when Eiffes, colluding with the defendants, Brazier and Burkle, allowed the latter to enter upon and take possession of the mines of the plaintiffs, who pray for an injunction, restraining defendants (whose insolvency, except as to Eiffes, is alléged), and for an account. Defenses: first, denial of any right in the plaintiffs, these rights having been forfeited and abandoned; and, second, alleging that the right, if subsisting, did not embrace, or extend to, the mines worked and claimed by the defendants. Certain special issues were submitted to- a jury, after which a decree was ordered by the court below, dismissing the petition. From this decree plaintiffs appeal.</p>

<p>1. Pleadings! demueeee. A demurrer is proper where a pleading does not on its face show a sufficient cause of action or defense, and can be interposed only where the legal sufficiency of the entire count in the pleading is controverted.</p> <p>2. - motion. Where the objection to a pleading is not that it does not state a sufficient cause of action, but that it'contains redundant, impertinent or scandalous matter, that it states several causes of action in one count, or that its statements are not sufficiently full and specific, it should be corrected by motion and not by demurrer.</p> <p>3. Res adjudicata! ' replevin. " Where in replevin the plaintiff fails on the trial, or simply dismisses the suit, and the court orders a return of the property only, such order does not preclude the party in an action upon the bond from showing that the defendant had but a contingent interest therein, or that it was the property of another; but where, upon issue joined, the court determines the whole controversy, such adjudication is conclusive as to all issues therein determined.</p> <p>4. - owneeship : peivies. Where the petition in replevin claimed the property in controversy as belonging to the plaintiff, and the answer denied such ownership, the judgment of the court, adverse to the plaintiff, concluded the parties and their privies as to the question of ownership.</p> <p>5. -damages. A judgment of the court, assessing defendant’s damages in an action of replevin, is conclusive upon tli.e parties.</p> <p>6. Tender! allegation. A plea of tender should show that the property or money tendered was placed under the control of the court.</p> <p>7. Res adjudicata! NEGLECT. That a party introduced no evidence on the trial of issues joined in an action of replevin, does not affect the conclusiveness of the judgment as an adjudication of such issues.</p> <p>8. Judgment! inadveetenoy. That a judgment was inadvertently rendered by the court may be good ground, on a direct application to set it aside, but cannot be made available collaterally.</p> <p>9. Replevin.! measure op damages. When property taken in execution was taken from the sheriff by replevin, the measure of the defendant's damages, upon the failure of the plaintiff to prosecute successfully the action of replevin, is the balance due him as execution plaintiff, with interest and costs.</p>

<p>1. Fees! redemption. The fees paid to the treasurer of the county for a certificate of redemption, under § I1!1! of the Revision of 1860, should be accounted for by that officer to the county, and applied as other fees collected by said officer are applied by law.</p>

<p>1. Evidence: erkor -without prejudice. Where the court below excluded a decree which was offered in evidence, after which the entire record in tho cause, including the decree, was offered and received, it was held, that if there was error, it was without prejudice to the party complaining of the first ruling of the court.</p> <p>2. Service of notice! jurisdiction. A compliance with the requirements of § 1826 of the Code of 1851, was essential to confer jurisdiction by a publication of notice, and it should appear of record.</p> <p>3. - recital in decree. The record, showing a service of notice by publication, consisted of the following recital in the decree: “And it appearing further and being proven to this court, that the residence of the owner of said lands are unknown to the plaintiff, so that a copy of said original notice and petition could not be sent to or served upon them, and said defendant and said lands failing to appear,” &o., &c.: Held, That the record was insufficient in this, that it did not show that the residence of the defendants “ could not, with reasonable diligence, be ascertained."</p> <p>4.-- foreclosure op tax titles. Proceedings for the foreclosure of a tax title were within the fourth subdivision of § 2, chapter 241 of the laws of 1856 (Sixth General Assembly), and the order for service of notice by publication should havo been made by the judge, and not by the clerk.</p> <p>6. Tax sale. Ex parte proceedings, to divest the owner of real estate of his title for failure to pay taxes, must conform strictly to the law authorizing them.</p>

