2 Greene

Volume 2 — Greene's Iowa Reports

141 opinions

2 Greene 9Hughes v. Miller (1849)
 Error to Leo District Goúrt.
2 Greene 15Reed v. Wright (1849)
 Error to Lee District Cov/rt.
2 Greene 39Hopping v. Burnam (1849)
 Error to Des Moines District Gowrt.
2 Greene 55De Louis v. Meek (1849)
A Bill to vacate a judgment of partition for fraud may be in the nature of a bill of review, and may l.e dc-lmrred to for want of equity. No motion having been made to amend, a bill may he dismissed, and a decree rendered upon the demurrer. Upon a general and spec'al demurrer it is not necessary to make good all the causes of demurrer assigned. If sustained for one out of several causes affecting the whole bill, it is sufficient. A demurrer puts in issue the entire equity of the bill and if sustained as to some, it should be as to all the defendants. The objection of a misjoinder of complainants cannot he made for the first time at the hearing, but should he assigned among the causes of demurrer. An allegation of fraud in a bill to set aside a partition, is sufficiently specific where it charges that the attorney for plaintiffs in the partition snit entered the appearance of complainant, without, his knowledge, consent or authority', and thereupon admitted a large amount of spurious, fraudulent and unjust claims to others, which proportionality diminished Ins share in the property. "Where a hill charges actual fraud on the ground of deception, artifice ar.d circumvention, in terms judicially intelligible, it is suff e'en'. "Where a judgment in partition is alleged to have been obtained by fraud it may be impeached by an original bill without leave of the court. If the attorney of a party, by fraudulent representations procure his opponents defeat in court, or if an attorney appear and act fora party'without ids knowledge, or authority', the party injured may he relieved in a court of equity on the ground of fraud. The provisions of the partition act, can only' apply to proceedings within it* legitimate power, and not to proceedings mala fide. Fraud vitiates the most important judicial acts. If in a compromise partition, tile petitioners or their attorney's, act frnudr- ■ lcntly by misrepresentation or concealment, the party injured is entitled to relief in equity. A general allegation of fraud in a bill is sufficient, if so certainly' and distinctly stated as to make the subject matter of it clear.
2 Greene 77Arnold v. Grimes (1849)
 Error to Des Moines District Gourt.
2 Greene 86Wright v. Clark (1849)
 Error to Lee Dishriot Oourt.
2 Greene 88Fletcher v. Conly (1849)
Not necessary to prove the identity of the drawee of an order before it is offered in evidence. The acceptor of an order becomes liable to the payee named in the order, and a mere technical variance will not defeat his liability. Judgment may be rendered against the security in an appeal bond from a justice of the peace.
2 Greene 91Steamboat Lake of the Woods v. Shaw (1849)
 Error to Lee District Court.
2 Greene 94Wright v. Marsh, Lee & Delavan (1849)
 Error to Leo District Oourt¡
2 Greene 120Roberts v. Albright (1849)
Replication demurrable if it does not traverse the material allegations of the plea. A nonsuit for failing to reply to pleas, when an issue in fact is joined on another plea is erroneous.
2 Greene 122Roberts v. Miller (1849)
 Error to Henry District Court.
2 Greene 125Wilson v. Albright (1849)
 Error to Lee Distinct Court.
2 Greene 129Rife v. Pierson (1849)
Where the transcript of a justice describes a note to be dated April 12, when tbe note offered in evidence is dated Ajjril 2, but is otherwise identified as the note upon which suit was brought, the variance is not fatal.
2 Greene 131Austin v. Carpenter (1849)
 In Equity. Appeal from Des Moi/nes DisPi'iot Court.
2 Greene 135Lyne v. Hoyle (1849)
Application for a change of Tenue, may be made to a justice o'f the peace di any lime after the appearance of parties and before the jury is sworn; or the trial submitted to the justice. Statutes made to promote an impartial administration of justice, stould receive a liberal construction.
2 Greene 137Ex parte Hampton (1849)
No person but tlie party in -whose favor a judgment is renderéd,' his agent, or attorney of record, can control or order process to enforce the judgment. Oflleers of court, or -witnesses to whom fees are due, have not the power to order execution oh a judgment owned by another.
2 Greene 139Lloyd v. McClure (1849)
Where a verdict has been, returned on matters of account, a new trial should not be granted, unless it is apparent that manifest injustice has been done. A new trial should be granted, if the verdict is contrary to law, and the instructions of the court Unless the contrary appears, it -svill be presumed (hat the court exercised a sound discretion, in overruling a motion for a new trial. Where a parly enters credits upon the instrument sued on, it is not necessary for the defendant to prove them. Affidavits of jurors, not admissible to explain their verdipt.
