Volume 20 — Iowa Reports

Appeals from Marshall District Court These cases involve the same questions. Plaintiffs claim double damages for injury to stock, under section 6 of chapter 169, Laws Ninth General Assembly. On the trial, defendants objected to the “notices of loss,” contemplated by said section, and the manner of service. The objections were sustained, plaintiffs duly excepted and appeal. 1. The notice and affidavits were sufficient. 2.

The plaintiff sued the defendant before a justice of the peace, upon an account and for trespass, &c.; defenses, set-off and denial. Held: that there was no error, and affirmed the judgment of the justice. The defendant appeals.

On the 6th day of August, 1862, the plaintiff executed a written lease of his house and farm, for the term of three years and a half, or until the 1st day of March, 1866, to one John Holmes. About the 17th day of November, 1865, Holmes vacated the possession of the leased premises in favor of the defendant, James Kirk, who, against the consent of plaintiff, claims the use and occupancy thereof up to the close of the lease, for a consideration paid to Holmes.

Edward Keas was the. administrator, duly appointed, of the estate of his wife, Margaret Keas, September 8,1863. He presented to the county court of Dubuque county, and had allowed against said estate, a claim in his favor, of one hundred and seventy odd dollars. This claim was made up, in good part, of money paid in the last sickness, and for the funeral expenses of said Margaret.

This suit is brought upon a bond given by the defendant, O. J. Housel, as assignee, in a general assignment by an insolvent debor: the defendants, Myer & Edmundson, were sureties in the bond. The petition alleges that the assignee had failed to account, &c. The issues were made up, and by agreement of parties the cause was referred to a referee. Before the referee, the defendants asked leave to file an amended answer, which was refused and excepted to.

<p>TPni of Habeas Corpus.</p> <p>The facts are stated in the opinion of the court.</p>

Revenue law : right oe married women to redeem from tax sale. — The legal question presented in this case arises upon a demurrer to the petition.

Replevin, eor promissory note. — The petition was filed February 2d, 1861, by Savery, who therein claims of the defendant, Hays, the possession of the following promissory note: ’ “ Fort Des MOines, May 17, 1859.. “ One year after date, I promise to’ pay to the order of “John P. Minor eleven hundred and two dollars, with “interest, at'ten per cent., after maturity. “(Signed.) J. C. SAYBRY.” “ The plaintiff states,” so continues the petition, “ that “ the apparent value of…

Wilson against David McLernon and Mary McLernon, his wife (whose name before marriage was Mary Nixon), to compel the defendant to convey to plaintiffs the northwest quarter of the northwest quarter of section number twenty (No. 20), township No. 67 of range No. 86 in Page county, Iowa.

This case was before us in 1863 (15 Iowa, 84), and tbe order of the court below awarding a new trial to defendant was affirmed. Since that time there has been a retrial in the Boone District Court, the venue having been changed; plaintiff obtained a second verdict and defendant appeals. For the facts material to the questions raised on this appeal, see the opinion.

The plaintiffs, non-resident aliens of tbe United States, and heirs-at-law of John Nicholas Rheim, who, at his death in 1S60, was also a non-resident alien of the United States, and heir-at-law of his son, John Adolphus Rheim, who died without issue, in Decatur county, of this State, seized of forty acres of land, situated in said county, of which plaintiffs now claim to be the joint owners by inheritance, have sued the defendant for a trespass on said land, in cutting and…

Plaintiff is the widow and heir of Richard McCarty, who departed this life in April, 1862. Cress was appointed administrator of said estate in June of the same year, giving bonds, with his co-defendant, as his surety.

Mortgage : foreclosure : redemption : takes, &g. — On. the 24th day of July A. D., 1860, the defendants, Alva and Alvira Anson, executed to the plaintiff a mortgage on certain real estate to secure a promissory note for $439.37, and some other indebtedness which plaintiff had become liable to pay as surety for defendant, Alva Anson. This mortgage was recorded July 28, 1860.

On the 18th day’of April, 1856, the plaintiff being the/ owner of the east half of the southwest quarter of section^ thirty-one, township seventy, range six west, executed ai mortgage thereon to the school fund commissioner for Deca- 8 tur county, to secure the payment of three hundred and t fifty dollars, with ten per cent interest thereon, till paid. \ On the 22d day of January, 1857, the plaintiff sold the | same land to the defendant, and executed a deed therefor, 8…

Action on bail' bond : what will discharge surety. — One William A. Cates was, in 1861, held to answer by a justice of the peace of Decatur county, on a charge of grand larceny. The defendant, Scott, became bis bail by executing and acknowledging, on the 24th day of .

Bissell is tbe administrator of tbe estate of A. W. Lyman, who died in September, 1856. Notice of administration was given and completed in November of that year. Lyman was plaintiff’s partner from 1850 until 1854. In May, 1864, plaintiff filed in the County Court his claim against said estate growing, for the most part, out of said partnership business, amounting to over $6,000. He was unsuccessful in the County and District Courts, and prosecutes this appeal.

■ Plaintifr, in his petition, claims over $3,000, and obtained an attachment against defendant’s property. It seems that the parties, before return term, made an agreement of some nature to refer the matter to arbitrators. At this term defendant moved to dissolve the attachment, and dismiss the case, which motions were severally overruled. Plaintiff moved to set aside the award, which was sustained. A new award was made, and this was also set aside on plaintiff’s motion.

Plaintiee sued for tbe value of certain goods, recovered judgment for the amount claimed, and defendant appeals. 1. Tbe defendant occupies tbe position of a second carrier, and before it can be charged with the loss of the goods, it must be shown that the loss occurred while the goods were in its custody. • Hunt v. The New York and Erie Railroad Company, 1 Hill, 228. 2. The defendant, if liable at all, was liable as a warehouseman, and not as a common carrier.

Petition in equity for relief against a judgment and execution at law. — The petition was filed July 7, 1865, and makes Campbell the constable, Patterson the justice of the peace, and Gardner & Son, the alleged judgment creditors, parties defendants.

<p> Appeals from Polk and Wapello District Courts. </p> <p>For facts, see opinion.</p>

Practice : mode op instructing jury : testimony op WIPE : ALIBI : CIRCUMSTANTIAL EVIDENCE: QUANTUM OP PROOP: NEW TRIALS IN CRIMINAL CASES, &G. — 'The defendant was indicted in Floyd, and the venue changed to Bremer county. The defendant was the clerk of L. L. Huntley, county treasurer of Floyd county. • The first count of the indictment charges the defendant with the embezzlement of money and United States bonds of the value of $2,000, the property of Huntley.

<p>1. Indictment: negative averments: bigamy. In an indictment for higamy it is not necessary to negative any of the exceptions specified in section 4348, Revision of 1860.</p> <p>Argil. 1. When the exceptions are expressed in a distinct class it is not necessary to negative them in the indictment, even though the provisions of the section defining the offense should expressly notice them.</p> <p>2. Bigamy: evidence. On the trial of an indictment for bigamy the testimony of a witness who was present and witnessed the marriage is sufficient, without record evidence.</p> <p>3. -variance. An indictment for bigamy charged that the second marriage was with one Jane Jaco, while the proof shows her name to have been Jane Prances Jaco: Held, that the variance was not fatal.</p>

This is a suit in equity to redeem from a senior mortgage foreclosure sale. The petition alleges that on September 24, 1856, Rufus Wilsey and J. M. Breeden-having purchased and received conveyance of certain real estate in Lee county of the defendant, John Rablin, mortgaged the same to him to secure two thousand dollars of the purchase-money, which mortgage was duly recorded October 18, 1856.

