Volume 2 — Iowa Reports

Prior to the pre-emption law of June 22, 1838, Arnold was settled upon the northeast quarter -of section thirty-six in township seventy-, north of range three, west of the fifth principle meridian, situate in -Res Moines county, Iowa. W. W. Chapman was settled partly on the north side of the same quarter, and partly upon the adjacent tract.

In the fail of 1852, the complainant and respondent, Wilson, entered into a business arrangement for carrying on a livery stable in the city of Dubuque. The terms of their agreement were never reduced to writing. In July, 1853, during the -absence of complainant, Wilson sold out two-thirds of the establishment to his co-defendants, David De Lorimier and Manley Hannan, excepting certain carriages and other articles specified, of which he sold but one-half.

This suit was commenced by tbe Christian church, at Pella, against Henry P. ■ Scholte, on the 30th of August,. 1854. A demurrer to the petition was sustained, and the suit dismissed. The plaintiff appeals, and assigns for 'error, the sustaining of the demurrer, and the dismissalof the suit The facts of the case, are stated in the opinion of the court

The execution of the note was denied under oatli, and on this, issue was taken by proper replication.

It appears that Stone had aclaim against one McNulty, for one hundred dollars, for professional services rendered as an attorney. To secure this, the said McNulty gave Stone a bond, in the penalty of three hundred dollars, with the defendant and another, as his sureties. The plaintiff sued upon this bond before a justice of the peace, claiming one hundred dollars. None of the defendants were served, except the said Murphy.

<p>In an agreement for the sale of land, which provides as follows: “But should, the taxes, and the note above described, not be paid by the time they become due, then I reserve the right to sell the above-described land at any time thereafter, to any person or persons,” time is of the essenee of the contraet.</p> <p>"Where a bill in chancery to enforce .the specific performance of a contract to convey land, in which time was of the essence of the contract, alleged that the respondent had waived the performance-of the contract as to time, and set up a contraet as follows: “In April, 1854, in a conversation had at Bellevue, your orator informed said W. (the agent of respondent), that your ■orator had become the assignee of said B. (.with whom the contract was made), in the contract aforesaid, and said W. agreed .to wait on your orator for several months for payment of said note (the note given for the price o'f the land), and that he would convey the said land to your orator, on payment of said note and interest, providing that all the taxes were paid,” as •.evidence of the waiver ■ and where the bill alleged further, that the complainant had paid all the taxes on the land; ffeld, That the subsequent contract alleged, was without mutuality or consideration, and was not sufficient to revive, and extend the time, on. the original contract.</p>

<p>A party objecting- to the admission of evidence, should show by his exceptions, the ground of objection to the evidence admitted.</p> <p>The appellate court cannot pass upon any objections to evidence, not insisted upon at the trial below.</p> <p>In cases of arbitration, the Code gives the parties the power to agree upon the rules that are to govern the arbitrators.</p> <p>And where in an action on an award, the admission of the award in evidence was objected to, on the ground that it was not signed by all the arbitrators, and it appeared that the agreement of submission provided, that the award of a majority should be as binding, as if made by the entire number; Held, That this was one of the rules which the parties had prescribed in the settlement; and that, therefore, ifj independent of such agreement, the award was legally defective (which is not conceded), the objection was not well taken.</p> <p>"Where an action was brought on an ’ award, on which there was a credit of $283.20, and the plaintiff in his petition stated, that $6Y of the credit so indorsed, was a mistake; that upon the agreement of defendant, that plaintiff should have a certain lot of lumber to that amount, he consented to give him the credit, but that defendant had refused to let him have the lumber— • had appropriated the same to his own use — and that the credit was, therefore, to that amount incorrect, which averments were not denied by the an-' swer; and where the court instruoted the jury, “that they were not hound to take into consideration any credit indorsed on the award, if the defendant has failed to prove the same;” Seld, That the averments in the petition in relation to the mistake in the credit, not being denied, were to be taken as admitted, and with reference thereto, the instruction was not erroneous; and that as to the balance of the credit, the instruction was erroneous, but that, as it appeared from the record, that the jury allowed the balance of the credit in making up their verdict, no prejudice had resulted to the defendant.</p> <p>Generally, a defendant is not bound to prove the correctness of a credit, indorsed upon the cause of action.</p> <p>The Supreme Court will not reverse a cause, where an erroneous instruction has been given, if it appears that the party complaining- suffered no injury therefrom.</p> <p>Where in an action on an award , in relation to certain services rendered by plaintiff in and about a steam mill, as well as the private accounts of the parties, which was resisted on the ground of errors and mistakes, the defendant introduced one of the arbitrators, and proposed to prove that at the time of the hearing before the arbitrators, there was no testimony introduced to show what were the net profits of the mill; and also, that at the same hear» ing, the plaintiff produced a certain boob, in which he had kept his account of sales of lumber at said mill, which book was handed to one of the arbitrators, but that it was not examined by them after they had retired to make up their award, which testimony was rejected by the court; 3.eld, That the evidence was admissible.</p> <p>Where matters are considered by arbitrators which were not submitted — where they have committed such material errors or mistakes as prejudice either party — or where they omit to consider matters which were submitted — for these, and other causes, as well as for fraud, the award maybe rejected by the court to which it is returned, or impeached when an action is brought to enforce it.</p> <p>The whole burden of proof is on the party who attacks an award; it is for him to clearly satisfy the jury of any mistake, as also, that he was prejudiced thereby.</p> <p>Unless some material error or defect is apparent on the face of an award, it cannot be avoided, unless the other errors or defects complained of, are shown • fully and clearly.</p>

<p>Where judgment was rendered against a defendant, by a justice of the peace, from, which he appealed, and in the District Court, at the time the jury was being called, the defendant offered to pay the plaintiff ten dollars, which was refused; and where the plaintiff obtained a judgment for ten dollars, the amount proffered by the defendant, which was a less sum than that recovered’before the justice, and the court thereupon ordered the plaintiff to pay the costs of the defendant; Held, That by section 2346 of the Code, the defendant was required to proffer to pay a certain amount, with costs; and that not having done so, and the sum proffered being the amount the plaintiff finally recovered, the plaintiff was entitled to a judgment for the verdict, with costs-</p>

This was on the 4th February, 1854, and at the request of defendant, the -examination was adjourned to the 6th of the same month, at 9 o1 clock, A. M. In accordance with the requirement of the magistrate, the defendant, with Cloud, as his surety, -entered into bond in the penalty of four hundred dollars, ■conditioned for his appearance at the time fixed by the adjournment, before the justice, and then and there answer the ■accusation so preferred against him.

chancery by the lieirs of John Ratliff, deceased, against Mehitable Ellis, sole devisee of P. Ellis, deceased, to recover the east one-third of lot eight, in block eight in the town of Fairfield (according- to the old plat), and the rents of the remainder of the lot for several years, and the purchase money for which the middle third was sold by respondent, and which was received by her.

<p>Where suit was brought against the maker and indorser of a note, which read as follows: “Oct. 28, 1854. Ten days after date, I promise to pay David H. Means, one hundred dollars, the balance due on house and lot, No. 2, B. 19, when said wood-work on said house is finished, for value received. Thomas M. Sloan;” indorsed as follows: “Bor value received, I assign the within to Samuel Hickman, Nov. 14, 1854. D. H. Means;” and where the maker of the note answered, that the note was given as the balance due on the house and lot, and the wood-work thereon, by the payee; that the work had not been completed according to the contract; and that the consideration had therefore failed," which answer was not replied to by the plaintiff; and where the indorser made no defence to the action, but replied to the answer of his co-defendant, alleging that he had performed all the work required of him by his contract with the maker, and that the consideration had not failed; and where on the trial, the indorser was offered as a witness by the plaintiff, to show the complete performance of the work mentioned in the note, to which defendant objected, because of the interest of the witness, which objection was overruled, and the witness permitted to testify ; Meld, That under the issue made, the indorser was not a competent witness for the plaintiff against the maker of the note.</p>

¡^Trespass against defendant and his son, for assault and battery. Justification by father, that the assault was committed in defence of his son and his own property. Before the trial of the cause, the son was released by the plaintiff,, and discharged by the court. On the trial, the defendant' sought to introduce the son as a witness, but being objected to, he was excluded by the court, and this is now assigned for error.