<p> Appeal from Polk District Court </p> <p>ActioN on policy op insurance. On tbe lltb day of December, 1860, tbe defendant issued its policy, agreeing to insure the plaintiff, “John Ayres, for one year, against loss or damage by fire, to tbe amount of $3,000, on bis steam flouring mill and machinery, situate,” &c., “loss, if any, payable to B. F. Allen, Esq. (a judgment creditor of Vm. F. Ayres & Co.), to tbe entire amount of bis claim against Messrs. ¥m. F. Ayres & Co., at tbe time such loss may occur, and tbe balance, after such claim is paid, payable to John Ayres.” A like insurance for $5,000, was effected about tbe same time in the Home Insurance Company, of which defendant bad notice. On tbe 14th day of June, 1861, and within tbe time covered by tbe policy, the mill was consumed by fire. Tbe defendants, “ in virtue of certain equities existing between Allen and themselves, and distinctly denying all legal obligation to him or to John Ayres,” on the 2d day of September, 1861, paid_ Allen $1,125, on account of tbe loss under said policy — that being the defendant’s proposition, as between it and tbe Home Company, of Allen’s judgment against Wm. F. Ayres & Co. This action is brought by the plaintiff, John Ayres, on the policy, to recover the balance remaining after the payment to Allen. Various defenses were interposed, such as willful burning by the assured or his agents, false representations as to value of property, misrepresentations and concealments as to title, &c.; want of insurable interest at the time the insurance, was effected; want of title in the plaintiff at time of loss, &c. Various exceptions were taken on the trial to the rulings of the court, relating to evidence and to instructions. These matters, so far as necessary, will be set forth in the opinion. The paper history of the title to the premises on which the mill was situate, and which it is necessary to understand, is as follows:</p> <p>One Edwin Hall was the original owner of the land on which the mill stood, and never parted with the legal title. Under date of the 26th day of July, 1856, he executed to Wm. F. Ayres a title bond therefor, conditioned to make him title, on the payment, on or before the first day of March, 1862, of the sum of fifteen hundred dollars, with interest at ten per cent, payable annually, and on the payment of taxes. This bond was acknowledged July 7th, 1860, by Hall, and was a renewal of the original bond, the time being extended to enable an insurance to be effected. In 1856 or 1857, after the contract for the purchase of the land of Hall, Wm. F. Ayres & Co. erected thereon the mill in question. On the 10th day of January, 1860, by instrument acknowledged July 7th, 1860, Wm. F. Ayres, the ven-dee named in the title bond, assigned the said bond to the plaintiff, John Ayres, who it seems, resided in Ohio, and who was, according to the terms of the assignment (which, however was signed by Wm. F. Ayres alone), to pay the balance due on tbe bond. This amounted to over $>2,300, to recover which, Hall, in March, 1862, commenced suit against John Ayres in the Polk District Court. Whether he recovered in that action, or even received his pay, does not appear.. On the 21st day of January, 1861, a'fter policy and before fire, the following assignment was made on the said title bond: “For value received, I assign all of my right, title and interest to the within bond,, and to lot No. 5, &c. (describing the property on which the mill was situate), to B. F. Allen, this January 21st, 1861. (Signed) JOHN Ayres.” The bond, with the assignment, was delivered to Allen before the fire. November 14th, 1860, the mill property was sold, to one Redhead, on execution, in favor of B. F. Allen, against Wm. F. Ayres & Co., and certifica té of sale issued, which was assigned to Allen. This sale, it will be seen, was prior to the date of the policy, but after the date of the assignment of the title bond from Wm. F. to John Ayres. The date of Allen’s judgment does not appear, but it is presumed that it was prior to the last named assignment. Allen never obtained a sheriff’s deed; and never credited the amount received of the defendant on the judgment, but admitted, on the trial, that he recognized his obligation to do so, and intended to do so.</p> <p>Yerdict and judgment being rendered for the plaintiff, the defendant appeals.</p>

<p>1. Notice! possession-. Where a purchaser of real estate paid the purchase-money and entered into the possession, hut received no deed of conveyance, it was held that a subsequent mortgagee was charged with notice of the rights of such purchaser.</p> <p>2. --joint possession. Possession by husband and wife charges a subsequent purchaser with notice of the rights of the wife.</p>