2 Greene 142Wright v. Hughes (1849)
Tlie time of sueing out a writ of error, is determined by the date of its service upon the clerk, to whom it is directed.
2 Greene 144Millard v. Singer (1849)
 Error td Leo District OoúrL
2 Greene 148Cuddelback v. Parks (1849)
In an action of forcible entry and detainer, an appeal bond is-neoessary as w condition precedent to an appeal. An instrument with ail tire other requisites of a bond, is not one, unless signed and sealed by theparties making it. A recognizance, cannot, after an appeal, be converted into a bond by amendment.
2 Greene 151Daniels v. Bates (1849)
 Error to Bes Moines Bistriot Gourt.
2 Greene 154Cameron v. Boyle (1849)
 Error to Ees Moines District Gourt.
2 Greene 161Hine v. Houston (1849)
After going into a trial upon the merits, and the plaintiff has proved his claini for wort, the defendant should not he permitted to introduce evidence, that the work was done for him %and another -jointly, in order to avoid the liability. The omission to join all the parties, should he taken advantage of by pica in abatement.
2 Greene 162Buckley v. State (1849)
An indictment is good, which substantially follows the language of the statute, defining the offence. Not necessary that the indictment should charge the offence in the very language of the statute, if words of the same import and equally comprehensive are used. The name of the person, t:> whom counterfeit money was passed, should be set forth with certainty in the indictment, unless the name is unknown, and if so, that fact should be stated. While unmeaning forms should not be enforced, clearness and certainly should be required in pleadings.
2 Greene 165Barney v. Chittenden (1849)
 Errm* to Lea District Court.
2 Greene 179Coonrod v. Benson (1849)
 Error to Louisa District Court.
2 Greene 181Forsyth & Co. v. Ripley (1849)
Tlie statute of limitations, approved Feb. 15, 1843, cannot be pleade <1 in bar of an action of debt, covenant, <fce., within sis years after the act commenced running. The decision in Norris v. Slaughter, 1 G. Greene 338, approved. The limitation act of 1839, having been unconditionally repealed by the act of 1843, without a saving clause, the time which an indebtedness had run under the old act, cannot be included as limitation time under the new act. As'the limitation act of 1839, had not been in force the requisite period of six years, nor connected with the Michigan act of 1820, it cannot be pleaded -as a bar to an action of debt. A repealed statute of limitations, under which an action had been barred, should be specially pleaded. At common law, payment from lapse of time will not be presumed, unless the debt lias run twenty years, and the debtor pleads or alleges payment. No statute should have a retrospect beyond the period of its commencement, nor be so construed as to divest acquired rights.
2 Greene 184Wile v. Matherson (1849)
 Error to Des Moines District Oourt.
2 Greene 186Lewis v. Sutliff (1849)
The second section of the attachment act, -which authorizes an issue and jury trial of the facts upon which the attachment issued, is not repealed by the amendatory act of 1846. The certificate of a judge, that the transcript of a record is attested in due form, is authentic evidence of its correctness, where the certificate of a judge is not dated, but is preceded and followed by certificates of the clerk; the first dated on the 18th, and the other on the 31st of July, the defect is cured.
2 Greene 190Huner v. Reeves (1849)
All éo-partíes to a judgment* -who are entitled-to a writ of error, must be joined as plaintiffs in tlie writ; and if either of them refuses to join, still, his name may be used by giving him a bond to indemnify him against damages and costs.
2 Greene 191Wright v. Phillips (1849)
Amotion for a nonsuit, on the ground of plaintiff’s failure to appear, will not "be granted, if plaintiff appears before the motion is decided. Surveys made by the general government are public, and within the judicial knowledge of courts. A justice of the peace may determine what townships are within his jurisdiction ex-officio. A s-abstantial compliance with the statute, conferring and regulating the powers of justices of the peace, is all that should be required. In an action of forcible entry and detainer, the jurisdiction of a justice is coextensive with the county. A verdict defective in form, may be corrected by request or consent of tbo jurors at any time before they are dismissed, and the verdict is recorded. In a cise taken to llie district court by certiorari an affirmance or a new judgment may be rendered “as the right of the matter may appear.”
2 Greene 196Kerr v. Leighton (1849)
 Error to Lee District Court,
2 Greene 201Harrow v. Baker (1849)
 Error to Do/ois District Co%ort.
2 Greene 205Wiley v. Shoemak (1849)
If evidence is adduced which tends even remotely, to prove facts, which if established, would support the action, a nonsuit should not be granted- 3f a verdict for the plaintiff, would be clearly against the’weight and legal effect of the evidence, a nonsuit may be ordered. A motion to nonsuit plaintiff after evidence is submitted, is in the nature of a demurrer to evidence. A nonsuit should not be granted without the consent of plaintiff, unless the evidence is entirely irrelevant, or has no bearing upon a material point, without proof of which, a verdict could not be supported. After a note for a certain sum, payable in flour, is due, it becomes a cash, note, and a demand of payment is not necessary.