Plaintiff’s petition contains the following averments: On the first of February, 1864, defendant leased to plaintiff a farm for one year. Plaintiff took possession, and continued therein until in March, 1865. In August, 1864, a verbal lease was made for another year, or from February 1, 1865, to the same date in 1866, and in pursuance’ thereof plaintiff remained in possession. .

The indictment charges the prisoner with murder in the ■second degree, as follows: that on the 1st day of August, 1864, the prisoner shot, &c., Patrick Casady, “with intent in so doing then and there and thereby, feloniously, intentionally, willfully, maliciously and deliberately to kill and murder him the said Patrick Casady, and then and there and thereby the said James Neely feloniously, intentionally, willfully, maliciously and deliberately did shoot and kill and murder…

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

<p>1. Mill dam: ad quod damnum: pihng petition. The provisions of art. 4, oh. 5d, Revision of 1860, do not make the service of notice as contemplated by section 1265, a prerequisite to the filing of the petition. If, after the petition is filed, a copy has been served upon the defendant ten days, and proof of such service is filed with the petition, the writ may be issued.</p>

<p>1. Notice! mistake in conveyakce. H. executed a deed of trust conveying an undivided interest in certain lands to P. to secure a debt to R.; subsequently the trustee sold under the power in the deed H.’s interest to R., and afterward R. conveyed the same interest to the defendant; in the deed of trust and in all subsequent deeds there was a mistake in the description of the lands as to the range in which they were situated. The plaintiff, without any actual notice of the mistake in description, attached H.’s interest, after the deed of trust was executed, recovered judgment, and at a sale of the lands under special execution to satisfy his judgment, became the purchaser. Held, That he received and held the property under his sale discharged of any equities in the defendant by reason of the mistake.</p> <p>2. -mercer by purchase. Where a creditor merges his judgment into a title, without actual or constructive notice of prior equities, he becomes a purchaser within the meaning of section 1211 of the Revision of 1860, and is entitled to equal protection, in the absence of equitable circumstances, with any other subsequent Tima fide purchaser.</p>

This was an application to the defendants, the supervisors of the county, for the resurvey of a road, under section 913 of the Revision. It was resisted by the appellants. The resurvey was ordered, and the report of the commissioner approved. Plaintiffs transferred the proceedings to the District Court by certiorari, where the like order was made and they appeal.

This action is brought to establish a claim for lumber furnished, and to enforce a mechanic’s lien therefor. The firm of J. Killian & Company were made defendants, as contractors; and on default, judgment was rendered against them in the District Court. There was a trial by jury as to the issues made by the defendants, the First Presbyterian Society of Marshalltown, which resulted in a general verdict and judgment for defendant, from which the plaintiff appeals.

Petition in equity to foreclose defendant’s equity of redemption, in and to certain lots in Council Bluffs city, sold for the delinquent taxes of 1860 and 1861 by the city authorities in 1861 and 1862. The sales were made by the city marshal, certificates of purchase given by him, and deeds made by the mayor of the city in 1862 and 1863.

— Plaintiff relies upon a tax title. To maintain his case he offered in evidence three deeds made by the county treasurer to Abell and Woodbury (his grantors), executed in October, 1863, under a tax sale made in I860, for the delinquent taxes of 1859. Two of these deeds purport to convey each two, and the third fourteen distinct tracts of land, and each contained one of the parcels claimed in this action.

<p> Appeal from Polk District Court. </p> <p>Libel. — Trial, verdict and judgment for defendant, and plaintiff appeals.</p>

This is a suit in equity to enforce a specific performance of a parol contract for the sale of real estate. Judgment for the defendant. The plaintiff appeals.

Defendants made td plaintiff a deed, with the usual covenants, dated March 21,1864. This action was brought for a breach of said covenant, arising as follows: In 1861, the property (situated in the city of Council Bluffs) was sold for the taxes of 1860, and prior years, under “an act entitled an act to amend the charter of the city of Council Bluffs, approved January 23,1857,” and a deed made in pursuance thereof, by the mayor of said city.

A proceeding in equity to perfect the title to certain lands specified, and to remove the cloud therefrom, produced by the alleged wrongful acts of the defendants. The prayer of the bill was granted and the defendants appeal. The facts of the case will sufficiently appear in the opinion of the court.

On the 20th day of December, 1856, the plaintiff borrowed of the defendant a sum of money, and gave his note therefor. To secure the payment of the note, he executed to the defendant a deed for certain real estate, absolute on its face, and took from defendant a bond for reconveyance; upon payment of the note.

Power of attorney-at-law to bind client : effect OF UNAUTHORIZED APPEARANCE: WHEN RELIEVED AGAINST: conclusiveness of judgment, ac., 1.

Plaintiff seeks to recover for two mules killed by the rolling stock of defendant, at a point where^ the road was fenced on both sides, and where it crosses the lands of one Collins. It seems that in the evening they were placed in plaintiff’s inclosure, the next morning were gone, and on the same day were found near the track, one killed, and the other so injured as to be entirely worthless.

The -plaintiff was the owner of ten horses and six mules which he was taking from central Iowa to Omaha, N. T., to market.

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

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

Plaintiff’s petition makes the following case : On the 25th of December, 1864:, two steers and a cow belonging to plaintiff, of the value of ninety dollars, while at pasture on the adjoining uninclosed land, strayed on to the defendant’s inclosure through the insufficiency of the fences around the same, and because of defendant’s carelessness and negligence in leaving the gate leading from the common to said inclosure open.

Scott District Court. The case summarily is this: In August, 1863, plaintiff ' obtained by default, after due publication of notice, a decree of divorce from the defendant, on the ground of willful desertion for more than two years.

Practice in criminal cases: liquor law, &g. — Tbe defendants were indicted under section 1564 of tbe Revision for using a building for the purpose of selling, and keeping with intent to sell, intoxicating liquors therein contrary to law. Defendants’ motion to set aside the indictment, for reasons stated in the opinion, was overruled, and the defendants excepted.

Action of replevin for a mare of the value of one hundred and twenty dollars.

Petition in equity to restrain the collection of a judgment against plaintiffs in favor of the defendant, Crull, rendered by a justice of the peace, January 17, 1865.

Measure oe damages: liability oe lessor eor refusal to give possession. — This is an action by a lessee against a lessor to recover damages for the refusal of the latter, to let the former into the possession of the demised premises.

<p> Appeal from Johnson District Court. </p>

Plaintiff claims the title to and the right to the possession of parts of certain lots in the city of Muscatine. The defense is, that the real estate thus claimed is a public highway duly established; and tire whole controversy turns upon the validity of tin's defense. Trial by the court, judgment for the defendant, and plaintiff appeals.

