Volume 21 — Iowa Reports

Executor’s capacity to sue: presumption op payment: TENDER OP DEED IN EQUITY BY VENDOR, &G.— Action in equity by the plaintiff, as executrix of the vendor of land against the defendant, the vendee, upon notes given by the defendant (who received a title bond from tbe vendor), and to foreclose bis interest in tbe property. Decree for plaintiff, and tbe defendant appeals.

This is a suit to recover of tbe defendant damages for the wrongful treatment and negligent conduct of its servants, whereby the death of one James Bogus was' occasioned.- ■ ■ The gravamen of the charge as laid in the petition is, that in September, 1864, Bogus was a passenger on one of the cars then running; that he was forcibly ejected therefrom at a time when he was of unsound mind and intoxicated, and was so injured that he was incapable of exercising any care of…

The defendants, E. P. Gray and Elizabeth Gray, are husband and wife, and were married prior to 1851. On tbe first day of May, 1851, and while they were residing in Iowa, the wife was the owner and holder of a note for twenty-eight hundred 'dollars, made by a man in Cincinnati, Ohio. She acquired the note by descent from her father’s estate, he having died in Ohio. On the date last mentioned she let her husband have the note and he went to Cincinnati and collected it.

Certiorari. — The record shows that in April, 1863,' the petitioner, as administrator of the estate of Edward O’Hare, made her final report and settlement; at which time Mary A. Strain, one of the heirs, appeared, and after an examination, an order was made by the county judge in relation to said report, and the rights and interests of the heirs in said estate!

Foreclosure: parties defendant: usury: attorney’s authority to appear, Sbe made upon it three incumbrances wbicb became liens in the following order: 1. December 15,1855, mortgage to B. F. Allen for $1,367 on its face, but in fact (as claimed) for loan of only $1,000. This is the instrument sought to he foreclosed in ■ the present action, Huston becoming tbe assignee thereof September 24,1857. 2.

The defendants were indicted for an assault with intent to commit murder. They asked for and were granted separate trials. The defendant Jarvis was first tried and found guilty of a simple assault Thereupon the other defendants filed a plea of “guilty” of the same offensé.

This action was brought before a justice of the peace on an account. The -plaintiff recovered judgment before the justice, and the defendant appealed to the District Court. It appeared from the transcript of the justice, sent to the District Court, that the-justice before whom the suit was brought, by reáson of some transactions between himself and one of the parties, felt himself excused from acting in •the case.

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

The petition, filed before a justice of the peace, is as follows: “ J. M. Byebs, as next friend of J. W. Byebs, v. Lessees of the Des Moines Valley Railroad Co., to wit: David Kibbottene, Wibbiam Leighton, H. T. Reid and C. H. Pebey. “ The plaintiff, J. M. Byers, as next friend of J.W. Byers, claims of the lessees of the Des Moines Yalley Railroad Company, or defendants, David Kilbourne, William Leigh-ton, H. T. Reid and C. H. Perry, the sum of ninety-nine dollars and…

Dependant is the county treasurer, and, as sucn, levied upon .the property in controversy to satisfy an unpaid school house tax against plaintiff.

Foreign judgment: fraud as a defense. — This action was commenced in tbe District Court of Appanoose county, Iowa, in 1865, upon a duly autbenticated record of a judgment entered' in favor of tbe plaintiff and against .tbe defendant, on tbe 16th day of March, 1857, by tbe Circuit Court of Laurel county, Kentucky. Tbe action in which the Kentucky judgment was rendered was slander.

Appeal from Boone District Court. Ah action to recover damages for an assault and battery. The defendant was the successful party and plaintiff appeals.

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

Action by a purchaser as tax sale to quiet his title under the tax deed. The defendant’s Dowell and Saxton, were the owners of the land prior to the tax sale, and by cross-petition ask the cancellation of the tax deed, and the quieting of their title.

Action for the recovery of real property. Trial to the court, and judgment for the plaintiff. The defendant appeals. The further facts will be found stated in the opinion.

Action on an account brought before a justice of the peace. There was a trial before the justice, and judgment for defendant, from, which the plaintiff appealed to the District Court. In the District Court there was a trial and judgment for the plaintiff, and the defendant appeals to this court.

<p> Appeal from Woodbury District Court'. </p> <p>Action to enforce a mechanic’s lien.</p>

<p>1. Appeals pleading in appellate oourt. A party cannot, on appeal in tile District Oourt, file additional or new pleadings as a matter of right; but be may be allowed to do so upon proper terms, but not without satis- ' factory evidence excusing his failure to plead before the justice.</p>

About the- 1st of July, 1864, Sarah Percifield removed from the State of Missouri into the county of Binggold, in this. State, bringing her son Martin, a lunatic sixteen years of age with her. About the 1st of September thereafter, she removed with her son into Lucas county.