2 Greene 208Lucas v. Cassaday (1849)
 Error to Yan Duren District Court.
2 Greene 214Bradley v. M'Call (1849)
If the plaintiff in an attachment suit before a justice of the peace, recovera a judgment for less tha» five dollars, it does not follow, that he is liable ok the attachment bond. In an attachment suit before a justice, the demand cannot be less than five dollars, but the judgment may.
2 Greene 217Richards v. Marshman (1849)
Only tliat portion of a contract is void, 'which promises more interest than is authorized hy the interest law of 1889. On a irote made under that law to draw thirty-three per cent, interest, twenty per cent, interest can he enforced. The payee of a note, which he indorsed to the holder, is a competent witness to prove usurious interest.
2 Greene 224Scott v. Sweet (1849)
To establish a pica of want of consideration, parole evidence is admissible, to show that a promissory note was given for a patent right to make fanning mills, and that fanning mills made after the model of the right, were worthless.
2 Greene 227Walsh v. Murphy (1849)
An attorney to whom a claim was intrusted for collection and who employed another attorney to commence suit upon it, is notan incompetent witness. An attorney may he a witness for his client
2 Greene 230Bonney v. Van Buren Co. (1849)
 Error to Van Suren Distinct Gou/ri.
2 Greene 231Bradley v. Kennedy (1849)
Whore the declaration in slander contains several connts, Wo of -which charge the speaking of words at different times, and a general verdict is rendered, the judgment will not be reversed. It is the exclusive province of a jury to decide the facts in a case. 11 is not error to exclude immaterial testimony. To sustain the plea of justification to an action of slander, the testimony of more than one witness, or of one witness, and strong corroborating circumstances, are necessary.
2 Greene 235Pierson v. Baird (1849)
 Error to Van Euren District Court.
2 Greene 237Rogers v. Alexander (1849)
 Error to Van Duren District Oourt.
2 Greene 238Jefferson Co. v. Savory (1849)
When a note is so written that it is impossible to tell whether it is dated Jan. or Jun, parole evidence may be admitted to determine the true date; and the fact should be referred to the jury for determination.
2 Greene 241Marshall v. Marshall (1849)
In proceedings in chancery against non-residents, a brief statement of the object and prayer of the petition must be published for six weeks successively, in some newspaper printed in the county where the petition or bill is filed, <fec. The publication is, in contemplation, of law, a service of process upon the defendants, and unless made as required by statute, no service is obtained, and the proceedings of the court are coto/m, non judice, and void.
2 Greene 243Gordon v. Mounts (1849)
The statute of limitations, approved February IS 1843, cannot be pleaded in bar to an action of debt, within six years after the aet took effect.
2 Greene 244Hinch v. Weatherford (1849)
Statute of limitations approyeclFebruary 16, 1843, cannot be pleaded in bar to any action of debt, assumpsit, &a. commenced before July 4, 1849.
2 Greene 245Kimble v. Riggin (1849)
Where, on an appeal to the disti’iot court from the judgment of a justice of the peace, it appeared that no judgment 'Was entered by the justice on the verdict of the jury, held, that the district court had no .jurisdiction of the cause; and that even the appearance of the parties -in the supposed appeal in the district court, could not confer jurisdiction over the invalid proceedings of the justice.
2 Greene 246Ellis v. Mosier (1849)
 In Equity. Appeal from Mahaska District Court.
2 Greene 251Games v. Manning (1849)
Where a promissory note for a sum certain, is payable in leather at the tan-yard of the maker, a demand of the leather is not necessary. In a suit against the maker of a note, or the acceptor of a bill payable at a specified time and place, it is not necessary to aver or proye a demand of payment; and the same rule is applicable to notes payable in specific property. In order to discharge himself from a note payable in specific articles, it is necessary for the maker to show that he had paid, tendered, or set apart the property as payment of the note. If a debtor make a tender of the specific articles he has promised, and properly designated and set them apart at the time and place stipulated, and the creditor is not there to receive, or refuses to accept the property, the debt is thereby discharged and the property passes to the creditor. A demand after a property note becomes due, is a -waiver of any previous breach, and gives the maker a second opportunity to pay in property.
2 Greene 257Crookshank v. Mallory (1849)
 Error to Van Burén District Court.
2 Greene 260Depew v. Davis (1849)
Affidavits may be admitted in support of a motion to recommit an award to arbitrators, and if no objection was raised to tlie affidavit in the district court, none will be entertained in the supreme court. An award may be recommitted under the statute, where a legal and sufficient reason io given. A reason that will justify an arrest of judgment or a now trial, will justify a recommitment. An award should not be rejected, unless a want of jurisdiction is apparent in the arbitration. An award may be recommitted on the ground of newly discovered evidence.