<p> Appeal from Tama District Court. </p> <p>This is a proceeding to foreclose a mortgage executed by the defendants, Amando D. Higgins and Mary T., bis wife, to secure the payment of- a promissory note made by Amando D. Higgins to the plaintiff. The petition, was in the ordinary form. • The ánswer contained two counts. In the first, the defendant admitted the making and execution of the -note and mortgage. The second count pleaded facts intended to deny tbe plaintiff’s right to a personal judgment, and a general execution for any balance which might remain after exhausting the mortgaged estate. The right to a foreclosure against the property was uot contested. The second count of the answer, in substance, alleges that at the time of the execution of said note, and prior to the execution and delivery of the same, and for a valuable consideration, said Waldo J. Elmore and said Amando D. Higgins agreed that the remedy of plaintiff in any proceedings to collect said note, should be confined to the avails of said mortgage; that is to say, to the amount made by the sale of the mortgaged premises, without any personal judgment or recovery against said Amando D. Higgins ; and that at the same time with the making of said agreement, and before the delivei'y of said note, a memorandum thereof was cotemporaneously indorsed on said notes in the words and figures following: “ The within mentioned note is confined to a certain mortgage of even date, given by said Amando D. Higgins and Mary T. Higgins to Waldo J. Elmore.</p> <p>“ AMANDO D. HIGGINS,</p> <p>“ WALDO- J. ELMORE.”</p> <p>Which memorandum (as defendant alleged) was understood by both parties to express the agreement aforesaid.</p> <p>To the defense, as set out in the second count of the answer, the plaintiff, Waldo J. Elmore, ■ interposed a demurrer, assigning the following reasons therefor:</p> <p>“ 1. Said indorsement or writing set forth in said second count, does not show nor contain, in itself, the meaning and agreement assigned to it.</p> <p>“2. Said indorsement is ambiguous, indefinite and absolutely unintelligible; therefore it cannot be aided or cured by averment or parol testimony.</p> <p>“ 3. Said indorsement is too vague and ambiguous to control, vary and contradict the positive promise on the face of the note.”</p> <p>• This demurrer was sustained and judgment rendered against the defendants for the amount of the note, and a decree of foreclosure, as prayed in the petition.</p> <p>Amando D. Higgins appeals, and assigns the following errors:</p> <p>First. The court erred in sustaining said demurrer upon each cause therein assigned.</p> <p>Second. The court erred in rendering a personal judgment for the amount of the note against the said Amando D. Higgins.</p> <p>1. A cotemporaneous memorandum on a note, or even on a separate piece of paper, is a part of the note, and qualifies and restricts it, and will bind all parties. 4 Pars. N. & B., 539 ; Miller v. The Receiver of the Franklin Bank, 1 Paige, 445; Rogers v. Kneeland, 10 Wend., 218; Keeler v. Bartine, 13 Id., 114; Ileyrood v. Pernio, 10 Pick., 228; 2 Gibbs (Mich.), 408; Wheelock v. Freeman, 13 Pick., 165; Barnard, v. Cushing et al., 4 Mete., 230; Hunt v. Livermore, 5 Pick., 395.</p> <p>2. Effect must, if possible, be given to every expression in the contract; and the rule is carried so far that it is said to be the duty of courts to give to all doubtful expressions such an interpretation as will make them produce some effect. Chit, on Cont., 70; Smith on Const. Stat., § 52; Ward v. Whitney, 8 N. Y., 446; Hamilton v. Taylor et al., 18 Id., 358; 86 Mo., 28; 42 Id., 229.</p> <p>3. When a contract is capable of two significations, it should be understood in that in which it will have some operation, rather than in that in which it will have none. Poth. Obi., pt. 1, ch. 1, § 1, art. 7; Mariner v. Stone, 2 Cow., 781.</p> <p>4. Written instruments are to be interpreted according to tlieir subject matter; and it is obvious that parol or verbal testimony must be resorted to in order to ascertain the nature and qualities of the subject to which the instrument refers. 1 Greenl. Ev., § 286; Heldelrancl v. Fogle, 20 Ohio, 147; Perkins v. Lyman, 11 Mass., 76; 13 N. H., 275; Field v. Schricker, 14 Iowa, 119.</p> <p>The intention of the parties must be collected from the whole instrument, and in order to carry that intention into effect, the literal import of the words, when, inconsistent with the intention so ascertained, may be disregarded. 5 Duer (N. Y.), 336; Atwood v. Cobb, 16 Pick., 229; Decker v. Brown & Furniss, 3 Duer, 291; 10 Gratt., 318.</p> <p>I. A writing cannot even be reformed in a court of equity, when it is clear that nothing was omitted which was intended to have been incorporated. If no fraud or mistake is claimed, the writing must stand, however it falls short of expressing the intention. Dwight v. Pomeroy, 17 Mass., 302; Gelpcke, Winslow & Go. v. Blake, 15 Iowa, 391.</p> <p>II. Parol testimony is never admissible to explain a patent ambiguity in a written instrument, where something must be added to make it intelligible. The writing is simply void. Am. Law Reg., 1860 (Jan.); 2 Pars. Cont., 566; Hawkins v. Fdwards & Turner, 1 Iowa, 426.</p> <p>III. It is a rule that the note and mortgage are to be taken by the corners, and a fair interpretation given to it as a whole, and surely a square promissory note will not be considered as contradicted or varied b}^ a cotemporaneous memorandum, when such memorandum is equally susceptible of an interpretation in harmony with the note, or as an ear mark. 2 Pars. N. & B., 542.</p>

In December, 1863, the parties to this action entered into an agreement, by which the defendant rented to the plaintiff his farm for a given period, upon certain terms therein specified.

<p> Appeal from Muscatine Distinct Court. </p> <p>Indictment for murder — Trial to a jury, verdict, guilty of manslaughter and judgment accordingly, with sentence to eighteen months’ imprisonment in the penitentiary, and to pay a fine of one hundred dollars and costs. The defendant appeals.</p>

■Appeal■ from Jones District Court- This is an action brought upon the official bond of a justice of the peace, against J. J. Dickerson, the principal, and various other persons who were his sureties, in the original and additional bond. There was judgment for the plaintiff below, and the defendant appeals.

The defendant was indicted for setting fire, to shavings with intent to burn, and for setting fire to and burning a wagon shop in Iowa City. On the trial, the State offered . to prove certain facts, as set forth in the opinion, which, on objection by the defendant, were excluded. Exceptions were duly taken, and the State appeals from that ruling

<p>1. Practioe ¡ change of vende. An application in vacation to change the venue in a cause should not be heard without notice to the adverse party. Rev. 1860, §§ 3429, 3430.</p>

Evidence: proof of partnership.' — Action by tbe plaintiff, as surviving partner, on a promissory note made by the defendant, and payable to the order of “ Thomas & Griener.” The answer does not deny the death of Thomas, but alleges that “ Thomas & Griener ” were not partners. The plaintiff introduced the note and rested. Defendant offered no evidence. Judgment for plaintiff. Defendant excepted and appeals.

— Defendant was convicted, sentenced to the penitentiary for two years and six months, and, to reverse this conviction, prosecutes this ajipeal.

Willful trespass: pleading: verdict: damages, &0. —■ The petition is as follows: The plaintiff alleges “ that he was the owner of a span of mares, each of the value of $250, in all the value of $500; that while so owning them the defendant, on the 29th day of September, 1865, did willfully and maliciously injure them by shooting each of them with shot, and did so willfully and maliciously, with intent to injure the plaintiff; .that the'mares, in consequence of the shooting,…

<p> Appeal from Howard District Court. </p>

School money: power and duties op pund commisMISSIONER : HIS PRAUDULENT ACTS : WHEN BINDING UPON the state and when not, &C. — Suit in equity to foreclose mortgage made by Haskell and wife to a school fund commissioner, dated December 18, 1854, to secure a note for school money loaned to Haskell by the commissioner. Leland and Manderville signed the note as sureties for Haskell. Manderville alone makes defense.

This is an action of replevin brought by tbe plaintiff, to recover certain articles of personal property from the defendant, seized by him as marshal of Lyons city, for the payment of certain taxes. The taxes for the payment of which the property was seized, accrue upon three different bases: First, city and engine tax upon certain agricultural lands; Second, sidewalk tax upon certain property; and Third, grading tax upon other property.