<p> Appeal from, Davis District Court. </p> <p>Equity: FRAUDULENT CONVEYANCES. — I- John Mowre being the owner of the land in controversjr, on the loth day of January, 1858, conveyed the same to his son-in-law, William Hoskins, for the nominal price of $3,000, taking his notes therefor. This conveyance is alleged by the plaintiff to have been fraudulent in fact. This is denied by the defendants, and this is one of the questions in the cause. The facts bearing upon it will appear as fár as necessary in the opinion.</p> <p>II. Afterwards, May 25tb, 1859, tbe defendant, Mowre, with another son-in-law, and one Shelton, became indebted to the plaintiff, Mary JE. Hook, for goods bought by Mowre, Shelton and Cowan; and on the 30th day of March, 1860, the plaintiff obtained judgment on this indebtedness; execution issued thereon; and on the 11th day of June, 1861, the land in controversy was sold to the plaintiff as the property of John Mowre, Hoskins not being a defendant in said execution. The land not being redeemed, the plaintiff obtained a sheriff’s deed September 25th, 1862, but it was not filed for record until December 2d, 1862. Defendants insist that the plaintiff, as a subsequent creditor of Mowre, cannot impeach the prior conveyance to Hoskins, as fraudulent. The further facts, relating to this part of the case, will be set forth in the opinion.</p> <p>III. On the 4th day of October, 1862, "William Hoskins and wife conveyed the land to the defendant, Raley, and on the 14th day of October, 1862, Raley conveyed to his brother-in-law, Cravath. Plaintiff alleges that both Raley and Cravath are mala fide purchasers, or at least purchasers with notice of her rights and equities in the land. The object of the suit is to cancel these outstanding conveyances as fraudulent. All of the material allegations of the petition, especially those charging fraud, are denied. A large mass of testimony, covering .one hundred and forty pages, was taken, and a decree pro forma (the judge, Hon. H. H. Tkimble, having been interested as attorney in the cause), was entered by consent, in favor of the plaintiff. Defendants appeal, and the whole cause is before us on its merits.</p>

ON tbe 16tb day of January, 1851, James S. Carhart and wife, conveyed to certain persons, “ as trustees of the Associate Congregation of Pleasant Divide, as subordinate to the Associate Presbytery of Iowa, subordinate to the Associate Synod of North America,” two acres of land to be held by “ them and their successors, as aforesaid, in trust for said congregation, so long as said congregation shall need it for a meeting house site.

This suit is brought to foreclose a mortgage upon certain lots in Iowa City, made by Elijah W. Lake and Susannah Lake, his wife, to Daniel Grillis, to secure one thousand dollars. The mortgage was made November 5th, 1855, and duly recorded; it commenced in the usual form, “ that we, Elijah W. Lake and Susannah Lake, his wife, of &c.,” and concluded with a general warranty and relinquishment of dower by the wife.

DyeR was elected treasurer and' recorder of Polk county, at the August election, 1855, for the term of two years, and on the 13th of that month executed his official bond, with the other defendants as his sureties, and entered upon the discharge of his duties.

<p> Appeal from Van Burén Disiricl Court. </p> <p>The facts are sufficiently stated in tire opinion of tire court.</p>

One John T. Everett as principal, one Pierce and the defendant, Koch, as sureties, executed a joint and Several Dote to the school fund commissioner of Dubuque county, in consideration of school money loaned to the said Everett. To secure tlie payment of the said note, Everett and wife at the same time (May 1st, 1857), executed a mortgage. Prior to 1862, suit was brought in equity to foreclose this mortgage against Everett, the principal, and Pierce and Koch, as sureties.

This is a prosecution for adultery. The defendant demurred to the indictment, which was sustained, and the defendant discharged. The State appeals. The further facts appear in the opinion of the court.

