Volume 18 — Iowa Reports

This suit is brought to quiet the title to the southwest quarter of the southwest quarter of section thirty-three, township eighty-two, of range nine west, in the plaintiff. N. C. Turner being the owner of the land, on the 18th day of October, 1858, executed and delivered to Frank Plummer a trust deed thereon, to secure to Evans, Chew & Co., one thousand dollars, to be paid at certain dates therein specified.

Petition to restrain sale of homestead on execution. —The plaintiff, by this proceeding, seeks to enjoin the sale on execution of certain premises which she claims as her homestead. The facts are concisely these: In April, 1856, one John Crummey, the father of the plaintiff, purchased for her and her lame daughter a tract of land in the vicinity of Iowa City, containing about two acres, and caused the same to be conveyed to them — Mary S. and Sarah E. Fyffe.

The defendants sold plaintiff’s lot 96 in the city of Dubuque, for the consideration of $1,500. The title to the north twenty feet of said lot failed, and the plaintiff was evicted.

<p>1. Practice: objection to evidence. A general objection to secondary evidence is not sufficient: it should state the ground of objection.</p> <p>2. Promissory note: presentment. Where the indorser of a promissory ( note payable at a banking house, in writing “ waived notice of protest,” and where it appeared, that before the maturity of the note all the books and papers of said bankers had been removed to another banking house in the same city, of which the public and the maker had due and sufficient notice, and it did not appear that the banking house at which the note was originally due and payable was still open, nor that said bankers continued their business at that place or any other, unless at the place where the hooks and papers were so transferred; Held, that the court below did not err in finding that the presentment was sufficient to bind tiie indorser, if made at the place or hanking house to which the books and papers were so removed.</p>

<p>1. Appearance: waiver. A voluntary appearance by a defendant waives defects in tlie service of notice.</p> <p>2. Jurisdiction: service on firm. A service of notice on one partner in an action against the firm, after dissolution, confers upon the court jurisdiction to render a judgment against the firm, to be satisfied out of the joint property, or out of the property of the party served.</p>

<p>1. Bill of exceptions: evidence. Where the record showed that the finding and report of the referee were set aside, and the cause was heard by the court, without setting out the evidence submitted to either the referee or the court, it was held that-the judgment should be affirmed.</p> <p>2.-Where the record sets out what purports to be “ minutes of evidence” taken before the referee, hut such “minutes ” are not signed by the referee, and does not contain any statement showing that it sets out all the evidence submitted, the judgment of the court setting aside the report of the referee will not be reviewed in the Supreme Court on an assignment of error that it was not supported by the evidence.</p>

<p> Appeal from Muscatine District Court. </p> <p>• From the petition it appears that these parties on and prior to the 19th of May, 1862, had a controversy in relation to a certain steam mill property, and on that day entered into an agreement in substance, as follows: For the purpose of settling the value of the interest of said plaintiff in said property, three persons were selected to appraise the same, and after the value is ascertained as aforesaid, said Jacob Hershey agrees to sell said interest to said Benjamin Hershey at the valuation thus fixed; and the said Benjamin agrees to purchase the same at such valuation, and to pay the principal sum of such purchase on or before five years from the date of the appraisement, and in the meantime to pay interest for the full sum, at the rate of seven per cent per annum, said interest to lx paid semi-annually.</p> <p>This agreement was signed and duly acknowledged by the said parties, and on the 8th of the succeeding August, the appraisers thus selected, after being duly sworn, and proceeding according to said agreement in writing, valued the interest of said plaintiff in said property at eleven thousand dollars. On the 25th of September, 1863, this action was instituted to recover the interest due, according to the terms of said agreement for one year, or up to August 8th, 1863.</p> <p>It is also averred that defendant has continued to run and occupy said mill property, since the date of said award, without objection to the action of said arbitrators.</p> <p>To this petition a demurrer was interposed, upon the ground ■“ that by the terms of said agreement, no right of action has accrued or can accrue to plaintiff until the end of five years from the date of said appraisement, or until August 8th, 1867.”</p> <p>Demurrer overruled; defendant excepted and appeals.</p>

<p> Appeal from Lee District Court. </p> <p>Cross-bill : proceedings under : form of foreclosure, decrees, &c. In 1852 one David Treiber, deceased (father of the infant plaintiffs, and husband of Maria Treiber, since by marriage Maria Walters); alone executed-to the defendant George Shafer, for money borrowed, a mortgage upon certain lots in Keokuk for $1,000 and interest. Treiber shortly afterwards died en route to California.</p> <p>After his death, his widow, the said Maria, executed a mortgage in her own name to the said Shafer, for $548, upon the same lots with warranty of title. The consideration of this mortgage was for money borrowed of Shafer, to redeem a portion of these lots from a sheriff’s sale, in favor of another party. The lots thus mortgaged are alleged by the said Maria to be the property of the heirs-at-law of the said David. In 1856 two separate suits were brought to foreclose these two mortgages, the one against the minor heirs of the said David, four in number; the other against Maria the widow, then by second marriage Maria Walters. The mother was not joined or served in the action against the heirs-at-law; but the minors were served personally with notice, and a guardian ad litem was appointed to defend for them. The husband of the said Maria was not joined or served in the foreclosure proceeding against her, but she was duly and personally notified. No defense was made to either of these actions, and decrees of foreclosure in both were rendered at the October Term, 1856, of the Lee District Court.</p> <p>In May, 1860, the present action was brought. The petition is entitled as follows: “Charles Treiber, David Treiber, Paulina Treiber, and Mary Treiber, minors by their mother, next friend and guardian, Maria Walters; and Maria Walters in her own right who is now the wife of Charles Walters, was wife of David Treiber, deceased; and Charles Walters who joins with her for the purpose of this suit, v. George Shafer and H. M. Griffith, sheriff of Lee county, Iowa.”</p> <p>This petition claims to be entitled to a credit growing out of an alleged partnership, in a venture to California, between David Treiber, deceased, and the defendant Shafer; says that this credit is enough to pay both decrees and mortgages, and claims to be relieved against those decrees for the irregularities before named, and asks for a temporary injunction to stay a threatened sale by the sheriff on those decrees.'</p> <p>The defendant Shafer answered, admitting the existence of his decrees, averring the justice of his debt, and denying the alleged partnership, or that he had ever been in any way paid. “ And, for further answer -in the nature of a cross-bill,” he sets up the two mortgages, and prays that if his former foreclosures thereof shall, for any reason, be found illegal or irregular, they may now be foreclosed.</p> <p>To this the plaintiffs replied. But notice of the cross-bill does not appear to have been served upon the plaintiffs. Nor is there any formal order appointing the mother or other guardian to defend the said cross-bill. The mother did, however, answer this cross-bill as the mother and natural guardian of the said minors.</p> <p>Upon the issues thus made a large volume of testimony was taken, and the cause fully heard upon its merits, upon the bill, answers, cross-bill and evidence. The court found that the minors were properly and legally in court by “their guardian, next friend and mother, Maria Walters;” and that the alleged partnership was not proved; that no payments beyond those credited had been made upon the mortgages held by Shafer; that the mortgages were justly due; but the court set aside the former decrees and rendered, as prayed in the cross-bill, separate decrees of foreclosure of both mortgages.</p> <p>Maria Walters and the Treiber heirs appeal.</p>

<p> Appeal from Pottawattamie District Court. </p> <p>Action for the recovery of real property. Defense, homestead right paramount to plaintiff’s title. Trial to the court, and findings of fact, in substance, that on the 16th day of June, 1856, defendant executed his note to plaintiff, upon which suit was brought in Pottawattamie ■county, where the land in controversy is situated, on the .28th day of June, 1859, and on the 18th day of February, 1861, obtained judgment thereon for the sum of $1,922.61. Execution was issued on said judgment, the land in controversy levied on and sold to plaintiff for $1,000, and sheriff’s deed was made to him therefor January 21st, 1864. ' In March, 1864, notice to quit was served on defendant, and this suit brought in April following. In April, 1853, the defendant, being the head of a family, acquired title to, and occupied as his homestead, a certain forty acres of land, situated in the same county, and continued to so occupy it till the spring of 1860, when he sold it, reserving the right to occupy it till the fall of that year, which he did. That in 1855 or 1856, the defendant bought the land in controversy, with the view of making the same his future homestead, and obtained a deed therefor on the 11th day of April, 1860, and in October of that year moved on to, and has ever since occupied the same as his homestead. That the land first occupied as a homestead was of much more value than the tract of land in controvers}'-, which contains forty acres.</p> <p>The court found that the defendant, having changed his first homestead, which was of more value, for his new homestead, the land in controversy, of less value, that the new was exempt from judicial sale, and rendered judgment for defendant. The plaintiff appeals.</p>