2 Greene 266Wright v. Ross (1849)
The action of detinue will lie in Iowa, and may "be maintained for a pistol, or any other chattel that may be so identified ns to be recovered in specie. A statement, before a justice of the peace, is sufficiently specific in detinue, which describes the property as “a six barreled pistol called a six shooter or revolver.” The official return of a justice, cannot be impeached by the mere traverse plea of a party or his attorney, where the record shows no evidence to support it. Where property is taken from a borrower M, by unavoidable force and the bailor seeks to recover it in detinue from W, it was held that M is a competent witness for the bailor.
2 Greene 270Harriman v. State (1849)
 Error to Washington District Court.
2 Greene 286Nash v. State (1849)
An indictment is good, which clearly states all the facts necessary to constitute the crime of murder, under the statute. An indictment need only state such facts as are required to be proved. If a criminal act has been committed in one county, and consummated in another, the offender may be indicted in either county. Where a mortal blow was inflicted in Scott, from which death took place in Muscitine county, it was held that the latter county had jurisdiction. The statute, which provides that “when a person shall commit an offence on hoard of any vessel or float, he may he indicted for the same in any county, through any part of which such vessel or float may have passed on that trip or voyage” is not confined to that part of the trip or voyage which had been performed before the offense was committed, but it extends to the entire trip. A prisoner cannot complain of proceedings wjdch were beneficial to him, and in compliance with his request. Where depositions are taken by the procurement and for the benefit of a prisoner, and are not read to the jury by his counsel, they may be read by counsel for the state, if they were filed and properly in the custody of the court,
2 Greene 300Fitch v. Casey (1849)
 Error to Muscatine District Oovrt.
2 Greene 308State v. Chambers (1849)
Under the statute, the -word “larceny” designates grand larceny, as contra distinguished from petit larceny. An indictment upon a statute should state, substantially, if not in the very language of the law, all the circumstances which constitute the definition of the offense in the act. An indictment is good, which follows the words of the statute on which it is founded. The section of the statute in relation to petit larceny, regulates that offense without reference to the preceding sections. The word “steal” has a uniform signification, and means, felonious taking and carrying away the personal goods of another.
2 Greene 311Parker v. Lewis (1849)
P in speaking of L said, “lie is a thief, lie stole my wlieat and ground it and sold the floor to the Indians;” held that these words are per se actionable in slander. Words actionable in slander by implication of law, are to be considered as false and malicious, unless the contrary is made to appear by the evidence. In slander when the words spoken are actionable per se, special damage» need not be alleged or proved.
2 Greene 316Mears v. Garretson (1849)
Where a party sues out a writ of error coram nobis, but does not give the notice as required by statute, the judgment may be affirmed. Errors will not be favorably regarded which are based upon the negligence of the party assigning them. Where a party filed a motion in the district court, to affirm,for want of notice, but before the motion was decided filed a demurrer, it will not be considered an appearance or waiver of notice.
2 Greene 318Brown v. Hollenbeck (1849)
 Error to Limn District Court.
2 Greene 320Chambers v. Games (1849)
In an action of debt on a note under seal, the plea of non est factum is admissible ; but, as it puts in issue the execution of the note, it should, under the statute, be verified by affidavit. Evidence of fraud, covin, or illegality of consideration, is not allowable as defense under the plea of non est factum. It is not sufficient notice of special matter in defense of an action under the statute, to state “that the note had been given for a claim of public land, belonging to the government of the United States, on -which there was no improvement; or that there was no consideration for the note; or that the consideration had wholly failed.” The notice should specially point the particular matter relied upon in defense of the action. Proof of a set-off may be excluded unless defendant has filed with his plea the particular items of his demand. An item, in an account, designated as a “cash balance on settlement |50,00,” is sufficiently specific.
2 Greene 326Viele v. Ogilvie & Co. (1849)
 Error to Muscatine Ptstrict Cotort.
2 Greene 329Goodwin v. Thompson (1849)
A father cannot recover damages against a person for procuring the marriage of his daughter who in good faith and without force or imposition entered into a marriage contract, when between 12 and 14 years of ago. The statute which provides that male persons of the age of eighteen years, and female persons of the age of fourteen years may be joined in marriage, is merely cumulative and does not abrogate the common rule, which fixes the age of marriage consent for males at fourteen and for females at twelve years of age. A rule of common law is not repealed by implication. The right of a husband over his wife is paramount to that of her parent.