<p>1. Executors i order of county couet. In proceedings under §§ 2419, 2420, of the Revision of I860, to enforce the payment of a claim by an administrator, in compliance with an order of the County Court, it is not necessary to file a petition alleging a breach of the bond.</p> <p>2. - settlement OE estate. It is the duty of an administrator to pay off the claims against an estate as speedily as possible, consistent with the rights and interests of all parties involved, and when the assets are insufficient to pay off the whole of the debts of any one class, the County Court should, from time to time, strike dividends, and the executor should pay accordingly.</p>

<p> Appeal from Delaware District Court. </p> <p>The facts are fully stated in tbe opinion of tbe' court.</p>

AS TO RIGHT OE CREDITOR TO SITE OTON THE ORIGINAL consideration. — The petition alleges that in 1854, tbe plaintiff loaned six hundred dollars to S. H. Butcher, Lawson Bradley and M. Garitón, and received their notes therefor, payable to him.

Illegal contracts: prohibitory liquor law: demurrer to answer. One Emil Sterne, by written lease, demised certain land to the defendant for one year, the defendant agreeing to pay as rent six hundred bushels of corn. The plaintiff alleges that the lessor (Sterne), “for a valuable consideration, bargained and sold to him (Davis) the said rent of six Hundred bushels of corn called for in tbe said leasethat tbe corn has been duly demanded, and its delivery refused.

Foreclosure of a mortgage in favor of the school fund in said county, dated the 1st of January, 1858. On the 2d day of November, 1868, the mortgage premises were sold to the defendant, H. S. Winslow, for the sum of $1067Vój being the amount of delinquent taxes then due on said premises, for the years 1857, 1858, 1859, 1860, 1861 and 1862, and a certificate of purchase regularly issued to the said Winslow.

INDICTMENT for grand larceny. Trial by jury; verdict of guilty, and judgment accordingly, from which, the defendant appeals.

<p>1. Garnishment: judgment: answer, a judgment in garnishment against an attorney for moneys collected and held by him for the judgment defendant is not a sufficient defense to an action against the garnishee for such moneys by an assignee of the judgment defendant, if it is shown that at the time the answer in garnishment was filed the garnishee had knowledge of the fact that the claim upon which the money had been collected by him had been assigned to the plaintiff, but that he failed to set up that fact in his answer.</p>

This is an action for tbe recovery of real property, embraced in wbat is known as tbe “Half-Breed Tract,” commenced in August, 1856, in tbe District Court of Lee county, and taken, by change of venue, to Van Burén county, where it was tried at tbe June Term, 1863.

ACTION on a policy of insurance/ On tbe 20th day of March, 1860, the plaintiff, by a committee of its- counsel, applied to the agents of defendant to insure a building.¡ known as the city hospital. The agents of defendant agreed to insure the building for the sum of one thousand dollars, for one year at one and a half per cent premium, and the committee agreed to pay that rate.

Slawder, — Tbe petition alleges that tbe defendant, Mabala Bridgman, said, of and concerning tbe plaintiff, who always bad been, and still is an unmarried woman: “She has had a baby;” “She has had a young one“It is the report with the school that she has had a young one,” &c., &c., and contains the proper averments. Answer in denial only. The questions made will appear in the opinion.

IN equity, to set aside a sale tinder a trust deed. The deed was made to Schrader, to secure a debt to Livermore. Held: that the notice of sale did not comply with the terms of the trust deed; set aside and canceled the deed made by the trustee to Mrs. Hunt; from which she appeals.

Suit on the following note: “ On or before the first day of October next, I promise to pay Joseph Johnson, or bearer, the sum of one hundred dollars for value received, this 18th May, 1857. “John Byees. “ Indorsed, ‘ Joseph Johnson.’ ” The cause was submitted to the court, which found the facts specially as follows: “ The note sued on was, on the first of June, 1857, the property of Joseph Johnson, the payee, and on that day was deposited by him with one ¥m. A. Griffy, as…

Hoops obtained judgment against Byington, and under an execution issued thereon, defendants were summoned as garnishees on the 8th of March, 1860. On the same- day, Byington obtained an injunction, staying all proceedings on said judgment. On the 23d, a commissioner was appointed to take the answer of said garnishees, who took the same, and filed his report on the next day. A motion was made, on the day last named, to vacate the order of appoin tment.