. This is an appeal from an order of tbe District Court of’ Muscatine county, discharging Joseph H. Wallace, mayor-of tbe city of Muscatine, from an alleged contempt, in disobeying an injunction issued in a cause in chancery, wherein The First Congregational Church of Bloomington are complainants, and the city of Muscatine is respondent. In the1 Supreme Court, a motion was made to dismiss the appeal,, for the reason that an appeal will not lie from such an order»

This is an action of right, brought to recover lot number three, in block number twenty-seven, in that part of Iowa City, laid off by the commissioners of Johnson county, as the county seat of said county.

The plaintiff is a negrothe defendants, white persons.. On the trial below, the defendants offered one Hinton, a negro, as a witness, to the introduction of whom, plaintiff objected, upon the ground that said witness, being a black man, was incompetent to testify in said cause. This objection was sustained, and the witness excluded, to which defendants excepted. The cause was tried by the court, and the whole testimony is embodied in a bill of exceptions.

Tilghman A. Taylor, since deceased, commenced this suit to recover damages occasioned by his being overturned in the stage-coach of the defendant. On his death, Margaret Taylor, his widow, was made administratrix of his estate, and substituted as party to the suit. She filed an additional petition, claiming $5,000 damages, in her own right, in consequence of the death of said Tilghman.

of June, 1853. June 6th,.. 1854,, writ of error issued-from the District Court. At the October term,.1855, the plaintiffs moved to dismiss, the writ, because it was not sued out withiu the time prescribed by law.. This motion was sustained, and the writ-dismissed, for the reason stated in the motion, and also, as; stated in the bill of exceptions, because an appeal had been previously taken by the same party, and disposed of in the-same cause.

This was an action brought by Iowa City against Peter Conboy, claiming of Mm $100, and charging that the said defendant, on the first day of December, 1854, did keep a billiard table within the corporate limits of Iowa City, where games of skill or chance were played, without first having obtained a license so to do, contrary to the form of the ordinance in such case made and provided, and against the peace and dignity of’the said Iowa City, whereby an action hath accrued to…

This was an information in the nature of a quo warranto, filed by the prosecuting attorney of Lucas county, to oust William C. Best from the office of… Held: at which Savacool was elected county judge; or 'that said election was held pursuant to law; or that he received a majority of all the legal votes cast; or when the canvassers declared said Savacool elected; or for what term, Or how long. 3. Said information does not state the time when, or the manner in which, said.

This was an action on the following contract: Memorandum of agreement made and entered into this 12th day of August, 1854, between W. H. C. Eolsom, of Minnesota, of one part, and J. M. Cannon, of Davenport, Iowa, of the other part.

This is a proceeding in equity to enforce the specific performance of a contract, for the conveyance of a certain eighty acres of land in Lucas county. The contract is under seal, dated February 22, 1850, and binds the respondent to convey tbe land, so soon as he obtains his patent.

This is a bill in equity, to obtain title to tbe west half of tbe southwest quarter of section thirty-six in township eighty-five, north of range two,, east of the fifth principal, meridian. The bill alleges that Usher purchased what was-called by the early settlers, “a claim” to this land, in 1840,, or thereabout, and that he continued in possession until, about 1850, most of tbe time, by himself or his tenants.

This was a petition for tbe specific performance of a tract relating to tbe sale of certain land. To this there a demurrer, which was overruled, and the respondent faili to answer, a decree was entered in accordance with t. prayer of the petition. Respondent appeals, and in court relies upon the sufficiency of his demurrer.

On the 7th of April, 1849, the respondent made his title bond, by which, in consideration of two hundred dollars to-him paid, he bound himself to convey to one Bostick certain town lots in Port Des Moines, so soon as he obtained a title for the same from the commissioners of Polk county-This bond was transferred by Bostick to Almond, and from Almond to the complainant — the last transfer being made August 17th, 1854.

This action was commenced by Moreland against Page, on the 8th day of April, 1854.

Williams & Cunnigham sued Robbins & Co. for a debt of about $281, and garnished P. M. Housel, the appellant. The whole question arises on a brief answer of the garnishee, which is as follows: “ At the time of the service of the garnishee notice in this action, I had under my control property of the defendants, to the amount of probably $2,000; it may have been more or less.

This is an action for trespass, brought in the name of “ The State of Iowa, who sues for the use and benefit of the Des Moines navigation and railroad company,” for trespass on certain lands “belonging to, and being the property in fee simple, of the said State of Iowa.” The defendant demurred to the petition, for the following reasons: 1. It appears by said petition, that the plaintiff has no interest in the subject matter of the suit. 2.

<p>An action of trespass quarc clausum Jregit, so relates to real property, as to authorize the prosecution of the suit in the county where the realty is situate, even though the defendant may reside in a different county.</p>

<p>The act entitled “An Act for the Suppression of Intemperance, ” approved January 22, 1855, is not in conflict with the constitution or laws of the United States.</p> <p>The General Assembly cannot legally submit to the people, the proposition whether an act shall become a law or not.</p> <p>The people have no power, in their primary or individual capacity, to make laws.</p> <p>A statute void in part, is not necessarily void as a whole. If sufficient remains -to effect its object, without the -aid of the invalid portion, -the latter only should be rejected, and the former allowed to stand.</p> <p>The act for the suppression of intemperance, approved January 22, 1855, is a complete act in all .its parts, without the eighteenth section.</p> <p>Although the power of the judiciary to declare and hold an act .of the legislature unconstitutional and void, is universally admitted, yet the exercise of that power, is considered of .the most delicate and responsible nature, and is not to be resorted to, unless the case be clear, decisive and unavoidable.</p> <p>Jt is the duty of the-.courts, to give.to a statute such a construction, if possible, as will sustain it.</p> <p>Where the language and provisions of a statute are consistent with a lawful end, and this is its apparent meaning, whilst another construction would give it an unlawful effect, it is the duty of a court to take that view which is lawful and consistent.</p> <p>The whole of the act for the suppression of intemperance, approved January 22, .1855, is not rendered invalid, even .though the submission to a vote of .the people, as provided for by the eighteenth section of the act, should: he held; unconstitutional.</p> <p>The eighteenth section of the act did not submit to the people the question,, whether the aefc should become a law or not, and is not unconstitutional.</p> <p>The statute does not embrace more than one object, nor objects not expressed in the title; and is not in violation of the twenty-sixth section- of the first article of the constitution, which provides that every law shall embrace but one object, which shall be expressed in the-title.</p> <p>The act has been published, as required by the constitution of the state of~ Iowa.</p> <p>A particular description of the place to be searched, or the property to he seized, is required by the act for the suppression of. intemperance; and- the charge-alleged against the defendant is to be distinctly and fully stated.</p> <p>The words “ as particularly as may he,” in the ninth section of the act for the-suppression of intemperance, convey the idea of the greatest degree of certainty in the description of the place to be searched, or the property to be-seized.</p> <p>Under the statute, it is necessary to.informthe defendant of the charge alleged! against him, and it allows him to be confronted with the witnesses against him.</p> <p>The statute does not authorize a destruction of property, without notifying the-defendant; nor does it authorize- a forfeiture and destruction of private property, without trial, and as a penalty for crime, which need not be proved-.-</p> <p>The act to incorporate the city of Keokuk, approved December 13, 1848, and, the act amendatory thereof, approved January 22, 1853, confer upon the-mayor of the oity of Keokuk, the jurisdiction of a justice of the peace, under the oriminal laws of the state; and the power thus conferred, is not in conflict with the third article of the constitution, which provides that no person*, charged with the exercise of powers properly belonging to one- department of the government, shall exercise any functions appertaining to either of the, others.</p> <p>The seal of the city of Keokuk is a corporate seal, and not the seal of the may- or, when he acts as a justice of the peace under the laws of the state.</p> <p>Section 115 of the Code, which provides that no sheriff, deputy sheriff, coroner,, or constable, shall appear in any court as attorney or counsel for any party,. &c., does not prohibit peace officers from making- complaint of tlie violation of. the penal laws of the state.</p> <p>Where the defendants in a oriminal proceeding before a justice of the peace,., appeared and had a trial, without objecting to the information or warrant and where, on appeal, the objection to the information and warrant was first, raised in the District Court, which objection was not included in the affidavit for the appeal, and was overruled by the District Court; Beld, That the defendants having appeared before the justice,- and had a trial, without testing, the sufficiency of the information and warrant, and-it not being assigned as. an error in the affidavit for the appeal, the objection was properly overruled^</p> <p>And where on appeal in a criminal case, the District Court refused to grant a new trial on the escora assigned, in the affidavit of appeal, and, refused the? defendants a trial hy jury; Held, That the District Court did not err in refusing a trial hy jury.</p> <p>Section 3361 of the Code, is applicable to cases under the act for the suppression of intemperance, and is not superseded hy section ten of that act.</p> <p>A-n assignment of error as follows: “In overruling various other motions and questions apparent upon the record, which is made part and parcel of this assignment of errors,” is too broad and indefinite to he considered hy the Supreme Court</p>