2 Greene 338Shaw v. Livermore (1849)
Where S agreed to deed a lot to L upon condition, that he would make certain improvements and live upon the lot, it was held that if L performed the substantial conditions with ordinary diligence, lie was entitled to a specific performance. ■Equity will extend relief, oven if there has not been a strict legal compliance with the terms of the contract, if it can he done consistently with the essence of the agreement. Where one of the conditions upon, which a deed should be made, was, that the purchaser should reside upon the lot, but the term of such residence was not designated, it was held that as the purchaser had complied with all the other conditions to secure title, and had resided upon the lot nearly two years before he left it, that such leaving would not bo an abandonment, and that he was entitled to a deed. The recission or specific performance of a contract is left to the sound discretion of the chancellor, to be exercised upon a consideration of the circumstances of each case, under applicable general rules of equity. Evidence will not be considered which is not responsive to the bill or answer.
2 Greene 344Gaveny v. Hinton (1849)
 Error to Jackson District Oowrt.
2 Greene 350Taylor v. Barber (1849)
in an appeal to tlie district court, where the appellant is in default the judgment of the justice may be affirmed. By going to trial on the merits without exception to the cause of action, any defect in that particular, would be considered as waived by the defendant. A verbal statement of plaintiff’s demand before a justice, entered upon his docket and indorsed upon the writ is all that is required by the statute of 1844. Mere irregularity and deficiency of form in proceedings before justices, should be regarded with liberality.
2 Greene 353Cass v. State (1849)
Where a petition for a change of venue, seta forth the requisite facts verified by the affidavit of theparty, it is the duty of the judge to grant the change to the nearest county, ■without any further proof or inquiry. The statute of 184E requires, in criminal cases, the facts stated in the petition to be verified by the affidavit of at least two respectable witnesses. If a party complies with the statute, in his application for a change of venue, the court has no discretion to refuse, but should grant the change to the nearest county notmade objectionable by the petition, without requiring any other testimony than the petition and affidavit. A father may testify in a criminal case in behalf of his son.
2 Greene 360Hildreth v. Tomlinson (1849)
 Error to Jaohson District Court.
2 Greene 363Hedinger v. Silsbee (1849)
The amount of a plaintiff’s claim need not bo mentioned in the body of a summons from a justice of the peace; but the amount claimed, including interest and costs should bo indorsed upon the summons. The want of an indorsment of the airfount of plaintiff’s claim, cannot be tafc- . en advantage of after the general appearance of the defendant. Such appearance waives the want of an indorsment.
2 Greene 365Culver v. Whipple (1849)
 Error to Jackson District Court.
2 Greene 366Steinhelber v. Edwards (1849)
Under the statute, the signature of the indorser of a note, need not he proved, unless it is denied under oath.
2 Greene 368McMullan v. Mackenzie (1849)
The existence of a partnership is a question of fact to he determined hy the' jury, who are alone authorized to decide upon the weight and sufficiency of the testimony adduced to establish the fact. The fact that the defendants conducted a smithing business together, impri-ma facie evidence of a co-partnership. Whe¡ e a note is given in the name of a firm, it is presumptive evidence that it was given for a consideration furnished to the co-partnership, and the onus probandi lies upon the party, seeking to avoid the note, to show that it was given for some other purpose.
2 Greene 372Fulweiler v. Singer (1849)
Pleas, averring that one of two payees of a note, became bankrupt after the note was made and before it was indorsed to Oie plaintiff, are defective unless tlieyr aver, that the party who indorsed the note wasnot authorized to do so; thattlie note was or should have been set forth in the bankrupt’s inventory of assets; and thattlie note was so held as to be vested by virtue of the decree, in the assignee of the bankrupt, or that he otherwise acquired an interest or control over the note.
2 Greene 373Strawser v. Johnson (1849)
A general plea, that a note -was obtained by fraud and circumvention 'is good.
2 Greene 374Chapman v. Morgan (1849)
 Agreed ease from Clinton District Court.
2 Greene 376Shaw v. Gordon (1849)
 Error to Jackson District Oowrt.
2 Greene 379Smith v. Bissell (1849)
 Error to Dubuque District Coua't.
2 Greene 383Riggs v. Bagley (1849)
In a writ under seal, the seal should be named or referred to in the attestation.
2 Greene 385Corriell v. Doolittle (1849)
 Error to Dubuque District Courts
2 Greene 390Springer v. Stewart (1850)
In an action upon an agreement with mutual and dependant conditions, the plaintiff to sustain his demand must account for all he undertook under the agreement, and the defendant to sustain his set-off, must establish each item of his demand by proof.
2 Greene 393Olive v. Daugherty (1850)
 Error to Loo District Court.
2 Greene 394Jamison v. Reid (1850)
 Error to Lee District Court.