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

The plaintiffs commenced their action under chapter 144 of the Revision of 1860, to recover possession of certain lauds. The defendants filed their separate answers, the fifth division being in substance as follows, to wit: “ Defendant avers that each of said plaintiffs, after the sale of said real estate by their guardian, J. 0.

<p>1. Statute: time oe taking eeeect. A statute contained tlie following provision: “This act. being deemed of immediate importance, shall take effect from its publication in the Iowa State Register and the Des Moines Times, newspapers published at Des Moines.” Held, that the act took effect from the date of such publication, notwithstanding the genera provision of § 24 of the Revision of 1860.</p>

Rebman. a bond conditioned to save said obligee “ harmless from all damages or loss he may or shall suffer, by reason of the signing of the replevin bond,” as surety for one Gaines, who had brought replevin against M. M. Hayden, sheriff, &c., for goods seized by said sheriff under a writ of attachment against said Gaines in favor of Bartlett.” The replevin suit failed, and Rebman was sued on the replevin bond and judgment rendered against him for $911TV„> which he paid by…

Appeal ■from, Pottawattamie District Court. Defective deeds treated as valid contracts to convey, and enforced in equity.; — The plaintiff’s petition was filed October 26,1854, against Street, as county judge, claiming to be entitled to a deed for a certain parcel of land in Council Bluffs.

The questions presented in these cases are identical. They arc actions upon notes in the following form : $366t\V Fort Des Moines, Iowa, Dec. 21 si, 1857.

Grand larceny. ■ The indictment charges the defendant with stealing gold and silver coin to the value of two thousand dollars. Plea, “not guilty.” A jury was impan-neled and sworn to try the cause; testimony by both parties introduced; the case argued, and the jury charged. The jury retired, and after a short deliberation, returned the following written verdict, “we, the jury, find the defendant guilty.” The verdict was received, and the jury discharged.

Prosecution for adultery, under § 4347 of the Revision. The defendant, a married man, was indicted jointly with Mary Slarrett, an unmarried woman ; and it was averred; in the body of the indictment, that “ this prosecution was commenced upon the complaint of Magdalina Roth, the wife of said John Roth.” There was also indorsed on the back of the indictment: “A true bill, found at the instance, and upon the complaint of Magdalina Roth.

PdaiNTIFE enlisted as a soldier in the volunteer service, on the 17th of September, 1861.

This suit was brought to recover damages resulting from the steamboat “Ad. Hine” running against the steamboat “Sunshine” (owned by plaintiff), in the Mississippi, at St. Louis. The proceedings were had under chapter 148 pf the Revision, and an attachment was issued, the boat seized, a bond given for its discharge as therein provided.

Application op surplus proceeds op sheriff’s sale. Tbe adversary parties to this proceeding, so far as it is before ns, are I. W. Griffith, tbe sheriff and appellant, and John Sherman, tbe appellee.

The relator and defendant were candidates for tbe office of mayor of the city of Muscatine, at an election held on tbe first Monday in March, 1864. It seems that the city council declared defendant elected, and that he accordingly qualified and entered upon the discharge of the duties of said office.

Action to recover tbe price and value of work done and materials furnished in tbe erection of a bouse, in wbicb tbe plaintiff recovered judgment for $487.69, and tbe defendan t appeals. Tbe remaining facts will sufficiently appear in tbe opinion of tbe court.

This is a suit in equity brought to enjoin the city of Davenport, and Harvey Leonard, its marshal, from collecting a tax of seventy dollars, assessed against the plaintiff by the city for the year 1862, upon ten thousand dollars of “ moneys and credits; ” and for the payment of which tax the city marshal had levied upon certain personal property belonging to the plaintiff.

Contracts of married women at law — Construction of statute. —Action at law by the payee against the makers of a promissory note. The defendant, Sarah E., answers that, at the time of the execution of said note, she was, and still is, the wife of her co-defendant, E. Gr.

This case again presents for determination the question, how far a corporate town or city may tax the real property situated within her boundary limits, for general municipal purposes. Below, the case made by the pleadings was referred.

In the absence of the district attorney, plaintiff was appointed by the District Court in Polk county, special prosecutor for tbe August term, 1861. This action is brought to recover for the value of the services rendered, pursuant to such appointment. The other material facts will appear from the opinion. Defendant appeals.