<p>Where a complaint under the act for the suppression of intemperance, alleged that certain intoxicating liquors were “kept in a certain house occupied and kept by one S., on a certain lot, and intended by said S. to be sold unlawfully; and where a motion was made to quash tho information, on the ground that while the liquor is charged as being in the house of defendant, no affidavit of a sale, at any time, was made as required by the proviso to the ninth section of tho act, which motion was overruled; Held, That the motion was properly overruled.</p> <p>The word “ house ” in the ninth section of the act for the suppression of intemperance, approved January 22, 1855, is not equivalent to the words “dvolling-liouse,” in the proviso to said-section.</p> <p>Whore certain intoxicating liquors were seized under the act for the suppression of intemperance, and the owner appeared and pleaded as a bar to the complaint and prosecution, a previous conviction of himself, for keeping said liquors for sale"; Held, That the conviction of the owner for keeping, with intent to sell, is not a bar to a prosecution against the liquors themselves, as a nuisance, and for the abatement of the nuisance.,</p> <p>And where in such a proceeding, the court refused to instruct the jury, that if the jury find from the evidence, that the owner of the liquors had previously been convicted of keeping said liquors, with intent to sell, they must find for tho defendant; Held, That there was no error in the refusal to give the instruction.</p> <p>Where a motion was made in a criminal ease, for a new trial upon the ground that after the jury had retired, and before they returned into court, with, their verdict, two of the jurors separated from their fellows, and conversed ■with other persons about their verdict; which motion was supported by an affidavit, which alleged “that after the jury retired to consider then- verdict in the above cause, on Monday evening, and before they had returned their verdict into court on the Tuesday morning following, two of the jurors separated from their fellows, and were in the office of the affiant, and conversed in his presenco about the case; and that afterward, they were present when the verdict was presented to the court,” which motion was overruled; and where it appeared from the record, that on the day of trial, the parties agreed that the jury should seal up their verdict, after-agreeing upon it, and return it into court on the next morning, and that on the next morning the jury returned a written and sealed verdict; Held, That the affidavit did not show that the jurors conversed with other persons, and that there was no error ho overruling- the motion.</p>

<p>The act entitled “ An act In relation to certain state roads therein named,” approved January 22, 1853, is constitutional.</p> <p>It is the duty of the courts to give such a construction to an act, if possible, a3 will avoid the necessity of exercising the power of declaring an act of tho legislature void, and uphold the law.</p> <p>In determining whether a law is constitutional, under section twenty-six of the third article of the constitution, which declares that every law shall embrace but one object, which shall bo expressed in the title, the unity of object is te he looked for in the ultimate end designed to he attained, and not in the details leading to that end.</p> <p>Section 2183 of the Code, which provides that the writ of mandamus may boissued on the information, under oath, of the party beneficially interested, contemplates that either the public, through its officers, for the enforcement of a public duty, or an individual, having a right to be enforced, or an interest to be affected, may cause the writ to be issued, and not that every one who pleases may sue out the writ.</p> <p>Where the petition or affidavit for a writ of mandamus, does not show any right or interest whatever in the relator, in connection with the object of the writ, (ho writ should not be allowed.</p>

<p>Apartyis not confined, to twenty days after judgment is rendered against him by a justice of the peace, within which to sue out a writ of error.</p>

<p>Section eighteen of tho first article of tho constitution of the state of Iowa, which provides "that private property shall not be taken for public uso, without just compensation, means that the person whose property is so taken, shall have gl-fair equivalent in money, for the injury done him by such taking.</p> <p>The term “damages,” in the fourth section of tho act entitled “An act granting to railroad companies the right of way,” approved January 3 S, 1853, has relation to the provision of the constitution under which the property may be taken, and is precisely synonymous with the phrase “just compensation,” there used.</p> <p>The just compensation to which the owner of the land is entitled, should be precisely commensurate with the injury sustained by having the properly taken — neither more nor less.</p> <p>The right of way conferred by the statute, and acquired by a railroad company, is tho right of way peculiar to a railroad, and contemplates all which is necessary and proper for the construction and maintenance of a railroad over the premises.</p> <p>It is the right (within the limits of quantity, as allowed by tho statute to bo taken), to all freedom in locating, constructing, and conveniently using and repairing the road and its appurtenances; and for such purpose only, of taking, removing and using any earth, gravel, stone, timber, or other materials, on or from the land so taken.</p> <p>As a railroad is designed to be a level road, or nearly so, the right to construct, includes tho right to make deep cuts, or high embankments, as the topography of the land may require.</p> <p>As the convenient use of a railroad contemplates rapid locomotion, all the rights necessary thereto, as against the owner of the foe, are incident to tho appropriation of tho land for railroad purposes.</p> <p>Tho right of way acquired by a railroad company, is not limited to the life of the charter, or articles of incorporation,, of tho company, but is intended to be perpetual, if tho company, its grantees, or assigns, continuo to occupy the land for the purposes for which it was appropriated.</p> <p>The fee of the land appropriated for railroad purposes, remains in the owner, subject to the easement acquired by tho company; and the rights of the company and those of the owner in fee, are as distinct and separate, and each is as independent of tho other, as the rights of adjoining land owners in fee.</p> <p>Any reciprocal relation that subsists between railroad companies and the owners of the feo of land, is either founded on agreement, or created by statute; and tho only relation of this character, which exists by statute, is that cre-ated by section sixteen of the act granting to railroad companies the right of way, approved January 18, 1853, which, provides that where a person owns land on both sides of the road, the corporation may be required to furnish a crossing.</p> <p>■Where no statutory regulation exists, defining the duties of railway companies as to fence, they are under no obligation to erect fences between their road and the adjoining land.</p> <p>Chapter fifty-two-of the Code, regulating partition fences, is not applicable as between the owner in fee of land and a company having a right of way for a railroad over such land.</p> <p>As no reciprocal obligation exists between the owner of the right of way over, and that of the fee, in land, whereby either may compel the other to fence, the building of fence is not necessarily an element to be taken- into consideration by the commissioners, in assessing the damage occasioned by the right of way.</p> <p>The proper mode of ascertaining the damages occasioned by taking the right of way over land, is to determine the fair marketable value of the premises before the right is set apart, and then again after; and the difference will be the true measure of damage; and when paid, will be, in a legal sense, just compensation..</p> <p>'The present values, taking into consideration the extent of the rights conferred, are those which are.to be arrived' at; and the immediate and necessary consequences of parting with the right conferred, must necessarily enter into the consideration of the commissioners, in assessing the damages.</p> <p>The premises, es.left in the condition they will be, after the right of way is taken, together with the damages assessed, should be equal in value to the premises; immediately before the taking of such right of way.</p> <p>In assessing the- damages, all1 the circumstances that immediately depreciate the value of the premises; by taking the right of way, are proper to be considered, and none others.</p> <p>In case the land was fenced, and by taking the right of way, it is thrown open, and left in a manner unfeneed, this fact will be taken into consideration in arriving at the depreciated value of the-remaining premises.</p> <p>How the road may affect the value of the land, if completed, or any other consideration of future benefit; or any abuse of the privilege, or probability of abuse, by the company; or any unwillingness on the part of the owner to allow the road to go over his land, is not1 in any manner to be considered, in the assessment of'the damages, arising from taking the right of way. •</p> <p>■Where an appeal is taken from, the finding of the commissioners appointed to assess the damages created by taking the right of. way, and the appeal is heard in the District Court before a jury, the witnesses called by the respective parties, may be permitted, on their examination in chief; to give their opinion of the value of-the premises before and after the taking of the right of way, leaving the opposite party, by his right of cross-examination, to learn the ability of the witness to judge in the premises, and what he takes into consideration in making up his judgment.</p> <p>But in such cases, the opinions of the witnesses must be confined to the premises over which the right of way is taken.</p>