<p> Appeal from Blaclchawlc District Court. </p>

This action is brought upon a contract for the sale and purchase of certain lands in Blackhawk and Floyd counties. The contract is signed by both parties, and by it the plaintiff agrees to. sell and convey, by good and sufficient deed, to the defendant, the lands mentioned, at a time specified, if the defendant shall first make'the payment named; and the defendant agrees to buy the land, and to pay the sum stated at the time fixed.

Mechanic’s lien subordinate to vendor’s lien in equity. — One Botsford was the owner of part of lot 663, in Dubuque. On the 29th March, 1856, he contracted to sell it to one Attix, and executed to him a title bond, agreeing to convey, if the latter paid the purchase-money, the last payment of which matured March 29, 1857.

<p>1. Practice: demurrer and motion. Under the Revision of 1860, a demurrer is not applicable to the question whether a proceeding should have been by law or equity, or by bill in equity, rather than by motion.</p> <p>2. - A demurrer to a petition in equity to compel the clerk to satisfy a judgment record, on the ground that the plaintiff’s remedy, under section 3146, Revision 1860, was by motion, should have been overruled.</p>

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

The facts are stated in the opinion. I. There is no evidence of the corpus delicti aside from the declaration of one West Smith, not under oath, and not in the presence of defendant. II. The- court erred in admitting the declarations of. West Smith that the liquors had been stolen. West Smith was a witness .who knew the fact if it existed, and he should have been called, but he was not, and no excuse is shown by the State why they did not call him.

Fraudulent conveyance : practice in supreme court, &G. — William Pickett (of whom the plaintiffs are the heirs and representatives) obtained in his lifetime a judgment against the defendant, John D. Hawes, sold thereon certain land claimed to belong to the said John D., and received a sheriff’s deed for the same. Prior to this judgment, but after the creation of the debt to Pickett, John D. conveyed the land in question to his co-defendant and father, David P. Hawes.

<p>1. Railroads: constitutional law. Section 7 of chapter 169 of the acts of 1862, entitled “An act in relation to the' duties of railroad companies " is not inconsistent with section twenty-nine, article three, of the Constitution.</p> <p>Argu. 1. Constitutional law : titles to acts. A provision fixing penalties for a violation of duties is within the purview of the title to an act prescribing duties.</p> <p>Argu. 2. The courts do not resort to a critical or technical construction for the purpose of excluding parts of acts from the purview of the title.</p> <p>2. Constitutional law: uniformity of operation. The number of citizens affected by a law does not control its validity under sec. 6, art. 1, and sec. 30, art. 3 of the Constitution. If the law operates upon every person within the relations or circumstances provided for, it is sufficient as to uniformity."</p> <p>3. Torts: negligence. No one can recover for an injury of which his own negligence was, in whole or in part, the proximate cause.</p> <p>4. New trial: verdict against evidence. It is with great reluctance that appellate courts interfere with the finding or verdict of a jury. In all cases of doubt the verdict will be sustained; but when there is no such doubt, the verdict will be set aside.</p>

<p> Appeal from Jones District Court. </p> <p>At tbe February Term, 1860, plaintiff recovered judgment against tbe Dubuque and Pacific Railroad Company, for over $3,600. Mason, Bisbop & Co. bad a contract with tbe company, made in October, 1856, for tbe construction of tbe road from tbe east line of Delaware county to a point within one mile of Cedar Falls, in Black Hawk county. Plaintiff was a sub-contractor, and from September, 1857, to July, 1858, did certain work on sections sixty-three and sixty-four of tbe line (being sixty-three or sixty-four miles west of Dubuque) for which, in August, 1858, be obtained certain drafts of tbe company, accepted by its treasurer, and upon them recovered tbe judgment aforesaid. These drafts were charged to Mason & Co. as so much paid on their contract. Part of plain-stiff’s work was performed under a promise from tbe company that they would pay him therefor, Mason & Co. having notified him that he might quit, as the railroad company had failed to meet the monthly estimates. What part was performed before, and what after this, does not appear, nor is it material.</p> <p>In July, 1859, the contract with Mason & Co. was canceled, and the account closed the next month. Soon thereafter a contract was made with O. P. Root, for the grading, bridging, &c., of fifty miles of said road, being from the forty-first to the eightieth mile inclusive.</p> <p>In March, 1857, the company made a mortgage upon its roadway, stations, &c., to- secure the payment of certain construction bonds, and in August, 1860, proceedings were commenced to foreclose the same, and a decree entered containing the following among other provisions: The trustees, in conjunction with the company, were to convey the road, its franchises, depot, grounds, &c., to the Dubuque and Sioux City Railroad Company (the present defendant), it being expressly understood and-agreed that the new company was formed for the benefit of all concerned in the old, whether as stockholders, bondholders or creditors.</p> <p>The payment of the indebtedness of the old company was provided for as follows:</p> <p>“ The bonded indebtedness of the Dubuque and Pacific Railroad Company shall be exchanged, dollar for dollar, with accumulated interest to the date of this decree, for preferred stock of the Dubuque and Sioux City Railroad Company."</p> <p>The stockholders of the Dubuque and Pacific Railroad Company shall receive in exchange for their stock therein, including dividend interest to 1st June, 1860, on the surrender of the same, common stock in the Dubuque and Sioux City Railroad Company to an equal amount respectively.</p> <p>The creditors of the Dubuque and Pacific Railroad Company, who hold securities for the amounts owing them by the company, shall have and receive in exchange for such securities, and in satisfaction of the debts, preferred stock in the Dubuque and Sioux City Railroad Company.</p> <p>The unsecured creditors of the Dubuque and Pacific Railroad Company shall be entitled to receive in ful. satisfaction of their claims and demands against the company, common stock of the Dubuque and Sioux City Railroad Company, to an amount equal to what may be justly owing them respectively.</p> <p>The indebtedness of the Dubuque and Pacific Railroad Company, for right of way, for construction of the second forty miles of road, for operating expenses, and what may remain due on back pay rolls and to officers and employés of the company, and for the trust expenses and on moneys advanced to pay taxes, shall be settled and paid for by the Dubuque and Sioux City Railroad Company; and the officers of said last company are authorized to pay the same in cash or in preferred stock of said company.”</p> <p>And it was also ordered, that the decree should not absolutely bar or cut off any of the said indebtedness; but that the holders thereof should be entitled to hate and receive of the Dubuque and Sioux City Railroad Company payment of the same in common stock, preferred stock or otherwise, according to the nature of their respective claims, * * * and that only such as should consent to come in under the provisions of the decree were to be entitled to receive stock in the new company, for any claim or demand against the old. The petition for the foreclosure set forth that the old company was greatly embarrassed, and there was of record, judgments against it to the amount of over $55,000, giving the names of each judgment creditor, including that-of the present plaintiff. He was not, however, made a party, nor did he make any appearance to said action.</p> <p>Plaintiff alleging that the drafts upon which he recovered his judgment were given for work done and performed on “ the second forty miles of road;" that he has demanded of the new organization preferred, stock as provided in the decree, asks judgment for the amount of his former recovery and for general relief.</p> <p>Defendants in their answer, rely for the most part upon the alleged fact that the plaintiff’s work was not performed on the second forty miles of road; and that the provisions of the decree for the payment of such indebtedness have reference to the work done under the Eoot contract; that such was the intention of all the parties, and that it was never contemplated that any portion of the indebtedness arising under the Mason & Co. contract should be paid in preferred, or otherwise than in common stock. As to the meaning of this language, much parol and other testimony was introduced against plaintiff’s objection.</p> <p>The cause was referred; the referee reported against the prayer of the petition; the report was set aside in tbe District Court; judgment granting the relief asked, and defendant appeals.</p> <p>cited 1 Greenl. Ev., § 499; Chit. Cont., 74, and note on page 81; Myers v. Sunderland, 4 G. Greene, 567; Sands v. Woods, 1 Iowa, 263; Haskins v. Edwards & Turner, Id., 426; Walker & Bros. v. Manning, 6 Id., 519; Smith’s Lead. Cas., 681; Story Cont., 668; 2 Pars. Cont., 60; Field v. Schricker, 14 Iowa, 122; Pilmer v. The Branch of the State Bank, &c., 16 Id., 321; De Louis v. Meek, 2 G. Greene, 55; Lorton v. A.gnew, Morris, 267; Cooley v. Smith, 17 Iowa, 101.</p>

Plaintiff asks the foreclosure of mortgage given by Bradshaw and wife to secure a loan of school money by the school fund commissioner. Walker, the appellant, claims a paramount title to the mortgaged premises under certain proceedings to enforce a vendor’s lien. And his title may be stated first.