Ward was elected treasurer of Warren county in 1859, and entered upon the discharge of his duties on the 1st day of January, 1860. At this time he executed his official bond, with Yanfull and others as his sureties. Between this and the first of the next January, he received from tax payers what are termed “ partial paymentson their taxes.

In February, 1857, S. Gr. Cunningham conveyed, by warranty, to Clarke Luther, the plaintiff, forty acres of land, constituting the grantor’s homestead. One year thereafter Agnes Cunningham made to Luther a quit-claim for the same property. The wife did not join with the husband, nor tbe husband with the wife in tbeir respective deeds, but both were regularly acknowledged.

Defendant conveyed to plaintiff certain lands in 1855 and 1859. It being supposed that the title had failed, he executed a bill of sale upon certain personal property to secure plaintiff in the event of such failure. Certain persons were named in this bill of sale or chattel mortgage as trustees, who failing to serve, plaintiff filed this bill, asking the appointment of a trustee or receiver for reasons therein stated.

— Both parties claim under Owen' McLaughlin. Plaintiff’s title is this: Patrick Quigley obtained a sheriff’s deed in July, 1840, under a judgment and execution in favor of Curran against McLaughlin; and in April, 1862, plaintiff obtained a sheriff’s deed under a judgment and execution in his favor against said Quigley.

<p>1. Eailroad: negligence. In an action against a railroad company for damages sustained by the killing of plaintiff’s cattle by running the cars of defendant over them at a point where the public highway crossed defendant’s road: Eeld, that if the cattle were not on the track by the negligence of plaintiff, the test of defendant’s liability is, whether, at the time of the accident, reasonable and proper care was exercised to avoid the injury.</p>

Plaintiff claims damages for the killing of a cow on the depot grounds of defendant, by its engine and cars. Judgment for plaintiff, and defendant appeals.

Maynard brought bis action against Wilsey in tbe Monona District Court, claiming three thousand dollars damages, and recovered eight hundred for the seduction of his daughter. The notice was drawn and signed prior to the 1st of June, and placed in the sheriff’s hands, June 16, 1863, and served the next day. At this time there was no revenue stamp upon it, but one was affixed at the September Term, and duly canceled.

'Appeal from Madison District Court, Arbitration. — The questions made relate to the regularity of the proceedings, so far as to affect the successful party’s right to a judgment uoon the award, under the statute. For the facts see the opinion.

Plaintiff seeks the foreclosure of a mortgage of date May 12, 1860, to secure three notes, on the last of which he claims there is due three hundred and fifty dollars.

Trespass, for taking and carrying away a black walnut log or logs from plaintiff’s land. Plaintiff Mary Morgan, was formerly the wife of one Nutt, who was the owner of the land, and from whom it descended to her. The testimony tends to show that defendant formerly owned the land, and while such owner the tree was cut down; that during Nutt’s lifetime, the tree thus upon the ground was bought and paid for by defendant, of which Mrs. Morgan had due notice.

Bridges : power of county and city in respect thereto, ETC. — The plaintiffs are citizens and tax payers of Polk county, residing outside of the city of Des Moines. 'They file the present petition to enjoin the defendants (who consitute the board of supervisors of Polk county, the clerk of the board and the county treasurer being also made parties) from .paying over an appropriation of $2,000 out of the bridge fund, and praying that the order making such appropriation be set…

Practice: decisions in vacation, &c. — Bill for injunction. Answer by a portion of the defendants denying many of the matters set up in the petition. Decree as prayed, and a portion of the defendants appeal.

Sheriff’s sale : setting aside of, &c. — This controversy concerns’the rights of the respective parties as to a certain forty acres of land.

Accord and satiseaction: consideration. — Plaint-, iffs sue E. M. Hall, Wm. Yan Winkle and Francis Wheeler, late partners under the style of Yan Winkle & Co., for $190.80,' for thirteen hogs sold and delivered November 18, 1865. Hall alone answers. 1. In denial. 2. That the hogs were sold to Wheeler individually. 3. As follows: “3.

Action upon a bail bond, which, recites that the principal has been “held to answer upon a charge of seduction.” Trial to jury and verdict for the .State. Defendants appeal.

Swamp land: power op counties oyer: statutes CONSTRUED : POWER TO AID TO BUILD BRIDGES, &G. — This case relates to the same bridge, and involves many of the same questions decided in Bell v. Foutch et al, ante. For a more full statement reference is made to that case. The present cause also involves some questions not presented in the Bell case. Only such additional facts will be here stated as will enable the present cause to be understood.

Appeal from Polh District Court This was a proceeding in the County Court to appropriate a portion of certain real estate belonging to defendant, to the use of the public, for a street, as contemplated and allowed under section 1065 of the Revision. The jury assessed the damages at $675. Defendant transferred the proceedings, for review, to the District Court.