<p>1. Wharf: statute construed. Under § 18 of clause 5 of the charter of the city of Muscatine, and the ordinance of the eity enacted thereunder,, bo wharfage fee can be charged upon a raft landed at the river sido within the eity limits before it is sold or drawn out of the river.</p> <p>Í. - Semble, that the eity cannot charge wharfage for rafts landed at a point within the limits of the eity which has not been designated as a wharf</p>

<p> Appeal from, Wapello District Court. </p> <p>At tbe May Term, 1860, of the District Court of Wapello county, the grand jury returned into court an indictment against Benjamin A. McComb and George Lawrence, for the murder of Laura J. Harvey, on the 29th day of March, 1860. The defendant was not arrested till the 2d day of March, 1864, and was put upon his trial at the May term (May 30th) following. The jury returned a verdict of guilty of murder in the first degree, upon which the court rendered j udgment and pronounced sentence of death. The defendant appeals. The further necessary facts will be-found stated in the opinion.</p>

<p> Appeal from Pollc District Court. </p> <p>In chronological order, the material facts are these: On the 14th day of August, 1860, Elliott owned lot 4 in block ■“ t,” Holcomb’s addition to Des Moines; and on that day ■executed a mortgage thereon to Hays, the plaintiff; but this mortgage was not acknowledged till June 17th, 1860, nor recorded till May 6th, 1868. On the 4th of March, 1861, the defendant Thode recovered a judgment against Elliott for $105.53, on which execution was issued and the lot sold by the sheriff to Thode, who had no notice of the Hays mortgage, August 10th, 1862, for $13.89, and Thode received the usual sheriff’s certificate. On the 6th day of May, 1863, the day on which Hays recorded his mortgage, he deposited with the clerk $14.95 as redemption money for the lot, and stated under oath (Rev., §§ 3345-3349) the amount still unpaid and owing on his mortgage, after deducting the amount at which he was willing to take the property and credit his claim. Elliott did not redeem the property within the year allowed by law, nor at any time. The mortgage of Hays is admitted to have been due and unpaid. It is likewise admitted that Hays has demanded and Thode refused to make an assignment and surrender of the sheriff’s certificate. Thode claims that the unsatisfied portion of his judgment is prior to the rights of Hays, either under his mortgage or his alleged redemption, the validity and sufficiency of which are denied.' Hays insists upon the validity of his redemption ; that he is entitled to an assignment of the sheriff’s certificate, and that the unpaid portion of Thode’s judgment is not a prior lien upon the property.</p> <p>It was agreed by the parties that if the court should find. the law to be with the plaintiff, it should order the defendant Thode to surrender and assign to him the sheriff’s certificate, and in default of compliance, the order itself should authorize the sheriff to execute a deed to Hays. ,</p> <p>The District Court found for the plaintiff, and entered an order in his favor conformably to the above agreement. Defendant appeals.</p>

Appeal fi-om Pollc District Court. This action was originally brought before a justice of the peace.

<p>1. Intoxicating liquors: repeal of city charter. So much of section 15 of chapter 54 of the laws of 1845 (Burlington city charter), as conferred upon the common council of the city of Burlington the power to grant licenses to “ retailers of spirituous liquors by less quantity than a quart, keepers of ale and porter houses," was repealed by section 936 of the Code of 1851.</p> <p>2. - non-revivor of statute. The provisions of chapter 143 of the laws of 1857-8, making the “ manufacture and sale of beer, cider from apples, or wine from grapes, currants or other fruits grown in this State,” lawful, did not revive the provisions of said charter, repealed by the Code of 1851.</p> <p>3. - statute construed. Section 15 of chapter 54 of the laws of 1845, conferred upon the city of Burlington the power to grant or refuse licenses to “ tavern-keepers, inn-holders, retailers of spirituous liquors by less quantity than a quart, keepers of ale and porter houses, and shops and all other houses of public entertainment.” After its enactment the legislature of the State made the sale of intoxicating liquors illegal, and repealed that portion of the above act authorizing a license for the sale thereof: Held, that subsequent legislation did not confer upon the city council power to grant or refuse licenses for the sale thereof under the unrepealed authority to grant or refuse licenses “ to all other houses of public entertainment.”</p> <p>4. Construction of statutes: history. In construing the language of a statute the history of the legislation affecting such statute will always be considered.</p> <p>5. - effect of partial repeal. The repeal of a part of the statute cannot have the effect to so enlarge the meaning of the language which remains as to make it include all that was in the statute before the repeal.</p> <p>6. Corporations: powers. Authority conferred upon municipal corporations is to be strictly construed and closely pursued.</p> <p>7. Burlington: ordinance invalid. The ordinance of the city of Burlington, passed Nov. 3d, 1862, prohibiting within said city the keeping of “ any house or place where persons resort for the purpose of drinking wine, beer or ale or other malt or spirituous drinks,” without a license from the authorities of said city, is invalid, and no prosecution can be sustained thereunder.</p> <p>8. Statute: conflict with ordinance. Whore a statute of the State conflicts with the ordinance of a municipal corporation, tho former controls.</p> <p>9. Municipal corporations: imprisonment. A municipal corporation can inflict imprisonment as a penalty for a violation of its ordinances, only when the power is given by the charter.</p> <p>10. - power to regulate sale. A municipal corporation, invested with the necessary power in its charter, may regulate the sale of intoxicating liquors within its limits, to the extent of prohibiting such sale by persons who are not licensed therefor, though the sale of such liquors be not prohibited by the laws of the State.</p>

. Action on contract:— The cause' was referred to P. C.,D. McKay, Esq., as- a referee, wbo reported that the plaintiff agreed to build for the defendant a barn, shed and corn-crib, under a special contract, for one hundred and five dollars, and to have it completed by a specified time.

<p> Appeal from the Polh District Court. </p> <p>In equity : Des Moines river grant, titles, &c. — The petition alleges that the plaintiff is the owner of three certain tracts of real estate, “ lying within five miles of the Des Moines river and north of the Raccoon Porks.” That the plaintiff acquired bis title May 7, 1860, by deed from the Des Moines Navigation -and Railroad Company; that the said company acquired title by deed from the State, May 8, 1858; that the State had no title until the passage of the joint resolution of Congress of March 2, 1861, whereby the State acquired title to the lands (among others) described in the plaintiff’s petition, and this title at once vested in and inured to the benefit of the plaintiff, the State having before conveyed to him May 8,1858, as above stated; that the title remained in the United States until March 2, 1861, before which time the lands were not taxable by the State of Iowa; yet the officers of the State have assessed and levied, for the years 1859, 1860 and 1861, a tax upon the said land without authority of law, and to collect said tax have advertised the said land for salé. Ah injunction is prayed, and a decree asking that the said taxes be declared illegal, &e. .</p> <p>The answer admits the levy of the taxes, &e., and alleges that the Des Moines Navigation and Railroad Company' were the owners of the land on and after May 3, 1858, and not the United States.</p> <p>An amended answer denies that the plaintiff has any title in the lands described in his petition; that the taxes were not charged against him personally ; that he hath no interest in this suit; and that the lands belong to the Mississippi and Missouri Railroad Company under the act of Congress of May 15, 1856.</p> <p>Bearing upon the issues thus made, many facts were put in evidence, by the agreement of parties.</p> <p>It was shown that the three tracts of land named in the petition were in the aggregate assessed and taxed at $13.29 for 1859, 1860 and 1861, and that the county treasurer intended to sell the said land for that amount and interest, unless the taxes were paid.</p> <p>The court below dismissed the petition, and plaintiff appeals.</p>