2 Greene 397Nelson v. Gray (1850)
The district courts have concurrent jurisdiction with justices of the peace in all sums under one hundred dollars. After the death of a party is suggested, it is error to render judgment against him. Where a judgment is rendered upon a bond, it should he for the amount of the penalty; with an order that afi execution issue only for the amount of damages proved to have been sustained by the breaches.
2 Greene 400State v. Cadle (1850)
 Submitted ly agreement from Muscatine District Court.
2 Greene 404Trimble v. State (1850)
The act of the legislature creating two jury districts, and appointing two different places to bold tbe district court in lee county, is not unconstitutional. Kinney .1-, contra. In examining a juror as to bis qualification he stated, that “he had formed and expressed an opinion from the rumor or report be bad heard in his neighborhood, soon after tbe murder was committed; that be had no acquaintance with the defendant, no ill will or prejudice against him; that bo had no personal knowledge of tbe circumstances of tbe case; that be bad never beard any of the testimony or conversed with any of tbe witnesses; that his opinion was conditional, (hat if wliat he had heard was true, bo bad formed an opinion, and if not true he had formed none;” held that such a juror is incompetent.
2 Greene 420Warburton v. Lauman (1850)
Where in a mortgage a lot was by mistalce designated as eighteen instead of eight, and was correctly described in a subsequent mortgage, which was executed subject to the first with notice of the mistake; held that the first mortgage should attach to lot eight, and be regarded as senior to the subsequent mortgage. ' In equity, mistakes in a deed will be corrected, as against subsequent purchasers with notice. ITotice to an acknowledged agent is notice to his principal. Altbough contracts cannot be changed, they may be corrected so as to enforce the intention of the parties. . ■
2 Greene 427Price & Co. v. Alexander & Co. (1850)
 Error to Lea District Coiort.
2 Greene 435Greenough v. Wiggington (1850)
 Error to Bes Moines Bistriet Court.
2 Greene 440Hicks v. Walker (1850)
 Error to Monroe District Court.
2 Greene 443Rogers v. Alexander (1850)
Where an agreement was entered into “for the purpose of trial before the justice and in no other court;” such agreement should not be used on trial in the district court if objected to by one of Ihe parties. A party is entitled to a jury trial upon an issue of facts, even if those facts had been previously admitted by agreement, or if the party had agreed to submit the ease to the court, but had withdrawn (hat agreement. A prosecution for selling spirituous liquor in less quantity than one gallon, should be conducted indiie name of “The State of Iowa.”
2 Greene 447Davis v. Fish (1850)
A -written agreement between D. and F. stipulated that D. should furnish certain kinds of goods at 25 per cent and' other kinds at 10 por cent, advance, and concluded with the stipulation: “ All goods billed at 25 per cent, payable in six months, at ten per cent, in four months, by adding ten per cent interest,” held that the interest should bo charged on the goods furnished at 25 per cent, as well as on those furnished at ten.
2 Greene 449Parris v. State (1850)
 Error to Dmis District Court.
2 Greene 451Reeves v. Royal (1850)
 Error to Dams District Court.
2 Greene 454Brown v. Scott (1850)
An appeal is authorized from tlie judgment of a justice and not from tlie verdict of a jury. The intention of a justice to render a judgment without doing so, is not a judgment. Tlie certificate of an ex-justice of the peace, in relation to his proceedings while in office, is not entitled to legal consideration.
2 Greene 456Phillips v. Cooley (1850)
 Error to Ma/rion District Court.
2 Greene 458Wright v. Boon (1850)
A judge cannot act as attorney in a case pending before him. When a ease comes before a judge, in which he has been engaged as attorney he should order a change of venue. A judge cannot delegate his power to another, nor can a person be authorized to act as judge by agreement of the parties to a suit.
2 Greene 460Dickerson v. Shelby (1850)
Clerks of tbe district court are entitled to fees before losing control of tbeir service. Fees for making out a transcript, may be required before tbe case is docketed in tbe supreme court.
2 Greene 462De France v. Spencer (1850)
 Error to Jefferson District Court.
2 Greene 464Shaffer v. Trimble (1850)
Where a.party before a justice of the peace, moves for a continuance of the cause and for a change of venue before objecting to the summons; such acts will amount to a general appearance which cures all defects in the form and service of process.
2 Greene 466Hall v. Bennett (1850)
Where a party appeals from a judgment by default, lie may on first appearance in the district court, object to the manner or style in which he is sued. Where there is a manifest variance between the names to a note and the names to a record, the note should not be admitted in evidence. In a suit commenced before a justice of the peace, a misnomer may be taken advantage of by motion, as well as by plea in abatement.
2 Greene 467Graves v. Cole (1850)
 Error to Wapello District Oourt.