Suit upon a promissory note for one thousand dollars, made by defendant to B. 0. Kauffman and indorsed in blank.

CONTRACTS OP MAR&IED WOMEN: THEIR CONTRACTS, WHEN AND HOW ENFORCED IN EQUITY. — These two causes were consolidated below. The adversary parties are Mrs. Patton and Kinsman. Prom the pleadings and evidence the following facts appear: In 1858, Mrs. Patton (formerly Mrs. Carson) was the owner, in her own right and name, of a note made by one Underwood, secured by a mortgage of certain property in Mount Pleasant.

■: This is an application in chancery to restrain the sale on.three different deeds of trust, upon the ground that nothing is due upon the same, when purged of the usury contained therein, and credited with the payments which have been made.

<p>1. Insurances construction- or policy. The property insured -was described in the policy as follows: “ The five story brick building and three story brick addition known as the Lawrence block, occupied as stores on the first floor, the upper portion intended for a hotel, and to be unoccupied during the continuance of this policy, and situated on the east side of Main street, between Ninth and Tenth streets.” Eeld, I, That it was not a warranty that all the rooms on the first floor were occupied. 2. That if amj of the rooms on said floor were occupied, the others remaining unoccupied, the language of the policy was met.</p>

<p> Appeal from Marshall District Court. </p> <p>This action was brought to recover the value of a bull and cow, alleged to have been killed by the defendant, on the track of the Cedar Rapids and Missouri River Railroad. Yerdict for plaintiff, and defendant moved in arrest and for a new trial on the grounds following: First. No evidence was adduced to prove that said defendant is, or was, a corporation. Second. No evidence showing negligence on the part of defendant. Third. Plaintiff is not entitled to damages for the alleged injury to the bull.</p> <p>This motion was overruled, and of this action alone does defendant now complain.</p>

<p>1. Surety: subrogation. When a debtor has given any pledges or security to his surety, the creditor is entitled to the benefit of the same, and may, by proceedings commenced in equity, before the surety has surrendered or discharged the same, subject them to the payment or discharge of his debt.</p> <p>2. -purchase by SURETY. When the rents arising from certain property were pledged to the surety for the payment of the debt, and the surety afterward became invested with the legal title to the property, it was held that the pledge was merged and could not be asserted by the creditor.</p>

<p> Appeal from Marshall District Court. </p> <p>Action for assault and battery. — The assault was not denied. The questions made arise upon certain evidence offered by the defendant in mitigation of damages, and overruled by the court:</p> <p>1. The defendant offered to show that there was some hostility and hard feelings between the parties, previous to the assault, and also that a week lefore the assault, plaintiff had grossly and scandalously slandered the defendant’s daughters, and held them up to public ridicule and contempt, and that the same came to the defendant’s knowledge about three hours before the assault; and also on the day before the assault. This evidence the court excluded, the bill of exceptions reciting that “ the court expressly rulgd that no circumstance of provocation on the week before, or the day before the assault, or at any time other than the identical day the assault was committed, could be offered in evidence.” The defendant excepted, and this is the first error assigned.</p> <p>2. On the trial, the defendant was examined as a witness' on his own behalf, and testified that “he (the defendant), at the time of the assault, was reading a newspaper as to politics in Connecticut, and civilly commented on its contents, whereupon the plaintiff observed that the representations in said paper were no more worthy of belief than the statements made as to a certain political meeting held in Marshall county recently; that the same was reputed' to have been a big meeting, when, in fact, there were only about twenty voters present and as many boys: that thereupon defendant called the plaintiff a d — d liar; that thereupon, the plaintiff replied that the party to which defendant belonged, and the persons holding said meeting were a set of d — d bull-dogs, and you, sir, are no gentleman ; that thereupon defendant assaulted the plaintiff by pushing him off of a bench, and, as he was falling, held him up by the coat, saying that he did not wish to hurt him, but he must stop such false statements.”</p> <p>The defendant then offered to prove, in mitigation of damages, that the plaintiff knew his declarations, in relation to the numbers who attended the meeting, to be false; that he knew it was attended by one hundred, instead of by only twenty voters; and that he knew it was held by the party to which defendant belonged. The court rejected this evidence, and the defendant excepted. This is the next error assigned.</p> <p>A verdict was rendered for the plaintiff for twenty-seven dollars, and defendant’s motion for a new trial being overruled, he appeals. "</p>