<p> Appeal from Warren District Court. </p> <p>These parties are mortgagees of certain lands; tbe mortgagor being John D. Parmelee, and the defendant having the prior lien. In February, 1860, defendant obtained a decree of foreclosure, and on the first day of May thereafter sold under a special execution, and bid in all tbe lands so mortgaged. Plaintiff was named as a party in the petition of defendant, in his foreclosure proceedings, but was not served until June 26th, 1860. The decree in favor of defendant, at the February Term, 1860, expressly continued the cause for service against plaintiff, and foreclosed the equity of the mortgagor and the other parties to the bill, after the sale of the premises upon the special execution therein ordered to be issued. In August, 1860, a decree was entered by default against "White, in the case of Watts v. Parmelee et al., and it was ordered that any equity which said plaintiff might have, by virtue of his mortgage or otherwise, in and to said lands, “should be foreclosed and forever barred, and that he have no right to redeem the same.” In February, 1862, plaintiff moved to set aside the default, for want of sufficient service, which motion was, at the same term, overruled. Prior to this, in February, 1861, plaintiff moved to set aside the default and all subsequent proceedings, upon other grounds than in the motion of February, 1862. This motion was overruled, and this ruling afterwards affirmed in this court. On the 30th day of December, 1861, he filed this petition in equity in the present case, asking to set aside said decree in favor of defendant, the sheriff’s sale and the deed, and for leave to redeem; having, prior to that time, deposited with the clerk of the District Court the redemption money. The cause was heard upon the petition, amended petition, answer, depositions and documentary evidence, the bill dismissed, and plaintiff appeals.</p>

<p>1. Depositions: ex parte examination. Where the plaintiff obtained service by publication, and took depositions after depositing the notice • thereof in the clerk’s office, in the manner prescribed by section 4016 of the Revision of 1860, and after judgment, on motion of defendant the same was set aside and a re-trial ordered, it was held erroneous to suppress the ex parte depositions taken by plaintiff, upon motion made by the defendant after the cause had been pending for trial for a considerable time, and after some of the witnesses had died.</p> <p>2. Evidence: executor a party. In an action by the administrator of a trustee against another concerning the matter of the trust, when the real party in interest is living, the defendant may be a witness to prove facts transpiring before the death of the trustee. Section 3980, Revision of I860, is applicable only to cases in which the real party in interest is dead.</p>

The petition alleged that the husband was insolvent, and that the wife owned certain real estate in Mills county, upon which plaintiffs asked that their claim should be declared a lien and enforced as such. The court, on motion of defendants, before answer, changed the venue to Des Moines county, where defendants reside and were served, and awarded them (Rev., § 2802) fifteen dollars for attending at the wrong county. From this order plaintiffs appeal.

Writ, of error to a justice of the peace. Judgment for defendant, and plaintiff appeals. The further facts will be found stated in the opinion.

Appeal from Van Burén District Court. Seduction. The defendant was indicted under section 4209 of the Revision, and having been convicted, appeals.

On tbe 16th of April, 1859, Martin L. Morris made his eleven promissory notes, payable to the order of himself, amounting in the aggregate to the sum of eleven thousand two hundred and fifty dollars. These notes were negotiated to the respondents, the Merchants’ Bank of Boston, and the money received thereon appropriated to the use and benefit of said Morris.

Of the right to recover money paid and not CREDITED : STATUTE OF LIMITATIONS : REPORT OF REFEREE, &c. — This action was commenced February 20th, 1863. The plaintiff claims $1,200 upon an account for work and labor, boarding' hands for defendant, &c., prior to January 10th, 1862, “and for money refunded by the said plaintiff to the said defendant: money paid for said defendant at his request, and interest to be deducted from said money refunded,” &c., per account attached.

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

<p>1. Appeal: trial on appeal. Proceedings to foreclose mortgages, being triable by the second method, can be reviewed in the Supreme Court only upon questions of law founded upon exceptions taken on the trial below.</p>

<p> Appeal from Jones District Court </p> <p>Action upon a covenant of seizin in a deed of conveyance. The cause was tried by the court, without a jury, and the facts found, in substance, as follows: On the 21st day of October, 1858, a special execution upon a judgment of foreclosure of a deed of trust, issued from tbe clerk’s office of the District Court of Jones county, in favor of Reed Bros. & Co., and against M. B. Landis, for the sale of the S. £ of the N. W. £, and the N. £ of the S. W. £ of sec. 17, also, the S. E. £ of the S. E. £ of sec. 18, and the N.'W. fr. £ of sec. 80, all in T. 85, R. 4, or so much thereof as should be sufficient to satisfy the sum of $502.67, with interest, and $6 costs. On the 26th day of November, 1858, the sheriff sold all of said lands, in gross, to James Helmer, for the sum of $760.59, and executed a deed therefor, which was recorded. Ou the 18th day of May, 1859, Landis filed his' motion against Reed Bros. & Go., only to set aside the sale, which was done at that May term, upon condition he should pay Helmer the sum bid. Afterwards, and on the 28th daji of July, 1859, Landis filed his petition in equity, in said court, against Helmer, and Noble (the sheriff), asking that the sheriff’s sale and deed be set aside and title quieted to him, and there was a decree accordingly, June 18th, I860. On the 1st day of January, 1859, Helmer made a written contract of sale of all said land to R. C. Peters, for $2,000; seven hundred of which was paid down, and the balance was to be paid at stated times thereafter, and when so paid, Helmer was to make a quit-claim deed therefor. On the 13th day of February, 1860, Peters having paid the balance, a quitclaim deed, at his request, was made by Helmer to his wife, Nettie Peters, and on that day possession was taken by Peters, with the acquiescence of Helmer. Peters and wife sold part of the land to the plaintiff, for the consideration of four hundred dollars, which, having been paid, a deed was made to plaintiff therefor, containing the covenant which is the basis of this action. It is also found as a fact, that Landis’ attorney had notice that Peters claimed an interest in the land, when he filed the petition to cancel the sheriff’s deed. Upon this finding the court held, that the defendants were not seized of the premises deeded to plaintiff; and that the covenant sued on was broken, and rendered judgment for the plaintiff for the consideration money and interest and costs. The defendants appeal.</p>

<p> Appeal from Des Moines District Court. </p> <p>The defendant was'charged in the indictment with a felony; was convicted, and appeals.</p>

<p> Appeal from Des Moines District Gourt. </p> <p>November 1st, 1850, Leffler borrowed of the plaintiff $670, and executed two notes, one for $396.80, due in one year, and one for $492.08, due in two years, with ten per cent interest after maturity, and secured them by a deed of trust. On the 8th day of March, 1852, defendant applied to the plaintiff to borrow an additional sum to procure an outfit to California, alleging that he was doing nothing here, and would not be able to pay plaintiff unless he went. Plaintiff endeavored to dissuade him from going, and after much hesitation finally consented to loan him $800 more, and received his note and trust-deed for that amount, with interest at two per cent per month from date till paid. Of this amount the plaintiff applied $80 on the first note above described, and extended the time of payment (it being then due) to November 1st, 1852, the time when the second note above described would mature. As the defendant intended to go to California, he wished an extension of the time of payment of the two notes first mentioned, beyond the 1st day of November, 1852, and as part of the same transaction in which he borrowed • the $300, agreed to pay the plaintiff two per cent per month on those notes if they were not paid when due, provided the plaintiff would extend the time. An indorsement upon the notes was made as follows: “ March 8th, 1852. In consideration of forbearance and extension in time of payment of the within note, I agree, in case this note is not paid Nov. 1st, 1852, to pay interest on the same after that date at the rate of two per cent per month. John N. Lefiler.” Defendant went to California, and did not return till 1857, and meanwhile the plaintiff, in consideration of the defendant’s promise to pay him interest as above, did forbear and extend the time of payment. The plaintiff filed his petition to foreclose his trust-deed, and for an account of the amount due him. The court rendered a decree in favor of the plaintiff for $3,265.85, of which $2,102.78 was declared to be a lien, and the rest not.</p> <p>Both parties appeal.</p>

Action on an account which had accrued more than five years-before suit was instituted.