<p>In order to give this court jurisdiction over an appellee, he must be served with notice in some manner, and this service is as essential to give jurisdiction, where there is no voluntary appearance, as it is in the District Court.</p> <p>■When the judgment is against the plaintiff in the court below, in cases where ■there has been no personal service on defendant, and no appearance made by him, and his residence is still unknown, the Code provides no method for giving notice of appeal.</p> <p>Under the Code, this court has power, by the establishment of proper rules, to supply defects in the title regulating the organization of this and the District Courts, so as to carry out the general spirit and intent of the system of practice, and make such other rules, consistent with law, as it may deem expedient.</p> <p>In establishing such a rule, we know of none better than that provided for bringing a party into the District Court, by section 1125 of the Code, where there has been a return of not found.</p> <p>The appellant must have his notice of appeal returned not found, before he makes his publication.</p> <p>The notice must be published in a newspaper, as convenient as practicable to the court where the action was commenced, to be determined by the clerk of such court; and should be published for four successive weeks, the last publication to be at least fifteen days prior to the commencement of the term at which the appeal is to be heard.</p> <p>The same proof and affidavit of the service will be required, as is provided for in similar cases in the District Court, by section 1826 of the Code.</p> <p>If the appellee is a non-resident, and has an agent or attorney within the state, the notice should be given him, instead of by publication.</p>

<p>Where a party has actual notice of the existence of a deed, he is affected by it^ even though no certificate of acknowledgment is indorsed on the deed.</p> <p>Where in an action for the partition of real estate, the plaintiff made certain parties defendants, set out their pretended claim to the land, averring that said claim was a cloud upon his title, and prayed for its removal; and where these defendants, in their answer, set up their title,'and called upon the plainliñj as well as other persons, whom they made defendants, to answer as to a cross-bill; and where the parties, without making objection, did so answer, and where the parties subsequently entered into an agreement, that the ease should be. iu all respects as a proceeding in chancery ; and where on the hearing of the case in the Supreme Court, it was urged, for the first time, that the equitable rights of the parties to the land could not be adjudicated in this action; Held, That the objection was made too late.</p> <p>The first section of the act, entitled, “An act relative to religious societies, approved February V, 1844, does not limit the quantity or value of the property that may be held by a religious society, but alone restricts the purposes for which- it may be acquired and applied.</p> <p>A grant to trustees, for the use and benefit of a church to be afterwards organized, with no power in the trustees to create the beneficiary, or to appropriate the laud, or funds arising therefrom, for any purpose, until such organization, will be upheld so as to pass the title, if such church shall afterwards, within a reasonable time, be so created or brought into existence, as to acquire and hold property, or be -the recipients of a charity.</p> <p>Marshall v. Chittenden et al. (not reported), so far as it holds that the trustees under the deed of J. McK. to C. and others, dated December 25,1846, after the death of said McK., held the estate for his heirs, overruled.</p> <p>By the common law, all grants between individuals must be made to a grantee in existence, or capable of taking, otherwise there could be no such thing as livery of seizin.</p> <p>But this rule does not apply to grants or devises to charitable or benevolent purposes, and especially where the legal estate is vested in trustees, to hold for the use of the contemplated charity.</p> <p>In such cases, if the intent of the donor can be ascertained, and it be legal, courts of equity will carry it out.</p> <p>The exercise of jurisdiction by courts of chancery in eases of grants or devises to charities, is not dependent upon the statute of 43* Elizabeth, commonly known as the statute of charitable uses.</p> <p>In this country, the jurisdiction of courts of equity over charities, must be exercised judicially, and not as a prerogative power.</p> <p>If the intention of a donor can be legally executed, whether the gift is to a general charity, or to a specific object, it will be done; but if this cannot be accomplished, the claim of the heir will not be defeated, by appropriating the property to another and different object.</p> <p>The doctrine of cy pres, at least in its original form, as administered in the English courts, has no application in this country.</p> <p>A court of equity will not permit a trust to fail for want of a trustee.</p> <p>Grants, devises, or dedications to public, pious, or religious uses, from the necessity of the ease, form exceptions to the rule applicable to private grants, requiring a grantee afe well as a grantor.</p> <p>It is not necessary in such eases, that the beneficiary should, at the time of the grant, be clothed with the power or capacity of taking the benefit of the donor’s bounty; but the intention of the donor will be executed, if this capacity arises within a reasonable time thereafter.</p> <p>In the meantime, where the property is in the hands of a trustee, and the object and purpose of the grant look to a future grantee, it will be held in abeyance.</p> <p>•And it is not necessary that the trustee shall have the power to create the beneficiary, or proceed with the execution of the trust before such creation, in order to sustain and uphold such a grant or devise*</p>

<p>Under the act entitled, “ An act to prevent frauds,” approved January 16, 1840 (Rev. Stat. 1843, 211), a judgment was a lien on an equitable interest in real estate.</p> <p>Section thirty-one of the act of 1840, entitled “ An aot to regulate conveyances,” makes a deed valid between the parties, and such as have actual notice thereof. The want of the acknowledgment, or of the proof which may authorize the admission of the deed to record, does not invalidate the deed as between the grantor and grantee, and is good as to all persons who are charged with such notice.</p> <p>The acknowledgment and record of the deed, are provisions which the law makes for the security of creditors and purchasers — they are not essential to the validity of the deed as to the grantor.</p> <p>Where in an action of right, the plaintiff claimed title to the premises under a deed from one I., dated March 13,1853, and where the defendant claimed title under a judgment in tho District Court against W. and R., rendered October 26, 1S41, a sale of the premises on execution, as the property of W., and a sheriff’s deed, dated May 6, 1843, and showed by the testimony of W., that he purchased the premises of I.; that I. conveyed to him by warranty deed; and that W. afterwards (March Si, 1842) conveyed to B., T. & B., of St. Louis, of which firm the plaintiff was a partner, and delivered to their agent, the deed from I. to himself; to be placed upon record; and where the defendant further proved by I., that he sold the premises to W. about the year 1S41 or 1842, and thinks that he conveyed the same by deed; that witness afterwards, at the request of B., T. & B., took up "the deed he had made to W. — the same never having been recorded — and made a deed directly to B., T. & B., dated February 25, 1843; that the deed to W. is lost, or was destroyed by the witness, and never was upon record; and that in March, 1853, he executed the deed given in evidence by plaintiff; and where the plaintiff, to rebut this testimony, gave in evidence the deed from W. to B., T. & B., dated March 31, 1342, and the deed from I. to them, dated February, 25, 1843, and proved that B., T. & B. obtained the deed from 1. directly to themselves, to save circuity of title through W., and that in the . spring of 1853, the plaintiff finding a defect in the acknowledgment of the deed from Í. to B., T. & B., and being the survivor of the partnership, which had been dissolved, procured from I. the deed, dated March 13, 1853, to be made directly to himself; and where upon this state of evidence, the court instructed the jury, that the plaintiff was entitled to recover, unless the title of defendant founded on the judgment against W. & R. related back to the date of the judgment, October 26, 1841 ; and that before it could so relate back, they must find that W. had a deed from I. conveying to him the legal title to the promises in controversy, for a valuable consideration, duly executed and acknowledged, at or before the date of said judgment; Held, That the court erred in requiring the defendant to show that the deed from' I. to W. had been acknowledged.</p>

<p>Where a subsequent mortgagee has actual notice of a prior existing- mortgage on the same premises, it is immaterial which was first recorded.</p> <p>And where two mortgages on the same premises, were executed on the same day, one of which was filed for record, as appeared from the certificate on the mortgage, half an hour before the other; and where it appeared from the testimony of the mortgagor and others, that the mortgage last recorded, was first executed, and that the second mortgagee had actual notice of the execution of the first mortgage; Held, That the first mortgagee had a priority of lien.</p>