2 Greene 469Steel v. Davis Co. (1850)
 Error to Demis District Gourt.
2 Greene 473Hall v. Washington Co. (1850)
 Error to Washington District Court.
2 Greene 479Diltz v. Chambers (1850)
A writ is not served upon a party in the manner provided by statute by “ leaving an attested copy at his place of residence with a member of the family over the age of fifteen years,” unless the contents of the writ are stated. It is error to render judgment by default, against a party unless he was legally served with process.
2 Greene 481Carothers v. Van Hagan (1850)
In an action of replevin against two or more, it is error to instruct tho jury, that “if either of the defendants was not guilty they must find for both; that one alone could not be found guilty.”
2 Greene 482McCasky v. School District No. 1 (1850)
Where the inhabitants of a school district levied a tax upon themselves, and sufficient had been collected for the purpose of paying a teacher a balance his due, for which he had an order on the treasurer, and the officers of Die district refused to pay the order after a proper demand, it was held that the teacher might recover, in an action upon the order, against the district.
2 Greene 486Harlan v. Moriarty (1850)
C was garnisheed in an attachment suit against M, and in his answer it appeared, that he had collected funds belonging equally to B and M; that both of them claimed the whole amount, but as they had assigned the claim to him, and he believed the assignment vested in him the money, he divided the amount equally in two packages, placing each by itself; that he had paid to B his half, who at the same time demanded the other half, which he held subject to the order of M; held that the funds remaining in C’s bands were subject to the payment of M’s debts.
2 Greene 490Lucas v. Snyder (1850)
An agreement stipulated that the defendant should huild a house in a certain maimer, and have it completed on or before the first day of March, 1845, for 17111011 the plaintiff paid four hundred dollars down, and ivas to pay six hundred dollars on the said 1st day of March. In an action on the agreement, for failing to complete the house within the time and in the manner specified, the declaration averred, that the plaintiff was ready and prepared to pay according to the effect of the agreement, held that the declaration was good without alleging the payment, or an offer to pay the six hundred dollars.
2 Greene 492Patterson v. Indiana (1850)
Where a power of attorney authorizes a judgment to he confessed for “ an amount that may he found due” on the note therein described, and is in sufficient form in all otfiei particulars to give the court jurisdiction oyer the subject matter and the parties, it gives sufficient authority to confess a judgment, which cannot be collaterally impeached for mere irregularity, The judgment of a court, having jurisdiction of the parties and the subject matter is conclusive so long as it remains unreversed. A sheriffs returns may be so amended as to set forth truthfully the facts of the service.
2 Greene 497Robinson v. Moriarty (1850)
An attachment will hold all chattels, moneys or evidences of debt, or any interest which the debtor may have in them. Where 0 had collected funds for B and Mr and paid to B his portion, and where no creditors of B and M as partners elaimed the funds remaining in the hands of C, it was held, that they were liable for the individual debts of M.
2 Greene 499Lucas v. Snyder (1850)
When an instruction extends merely to tlic legal effect, and meaning of an instrument, itcannot be objected to as an-instruetion upon the facts in the ease.
2 Greene 501Holmes v. State (1850)
A proceeding against the father for the support of his illegitimate child is not in the nature of a criminal action, and therefore under the constitution the defendant is exempt from imprisonment; and that portion of the bastardy act -which authorized such imprisonment is repealed by the Constitution.
2 Greene 505Brown v. Harris (1850)
 Error to Linn District Oovrt.
2 Greene 508Greene & Bros. v. Ely (1850)
 Error to li/nn District Court.
2 Greene 513Mix v. Ely (1850)
 Error to Linn District Court.,
2 Greene 518Durham v. Daniels (1850)
Where the court instructed the jury in relation to the legal effect of deeds, it cannot he considered a charge upon the facts. All acts of incorporation are made public, and as such may he given in evidence; Such an aot creates the presumption that the corporation does exist Ac facto.
2 Greene 520Zerfing v. Mourer (1850)
In an action of trespass for debauching plaintiff’s daughter, if he did not actually connive at the guilty intercourse, evidence of loss occasioned by if, •will justify a recovery. Proof of careless indifference could only go in mitigation of damages.
2 Greene 522Fulwider v. Peterkin (1850)
 In Equity. Appeal from Oedar District Court.
2 Greene 525Brown v. Tomlinson (1850)
Whore the breaches in any count in a declaration in covenant are well assigned, a general demurrer should not be sustained. Unuer tue statute, a special covenant at the end of a deed in which the grantor warrants against all claims from or under him, does not limit or explain the more general warranties which are covenanted by the words, “grant, bargain and sell.” ■A restraint by implication upon such general warranties is not authorized by statute; it must be positive and expressed.