The case discovers tbe following facts: On tbe 2d day of June, 1856, tbe defendant, Brand, borrowed of plaintiff $400, at tbe rate of thirty-six per cent interest per annum; that at different times… Held: rendering a judgment against the plaintiff for costs, and against the defendant, Brand, for the sum of ,'|102.á0 in favor of the school fund, to draw ten per cent interest.

<p> Appeal from Johnson District Court. </p> <p>The material facts appear in tbe opinion:</p>

Action of replevin for three horses seized by the defendant as treasurer of Yan Burén county, under a tax warrant for taxes assessed against the plaintiff. Trial by jury; verdict and judgment for defendant.

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

Action upon promissory note against the maker. The question is one of law as to the liability of the defendant upon the following facts found by the court below: 1st. The note in suit was made by the defendant (Martin), and is payable “to the order of William A. Younker,” the nominal plaintiff. 2d. The note is wholly ivithout consideration. 3d. It was fraudulently obtained by the payee (the said Younker) from the defendant. 4th.

Demurrer to petition. The petition alleges, in substance, that the plaintiffs are of age, and the only heirs-at-law of Aaron Gaskell, deceased, and who died in June, 1854; that his widow, Hannah L., intermarried with the defendant, John Case, soon after the property hereinafter named was set apart to the said Hannah; that, in 1855, the County Court set apart to Hannah, as the widow of Aaron, for the benefit of her children (the plaintiffs), and not as her distributive share,…

On the 28th day of May, 1859, one John C. Evans conveyed to the complainant the land in controversy, but the deed was not recorded until September 31st, 1862.

Demurrer to petition. The defendants constituted the board of supervisors of Polk county in 1861.

Defendants made a mortgage on their real estate to secure a debt owing to plaintiff, by two brothers of the said defendant (Samuel). They did not sign any note, nor become otherwise liable for the payment of said debt, than by the terms of the mortgage. In a proceeding to foreclose this mortgage, the District Court refused to award a general execution against said Samuel, for any balance remaining unpaid after exhausting the mortgage property.

Application to vacate sheriff’s sale. The plaintiff, Chambers, at the August Term, 1858, obtained a judgment against the defendants, William H. Cochran and A. D. Brock, in the District Court of Polk county, for $139.53 and costs. This judgment was founded upon a note executed by the defendants to the plaintiff’. Both were apparently principals, but Brock was in fact the surety of Cochran.

Plaintiff, as tbe owner of several parcels of real estate, paid to tbe proper officer a certain amount of money to redeem tbe said property from a tax sale, and taxes paid tbereon subsequently by tbe purchaser. The object of this proceeding is to determine tbe amount which he is bound to pay, and in what, — whether treasury notes or gold. The court below, from an agreed statement of facts, found for plaintiff, and defendants appeal.

<p> Appeal from, Dubuque District Court. </p> <p>For the facts, see the opinion.</p>

In 1861, an action was pending in the Scott District Court, in which Burrows & Prettyman were plaintiffs, and Cook & Sargent and others were defendants.

Action upon the award of arbitrators. Several defenses: plead. The case tried by the court, which, after overrul-' ing plaintiffs’ motion to strike certain matters from the’’ answers, and also their demurrer to two of the answers,,rendered a judgment against them for costs, but held that they were entitled to a certain deed of conveyance, then in the hands of the clerk, made by the defendant to them. From this decision the plaintiffs have appealed.

Action to recover money paid defendant’s treasurer, over and above tbe true amount of plaintiff’s taxes, tbe excess having been appropriated by tbe treasurer to Ms own use, and never paid over to tbe county. There was a demurrer to tbe petition, wbieb was sustained, and tbe plaintiff appeals.

Liability op indorser “without recourse:” evidence, &c. — This is a joint action, against John and Wesley Chesire and John M. Griffith. The facts, necessary to an understanding of the case, are as follows: John and Wesley Chesire sold, May 15, 1858, certain land in Mills county to one Moore, receiving, for part of the purchase-money, his note, secured by a mortgage on a portion of the land sold.

This suit is founded upon a note, executed by the defendant to plaintiff, August 30, 1859, for $557.75, drawing ten per cent interest until paid. Defense, failure of consideration, arising from want of title in the plaintiff to the land sold to the defendant, and for which the note in question had been given ; also a counterclaim for damages, based upon a breach of the covenants of the deed; to which the court sustained a demurrer.

Plaintiffs claim of defendant four thousand dollars, upon a contract for selecting and platting the swamp and overflowed lands granted to said county.

Homestead right, as affected by statute of limitations: Revision, §2746, construed: petition in equity to restrain sale of homestead on execution. Tiie cause was submitted to the court upon an agreed statement of facts, of which the following is a condensed bat accurate abstract: 1st. The plaintiff and Wm.

Suit on promissory note, executed by defendant to plaintiff. Defense, want of consideration. Tbe defendant sold to plaintiff a mare, and received bis pay; afterwards, tbe plaintiff was sued before a justice of tbe peace, in replevin for tbe mare, by a former owner, wbo claimed that the mare had been stolen from him.

On the 4th of May, 1857, plaintiff borrowed of one Robertson three thousand dollars, and, to secure the same, executed a deed of trust on certain property in tbe city of Des Moines. W. H. McHenry was named as the trustee, and was authorized to sell the property upon certain terms and conditions in tbe said deed mentioned.

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

This suit was commenced before a justice of the peace, plaintiff claiming one hundred dollars damages for the wrongful killing, by order of defendant, of plaintiff’s “ thorough-bred setter dog.” There was a jury trial before the justice, which resulted in a verdict and judgment for fifty dollars for plaintiff.

Petition, in equity, to remove cloud upon plaintiff’s title. 1. For the named consideration of $3,000, one Andrew J. Stevens, on the 18th day of April, 1856, executed a warranty deed to the plaintiff for the land in dispute. The acknowledgment bears date 18th April, 1856, but the deed was not recorded until Nov. 24th, 1857. 2.

This is an action of right, involving the title to the same property as that forming the subject of litigation between these parties, reported in 9 Iowa, 213. Trial before referees, who found in favor of plaintiff’s title. This finding was affirmed in the District Court, and defendants appeal.

Replevin for a bull. The plaintiff being owner of the animal in controversy, left him in possession of his tenant, who, after using, working and treating him as his own for a considerable time, sold him to the defendant Gephart, who lived not far from plaintiff’s neighborhood. The defendant Gephart, after keeping the animal for some months, sold him to his eo-defendant Halsey. There was a trial by a jury, with verdict and judgment for plaintiff, from which defendants appeal.

■Appeal from, Wapello District Court. The following facts compose this case: The defendants located their road across a tract of land owned by the plaintiff, had a jury’s inquest of the damages, which were assessed at $100, which was paid by the company. The plaintiff appealed to the District Court, where a judgment of $4:00 was rendered against the company in favor of the plaintiff, for the right of way over said land, at the May Term, 1862, in the county of Wapello.