<p>Where the plaintiff brought an action against the defendant, charging the latter with having commenced a prosecution for larceny against him, and alleging that said prosecution was wrongful, and without any probable cause; that plaintiff was put to groat trouble and expense in defending himself against said charge; that he was arrested and held in confinement under the warrant issued in said prosecution; and that he suffered great damage and injury by the said wrongful act of the said defendant; Held, That the action, though it need not have a technical name, must be governed by those rules and principles which obtain in actions for malicious prosecutions.</p> <p>Where in such an action, the defendant asked the court to instruct the jury, “ that before the plaintiff can maintain this action, he must prove that the prosecution was malicious, and without probable cause,” which instruction the court modified, by saying, that “such proof was necessary in order to maintain an action for malicious prosecution;” Held, That the court erred in thus modifying the instruction.</p> <p>It is the duty of the court, to determine the character of the action — by what rules and principles it is tobe governed — and not leave it uncertain and confused, whether the law it is enunciating applies to the case at bar, or some other.</p> <p>Where in an action for malicious prosecution, the defendant asked the court to instruct the jury, “ that if defendant has shown that he acted under the advice of counsel, malice cannot be inferred from the want of probable cause,” which instruction was refused; Held, That the instruction was properly refused. .</p> <p>And where in such an action, the defendant asked the court to instruct the jury as follows: “ That if the jury find from the evidence, that the defendant acted upon the advice and opinion of counsel, given upon a fair statement of the real facts and circumstances in the case, they will find for the defendant,” which instruction the court refused to give; Held, That the instruction was improperly refused.</p> <p>But where tho defendant misrepresents the facts to the counsel whom he consults; or where he does not act in good faith under the advice received; or ' where he does not himself believe that there is cause for the prosecution; or where counsel and client act in bad faith in originating and bringing the action, he will not be protected by the advice of counsel; and in such cases, the 6onafides of his conduct, is a question of fact for the jury.</p> <p>To sustain an action for malicious prosecution, the plaintiff must show that the prosecution originated in the malice of the prosecutor, and without probable cause.</p> <p>To prove express malice even, is not sufficient, unless the want of probable-cause, is also shown.</p> <p>The want of probable cause, cannot be inferred from express malice, but malice may be implied from want of probable cause.</p> <p>Tbe question of probable cause, is a mixed one of fact and law, involving two distinct considerations, to be determined by two different tribunals. Tbe sufficiency of tbe circumstances to constitute probable cause, is a question •of law for the court; and tbe evidence of tbe drcumstanees, is for tbe determination of tbe jury.</p> <p>•Malice is, in-all cases, a question.of fact for tbe jury,-and maybe either express or implied.</p>

<p> Appeal from the Des Moines District Court. </p> <p>Petition to recover money bad and received by defendant, for plaintiff nse. Defendant answers, admitting tbe receipt of tbe money, but averring that be inclosed tbe same in a letter, and deposited it in tbe proper post-office, to plaintiff’s address, at bis request, and that plaintiff bad received the same by due course of mail. This answer is sworn to, and requires the reply thereto to be given under oath. The plaintiff accordingly replies under oath, negativing all the allegations of the answer. Defendant moved to strike this replication from the files, because it was not sworn to according to law, and as required by the answer. This motion was overruled, and the cause being submitted to the court on the pleadings, judgment was rendered for plaintiff, and defendant appeals.</p>

<p>■Where in a suit in chancery to enforce the specific performance of a contract to convey real estate, one of the respondents filed an answer not under oath, to which a replication was filed, and the cause was then continued; and where at a subsequent term, and after depositions had been taken, the respondent was permitted, against the objection of the complainant, to file an amended and sworn answer; Held, That the court did not err in allowing- the answer to be filed.</p> <p>The legislature possessed the power to amend the practice in relation to pleadings in chancery, so that amendments may be permitted, winch had nol^ before been allowed.</p> <p>Sections 1156 to 1159 of the Code, inclusive, apply to proceedings in equity, as well as at law.</p> <p>Where the condition in a bond for the conveyance of real estate, read as follows: “Whereas the- above-named B. pays to the above M., two promissory notes — one fifty dollar note, payable on demand, at ten per cent, interest; the other payable in one year from date, two hundred dollars, at the rate of ten per cent. Whereas, if B. pays the above sum to the above M., at the expiration of the year, then the above-named M. does deliver unto the above-named B., at the expiration of the year, August 8th, 1854, a deed, with general warranty [liere follows a description of the land]; then this obligation to be null and void — otherwise to remain in full force and virtue in law;” Held, That time was not of the essence of the contract.</p> <p>Where in a suit to enforce the specific performance of a contract to convey real estate, against the vendor and a subsequent purchaser, with notice of the rights of the original vendee, it appeared from the testimony, that the vendor had placed the original vendee in possession of the premises; that the said vendee had paid part of the purchase money, which the vendor still retained, and had made improvements on the land; that the notes for the unpaid portion of the purchase money, bore the highest rate of interest; that the land had enhanced in price; that the balance of the purchase money was brought into court; that the vendor had never put an end to the contract, by refunding the money paid, giving up the note for the balance due, and making, or offering to make, reasonable compensation for the improvements made; and that the subsequent purchaser from the vendor, had notice of the rights of the complainant; and where the suit to enforce the performance of the contract, was commenced in about three months after the last payment became due; Held, That the contract should be specifically performed.</p> <p>Where in such a case, the defendant alleged that the contract sought to be enforced, had been obtained by the fraudulent representations of the complainant, setting out the alleged representations; and where the respondent requested a jury to try the issues of fact raised by the pleadings, and a jury was thereupon called, and issues submitted to them, among which wag the following: “Did the complainant procure the execution of said bond by means of false and fraudulent inducements held out by him to the respondent?” to which the complainant objected; and where the jury found the said issue in favor of the respondent; Held, That the issue presented to the jury, was broader than that made by the pleadings, and was erroneous.</p> <p>Although a defendant may answer, setting up fraud generally, yet if he alleges a particular state of fraud only, he will be confined in his evidence, to proof of the fraud alleged ;. and the issue submitted to the jury, must not enlarge the pleadings.</p> <p>And where in such a ease, upon an issue of fraud in procuring the execution of a contract, the jury found for the respondent, and the court thereupon dismissed the bill of the complainant; and where the evidence submitted, did not support the finding, the Supreme Court reversed the decree, and refused to submit the issue to a jury a second time, but instructed the court below to render a decree in favor of the complainant.</p>