Chancery proceedings, in which the plaintiff makes the following case: That in March, 1859, he obtained a judgment in Wapello county against Laforce and Newell for $433.13; that the same is unpaid, the defendants being insolvent; that subsequently, in December, 1861, Laforce, for the use of Reed, Shields & Co., obtained a judgment against him in Jefferson county for the sum of $237.82; that Reed, Shields & Co. are only nominal parties to this judgment, and have no interest…

<p>1. Evidence! declarations. The declarations of a competent witness not a party to the suit, who is alive and within reach of the process of the court, are hearsay, and are inadmissible.</p> <p>2. Error! without prejudice. The appellant cannot complain of a ruling of the court below refusing to strike certain statements from a deposition, when the same statements appeared in another part of the deposition, to which no exceptions were taken.</p> <p>3. Fraud: knowledge op grantee. A sale made for the purpose of defrauding creditors, is not fraudulent, unless such purpose was known to the grantee.</p> <p>4. -- SAM. A. sale bona fide made by a debtor to one creditor, of his entire property, in payment of his debt, is not fraudulent as to other creditors.</p>

ADMINISTRATION was granted to the defendant, as the administratrix of the estate of her deceased husband, Andrew D. Kendrick, in May, 1857, and notice of her appointment was given in the latter part of the same month by due publications in the newspapers. On the 2d of July, 1860, plaintiff filed his claim against the said estate, founded upon a note and mortgage made by the decedent in the spring of 1855.

This is an action at law by tbe plaintiffs to. recover possession of lot 2 in block 14 in the village of Cedar Falls.

In July, 1864, plaintiffs, as administrators of the last will and testament of Robert W. Harris, deceased, filed their petition seeking to recover nearly sixteen thousand dollars, which they claim to be due and owing upon a judgment rendered in the name of decedent in the Court of Queen’s Bench at Toronto, in the Province of Upper Canada, on the 18th of May, 1858.

IN EQUITY: FRAUDULENT CONVEYANCE. On the 10th day of November, 1860, John M. Glenn, for the professed consideration of $5,040, conveyed to his two sons, James Glenn and Henry Glenn, a large and valuable farm, known as “the Grlenn farm.” At the same time, he conveyed to these sons a large amount of personal property by bill of sale absolute, for the professed consideration oí' $856. At this time the defendants, Andrew J. Davis and Christian.

On the 15th day of April, 1857, A. 0. Patterson sold to James Hall a tract of land near the city of Muscatine. For the purchase-money unpaid, Hall executed two promissory notes for $4,133.83 each, payable in one and two years respectively, and to secure the payment of the same, Hall and wife executed two mortgages upon the real estate purchased, both of which mortgages were duly recorded at the same time.

Creditor’s bill. The plaintiff is a judgment creditor of the defendant, Henry Cunningham, husband of bis co-defendant, Ann. Cunningham. Execution was returned nulla bona. Tbe petition seeks to subject a bouse and loti in Ottumwa, in the“name of Ann, to tbe payment of tbe plaintiff’s judgment. Issues were joined and a large mass, of testimony taken on tbe question of tbe alleged fraud. Decree in favor of defendants, and plaintiff appeals.

In equity. A proceeding to set aside a conveyance as fraudulent, and to subject tbe property conveyed to tbe payment of tbe debt of the grantor. Tbe plaintiff’s bill was dismissed, and he appeals.

Dower. Petitioner is tbe widow of Robert Lucas, wbo departed this life February 7th, 1853. In 1842 a judgment was recovered against said Lucas, upon wbicb an execution issued, and the lands, in which dower is claimed, were sold March 3d, 1845, to one of the present defendants. On the 8th of June, 1846, the land not being redeemed, the purchaser obtained his sheriff’s deed. The wife never made any relinquishment of her rights. This action was commenced in April, 1861.