<p> Appeal from Polk District Court. </p> <p>Occupying claimant law; color op title; good paith; CONSTITUTIONALITY OP ACT OP MARCH, 1858; repeal; damages, &c. — The defendant herein’, Shower, was found, in tbe proper action against Childs, to be the real owner of lot 7, block 2, Des Moines. This proceeding was thereupon instituted by Childs (whom we shall designate as the plaintiff or occupant), under the statute, to recover of the owner (Shower) the value of certain improvements made upon the property by Childs.</p> <p>His petition is in due form, and need not specially be noticed. He claims $8,000. His right is denied by the defendant The cause was referred' to E. J. Ingersoll, Esq., sole referee, by whom it was tried. The testimony is voluminous. The report of the referee as to the facts, except his finding that the improvements'were made.in good faith, is not controverted.</p> <p>It is essential to state, as compactly as possible, the substance of the report. It finds:</p> <p>1. That, July 28, 1855, one Gr. R. Moss purchased lot seven above in good faith, at the sale for delinquent taxes made by the treasurer of Polk county, and received a deed.</p> <p>2. November 8d, 1857, Moss obtained a decree of foreclosure upon the tax-deed against said lot (it and other lands being made defendants).</p> <p>8. In Deeevnber, 1857, Moss sold and deeded this lot to Reynolds, and in the same month Reynolds made to the plaintiff (Childs) a warranty deed to the lot for the consideration of $400.</p> <p>4. By virtue of this deed, Childs took possession of the lot in the spring of 1858, and during the spring and summer of the same year he erected thereon a dwelling-house, fenced the lot, dug a well and cistern, built a barn, set out fruit-trees, &c., and on the 1st day of October, 1858, moved into the house, which he and his family have ever since occupied. [Up to this time no appeal from or attack upon the tax decree was taken or made by Shower.]</p> <p>5. The improvements are of the value of $2,500.</p> <p>6. Rent of lot, aside from improvements, $10 per year; rent of lot and improvements, $180 per year.</p> <p>7. “ That, in the spring of 1858, after the plaintiff had made his contracts with other persons to build and erect the said dwelling-house and improvements, and after such persons had actually commenced work, and had a portion of the materials on the ground, and were at work thereon, the agent for the defendant, W. H. Leas, informed plaintiff that the lot was owned or claimed by the defendant."</p> <p>8. The value of the lot is $400, aside from the improvements.</p> <p>9. Childs’ improvements were made in good faith.</p> <p>10. Shower ’did not commence his action of ejectment against Childs until November 19th, 1858, and did not recover till March, 1860. Shower is the owner of the real title direct from government of the United States, not from the State. [This last finding was made at defendant’s request.] As conclusions of law, the referee finds:</p> <p>1. That plaintiff Childs had color of title as required by the statute.</p> <p>■ 2. That he is entitled to recover of defendant $2,500, for improvements less the rent of said lot for 3 years and 6 months, at $10 per year, leaving due the plaintiff the sum of $2,465.</p> <p>. And the District Court, conformably to the report of the referee, rendered in favor of Childs and against Shower an ordinary money judgment for the sum of $2,504r2yF. with interest from date of judgment and costs, to be enforced by general execution.</p> <p>The opinion contains the other facts necessary to understand the questions made and determined.</p> <p>. Shower appeals.</p>

Plaintiff seeks to recover double tbe value of two steers killed by. defendant. Before the justice, be recovered for the full amount of bis claim; and on appeal to the District Court, there was a similar verdict. Defendant moved no arrest, beeause the pleadings did not show tbe capacity iji whieh it was sued, whether as a corporation, copartnership, or other artificial person.

This is an' action to recover damages for the death of-plaintiff’s intestate, alleged to have been produced by the wrongful act of the defendant: The testimony is voluminous and conflicting.

Right. Plaintiff traces bis title to a tax-deed for the delinquent taxes of 1858. Trial and verdict for plaintiff, and defendants appeal. For other facts, see the opinion.

The plaintiff replevied two hundred bushels of corn from the defendants, who controverted his right to do so, by an answer denying the matters stated in the petition. A trial resulted in establishing the plaintiff’s claim; and the defendants appeal.

Slander : words imputing bestiality to a “ female,” actionable per se.

In equity, to remove a cloud upon plaintiffs’ title to a certain lot therein described. Dargets (plaintiffs’ vendor) and Woodbury and Boardman, who, it is alleged, have, or had, an interest in the property, are made defendants. A demurrer of all the defendants to the petition was sustained in favor of Woodbury and Boardman; and from this ruling plaintiffs appeal.

<p> Appeal from Lee District Court. </p> <p>Slander: privileged communications: evidence. The plaintiff, in bis petition, avers that the defendant spoke concerning him the following words, in substance: “ You (the plaintiff) purchased stolen goods, knowing them to be stolen</p> <p>The defendant made two defenses. First, in denial, or, under former phraseology, not guilty. The second plea or answer was special, and in substance set up that tbe defendant, at the time the words charged were spoken, was mayor of the city of Keokuk, and, as such, ex officio, the head of the police department o.f the city, and concludes by averring “that all that the defendant did or said on that occasion, he did and said as mayor, and in discharge of his duties as a public officer, and without malice or intention to injure the plaintiff.” 1</p> <p>On these issues the cause was tried by a jury, who returned the following verdict: “We, the j ury, find for the defendant, as laid in the second plea.” No objection was taken to the form or sufficiency of the verdict.</p> <p>It was established on the trial that the defendant was mayor, as alleged, and that there was in force at the time an ordinance of the city, section one whereof was as follows: “§ 1. The mayor shall be the chief executive officer of the city, and shall take care that the criminal laws of the Slate and the ordinances of the city are duly respected, observed and enforced within the city,” &c., &c. •</p> <p>From the testimony, it appeared that the plaintiff had a business stand or store in Keokuk, and was in the habit of buying old iron and second-hand articles of a like character. Complaints were made by citizens that a' gang of boys were engaged in stealing such articles, and selling them to the plaintiff. On the day on which the words for which this •action is brought were spoken, some boys were arrested by the police, who admitted that they had stolen certain articles and had sold them to the plaintiff. They informed the city authorities that the plaintiff knew, when he bought them, that they had stolen them. One of the policemen proposed to get a warrant to search the plaintiff’s store; met defendant, and told him that he had started for a warrant; defendant proposed that they should go and see the plaintiff first, as they might not need the warrant. They went and saw the plaintiff, and it was at this interview that the alleged, slanderous words were spoken.</p> <p>The verdict (quoted above) did not expressly find, and, perhaps, leaves it uncertain, whether the jury intended to find that the defendant did, in point of fact, speak the words charged in the petition. Upon this point there was considerable contradiction in the testimony. ' Some parts of this are briefly referred to, the better to illustrate the questions discussed in the opinion.</p> <p>The plaintiff, examined as a witness, testified that the defendant said: “You did know it was stolen.’’ “I did not know it was stolen,” answered plaintiff. Defendant rejoined, “Not a word from you. You did know it was stolen. You are no better than a thief,” &c. This, according to plaintiff’s testimony, was repeated by the defendant in an excited manner several times. According to the plaintiff’s clerk’s testimony, “the defendant, when he came into the store, said to the plaintiff, ‘Why are you buying those articles from the boys, when you know they were stolen ?’ ”</p> <p>A different version of what passed is given by the defendant’s witnesses. Thus, Huston denies that the defend•ant was under excitement, and states that the defendant said to the plaintiff, “ Mayo, you must know the boys were stealing these things.” Mayo said he did not know that he was buying stolen goods. Sample said he was surprised at such an old man doing such things; was doing an injury to the boys, &c., &c.</p> <p>Defendant, who was examined as a witness, denied that he called Mayo a thief,” denied that he said “ not a word from you,” denied that he used the words testified to by the plaintiff, or. that he had “ any but the kindest feelings toward him.” Says he stated to Mayo, “ This thing has gone fin- enough, boys say they have been selling you stolen property. You are an old man, I am very sorry to find you. in this kind of business.” . Mayo was indignant, and denied that he knew the property was stolen. He refused to do anything. “I told him I must proceed against him. I saw the kettle and some railroad chairs and spikes. I identified some of our railroad iron., I said, ‘how could you but have known this was stolen.’ He said he did not know anything was stolen. Alluding to the kettle, among other articles, Mayo said he had bought it of a boy for,twenty-five cents. I said, “ Mayo, you must have known this kettle was stolen, or it would not have been sold for this price,” &c. Plaintiff appeals.</p> <p>The errors insisted on by him are stated in the opinion.</p>

<p> Appeal from Wapello District Court. </p> <p>Action to recover tlie value of a horse, taken by defendants under an attachment as the property of the plaintiff’s son. The cause was tried to a jury, and there was a verdict and judgment for defendants. Plaintiff appeals. The further facts will be found stated in the opinion.</p>

<p> Appeal from Dubuque District Court. </p> <p>Plaintiff sues upon a policy of date December 5,1856, insuring certain personal property. The property was owned by James M. Simeral, and the insurance taken by him and in his name for six j'ears. On the 3d of May, 1858; ho assigned the policy to the present plaintiff. The loss occurred in July, 1860. To the action defendant pleads the following among other defenses: “Before the happening of the loss and damage complained of, the said James M. Simeral had alienated and sold said property insured without the knowledge and consent of the said defendant, and the grantee or alienee thereof within thirty days or at any other time did not have the policy of the defendant ratified and confirmed to her by the directors, nor did she give the security to defendant as required by the provisions of section 9 of the articles of incorporation of the defendant, and section 12 of the by-laws of the same.” To this part of the answer there was a demurrer, which was overruled. Plaintiff stood by her demurrer, and the court thereupon, against her objection, rendered judgment in favor of defendant for full costs. Plaintiff appeals.</p>