2 Greene 532Richman v. State (1850)
The question was put to a witness before a grand jury; “do you Enow of any person, other than yourself, being engaged in gaming at any time within two years in the county of Muscatine?” held, that witness eould not refuse to answer on the ground, that it would have a tendency to implicate himself. A witness cannot be justified in refusing to answer questions, which cannot from their nature tend to criminate him; and of such a question he can not be the judge. Where from the nature of the question, the answer would inevitably crimi-nate the witness, he is sole judge and may answer or refuse to answer the question.
2 Greene 535Abbee v. Higgins (1850)
A motion supported by affidavit, is, no part of the record unless made so by bill of exceptions. Where it appears by the returns of the sheriff, that a writ was served in tho manner provided by statute, it is good, even if it should appear that the defendant had been three months absent from his dwelling.
2 Greene 536Preston v. Daniels (1850)
 In Equity. Appeal from Linn District Court.
2 Greene 542Burlerson v. Teeple (1850)
A fence built upon public land even by mistake, passes with the freehold to the purchaser from the government; and if siich fence is detached from the realty by a wrong doer the purchaser’s right to it is not divested. A duplicate receipt or certificate from the receiver or register of a land office, is made by statute prima, facie evidence of title, in actions of trespass, right, &c.
2 Greene 547Wright v. Watkins (1850)
A decree in bankruptcy, under the general law of Congress, ordered by a court of competent, general jurisdiction cannot be collaterally drawn iu question. íhe territorial district courts were invested witb full power to adjudicate causes in bankruptcy. Nothing should be presumed against the authority or proceedings of a court of general jurisdiction.
2 Greene 549Bush v. Chapman (1850)
 Error to Dubuque District Court.
2 Greene 553Frentress v. Markle (1850)
 Error to Dubuque District Gourt.
2 Greene 559Grable v. State (1850)
In a criminal case the jurors had been empanneled and sworn, and the ease partly submitted to them when the court adjourned for dinner; during the adjournment one of the j urors separated himself from, his fellows; and, when the court met, this juror was dismissed and another person substituted; held that this substitution was erroneous. The statute prohibits the separation of jurors in trials for felonies. It is error to receive a verdict and render a judgment after the term of a court, as designated by law has expired, and on a day fixed for a term of the court in another county. Where a term of court is appointed by law tó be held in Clinton county on Monday, and in Scott county on the following Thursday, the term in Clinton county ends on Wednesday evening. Explains power of the district judge to appoint special terms of court; rea- ' sonable notice must be given. Two terms of the district court cannot he held in one district on the same day.
2 Greene 568Reed v. Murphy (1850)
 In Fguity. Appeal from Jones District OourL
2 Greene 570Graft v. Diltz (1850)
In a case tried in the district court on appeal from a justice, it is error to receive notes in- evidence, that were not marked as filed by the justice, nor in any way identified by his transcript.
2 Greene 574Reed v. Murphy (1850)
Where a person contracted to receive a share of the profits in a business as a compensation for services and rent of a building, with no oilier privilege and none of the responsibilities of a partner, it was held that he was not a partner.
2 Greene 575Davis v. Curtis (1850)
where a case is taken to the district court by certiorari, and the judgment of the justice is reversed, it Í3 error to order a trial de novo in the district court.
2 Greene 582Coffin v. Knott (1850)
 Error to Dubuque District Court.
2 Greene 585Jacobson v. Manning (1850)
 Error to Clinton District Court.
2 Greene 587Shaw v. Sweeney (1850)
 Error to Jackson District Court.
2 Greene 591Rickner v. Dixon (1850)
 Error to Delaware District Court.
2 Greene 593Hutton v. Drebilbis (1850)
The district court lias concurrent jurisdiction -with justices of the peace in actions of replevin, when the property claimed is worth less than fifty dollars; so in all other actions.
2 Greene 595Galloway v. Trout (1850)
In an action on a promissory note, where a copy of it 19 filed with the declaration ao other bill of particulars is required. No suit should be brought against an estate upon a claim for less than twenty five dollars, until the claim has been presented, as required by statute, to the representative of the estate and payment refused. A judgment in debt was rendered in an action of assumpsit, and as all other proceedings in the case are regular, it was held that the judgment should not be reversed, but should be corrected conformable to the action.
2 Greene 598Westbrook v. Westbrook (1850)
 Error to Jackson District Court.
2 Greene 600Knott v. Burleson (1850)
 Error to Clinton District Court.
2 Greene 602Darling v. Meachum (1850)
 Error to Dubuque District Gourt.
2 Greene 604Levins v. Sleator (1850)
A divorce granted by the Iowa territorial legislature is good, if it does not appear to have been granted for causes over which the district courts have jurisdiction; and such divorce will bar the right of dower as effectually as if the divorce had been decreed by a court.