<p>Where on the third of March, 1852, G-. and wife executed a mortgage to one L., on the west third of lots 10, 11, and 12, in block 30, in the city of Keokuk, to secure the payment of $350.00, which was recorded April 21, 1852 ; and where, on the ltth of May, 1852, G-. sold to C. and G. the same part of lot 10, the deed for which was recorded December 30, 1852, and in January, 1853, G. sold the same portions of lots 11 and 12 to B., whose deed was recorded April 5, 1853; and where the mortgage was sold by L. to one E., and by E. to 0. & &., who in August, 1853, commenced suit against G. and wife, to foreclose said mortgage on lots 11 and 12, without making B. a party, in which suit a decree of foreclosure was rendered for $383.07, which amount included, by agreement with the agent of G., the sum of $54.36, for interest paid on money borrowed to purchase said mortgage, and attorney’s fees for foreclosing the same; and where B., pending the proceedings, appeared by Ms attorney, and filed a paper in the cause, stating the respective purchases of himself and complainants, and asking that the lots purchased by him, be held liable to pay two-thirds only of said debt, and that the lot purchased by O. and G-. should be liable for the remaining third, of which paper no notice was taken in the adjudication of the cause; and where, by virtue of the decree of foreclosure, the lots were sold by the sheriff, under a writ without the seal of the court, and purchased by R. for the amount of the decree and costs, who received a sheriff’s deed therefor and where B. then filed his bill, setting forth the foregoing facts, alleging that the decree of foreclosure was obtained by fraud, and in prejudice of his rights, and praying that the decree, as well as the sale to R., might be set aside, that R. might be enjoined from taking possession, or receiving the rents, under Ms pretended purchase, and the mortgage released, upon B. paying two-thirds of the mortgage debt; upon the hearing of wMch bill, the court found that B. purchased the property owned by Mm of G., without notice of the purchase of 0. and G., and that the property of B., so purchased, was three times as valuable as that purchased by 0. and G., and thereupon the court decreed, that the decree of foreclosure, and the sheriff's sale and deed to R. be set aside, so far- as the said B, was affected — that B. and 0. and G. should contribute to the satisfaction of the mortgage, in proportion to the value of the lots purchased by each — that R., the purchaser at the sheriff’s sale, should recover three-fourths of the amount of Ms bid of B., the complainant, and one-iburth of 0. and &., with six per cent, interest from the date thereof — that the incumbrance created by said mortgage be extinguished — that the decree of foreclosure stand as a judgment against G. — that 0. and G. should assign three-fourths thereof to B. — and that each of the contesting parties pay one-third of the costs:</p> <p>JEW, 1. That as B. would have a right before foreclosure of the mortgage, to bring a bill to redeem the premises from the incumbrance, and determine the amount, so he may, if not made a party to the suit to foreclose, file a like bill, to correct any mistake made in a decree wMch injuriously affects Ms rights.</p> <p>2. That as B. was not made a party to the suit for foreclosure, in the first instance, nor by any subsequent order of the court, and inasmuch as the mortgage suit was determined without any inference to the paper filed by Mm in said cause, and Ms right to appear in such’ suit was neither recogMzed nor admitted, that B. did not make such an appearance in the mortgage suit, as that he is concluded by the decree in that case, and precluded from filing a bill to correct mistakes in that decree.</p> <p>3. That B. was only bound to pay Ms proportion of what was actually owing on the mortgage; and that while the holder of the mortgage and the mortgagor might include the sum of $54.36, for interest paid for money borrowed to purchase the same, and attorney’s fees, yet it was manifestly improper to require B. to pay any part thereof before be could hold his property divested of the mortgage lien.</p> <p>4. That B. having purchased with notice of the mortgage, the mortgagee, by virtue of his prior lien, had the right to subject the property to the payment of his debt; but he had no right to subject it to the payment of any sum that the mortgagor might consent to include in the decree.</p> <p>5. That B. should be required to pay his portion of the costs, in the foreclosure case, up to the time of rendering the decree, but that the costs subsequent to the deoree he should not pay.</p> <p>6. That the decree of the court below, so far as it charged the property purchased with the payment of the mortgage debt, in proportion to the respective value of each parcel, was correct, and that B. was properly required to pay three-fourths of the mortgage debt.</p> <p>The value of land mortgaged, is what is presumed to have governed the mortgagee in taking his mortgage; and, by this value, should the respective liabilities of the subsequent purchasers be measured.</p> <p>"Where a portion of the mortgaged premises are subsequently sold, the mortgagor retaining the remaining part, the portion unsold should, in equity, first be subjected to the payment of the mortgage debt.</p> <p>While the mortgage covers, and is a lien on, all the estate alike, yet the mortgagor, in addition to his legal obligation, arising as well from the mortgage, as his covenants in his deed to the subsequent grantee, is morally bound to pay the debt, and divest that which he has sold, of any incumbrance.</p> <p>In like manner, on his death, the heir occupies his place, and, sitting in the seat of the ancestor or original grantor, is bound to discharge the debt, to the extent of the assets descending.</p> <p>As between two grantees, however, purchasing different parcels of the incumbered premises, at different times, there is no more moral obligation on the one to pay, than the other; and in such cases, their interest is common— their rights are equal — and there should be equality of burden.</p> <p>The junior, as well as the senior, purchaser of mortgaged premises, makes an absolute purchase; each pay a full consideration, and have a like reason to suppose that the mortgage debt will be paid, and tbeir estates held alike divested of the incumbrance.</p> <p>While each has purchased absolutely, yet, if the mortgage should not be discharged, they acquire no more than the right to redeem the parcel held by each; and neither should complain, if, by the decree which settles their respective rights, he is secured the equity thus acquired, upon equal terms.</p>

<p>The word convenient, in section 1108 of the Code, does not have reference alone to the county that is nearest in point of distance, or the one that can be soonest reached in miles’ travel, from the county from which the venue is changed; but has a broader signification, and which county is the most convenient, must be determined, to some extent, by the peculiar circumstances of each case.</p> <p>■Where there is no ‘showing to the contrary, the appellate court will presume that the county to which the venue has been changed, is the most convenient, within the meaning of the law.</p> <p>If the party complaining wishes to show error in the order for the change of venue, he should embody all the facts, upon.which the court acted, in a bill of exceptions, so that this court can see that the county selected, is not the most convenient.</p> <p>The applicant for a change of venue, in addition to the costs of the transcript, should be required to pay the fair and legitimate costs of-the term.</p>

<p>The papers referred to in section 1132 and chapter 133 of the Code, are not the private papers and notices between parties, in their ordinary business transactions, and which may relate to, Or form the foundation of a right: but those intended in the statute, are such as pertain to, or may be required in, an action in court.</p> <p>The service of a written notice to quit, by a landlord upon his tenant, cannot be proved by the written return and affidavit of the person making the service.</p>

<p>Where land is purchased by one, with money furnished by another, a constructive trust arises, the former being a trustee for the latter.</p> <p>In this country, we must look to the government and its grants, for the source, of all title.</p> <p>Where one co-tenant purchases in an incumbrance or adverse title, he is ordinarily held to do so, for all the co-tenants; but this doctrine does hot apply to the case of eo-ocoupants of the lands of the general government, where one shall have acquired title, from the United States, in the absence of fraud, or special contract.</p> <p>A tenancy in common can only be destroyed, either by uniting all the titles and interest in one tenant — thus bringing all the interests into one severalty; or by partition — giving all respective severalties.</p> <p>A promise to pay more than ten per cent, interest, under the statute of 1843, is without consideration, and void.</p> <p>Parol evidence will not be received to vary or contradict that which is evidenced by writing, and this doctrine applies in equity, as well as at law.</p> <p>While an advance of money, may ereate'a resulting trust, it must be subject to the' rights of others, and cannot be allowed to intervene to defeat prior, ■and superior equities.</p>

<p>The Supreme Court will regard no assignment of error, based upon the giving or refusing any instruction in the court below, unless it appears that exception was taken at the time, and the instruction embodied in a bill of exceptions, and made part of the record.</p> <p>To make the instructions of the court a part of the record, they must be embodied in a bill of exceptions. Otherwise, they will not be so regarded, though they may be in writing, and copied into the transcript by the clerk.</p> <p>Where, in an action by the assignee, against the makers and one of the indorsers of a promissory note, which note was secured by a trust deed on real estate, S,, one of the makers, answered, admitting the execution of the note and deed of trust, and the assignment of the note, by G. to 0.; averring that he knew nothing of the assignment by C. to plaintiff; that he understood the note was pledged by C. to plaintiff, as security for $50 loaned, which he claimed had been paid; that the note had been fully paid, and the deed of trust canceled; and denying that the note is the property of the plaintiff; and where G., the indorser of the note, answered, admitting the assignment of the note to plaintiff; denying that the note or deed of trust is the property of plaintiff, and that any amount is due thereon; and averring that the note and deed were by him placed in plaintiff’s possession, as a pledge or security for money borrowed, and that he did not thereby intend to transfer any right of action or general property to the plaintiff, but only a special property, until the money borrowed should be paid, and that the money loaned by plaintiff, had been paid or tendered to him by defendant; and where the replication of the plaintiff to these answers, denied the new matter set up, and averred that it was expressly agreed, that plaintiff was to collect the note of S., and pay himself the money loaned, with interest, and pay the remainder to C., and that C., with a view to defraud plaintiff, unlawfully entered upon the records, a cancelation of the deed of trust, and that the same was void, which replication was not denied; and where on the trial of the cause, the defendants offered to prove the value of the property pledged to the plaintiff, proposing to follow it up with proof; that plaintiff had converted the pledge to his own use; that the property-pledged was worth five or six times the amount of the sum for which the same was pledged; and that said property was pledged to secure the same debt for which this suit was brought, which evidence was sought to be introduced, after the defendants had given evidence of the sale of the trust property by the trustee, and a deed made to the purchaser, and which evidence was rejected by the court; Held, That' the court did not err in refusing to admit the evidence.</p>

<p>The transcript of the proceedings upon the record, mentioned in section 3273 of the Code, which provides that upon the making of an order granting a change of venue, the cleric must malee out and certify a transcript of all the proceedings appearing upon the record of the court, &e., relates to the entries made in what is known as the “ record book,” under section 145, which, with the other books-therein mentioned, and the papers in the different causes, constitute the records of the court.</p> <p>Where the plaintiff in error, on the 18th day of April, 1856, was indicted for murder in the Delaware District Court, and on the same day was arraigned, and obtained a change of venue to the county of Dubuque; and where, after the venue was changed, the cleric of the court made out a certified copy of the record entry, the finding of said indictment, defendant’s application for the change of venue, and the order granting the same, which transcript, together with the indictment, and other papers, were placed in an envelope,, and by the clerk of said Delaware District Court, presented and filed, in term time, in the Dubuque District Court, the clerk of the latter court indorsing the filing of the same with him, on the outside of the envelope; and where. the indictment was not attached or annexed to the transcript, nor were any papers so deposited by the clerk of Delaware county, marked as filed in the Dubuque District Court, except by the indorsement of filing made on said envelope; and where it appeared from the record, that the indictment was found at the “ March term, 1856, of the Delaware District Court, begun and held by adjournment, on the 15th day of April, 1856,” and that it had been regularly presented as a true bill by the grand jury, and regularly marked as filed by the clerk of that court, as required by the Code; and where the defendant at the ensuing May term of the Dubuque District Court, was tried and found guilty of murder in the second degree, and after verdict, filed his motion in arrest of judgment, on the ground that the Dubuque District Court had no jurisdiction over the case, and that, under the circumstances, it was irregular to put the defendant on his trial, which motion was overruled; Held, That these objections could not avail after verdict, and that the motion was properly overruled.</p> <p>Whether the term of court is a special term, as providedfor by section 1569 of the Code, or a continuance of the regular term (that having been adjourned over), it is competent for the grand jury, if impanneled, to inquire into of-fences.</p> <p>It is not necessary that a transcript from the District Court, should show affirmatively, when, or how, or under what circumstances, the regular term of that court was adjourned.</p> <p>This court will not presume against the'regularity of the proceedings, after verdict, as to those matters which the law does not require to be incorporated ■in, or shown by, the transcript.</p>