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

<p> Appeal from Van Burén District Court. </p> <p>Evidence’: proof of damages: ferry rights of riparian owners. Prosser is tbe owner of a tract of land bordering on tbe Des Moines river, opposite the city of Ottumwa, and had license to keep a ferry across the ■river from a point opposite Market street in that city. Davis and others petitioned tbe board of supervisors for tbe establishment of a public road through tbe land of said Prosser, commencing at Davis’ ferry landing opposite Green street in Ottumwa, and running S. W. about 600 yards to a point in the present road leading up the river. Prosser filed his claim for damages, stating that he was the owner of the land, over which the proposed road would run, down to the bank of the Des Moines; that he is entitled, by reason of his riparian ownership, to an exclusive ferry right at said point, and that taking the said land will destroy this right, to his damage in the sum of $10,000. The appraisers assessed his damages at $50. The board of supervisors approved this appraisement and established the road. Prosser appealed to the District Court, and the venue of the cause was changed to Van Burén county.</p> <p>The cause was tried in the District Court before a jury, who assessed Prosser’s damages at $750. Prom this judgment the county of "Wapello appeals to this court.</p> <p>The only question submitted to the jury and tried was the amount of damages to which Prosser, as land owner, was entitled in consequence of the establishment of the proposed road.</p> <p>Davis is the holder, by license, from the county, of a rival ferry franchise, as will be seen by reference to the case of Prosser v. Davis, infra, with which this stands connected in its facts. The proposed road was necessary to enable persons crossing at Davis’ ferry to reach the existing public road without passing over and trespassing upon the lands of Prosser.</p> <p>The other material facts, and the errors assigned — all of which relate to the ruling and proceedings of the District Court — will be found in the opinion.</p>

<p> Appeal from Van Burén District Court </p> <p>Action in replevin. Late in the evening of the 18th of January, 1862, the plaintiff swore to and filed before a justice of the peace of Yan Burén county a statement for" confession of judgment. The statement, among other things, set out, “that whereas I, the undersigned, B. B. Burchett, am indebted to one William McQuoid in the sum of $95.14 on a certain promissory note executed by me and Isaac Weatherington to one Robert D. Laverton for the same, &c., I hereby confess judgment against myself for the above amount and in favor of the said William McQuoid; and I hereby authorize Joseph Stephens, a justice of the peace in and for Jackson township, to enter judgment against me for the above amount. And as a further statement of indebtedness, I hereby set forth that the same grew out of a certain purchase of a certain black mare from the said Robert D. Laverton, which said note was afterwards assigned or conveyed to the said McQuoid.”</p> <p>The justice of the peace did not enter judgment until the Monday following. Execution was issued on this judgment and placed in the hands of defendant Casady, a constable, and was by him levied on two yoke of oxen. The plaintiff brought this suit in replevin, alleging that the execution was void, for that there was no judgment upon which it could issue.</p> <p>On the trial, the court found that Casady, at the time the cattle were replevied, was entitled by virtue of the execution to their possession. Thereupon the defendants moved for a judgment hahendo returno, which was overruled, and judgment was entered in favor of plaintiff for possession of the cattle and in favor of the defendants for costs. The defendants appeal.</p>

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

<p>1. Tax sale: minor. A minor must be the owner of land sold for payment of taxes at the time of such sale to be entitled to an extension of the time of redemption beyond the three years prescribed by the revenue law. A subseqently acquired title does not invest a minor with such rights.</p> <p>2. Mortgage: interest of mortgagee. The interest of the mortgagee in the mortgaged property is but a chattel interest, and follows the debt or principal thing for which it stands security.</p> <p>3. - descent. Upon the death of the mortgagee, the mortgage passes to the administrator, who, in equity, is the trustee of the heir, and for whom he holds it subject to the rights of creditors.</p> <p>4. Tax sale: mortgage; redemption. The heir of the mortgagee of real estate has such an interest therein as entitles him to redeem the property from a sale made for the payment of taxes, at any time within one year after attaining majority.</p> <p>Arg. 1. Real property. The “ real property ” of a minor, within the'meaning of the statute, may consist in an equitable interest in land.</p> <p>2.- liberal construction. A liberal construction is given to statutes providing for tlie redemption of real estate sold for taxes.</p> <p>5. - tender. A tender of a sum of money for the purpose of redeeming real estate from a tax sale, is an admission that the amount tendered is due, and is a waiver of any irregularity in the assessment or sale. Brayton v. The County of Delaware, 16 Iowa, 44.</p>

<p>1. Contract: construction. In ascertaining the meaning of a contract it must he construed in the. light of the circumstances which ;surrounded the parties when they entered into it.</p> <p>2. Easement: definition. An easement is- a service which one estate owes to another — or a right or privilege in one man’s estate for the advantage or convenience of the owner of another estate.</p> <p>3. - reservation. A reservation is always of something issuing or coming out of the thing or property granted, and not part of the thing itself; and it must he to the grantor or party making it, and not to a■ stranger.</p> <p>4. - heirs and assigns. The use of the words “ heirs and assigns ” are not essential in order to make a right of way reserved in a contract of partition appurtenant to the land.</p> <p>5. - contract construed. A contract of partition contained the folio wing stipulation: “It is further distinctly understood that the said J. • shall have the privilege oí a road through the land of the said B. so as to enable him to take the nearest and best road to D.” Held, that notwithstanding the use of the word “ privilege ” and the pronoun “ him," the agreement was not for a mere personal privilege, but was for an easement annexed to the land.</p> <p>6. - appurtenance. An easement is an appurtenance to land which will pass to the heir, or by a devise or conveyance of the land, although not mentioned in the will or deed.</p> <p>7. - location. Where a stipulation for a right of way described the road as through the land of one party so as to enable the other to take the nearest and best road to a point named, it was held, that the location of the road should be determined by agreement, usage or acquiescence, and when thus located it cannot be changed by the one party without the conseut of the other.</p>

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

<p> Appeal from Wapello District Court. </p> <p>Petition in equity for injunction: ferry franchise : RIPARIAN RIGHTS. In 1858, Prosser obtained from the County Court a license for a ferry across the Des Moines river at Ottumwa, at the foot of Market street. This license was exclusive, for one mile up and one mile down the river. One Majors was then the equitable owner of the land opposite, being the land to which this controversy relates, and known as lots 3 and 6, in sec. 25, T. 72, B. 14. This land is situated in a bend of the river, and is mainly a low or sandy bottom. In January, 1862, Davis obtained a license for a ferry from the foot of Green street, in Ottumwa, this being the next street below Market street, and some two hundred yards distant from it. After this, viz., in July, 1862, plaintiff became the owner of the land above described, by purchase at sheriff’s sale on special execution against Majors. Davis, before the sale, had Majors’ consent to use the land for the purposes of his ferry.</p> <p>Soon after the plaintiff purchased the land, viz., in August, 1862, he commenced this suit in equity against Davis, and asks for an injunction restraining him from exercising or carrying on his ferry. His grounds for this suit arcs substantially two:</p> <p>1st. An exclusive ferry franchise, by virtue of his license.,</p> <p>2d. His ownership of the land on the opposite side of the river from Ottumwa, and upon which it is charged that Davis necessarily must and does land and receive passengers and property.</p> <p>The defendant, in his answer, admits the plaintiff’s license and sets up his own, alleging that the plaintiff was duly notified of defendant’s application for the license, and never appealed from the action of the supervisors in granting it. Defendant alleges that his landing is three hundred feet from where plaintiff’s land extends; that is, three hundred feet in from high water mark.</p> <p>In January, 1868, a temporary injunction was granted, as prayed. In February, 1868, Davis commenced proceedings under the road law to lay out a road over Prosser’s land, running from Davis’ ferry landing (opposite Green street), about 17.50 chains, till it intersected the public road leading down to Prosser’s ferry landing; out of which proceeding the case of Prosser v. Wapello County, ante, arose.</p> <p>After the appraisers had allowed fifty dollars to Prosser as damages in consequence of establishing the road, Davis tendered him the amount, deposited it in court, and also filed bond to secure any damages that might be awarded to Prosser.</p> <p>Testimony was taken; but upon what the cause was heard is not stated in the record entry, or in any certificate of the court or clerk; and in August, 1863, a decree was entered forever restraining the defendant (Davis) from run ning his ferry. From this decree the defendant appeals.</p> <p>At the November Term thereafter, the defendant moved the court to modify the decree rendered at the August Term; because:</p> <p>1st It should have restricted the running of the ferry only so far as it trespassed upon the lands of Prosser; and,</p> <p>-2d. Because the defendant shows to the court that, since the last term, a public road has been laid out over and upon the lands of Prosser leading to said ferry. An affidavit was filed, stating that the supervisors did establish such a road, at the June Term, 1863, and does not state that any appeal had ever been taken from the action of the board.</p> <p>The record and papers in the road case are not before us in this ease. The record entry there recites, that the parties appeared upon the motion to modify the decree, by their attorneys, submitted the matter to the court, and that the court “modified the decree so as only to enjoin the defendant from running his ferry and landing his ferry-boat upon the real estate of the plaintiff; and nothing in said decree, or in this decree, shall prevent the said ferry-boat from ianding on any highway now established, or hereafter to be established, over, said land.”</p> <p>From this modification of the decree, Prosser appeals.</p>