This case arises upon an agreed statement, submitted under the provisions of ch. 131 of the Revision. The statement is as follows: The plaintiff, Daniel Desmond, brought a suit in replevin before W. R. Evans, a justice of the peace, to recover possession of the doclret and other books, then in the possession of the defendant, Patrick McCarthy, a justice of the peace of Vernon township, in Dubuque county; being such books as a justice is required to deliver to his successor.

This case is equitable in its character, and has its foundation in the following facts: In June, 1852, J. J. Dyer, then in life, and a resident of Iowa, borrowed of the complainant, who, at that time, was, and still is, a resident of Yirginia, $8,100; gave his note therefor, running three years, with ten per cent interest, payable annually, secured by mortgage with power of sale, usually termed a deed of trust; the respondent, Samuels, being the trustee.1 In September, 1855,…

<p>1. Attorney: compromise. Where a party employs counsel to represent him in a cause pending, and such counsel in good faith compromises the suit and consents to judgment for a specific amount, such party cannot, in an action brought upon such judgment (the same being recovered in another State and sued on in this), defeat a recovery upon the same for want of authority in his attorney to give his consent and make such compromise.</p> <p>2. - equitable depense. When in such a case defendant filed an answer in the nature of an equitable defense, to set aside and have declared invalid the judgment so recovered, alleging generally as a ground of such equitable relief that his attorney had colluded and combined with the attorney of plaintiff in consenting to such confession and judgment, and when the fair construction of such allegation indicated that it was based upon an allegation of want of power to make such compromise, and when it was not pretended or alleged that the defendant was not indebted to plaintiffs in the amount of such judgment, nor that the plaintiff had not a valid, subsisting indebtedness against him. Held, that the answer did not contain a substantial defense, and a demurrer thereto was properly sustained.</p>

Action to foreclose a tax title, brought in 1859. The petition set out the execution and delivery of the deed by the treasurer of Johnson county, pursuant to a public sale to plaintiff, on June 20th, 1856, for delinquent taxes regularly levied for 1855. A copy of the deed was annexed to the petition, and referred to as part of it.

Writ of error to justice will not lie until he HAS REFUSED TO CORRECT THE ERROR. This action was originally brought before a justice of the peace, on the 9th day of May, 1864. Notice to the defendant was issued by the justice, and duly signed by him, returnable on the 16th day of May, 1864.

Proceeding in chancery to vacate a judgment. The defendants, Smith, Davis & Co., were shoemakers in Mount Pleasant; Adams, a leather and shoe merchant in Burlington. The former wished to purchase of the latter, one hundred dollars’ worth of leather on a credit, and inquired whether he would accept a note for that amount, signed by Smith, Davis & Co., and Kauffman, Whitmore & Co. The reply was in the affirmative.

This case grows out of the same transaction as that of McKay v. Thorington et 'al, 15 Iowa, 25. Leonard, as sheriff, had several writs of attachment placed in his hands in December, 1859, and among others, one in favor of the present plaintiff. He levied upon certain personal property, and afterward delivered the writs to his successor, Thorington. The property was lost, or at least was not forthcoming to answer an execution issued upon a judgment obtained by plaintiff.

<p>INFORMATION I JURISDICTION: PRACTICE: INSTRUCTIONS.</p>

<p>Appeal from Des Moines District Court — Wednesday, October 12.</p>

<p>Appeal from Polio District Court — Tuesday, October 15.</p>

<p>parties: case followed: discretion of district court in matters of practice: default: record in foreclosure cases: objection NOT RAISED BELOW.</p>

<p>DEFAULT: JURY TRIAL.</p>

<p>EXERCISE OF DISCRETION IN SETTING ASIDE DEFAULT.</p>

<p>Appeal from Johnson District Court — Friday, December 9.</p>

<p>Appeal from Warren District Court — Saturday, December 10.</p>

<p>laeoent: jtjkisdiction.</p>

<p>PRACTICE : EXCEPTION.</p>

<p>SUFFICIENCY OP EVIDENCE TO WARRANT A DECREE REFORMING A CONTRACT.</p>

<p>SUFFICIENCY of evidence to show fraud and notice thereof.</p>