<p>An action against a steamboat, under chapter 120 of the Code, is a proceeding in rem.</p> <p>In order to give the court jurisdiction in such cases, it is necessary that the warrant issue, and seizure of the boat be made, as required by section 2121 of the Code.</p> <p>When a new and special right or power is given, and its mode and circumstances are prescribed, these must be obeyed substantially.</p> <p>And where a proceeding was commenced against a boat, and the notice was returned, with the following service : “ Served, this 12th day of June, 1855, the within notice on the within named steamboat Hamburg, by reading the within notice to Capt. Estes personally, who is at present master of said boat, and by leaving with him a copy of the written noticeand where no warrant was issued, and there was no evidence that the boat was taken into the possession of the officer; Held, That the court properly dismissed the action, on motion, on the ground that the boat was not attached in accordance with law.</p>

<p>Where it is evident that foreign or inapplicable instructions could reasonably have misled the jury, to the appellant’s prejudice, the appellate court will reverse the case, and order a new trial; but not so, where the prejudice is not manifest.</p> <p>Where, in an action for materials furnished, and work and labor performed, the petition stated that the parties entered into a contract, by which the plaintiff undertook to furnish materials and perform work and labor for a building, agreeably to a certain account or'statement in writing, a copy of which is attached to the petition; and where the account or statement in. writing, attached to the petition, was a bill of prices for certain described materials and work, and was signed by the parties, but contained no undertaking by either, nor any stipulation of any character; and where the court' instructed the jury, that there was no written contract between the 'parties;' Held. That the statement or account did not possess-the first ingredient of a contract, and that the instruction was correct.</p> <p>It is the duty of a court to determine, and so inform a jury, whether a writing introduced in evidence, is, or is not, a contract, or that which fixes the liability of the parties in the premises.</p> <p>Where the instructions are so confused, that it is evident that the jury was. misled, and acted at random, to the probable prejudice of the appellant, a new trial will be ordered.</p> <p>But where the instructions in ehiefj and those asked by, and given for, the appellant, are conflicting merely, and the latter are incorrect, such conflict will not be a sufficient cause for reversal.</p> <p>Where a party declares specially, he must succeed upon his special case and cannot recover as upon the common counts.</p> <p>Where a party would recover for the reasonable value of services rendered, or materials furnished, upon a special contract, he must either declare in general assumpsit, or unite the common, with the special counts.</p> <p>Whether, 'if a contractor abandons his contract, without the fault of the employer, he eau recover what the work done is reasonably worth, under a proper petition, quere?</p> <p>Where the materials, work, time, and manner of performance, are contained' in a special contract, but the price to be paid is not fixed, it is proper to set forth the contract, and seek to recover what the services and materials are reasonably worth.</p> <p>While by our practice, the appellate court will not inquire into the correctness of instructions given or refused, unless the party objecting has the same incorporated in a bill of exceptions; yet it is not necessary that he should except separately to each proposition contained in the instructions. A general exception to the entire instructions will, ordinarily, be sufficient.</p> <p>But the judge below, or the opposite party, may, in such cases, require the party excepting, to point out the specific portion or portions of the instructions to which he objects, so as to call the attention of the court to the objectionable matter.</p> <p>"Where the exception is to the whole charge, and greater particularity does not appear to have been required in the court below, errors may be assigned so as to obtain a review of any part of such instructions.</p>

<p>Where, in the Supreme Court, the appellee moved to dismiss the appeal, and' affirm the judgment,, for the reason, that the transcript contained no bill of exceptions, to show the error complained of in the proceedings and judgment of the court below; Held, That the fact that there was no bill of exceptions, did not necessarily preclude the possibility that there was error in the record, not necessary to be shown by" a bill of exceptions, and the motion was overruled..</p> <p>A bill of exceptions makes that a part of the record, which, without it, would not be. If the error appears without it, there need be no bill of exceptions..</p> <p>The action for a mechanic’s lien, is not a proceeding’ against the property.</p> <p>And where in an action to establish a mechanic’s lien for the erection of a house on certain real estate,, the petition alleged that the contract was made with W. acting for himself and the other defendants, the latter being the-owners of the lot; and where W. failed to answer, and the other defendants answered, that they were the exclusive owners of the lot; that W. had no interest in it, and this fact was well known to plaintifíj at the time he made the contract with W.; and that W., if he made any such contract, acted without their knowledge or consent, and did not make the contract in theirbehalij to which answer there was no replication; and where no evidence was introduced; and the cause was submitted to the court on the pleadings, and the court found the issues for the plaintiff, and rendered judgment against the house; Held, That the judgment was unauthorized by law.</p>

<p>Where, in an action on a contract, in which the plaintiff agreed that he would do the necessary filling and cutting to reduce and elevate the present actual surface of that part of Mineral street, in the city of Dubuque, &c., to a surface which shall correspond with a certain grade, the work to be done under the supervision and direction of the city engineer or the street commissioner, for which the city was to pay a specified price; and the court instructed the jury, that as the contract provided that the work should be done under the supervision and direction of the city engineer or street commissioner, and that the plaintiff should be paid under the estimates of the city engineer, if the work was done under the direction of either of .these officers, the plaintiff was entitled to receive pay according to the estimates of the city engineer, unless it be shown that the estimates are incorrect; that the jury have a right to examine these estimates, and if they should be found to be based upon any mistake of fact, or any erroneous principle of engineering, they may be set aside; and that if the estimate of the engineer is the proper one, they may adopt it; and where the defendant asked the court to instruct the jury, that they will not allow for any excavation below the authorized grade as fixed by the contract, which the court refused, and held, that if the excavation was done under the direction of the city engineer or street commissioner, it might properly be considered by the jury; Held, 1. That the contract was substantially a contract to make the street of a certain grade, in the best manner, under the direction of the officers; and, 2. That the court did not err in giving or refusing the instructions.</p>

<p>An injunction should not issue in an ordinaiy case of trespass.</p> <p>Where a complainant’s bill contains no equity, the defect is fatal, even on final hearing, or in the appellate court.</p> <p>Where the defendants in an action of trespass, which is being continued, are entirely insolvent; or where the trespass has or may become a nuisance, or amounts to waste; or where numberless suits may have to be brought to make the remedy complete; or where the trespass is by a party occupying a fiduciary relation; or where the injury is of such a character that the loss would be irreparable, and not to be compensated by damages; an injunction to restrain the commission of the trespass, may properly issue.</p> <p>Where in an action of trespass for cutting timber, the petition averred that the defendants were continuing the trespass, with a view of carrying the timber away, and further alleged as follows: “ Tour petitioners believe and further represent, that the said defendants intend and assort, and if not restrained, will take and carry away said cord wood (the timber so as aforesaid out down), from said premises, and so dispose of the same, as to put it beyond the reach of your petitioners. Tour petitioners further represent, that if the ■•defendants are notified of this application, they will remove said cord wood, ■before an injunction can be served upon them. Por all which said trespasses, the said plaintiffs ask judgment in treble damages, and pray that an in- . junction may be allowed to restrain said defendants from committing any further trespass on said land, and from moving said cord wood therefrom,” upon which petition an injunction issued; and where the defendants moved to dissolve the injunction, and at a subsequent term, under a rule to answer within a given day, demurred to the said petition, because the plaintiffs had an adequate remedy at law, which motion and demurrer were overruled; and where, the defendants refusing to answer further, the bill was taken as confessed, and the injunction was thereupon made perpetual; Held, That both the motion and demurrer should have been sustained.</p>