<p> Appeal from DesMoines District Court. </p> <p>Indictment for seduction. Defense, not guilty, and statute of limitations. Trial by jury; verdict of guilty, and sentence to five years imprisonment and costs. Defendant appeals. The further necessary facts are stated in the opinion.</p>

<p> Appeal from Polk District Court. </p> <p>Libel. Defendant’s demurrer to the third and ninth counts of the petition was sustained. Plaintiff’s demurrer to certain divisions of the answer was overruled; and from these rulings he appeals.</p>

<p>1. Practice: amendment. Under the Code of 1851, § 1159, it was competent for the court to allow a material amendment to pleadings at any stage of the proceedings.</p> <p>2. - mandamus. The power to allow amendments to pleadings extends to cases of mandamus.</p> <p>3. - discretion. Applications for leave to amend pleadings are always addressed to the sound discretion of the court.</p> <p>4. - method of resistance. The sufficiency of an amendment cannot he properly assailed by resistance to a motion for leave to file; but upon appeal from a ruling refusing to allow an amendment, the appellate court will examine the amendment proposed for the purpose of determining whether the appellant has been prejudiced by such ruling.</p>

<p>1. School Fund: note. M. was indebted to the school fund, as a defaulter, in the sum of $500; B. was indebted to M.; it was arranged that B. should execute his note, secured by mortgage on his own property, with M. as security, to the school fund, which should be applied on his indebtedness to M., and for which the latter should receive a credit ou his debt to the school fund; the note was delivered to the School Fund Commissioner, but the mortgag'e was not executed: Held,</p> <p>1. That the note was not invalid for want of power in the School Fund Commissioner to receive the same.</p> <p>2. That the failure to execute the mortgage did not constitute a defense to the note.</p> <p>3. That the indebtedness of M. to the school fund would be a sufficient consideration, if the transaction was not a loan.to sustain the note executed by B. in part payment thereof.</p>

The case is this: In December, 1852, the defendants executed to the plaintiffs a note of $50, payable in one year with ten per cent interest. At the same date, to secure the payment of this note, they gave a mortgage on the S. W. fractional qr. of sec. 30, T. 69, N. R., 10 west. A proceeding to foreclose this mortgage was commenced in the usual form in July, 1863.

Jasper District Court. On tbe 19th day of May, 1859, the plaintiff brought his suit in the Jasper county District Court, against the defendant, upon a promissory note for five hundred dollars, made by defendant, dated July 14, 1857, payable to James Slaughter or order, one year after date, and indorsed in blank, and obtained a writ of attachment, which was levied upon certain real estate in Jasper county.

Specific performance: statute of frauds: payment OF CONSIDERATION: EFFECT OF ADMISSION OF YER-BAL CONTRACT IN THE ANSWER, AND ITS PROOF BY THE testimony of the defendant.

Defense: 1st, Usury; 2d, That defendant was only surety on the note; that, on the 20th April, 1859, plaintiff made an agreement with the principal, one W. B. Kipp, to extend the time of payment one year, for value received, during which time the said Kipp became insolvent. Trial by the court; judgment for the plaintiff in the sum of $430.50. Defendant appeals.

This was a proceeding by the children, to set aside an instrument, and the allowance thereof by the County Court, purporting to be the last will and testament of their father, Malichi Havelick. The grounds alleged are, that the testator had not, at the time of making said will, a sound and disposing mind; because the execution of the ■ same was obtained by the fraud of the defendant (the executrix) and others; and alleging a want of notice of probate of the same.

Hudson made his mortgage to plaintiff on certain real estate, in August, 1857. In this mortgage there was a mistake as to one tract of land. Hudson afterwards sold the land to one Bedford, who was to pay plaintiff’s mortgage— the deed to Bedford giving the correct description of the several tracts. To correct this mistake, plaintiff took a new mortgage from Bedford, and canceled the old one; Bedford representing the property to be free from all incumbrances.

Demurrer to petition: railroad subscription: condition precedent. — Action, by the plaintiff, upon the following contract: “March 23, 1860.

— Action at law on warehouse receipt, purporting to be executed by defendants as partners. Van Nostrand denied the partnership and the execution of the instrument in suit. On these issues a trial was had to a jury, and a verdict rendered for the plaintiffs. Van Nostrand appeals.

The plaintiff filed his claim before the County Court, and upon the hearing, a portion thereof was allowed. The defendant appealed to the District Court, and filed a bond, conditioned to pay, or cause to be paid, all sums of money and costs “which shall be adjudged against him in the further prosecution of this suit;” which was filed and approved by the county judge.

The policy upon which plaintiff seeks to recover was issued December 12, 1861, and continued for six years. In November, 1863, the property was destroyed by fire. The recovery is resisted upon the ground that plaintiff did not comply with the orders and rules of the company in reference to assessments made upon his premium note. All persons insured therein become members of the company and bound by the articles of incorporation.

On the 25th day of August, 1858, the said Lupton was the owner of one hundred and seventy acres of land, situated in Delaware county, in this State. At that date he conveyed by deed one-half of said land to his wife Elizabeth, and the remainder, eighty-ñve acres, to his daughter, Louisa Clifton. In November following, the said Lupton died. Before his death, he had advertised his personal property for sale.

Indictment for murder : number of jurors necessary to constitute yalid grand jury: change of venue: continuance: refusing attachments for petit jurors: hypothetical opinion founded on rumor, does not disqualify petit juror : MODE and ORDER OF CHALLENGING PETIT JURY; OATH TO JURY IN CRIMINAL CASE: WITNESSES WHOSE NAMES ARE NOT INDORSED : MINUTES OF THE GRAND JURY AS EVIDENCE: ADMISSIONS MADE UNDER THREATS AND PROMISES: INSTRUCTIONS : DEADLY WEAPONS: REASONABLE DOUBTS, &C. —On…

Action to foreclose a mortgage given by tbe defendant to Charles Mason, to secure the payment of the purchase-money agreed to be paid for the mortgaged property — part of lot six in block four in the city of Keokuk. Mason conveyed the property to Miller by deed of general warranty, &c., on the same day the mortgage was executed. There were no notes given, but the mortgage itself was assigned to plaintiff by a separate instrument, before any breach.

On tbe 19tb of September, 1856, articles- of incorporation were adopted by tbe plaintiff, wbicb were duly recorded, tbe ninth section of wbicb provided that tbe corporation might be dissolved if tbe membership should at any time number less than five. On tbe next day tbe defendant Funck executed to said society a bond conditioned for tbe conveyance to it of a certain parcel of real estate, upon tbe terms and conditions therein expressed and contained.

Action of right. — At the trial, the plaintiff gets a finding for the land described in his petition. The defendants asked for a new trial, on the ground that the decision in the premises was against the facts and the law in the case. The bill of exceptions exhibits tbe following state of case: First. A concession that tbe legal title of tbe land in controversy was in tbe defendant Banford prior to the judicial sales hereafter specified. Second.