<p>1. Mortgage! belease: quit-claim deed. A quit claim deed executed by the mortgagee to the mortgagor, conveying a part of the premises described in the mortgage, operates as at least a prima fade release of the mortgage as to the premises described in the deed; especially when the said premises have been conveyed to a purchaser after the record of the deed of quit-claim.</p>

<p>1. Homestead.! conveyance in teust: abandonment. The legal title to the homestead was held by the husband; the husband and wife joined in conveying it to a third party under an agreement that it should be conveyed by the grantee to the wife. Held, that the conveyance did not constitute an abandonment, or affect the homestead right.</p>

<p>1. Criminal law: evidence op convict. The defendant in a criminal action possesses no absolute right, under the Constitution, and section 4019, Revision of 1860, to demand the personal attendance of a convict, under ' an order of the court, to testify as a witness on tilo trial. The exercise of this power is discretionary with the court, and will be interfered with only in cases of manifest abuse.</p>

Registry law: notice: bona fide purchaser.— Plaintiff conveyed the land in question to one Bell by deed of warranty, absolute on its face.

Action of replevin for a horse. David Sears recovered a judgment before a justice of the peace, against this plaintiff, M. M. Curtis. The judgment was in the usual form, and was rendered upon a note made by Curtis to Scars, which contained the words “without the benefit of exemption laws or stay of execution.” The defendant, O’Brien, was a constable, and under aii execution issued upon said judgment, seized the horse in controversy.

<p>1. Trespass^eight of common: LEGAL fence. If cattle feeding upon the common in this State enter upon an inclosure, the owner of the close cannot maintain an action of trespass therefor, without showing, if controverted, that the fence about the same was such as is required by the statutes. But if cattle break over a good and sufficient fence into one field, and from thence into another field of the same owner, separated from the first by an insufficient fence, such owner may maintain trespass for damages done after entering the last field.</p>

February 18, 1840, Barker, for the use of Fitch, recovered judgment in tire Des Moines District Court against Amos Todcl for $523.77 damages, and costs, $5.33.

Suit in equity to enjoin a foreclosure of a mortgage of personal property by notice and sale. The petition alleges that the plaintiff is the husband of the defendant, Julia A. Jones, though living separate and apart from her, and that she is guardian of certain minor children by a former husband.

Estoppel in pais : effect of acceptance of' money paid to redeem land from tax sale. — The question presented arises upon the petition of William Phillips as intervenor. The main action is in the nature of a creditor’s bill against Henry C. Grimmell and Ms son, George H., and Ms-daughter, Mary.

<p> Appeal from Jefferson District Court. </p> <p>cited Ang. & Ames Corp., §§ 333, 339; Beatty v. Knowler, 4 Pet., 152; 2 Kent., 296; Providence Bank v. Billings, 4 Pet., 514; Judah, v. The American Live Stock Company, 4 Ind., 333.</p> <p>cited 2 Kent., 277; Ang. & Ames Corp., §§ 325, 336; Paxton v. Swelt, 1 Grreenl. (Me.), 196; The City of Lowell v. Hadley, 8 Met. (Mass.), 180; The Burlington and Missouri River Railroad Company v. Spearman and the City of Mount Pleasant, 12 Iowa, 173.</p>

Chattel mortgage: retention oe possession by MORTGAGOR WITH RIGHT .TO USE AND SELL (BY RETAIL, IN THE-USUAL WAY), NOT “ CONCLUSIVE ” EVIDENCE OP PBAUD. — The plaintiff, a creditor of one G-. Held: upon the same merchandise, a chattel mortgage executed to him by the said Dayton. This mortgage was duly acknowledged and recorded, and will be more fully alluded to presently.

Action by indorsee and holder against an indorser of a negotiable promissory note. Verdict and judgment for defendant, and the plaintiff appeals.

Burglary. — Defendant was indicted jointly with Emerson, Green and Fields, at the February Term, 1865, of the Dubuque District Court, for burglariously, &c., entering, &c., in the night time, the house of one Bradley. At the August Term he was tried and convicted, sentenced to the penitentiary for the ■ term of five years, and now prosecutes this appeal. ■. 1. The indictment is bad, because it fails to lay venue to-the offense.

Defendant is one of the parties mentioned in the preceding case {State v. Reid); was tried with Emerson, ■convicted, sentenced to the penitentiary for seven years, and now prosecutes this appeal.

<p>-.1. Appeal: justice’s court. Neither the appellant nor the appellee can be compelled to go to trial on an appeal from the judgment of a justice of the peace to the District Court, when ten days have not elapsed between the taking of the appeal and the commencement of the term.</p> <p>2. -When a judgment was affirmed on motion for non-payment of docket fees, as required by the rule of court, and the appeal had been taken but seven days before the beginning of the term, the ruling was held erroneous. Rev., 1860, §§ 3926, 3929, 3930.</p>

An action in the nature of a trespass, for the wrongful taking and carrying away of a wagon, set of whifdetrees and a neck yoke, the alleged property of plaintiff. The defense consists in a denial of the trespass as charged, and also a denial that the plaintiff was the owner of the property specified. The trial resulted in a verdict and judgment for the defendants; whereupon the plaintiff appeals.

<p>1. Practice: signing becoed: The provisions of the statute (Rev., 1860, §§ 2664,2665), providing for the signing of the record of the District Court by the judge thereof are directory merely, and a non-compliance there-, with does not affect the validity of judgments entered in such records.</p> <p>2. Conveyance: IN fee: covenants. A grantor conveying an estate in fee in real property, or with covenants of warranty, is thereby estopped from setting up against his grantor a title acquired by him subsequently to such conveyance.</p> <p>3. - husband and wife : estoppel. At common law a married woman is not liable in damages upon covenants in deeds conveying Tier own lands, or upon covenants in which she has united with her husband in the conveyance of his lands. Whether under the statute of the State, a. feme covert would be liable in damages for a breach of covenant in a conveyance of Tier own land, and whether by such a conveyance with covenants of warranty she should be estopped to set up against her grantor an after acquired title, query ?</p> <p>- The joinder of a wife with her husband in the conveyance of Tier real estate, by a deed containing their covenants of general warranty, does not estop her from subsequently acquiring, with her own means, a title to the same property, and asserting the same against her grantee.</p> <p>4. Practice: objection to evidence. To render an objection to the admission of evidence available on appeal to the Supreme Court, the record should show the ground of such objection.</p> <p>5. Presumption: sheriff’s sale. It is presumed that a sheriff’s sale was regularly conducted, and this presumption is not rebutted by the silence3 • of the sheriff’s deed as to whether the sale was made under an alias fi. fá. or a venditioni exponas.</p> <p>6. Sheriff’s sale: irregularity: time. Semble, that a sale by a sheriff, under an execution, after the expiration of seventy days from the teste thereof, would be an irregularity simply and would not render such sale void. ■</p>

•Liquor act : requisites of indictment : evidence. — For necessary statement see opinion. Defendant was convicted, and appeals.