<p>A verdict or judgment which settles and determines that a party to a suit has not an interest in the property in controversy, is ordinarily sufficient, so far as the rights of that party is concerned, without proceeding to determine who, in fact, has such right.</p> <p>The chancellor may decide questions of fact himseli] and refuse an issue to a jury, or he may, in the exercise of a sound discretion, direct such an issue; and in either event, the appellate court will not disturb such order, unless it appears that such discretion has been abused, and exercised in a manner unwarranted by all the circumstances.</p> <p>Where the parties have, without objection, submitted issues of fact to a jury, and appear to have had a full investigation, and introduced then’ whole testimony on such issues, which, by the submission, they virtually concede raise the real questions in the case, every doubt in the mind of the chancellor, on such issues of fact, should be solved in favor of the finding of the jury.</p> <p>Unless the finding of the jury is unconscionable, it should be allowed to stand.</p> <p>By the same rule, will this court be governed, in the exercise of its appellate . power, in determining like cases.</p>

<p>In all matters -within the scope of partnership dealings, or falling- within the ordinary business and transactions of the firm, so long as ths relation exists, each partner has the right and power to bind the partnership.</p> <p>By virtue of the relation, each partner is constituted the general agent of the firm, and is vested with a power enabling him to act at once as principal, and as the authorized agent of his copartners.</p> <p>Whilst each partner may bind the partnership by his contract, in any matter within the limits of the partnership business, he cannot bind it by any contract beyond those limits; and a dissolution of the partnership, puts an end to his authority.</p> <p>But whero the partnership has contracted engagements which cannot he fulfilled during the time limited for its existence, the partnership must continue, for the purpose of performing such outstanding engagements, tod of taking and settling all accounts, and-converting the property, means, and assets of the partnership, existing at the time of its dissolution, for the benefit of all interested, although for all other purposes it is actually dissolved.</p> <p>In the fulfillment of the outstanding engagements of the firm, and in the settlement of its business generally, the authority of each member remains the „ same after, as before, the dissolution.</p> <p>The rights of the different partners are not changed by dissolution. Whereby there is no stipulation in the articles of copartnership to limit or control their rights, a majority of the partners, acting fairly, and in good faith, may conduct the partnership business, notwithstanding die dissent of a minority^/</p> <p>Whore a contract, made by a majority of a firm, is not made in good faith, as to the other partners, the interest of the partners making the contract, only passes to the purchaser, and he becomes a joint owner with the partners whose interest did not pass.</p> <p>Where the court has misdirected the jury on an immaterial point, or on a question, not important to the decision of the cause on its merits, a new trial will not be ordered.</p> <p>Where, in action of replevin, the jury found for the defendant, as to the right of property and the right of possession, and assessed his damages at a certain sum, hut did not find the value of the property replevied; Held, That this court must presume, that the jury were properly instructed as to the measure of damages, and that the finding of the value of the property was a matter of form.</p> <p>The question as to the correctness of a decision of the District Court, must first he raised in that court, by bill of exceptions, before it can be passed upon by the appellate court.</p>

<p>Where in an action against a railroad company for damages, in taking certain real estate for the construction of their road, the jury found for the plaintiff a certain sum for his damages, and a certain other sum for building a fence, and keeping the same in repair, for the aggregate of which sums, judgment was rendered against the company; and where it was not specifically shown in the special verdict, that plaintiff was allowed for building a fence, as fence, and thereupon it was urged that the' case did not come within the rule laid down in Henry v. The Dubuque and Pacific Railroad Go., ante, 288 ; Held, That there was no substantial difference between the two cases, and that the judgment must be reversed.</p>

The plaintiffs filed their petition in the District Court against the barge Lady Eranklin, seeking to recover $252.62, for the labor and materials alleged in the petition, to have been furnished at the instance and request of said barge, for the repair of the same. A demurrer to the petition was sustained, on the ground that it did not allege that the work was done, or material furnished, on a contract made with the master, owner, agent, clerk, or consignee of the boat.

This action is brought to recover damages for an infringement of a ferry right. Weld had a license, granted in 1850, and renewed in 1851, by the board of commissioners of Dubuque county, Iowa, to ferry across the Mississippi river, from appoint called Weld’s ferry, in Iowa. This-was in force from July, 1850, to July, 1852.

In November, 1852, James Peacock (tbe son of tbe defendant), gaye bis note, payable to Heidelback & Co., for $630.60, due in ninety days j and about tbe time of its ma-turity, stopped payment. Before and after tbe maturity of said note, one of tbe payees called upon tbe defendant,- and informed bim that they were about to sue tbereon, and to attack tbe property of James.

Butler brought an action of replevin, in Jo Daviess county, Illinois, against Henry R. Merkling, and in that action, took possession of a considerable quantity of personal property, the principal… Held: under the statute of 3 James I, c. 1, in regard to holding to bail: “ 1. That the contract is extinguished by the first judgment; 2. That a judgment is no contract, nor can be considered in the light of a contract; 3.

The defendant was indicted at the the May term, A. D. 1856, of the District Court for Scott county, for maliciously killing an ox. On arraignment, he pleaded'not guilty; and on trial was acquitted by the jury. During the progress of the cause, the prosecuting attorney excepted to the instructions given by the court to the jury, at the request of defendant, and a bill of exceptions was signed, and made part of the record.

The plaintiff in error, having been fined and ordered to be imprisoned, for an alleged contempt, he brings the proceedings before usi for revision, by certiorari, under section 1606 of the Code. The clerk of the Jasper county District Court certifies, that the following is “ a full and true transcript of the record of said court'” in said cause : “ Harvey J. Skiff ‘fined for contempt of court, fifty dollars.

This is an action to recover dower in lots number 275, 352, 379, and 346, in the city of Dubuque, which dower the plaintiff claims as the widow of William W. Cornell. The defendant denies the plaintiff’s right to dower in the premises: First. Because the lots were sold under executions issued upon a judgment recovered against her husband, and were purchased by the defendant, and duly conveyed by the sheriff, and never redeemed. Second.

Scire facias. To the writ, there is a demurrer, which was overruled, and defendants failing to answer over, judgment was entered for the amount of the recognizance against the defendants. The record also shows a demurrer to an answer, and a replication, but no answer is before us, or otherwise referred to in the record,

The plaintiff filed bis petition for a writ of ad quod damnum, to bave tbe damage assessed wbicb defendant would sustain, by reason of tbe erection of a mill dam contemplated by bim on bis own land — tbe erection of wbicb would affect tbe lands of defendant. On tbe IStb of March, a copy of tbe petition was served on defendant. On tbe 14th, tbe petition was filed in tbe office of tbe clerk.

From tbe record in this case, it appears that Purington brought an action of right against Frank, for certain real estate, situate in Muscatine county. To this action, the defendant answered, setting up, among other things, certain matters of an equitable character. To such portions of the answer, there was a demurrer, which was sustained.

<p>Section 2582 of the Code, was intended to cover those oases of defilement in which there is no force, exeept that which is constructive, and in which the act is accomplished principally by menace or duress, acting to subdue the will.</p> <p>The offence consists in doing the act against the will of the other person, with force, fnenaee, or duress.</p> <p>The offence differs but little, if any, from rape, and embraces those acts in relation to which it is sometimes doubtful whether they constitute the crime of rape.</p> <p>Hhe nature of the ease, does not call for affirmative evidence of consent, on the part of the defendant, but evidence of dissent and repulsion, on the part of the state; or, in other words, the defendant, in order that he may be held not guilty, is not obliged to show an affirmative act of consent.</p> <p>It is within the province of the court, to instruct the jury whether the facts proved, if believed, constitute the offence charged.</p>

This action was brought to recover of Abrams and thirty-two others, damages for writing and publishing certain libelous matter of and concerning the plaintiff. The petition contains three counts, and charges the defendants with haying written and published certain letters and notices, accusing plaintiff of the crime of arson, in burning a certain school-house.

. This action is brought to recover the value of eighty sheep,, which plaintiff alleges belonged to him, and which defendant converted to his own use. It appears that defendant was driving sheep from Ohio to Iowa, and when near Joliet,, in Illinois (as plaintiff alleges), plaintiff’s sheep got into the-drove, and were driven by defendant to Davenport, in this-state, at which place they were demanded, but not returned.