Demurrer to answer : construction op agreement TO WARRANT REAPING AND MOWING MACHINES: CONDITIONAL WARRANTY: AUTHORITY OP AGENT. — The plaintiff’s action is upon the following instrument: “ Bomberger, Wright & Co., Dayton, Ohio: “You will please forward to me, by the 128th of June, 1862, one of the Ohio Chief reaping and mowing machines, R. Denton’s patent.

Mortgage foreclosure. — This is the same case decided on the appeal of Le Grand Byington, the'mortgagor and defendant in the same proceeding at the last December Term, :and reported in 17 Iowa, 579. The necessary facts are ■Stated .in the opinion.

Holsaple made his note to McKim or order, which the payee indorsed to plaintiff in blank. Under the issues and testimony the court submitted to the jury this interrogatory : “ Does the evidence satisfy you, and do you find that Harrison took the note of McKim, without recourse on' -MbKim, and with an express -understanding that he was to look for payment solely and exclusively to the maker? ” This inquiry was answered in the affirmative.

<p>1. Assignment: fraud. Eraud may vitiate an assignment made for the benefit of creditors, though the assignee was not a party to, and had no knowledge of, the fraud.</p> <p>Argu. 1. - conveyance. To impeach an absolute conveyance for fraud, it must be shown that the grantee had knowledge of the fraud when he parted with the consideration.</p> <p>2. - assignee an agent. But an assignee is the agent of the assignor and the beneficiaries of the trust, and is not interested as a bona fide purchaser under an absolute conveyance.</p> <p>2. Instruotions: considered together. All the instructions given on the trial of a cause will be considered together by an appellate court. A proppsition too broadly stated in one instruction will not constitute sufficient ground for reversal, if properly modified by another.</p> <p>3. Error without prejudice: instruction. The judgment of the court below will not be reversed because an instruction to the jury was erroneously refused on the trial, when such refusal worked no prejudice to the appellant.</p>

Practice: new trial: authority op agents: payments TO AGENTS NOT IN POSSESSION OP THE EVIDENCE OF the debt, 40.— Action on note made by the defendant to Bowen, Holmes & Co., of New York, for $265.50. Defense, payment; jury trial; verdict for defendant, Plaintiff appeals.

absolute on its face, was intended as a mortgage, and to redeem from it as sucb. Tbe further necessary facts will be found stated in tbe opinion. Tbe defendants appeal.

Contract of affreightment : measure of damages FOR CARRIER’S FAILURE TO RECEIVE AND DELIVER freight. — The petition alleges that the defendant, as a common carrier, by its master, made a contract with the plaintiff for the transportation of certain wheat, oats and corn from Council Bluffs, Iowa, to St. Louis, Missouri, at the rate of twenty cents per sack. Breach: that the defendant failed and refused to receive and transport the grain, according to the contract.

Defendant moved to “quash the attachment issued and levied upon property, for the reason that he was in the actual naval service of the United States.” The writ was issued and served September 2,1863. The motion was sustained “to the extent of ordering the property released,” and from this order plaintiff appeals.

This is an action to foreclose a mortgage made by tbe defendant to the Racine and Mississippi Railroad Company, on tbe 21st day of May, 1856, to secure tbe payment of a note of same date, also executed by tbe defendant to tbe same party or order, for tbe sum of two thousand dollars, payable five years from tbe 10th day of May, 1856, with ten per cent interest annually.

The defendant was indicted for obstructing a public road; tried and convicted. . He complains that the court misdirected the jury in its charge, refused to give certain instructions asked by the defendant, allowed improper evidence to go' to the jury, and that their verdict was against law and evidence.

Bight. — Both parties claim title under W. Gr. Haun; plaintiff’s deed bears date January 21, 1856, and was duly' recorded January 24th, 1856. Defendants’ title is as follows: In 1849, Doan, King & Co. commenced an action against W. Gr. & H. P. Haun, & S. H Peck, partners, under the name of W. Gr. Haun & Co. In the same month plaintiff recovered judgment against W. G. H (the only defendant served), and the cause was continued as to the others.

This is a suit in equity, to cancel a deed made by the plaintiffs to defendant, Samuel Weston, for certain lands, a part of which had been conveyed by Samuel to James Weston. The plaintiffs’ petition was dismissed absolutely; and from the judgment of dismissal, the plaintiffs appeal

•The defendants executed their joint and several notes to the school fund commissioner of Decatur county, for five hundred dollars; and the defendant Clements executed a mortgage to secure the payment of the note. .This suit was brought to foreclose the mortgage; judgment of foreclosure was entered by the District Court, and general execution was awarded against defendants Beck and Ellis, who alone were personally served. The further facts are stated in the opinion.

<p> Appeal from Benton District Court. </p> <p>In September, 1860, Field, Benedict & Co., of Chicago, recovered judgment in the Benton District Court, against the plaintiff (Webb) for abou,t $230; and on the 3d day of January, 1863, under an execution issued thereon, certain lands were sold, forty acres to the plaintiff in execution for $238.05, and sixteen and one-half acres to C. H. Conklin for $45, which satisfied the judgment, with interest and all costs. The purchasers each obtained certificates, which, on the 9th of February next after, they assigned to the defendant Watson. On the 6th of January, 1864, the sheriff executed to Watson a deed for the land so purchased, and on the 15th of the next month this proceeding was instituted, the bill claiming that plaintiff had, before the expiration of twelve months from the day of sale, redeemed said lands, by paying to the clerk the full amounts of the several bids, with interest thereon as required By law. And whether there was such a redemption, is the sole question made by the record. The cause was referred to A. S. Belt, Esq., who, after hearing the evidence upon tlje issues joined, found for the defendant, and this being confirmed (pro forma, the judge presiding having been of counsel), plaintiff appeals.</p> <p>For other facts see the opinion.</p>

A proceeding in equity, to have delivered up and canceled two notes and a deed of trust, given to Parks for the loan of money — one for $211.88, at one year, the other for $1,271.31, at two years. The debt originally was but for $800, borrowed money, drawing twenty-three per cent interest. The deed of trust given to secure this money was made to Newcomb, the agent of Parks.

<p>1. Riparian owner: fractional tract: meander line. The patentee of a fractional tract of land which, is situated upon a bank of a navigable river, and is shown by the plats of the public lands to extend thereto, is entitled to all the land adjacent to his grant, to the water’s edge. The meander line is not a line of boundary.</p> <p>2. - accretions. The accretion or newly formed ground between the meander line and the water’s edge on a navigable river, belong to the riparian owner.</p>

Defendants are common carriers, and this action is brought for the non-delivery of certain boxes, bales and barrels of goods received by them to be transported and delivered to plaintiffs according to contracts made on the 21st of January, 1858. The goods were shipped at Muscatine, to be delivered (as is now admitted) at Iowa City.

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

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

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

<p>LIABILITY OF AGENT.</p>

On his application the venue was changed to Bremer county, where lie was tried, convicted and sentenced to three years imprisonment in the penitentiary. The defendant appeals.

<p>JUDGMENT ON THE REPORT OP A REFEREE WILL NOT BE REVIEWED BY THE SUPREME COURT ON AN ASSIGNMENT THAT IT IS NOT SUPPORTED BY THE EVIDENCE, WHEN THE REPORT IS NOT ON THE RECORD.</p>

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

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

As to the land transaction. — On the 22d day of August, 1860, Archless Oaruthers (by whom the petition in this cause was filed June 25th, 1862, but who deceased October 27th, 1862; L. H. Wash-burn, administrator, being afterwards substituted as plaintiff), borrowed of the defendant Hunt the sum of $1,000, at the same time delivering to him two black mares, worth, according to the testimony, from $150 .to $200.

<p>the case op Hale v. Eeadip, 16 Iowa, 451, foiaowed by a majority OP THE COURT.</p>

<p>THE SUPREME COURT WILL NOT REVIEW A RULING UPON DEMURRER, TO WHICH NO EXCEPTIONS WERE TAKEN IN THE COURT BELOW.</p>

<p>Appeal from, Polk District Court</p> <p>Warner v. Pace, 10 Iowa, 391, cited and followed.</p>