<p> Appeal from Dubuque District Court. </p> <p>Petition in equity for tbe enforcement of a vendor’s lien. Cause tried by tbe second method. Pacts found by tbe court as follows:</p> <p>1. On tbe 14th of October, 1856, tbe city of Dubuque purchased of Ebenezer Miller, who was then tbe owner of the same, in consideration of $10,000, the north two-fifths of lot No. 448 in the city of Dubuque; and paid thereon $2,000, and on the same day entered into a written contract with Ebenezer Miller and Deborah, his wife, for a deed of said premises, on the payment of the balance of $8,000, with interest, in two years, according to which the city took immediate possession.</p> <p>2. Ebenezer Miller assigned this, contract to Henry Miller, and Henry Miller, on the 28th of December, 1857, assigned the same to Daniel N. Lee.</p> <p>3. Daniel N. Lee, on the 12th of May, 1858, assigned on the second contract, $1,406.25 to Waples & Walmsley ; and on the 2d of June, 1858, assigned the further sum of $240 to M. M. Hayden, and on the 6th of November, 1858, made the following receipt .on said contract:</p> <p>“Received of the city of Dubuque, $7,000 in full, of my claim to the within bond, except the amount assigned as above to Waples & Walmsley and M. M. Hayden, the city assuming all liabilities connected with said assignments.</p> <p>“(Signed) D. N. LEE.”</p> <p>And on the same day conveyed the said premises which had been previously conveyed to him from Miller and wife, to the city of Dubuque, and gave up said contract to the city.</p> <p>4. The consideration received by D. N. Lee, when he made said receipt and conveyance, and gave up the contract, was: Cash, $500; two Centre Island bonds for $1,000 each, at sixty cents on the dollar; and the balance in the bonds of the city, known as short bonds, for the sum of $500 each, part of which are the bonds sued on in this case. That at the time of said settlement, it was agreed between said D. N. Lee and the finance committee of the city council, to whom the matter was referred for settlemenfc by the council, that said Lee should release all claim on said bond, and the city should have a clear title to the property in consideration of such payment to him, and the said settlement was approved by the city council.</p> <p>5. D. N. Lee afterwards sold and transferred the bonds now claimed on to the plaintiff, and the bonds have not been paid by the city, and are now past due.</p> <p>On the above statement of facts the court finds as conclusions of law, that the plaintiff is entitled to judgment for the amount of the bonds and interest, but is not entitled to a vendor’s lien. There was a motion by the plaintiff for new trial, which was overruled and judgment entered on the finding. Plaintiff appeals.</p>

' This is an action by an unmarried female to recover damages for her own seduction, such an action being authorized by section 2790 of the Revision. There was a trial to a jury which resulted in a verdict and judgment for the defendant. The plaintiff appeals.

<p> Appeal from Dubuque District Court. </p> <p>On the 29th of December, 1862, the treasurer of the city of Dubu'que, for the delinquent taxes of 1860, sold the real estate in controversy, to the defendant, and three years after said date, in 1865, executed his deed, and defendant claims and holds the property under and by virtue of said proceedings. Unless his title is thus divested, plaintiff is the owner of the property, and having tendered the amount paid by the defendant (but after the, expiration of three years from the day of sale), with interest, claims that it shall be discharged from any and all incumbrance created by such sale and deed. His position is, that the city had no power to sell or convey said property for delinquent taxes. Defendant, on the other hand, claims that the city treasurer had the same power which county treasurers have by statute, in similar cases of delinquent taxes. Plaintiff's position was sustained, and defendant appeals.</p> <p>1. The city charter does not create or confer any power or authority to sell or convey property for delinquent taxes. Tbe following are tbe only provisions in relation to taxes:</p> <p>“ Sec. 1. The city council shall have power, and it is hereby made their duty, to collect taxes, to defray the current expenses and pay the debts of the city; to provide for the assessment of all taxable property in said city, with reference to taxation for city purposes.”</p> <p>2. The council has no power or authority, except what is expressly conferred by the charter. Olarh, Dodge & Co. v. The City of Davenport, 14 Iowa, 499; Sharp v. Spier, 4 Hill, 76; Blaclcw. Tax Tit., 447, and cases cited. No power to sell real estate being conferred, taxes, when they become due, if legally assessed, are a debt due to the corporation, and as such must be collected by due course of law. Blackw. Tax Tit., 448; Berger v. Clarlcson, 1 Halst., 865; Sharp v. Johnson, 4 Hill, 103; Doe v. Chuner, 1 Blackf., 336.</p> <p>3. Chapter 105, Laws 1858, does not create or confer any power upon any corporation to sell or convey real estate. It only provides a “mode” for the exercise of powers already in existence, which are created and conferred. by the charters of the several corporations to which it refers.</p> <p>1. If the said city treasurer’s deed was executed, as is admitted, pursuant to the ordinance, and by the authority conferred by the council of the city, then it is to have the same effect as county treasurer’s deeds. See Laws of 1858, ch. 105 ; Rev., ch. 45.</p> <p>2. The act of March 22d, 1858, confers upon purchasers at city tax sales, all the rights and remedies secured to purchasers' at other tax sales. See Sweet v. Billings, 14 Iowa, 385.</p> <p>3. The court below, in refusing to set aside the deed absolutely, regarded the sale and conveyance as of some validity, and if valid at all, it must be effective, to pass the title, according to the authority above cited.</p>

Appeals from Polls District Court. These cases were before us at the last term, and were then reversed and remanded as to certain parts of plaintiff’s claims. On the filing of the procedendo, plaintiff in writing offered, in each case, to withdraw from his petition all counts or parts thereof which asked a recovery for the claims referred to in the order of reversal, and to dismiss his action in relation thereto.

This is a suit to enjoin the collection of certain taxes assessed and levied, for municipal purposes, upon two tracts of land situated on the new extension of the city of Dubuque, one of forty acres, in section 7, and the other twenty-four and twenty-five hundredths acres, situated in section 13, upon the general ground that these tracts have never been laid off and dedicated as town property, or demanded by the growth of the city for that purpose, &c. The plaintiff, in his…

A LIBEL suit in. which the defendant was the successful party; but upon motion a part of the costs thereof were ordered to be taxed to him, excepting thereto he appeals.

Statute op limitations: construction op section 2742 op the revision, &o. — Plaintiff sues to recover on an account for dental services. The action was commenced May 1,1862. The first item in the account is dated April 16, 1852; the last but one November 18,1856, and the last item is as follows: “ June 26, 1857,. to extracting tooth for wife’s sister, 50c.” Answer. — 1st. In denial. 2d. Statute of limitations.

<p> Appeal from Warren District Court. </p>

This proceeding was commenced in the County Court of Scott county, on the probate side thereof, for the allowanee of a claim against the decedent for about four thousand dollars. There was a judgment in the nature of an order of allowance by the County Court in favor of plaintiff for the sum of fifteen hundred and eight dollars on one count of the claim, the others being rejected.

This is a proceeding in equity, commenced by plaintiffs, as the heirs of William Wade (the -father), .against the defendants, as the heirs of Enoch Wade (the son), claiming the undivided half of certain real estate of great value, situated near to and in the city of Burlington. The claim is, that the property was entered by the son in his own name, the father furnishing one moiety of the-purchase-money, the title to one-half to be held by the son in trust for the father.

<p>1. Practice ¡ exception to instructions. A general exception to all the instructions given to the jury, does not raise any question for the consideration of the Supreme Court unless all of the instructions are erroneous.</p>

Award. — Plaintiff’s action, commenced before a justice of tbe peace, was dismissed on defendant’s motion. Plaintiff appealed to tbe District Court, and while tbe action was there pending, tbe parties entered into an agreement, reciting that “ an action is now pending, &c., in relation to a claim for damages, &c. Now, therefore, we, tbe undersigned, do hereby submit the said controversy to the arbitrament of, &c., or any two of them.

Action of replevin; trial to a jury; verdict for plaintiff, which, on motion of defendant, was set aside and a new trial granted. The plaintiffs excepted and appeal.

Action for defamation of character. — The petition alleges, with proper introductory and other averments, that the defendant wrote the following libelous words upon legal tender notes or greenbacks of, and concerning the plaintiff: “ I. H. F. & Co.” (meaning the plaintiff), “ robbed C. C. T.” (meaning defendant), “ of five thousand dollars.” Other counts allege that he spoke the same words, and also words as follows: “ There goes the d — d old rascal or thief (meaning the…

Pleadings, denials, &g. — foreign judgments — DEFENSE OF FRAUD THERETO — REAL PARTY IN INTEREST AS plaintiffs, &c. — Action by the plaintiff, as assignee, upon a judgment rendered by the Superior Court of Suffolk county, Massachusetts, in favor of one M. J. Cluff, and against the present defendants. Judgment for plaintiff, and defendants appeal.

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

This base presents the same points as those disposed of in the case of The State of Iowa v. Adams, just delivered, and one additional point. The defendant appeals.

. Mortgage foreclosure. — The mortgage was made July 9, 1858, by Pickel alone, upon the S. N. E. J, Sec. 9, T. 78, E. 7. The mortgagor was then married, and resided, with his family, on the forty acres immediately north of the west forty of this eighty, or the N. W. £ of said' N. E. £. The dwelling house and buildings were upon this forty; but the entire one hundred and twenty acres were used and cultivated as a farm.

<p> Appeal from Jones District Court. </p>

These cases involve the same questions, and are submitted upon tbe same arguments. The defendants were severally indicted and tried for the crime of keeping a. nuisance. They were severally found guilty. After the making and overruling of motions for new trials, to which exceptions were duly taken, judgments were entered on the verdict. The defendants appeal.

Suit in equity to quiet title as against several claimants. The only question presented in this appeal, which is by Ellen Sullivan alone, arises upon the following facts: Michael J. Sullivan, who was the husband of Ellen, was the owner in his own right of two lots in Dubuque. In 1853 ■ he sold one of them, and conveyed it by deed of general warranty. His wife Ellen joined in the granting parts and covenants of the deed, which was acknowledged by both in the usual form.

Practice: correction oe sealed verdict, &o.— Action by payee against maker of two promissory notes which, at the date' of the trial, would, with interest, amount to about $271.50. The- defense was, that the notes were given for the purchase-money of a stallion, and that the defendant was entitled to recover by way of set-off or cross-claim a large amount as damages for false representations and. breach of warranty.

Setting aside indictment, &g. — Defendants, Esek and Marion Tucker, are father and daughter, and were jointly indicted for incest. The father failed to appear for arraignment. The daughter (Marion) appeared, and moved the court to set aside the indictment, because one Philomela Tucker, the wife of the said Esek, and mother of the said Marion, was examined as a witness before the grand jury against both of said defendants.

The petition in equity, charges that Frazier obtained a judgment against plaintiff and defendant Mann; that this judgment was obtained upon a note made to said Frazier in 1856, by plaintiff and said Mann; that the latter was the principal, and plaintiff the surety; that this was known to Frazier, notwithstanding all which an execution was issued, placed in the hands of Spearman (as sheriff), and levied by him on eighty acres of land belonging to plaintiff, one-half of which…

Fixtures: when-removable: recording acts, &g. — ■ The questions made arise upon- the following agreed statement of facts: “ It is agreed by and between the parties to the above mentioned cause that on the trial of the same in the District Court of Polk county, at the January Term, 1866, the evidence introduced tended ■ to establish the following propositions of fact; and for the purpose of abbreviating the records to be used in the trial thereof in the Supreme Court, it is…

Action to enforce mechanic’s lien. The contract for the work was made in August, 1859, and the work wa3 • then commenced. It was completed, as claimed, December 9,1862. The account, description and claim for mechanic’s lien was duly made, verified and filed, March 6, 1863. This suit was brought, May 9, 1864. The defendant, ■McCaddon, for whom the work was done, entered the United States military service on September 1, 1862, and was discharged in October, 1863.

Prior to February, 1859, the Dubuque and Pacific Railroad Company, being unable to agree with the plaintiff for a right of way for their road over certain lands of the plaintiff, procured a jury to be impanneled under the act of 1853 (Revision, §§ 1314-1331), and the damages assess^ ed. The plaintiff not being content with the assessment so made, appealed to the District Court of Dubuque county.

Plaintiff declares upon the following instrument: “Waverly, July 27,1857. On or before the court house in and for the county of Bremer, State of Iowa, is completed, I promise to pay Beebe and Levally, or order, for the use of the county of Bremer, one thousand dollars, value received. W. P. HARMON.” On the same day the county judge made and signed the following agreement: “County Judge’s Office, July 27,1857.

<p> Appeal from Des Moines District Court. </p> <p>Forgery: what essential to the crime: entries IN BOOKS OF DECEASED PERSONS AS EVIDENCE: INTENT TO defraud : PROOF OF, &c. — The defendant was indicted for fraudulently altering two receipts. With the alleged alter* ations, the receipts are of the tenor following:</p> <p>“Received, February 28, 1863, of W. Woodward, four hundred dollars, to be applied to the payment of J. Long’s notes.</p> <p>$400. Robert Armstrong.”</p> <p>“Received, April 16, 1863, of Mr. W. Wooderd, two hundred dollars, on account of interest and principal of notes on J. Long.</p> <p>$200. ROBERT ARMSTRONG.”</p> <p>On the trial, the theory of the State was that Armstrong had executed these receipts to Wooderd to evidence payments which Wooderd had made on Ms (Woodcrd’s) own indebtedness to Armstrong; and the alleged alteration consisted in changing the dales of the receipts and inserting the words “ J. Long" so as to make the receipts apply to notes which “Long" owed to Armsti’ong.</p> <p>The State claimed that the $400 receipt, before it was altered, bore date February 26, 1862; that it was altered by the defendant so as to bear date February 28, 1863; that it read, before it was altered, “tobe applied to the paj'mentof Ms notes;” that it was altered by the defendant so as to apply to the Long notes.</p> <p>The State also claimed that the $200 receipt above copied, was originally dated April 11th, 1861; that it was fraudulently altered to April 16, 1863; and was further altered by the insertion of the words “on J. Long.”</p> <p>The dates are important tobe borne'in mind. It is essential to state some further particulars concerning the respective indebtedness of Long and the defendant to Armstrong.</p> <p>On the 17th of April, 1860, Wooderd executed to Robert Armstrong notes as follows: $200 duo June 1, 1860; $363.66 due April 17,1861; $363.66 due April 17, 1862; $363.66 due April 17, 1863.</p> <p>These notes were secured by a deed of trust on 100 acres of Wooderd’s land. February 7, 1863, Armstrong entered upon the record in the recorder’s office, this indorsement: “This deed of trust and notes are paid in full, &c. Robert Armstrong.”</p> <p>In the above notes and deed of trust, Long in no way ever had any individual interest. The facts respecting Long’s indebtedness to Armstrong may be condensed thus: On the 21st day of May, 1860, Long executed a note to one D. McAllister at 1 year for $319, and, on same day, a note to one D. Black for $81, making $400 in all, and secured the same by a deed of trust on three parcels of land. On the 13th day of July, 1861, Long and wife conveyed two of these tracts to Wooderd by general warranty. In May, 1862, Long executed a letter of attorney to Wooderd, empowering him “ to transact all of his (Long's) business."</p> <p>This was executed by Long in anticipation of a protracted absence in Montana, or some western territory, and Long soon after went west and remained absent until November, 1864.</p> <p>The above notes from Long to McAllister and Black were indorsed by the payees thereof to, and became the property of Armstrong, if indeed they were not in Met alwajrs his.</p> <p>The Long notes as produced on the trial showed indorsements of interest thereon at various times down to May 21st, 1862.</p> <p>JSobert Armstrong died July 22d, 1863; and the Long notes came into the possession of Armstrong’s executor.</p> <p>In August, 1863, the amount of the Long notes was advanced by one McCash (Long’s brother-in-law), to Armstrong’s executor, and the notes assigned to McCash. This was done at the instance of Long’s wife.</p> <p>The defendant being informed of this, showed McCash the receipts in question, and “claimed that they were to be paid on the Long notes.” McCash does not state how the receipts then read.</p> <p>Wooderd made the 3ame claim to Gay (the active agent, is settling the estate of Armstrong), and left the receipts with him.</p> <p>Gay delivered this important testimony on the trial: Wooderd came to me shortly after I was appointed agent of the estate. [Receipts shown witness,] The amounts are now the same as when Wooderd left them with me. But the dates are not the same, and the word “ J. Long ” was not then in them. I next saw the receipts in the county .judge’s office after I had handed them back to Wooderd.”</p> <p>Long, on the trial, denied, notwithstanding the general language of the letter of attorney, that Wooderd had any authority to pay the notes to Armstrong, and stated (against defendant’s objection) that the particular object of the power of attorney was to enable Wooderd to prevent a road being laid out through his land in his absence.</p> <p>Long also testified that Wooderd claimed that he had paid the notes to Armstrong, and wanted him (Long) to admit his (Wooderd’s) authority to do so, as in that way Long could get up his notes, and McCash get his money back from the Armstrong estate. This Long refused to do.</p> <p>After Long’s return, viz., in February, 1864, the defendant filed with the county judge the following account:</p> <p>“ Estate of R. Armstrong,</p> <p>In account with Wm. Wooderd, Dr.</p> <p>1863.</p> <p>Feb. 28. To cash received as payment on John</p> <p>Long’s note,.................... $400</p> <p>Apr. 16. ditto 200</p> <p>Interest,.......................... 31</p> <p>$631”</p> <p>On the hearing of this claim before the County Court, Wooderd produced the receipts alleged in the indictment to have been altered, as evidence to support his right to recover.</p> <p>The County Court disallowed the claim.</p> <p>On the trial of the indictment the above facts appeared. There was also testimony by experts offered by the State to show that the receipts bore upon their face evidence of having been altered. The State was also allowed, against the defendant’s objection, to introduce in evidence the “ Note Register,” kept by Armstrong in his lifetime.</p> <p>The further facts respecting this are stated in the opinion;</p> <p>The defendant introduced one Prettyman as a witness, . who testified that on the last day of' February (28th), or 1st day of March, 1863, he saw Wooderd pay Armstrong $400 on the John Long notes; and received a receipt which; as Armstrong read it, contained Long’s name; that Wooderd assigned as a reason for paying this amount, that he had eighty acres of John Long’s land, and wanted to pay off the mortgage on it. One Clark testified that about the middle of April, 1863 (i. e., about the date of the $200 receipt), he saw Wooderd pay Armstrong in a New York draft, $200, on the John Long notes.</p> <p>■ The State offered testimony to impeach the witness Prettyman.</p> <p>The defendant was convicted and sentenced to five years’ imprisonment in the penitentiary.</p> <p>Defendant appeals.</p>

The facts of this case, as found by the court below, are as follows: From 1857 to July 1, 1861, A. C. Parks was the general agent of the defendant at Mt. Pleasant, and along the line of travel to Eddy ville, with general authority to do whatever was necessary to enable defendant to operate its line of stages, including the power to raise money, for the use and benefit of the defendant, on its notes, signed with its name by said Parks as agent, by getting such notes…

The plaintiff was an employe of defendant, and as such engaged as laborer in working upon and making repairs to the defendant’s railroad track.

Homicíde: sele-defense. — The defendant, and his brother Thomas, were jointly indicted and tried for the ■murder of Thomas Dolan, in Dubuque, on the 13th day of June, 1865. Plea — not guilty. Verdict against both of manslaughter. As to Thomas, the court sustained a motion for a new trial. The motion of John for a new trial was overruled, and he was sentenced to five years imprisonment in the penitentiary, and to pay a fine of $100 and costs. From this John appeals.

A criminal prosecution, founded on section 4324 of the Revision, being for a trespass in cutting down and carrying away the timber of standing and growing trees from the land of another. At the trial the defendant was convicted, and fined fifty dollars and costs. I. The court below erred in overruling the demurrer to the indictment. 2 Hawlc., ch. 75, §71: 14 Iowa, 180; 1 Chitty Or. L., 212-216; Rev., §§ 2205, 2206, 3726, 4324; 7 Barb., 9, and authorities cited; 2 Hayw.

<p>1. Husband and wife1, usury: homestead. In an action to foreclose a mortgage upon the homestead executed by the husband and wife,.to secure a note executed by the husband alone, the wife may set up a plea of usury against the note.</p> <p>2. Usury :> confession op judgment. A statement for judgment by confession' does not estop the defendant before the judgment is entered to plead usury in the debt which is the basis of the judgment.</p> <p>3. Practices foreclosure: confession of judgment. One mortgagor executed.» statement authorizing the District Court to enter judgment for the full amount secured by the mortgage and decree a foreclosure; the mortgagee filed a petition for foreclosure setting up the agreement; the defendant by whom it was executed, filed his answer alleging that the agreement or statement was procured by fraud; the issue was referred; the referee found for plaintiff and the report was confirmed; Held, that the confirmation of the report only concluded the parties as to the issue determined, and did not conclude the defendants from filing another answer setting up a plea of usury.</p>

The defendant was indicted, tried, convicted and sentenced to two years’ imprisonment in the penitentiary, for tbe crime of perjury. The offense is charged to have been committed by the defendant, in testifying as a witness in behalf of the State, on the trial of Peter Martin, before a justice of the peace, upon an information for larceny of corn from the field of one Jason Pangborn.

<p>NEW TRIAL-VERDICT AGAINST EVIDENCE.</p>

<p>ERROR 'WITHOUT PREJUDICE.</p>

Appeal from Jones District Court Suit in equity, to subject land in the hands of grantees to a trust existing in parol against it, in the hands of the grantor. Judgment for the plaintiffs, and defendants appeal.

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

In his petition the plaintiff sets out the nature of his title and right of possession accompanying the same, with a prayer for the appointment of a receiver, stating very fully the grounds upon which his application for the appointment of a receiver were founded.

Defense by one only of the subsequent incumbrancers, that plaintiff had released the mortgage as to the part claimed by this defendant. Trial to the court and judgment for the plaintiff for foreclosure; except as to the part claimed by defendant as released, and also barring the equity of redemption as to all other defendants. The plaintiff appeals from the judgment for the one defendant.

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

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

<p>PRACTICE EVIDENCE : NOT IN RECORD.</p>