Servitudes : upper and lower estates as to drainage : LIABILITY OP UPPER OWNER POR INCREASED ELOWAGE CAUSED BY MOLE DITCH OR DRAIN, &G.— The plaintiffs are the landlord and tenant .of a farm in Jones county; the farm adjoining which is owned and occupied by defendant. The relative natural level of the two farms is such that the surface drainage of defendant’s farm flows down upon that of the plaintiffs.

District Court. This is an action in equity for the purpose of enjoining a suit at law, brought by the defendants against the plaintiffs for the recovery of certain property claimed as personal property. There was a temporary injunction granted upon the filing of .the petition ; and it was, as to a part of the property, made perpetual on the final hearing. The further facts are stated in the opinion. The defendants appeal.

Mechanics’ lien. — Tbe account commenced in December, 1863, and closed in May, 1865 ; amounts to $750.55, and is for work and materials done and furnished on and about certain machinery in a flax factory, situated upon the premises described in the petition, at the request and upon a contract, as is alleged, with the defendants, Swan & Co. In June, 1865, plaintiff filed with the proper cleric an account of his demand, with a description of-the property to be charged with his…

Insurance policy : chande oe interest : parol evidence, &c: — On tbe lOtb day of December, 1860, tbe defendant issued its policy, agreeing to insure tbe plaintiff, “John Ayers, against loss or damage by fire, to tbe amount of $5,000, on bis steam flouring mill and machinery, situate,” &c.; “ loss, if any, payable to B. F. Allen, Esq. (a judgment' creditor of Messrs. Wm. F. Ayers & Co.), to tbe entire amount of bis claim against Messrs.

This case differs but little in its facts from those stated when it was before us on the former appeal, and which will be found in 17 Iowa, 176. Nor are the questions made materially different from those discussed in the last preceding case. The opinion notices these differences, and states all material facts necessary to a full understanding of the points made. Defendant appeals. '

Ajypeal from Mahaslea District Go%urt. This is a controversy submitted to the District Court without action, under the provisions of chapter 131 of the Revision of 1860.

Fraudulent conveyances : Stat. 27 Eliz., &c. — This is a suit in equity against Jerome Oole, Anthony Cole and others, to enjoin a law action brought in behalf of the said Jerome, by his next friend, to recover the rents and profits of a certain lot. Without setting forth the pleadings, it will be sufficient to state that, from them and the exhibits and testimony, the following facts are either admitted or clearly established. 1.

Action to correct*and foreclose a mortgage.- Judgment for plaintiff, and the defendant, Bamford, appeals. The further facts are stated in the opinion.

The petition makes the following case: By an act of Congress approved May 15, 1856, certain lands were granted to the State to aid in the construction of four several lines of railway.

Plaintiff seeks to recover some $12,000 paid the county of Webster, asís alleged, for taxes erroneously assessed. The ease made by the petition is this: The lands assessed constitute a part of those granted to the State to aid in the construction of a railroad from Dubuque to tbe Missouri river, by act of Congress, May 15, 1856, and by tbe State to plaintiff by act of July 14, 1856.

Appeal from Polh District Court The appeal in tbis case is brought to reverse a ruling of the District Court upon a motion made by the defendant to set aside a sheriff’s sale of a judgment, levied on by virtue of a writ of attachment.

Common carriers: diligence required, &c. — On the 5th day of November, 1859, the plaintiff shipped atMuscatine, on board of the defendant, five hundred and eleven sacks of potatoes,' to be delivered to their commission merchants at St. Louis.

The appellants, Thompson and Sawyer, were the sureties of Monett and Chipman, upon a joint note, payable to plaintiff, dated February 1, 1861, due in six months, for $497.10. Plaintiff had a claim against the “ Lee and Des Moines Bridge Company.” Monett and Chipman leased the bridge and made this nóte to pay this debt, which they in such contract of lease had assumed. Thompson was a stockholder in the bridge company; Sawyer was not.

Dower : statute oe limitations. — Tbe plaintiff is the widow of'Alexander Starry, wbo died, intestate in March, 1852, leaving seven children his heirs at law. In the following August one of these children (Lucinda) died unmarried, without issue and intestate. The other six children survive, and' are the defendants. The said Alexander died seized of certain lands, in the possession of which the plaintiff, his widow, has ever since been.

Action to recover the possession of real property known as the south part of lot 593 in the city of Dubuque and particularly described in the petition. The cause was tried in the District Court upon an agreed statement of facts.

■ This is a proceeding for the partition of certain real estate formerly belonging to John Nicholas, now deceased, he having died without issue. The plaintiffs are the brothers and only heirs at law of said John 'Nicholas, deceased. The defendant, Matilda Purczell, is his widow, and Thomas Purczell is her second husband. The defendant,, Matilda, claims forty acres of the land sought to be partitioned, as her homestead.

Homestead not liable eor ordinary judgment for alimony. — In 1824, Thomas Byers (plaintiff) and Mary Byers (defendant) were married. Nine years since, the homestead property (forty acres of land), now in controversy, was acquired. In 1864 (after acquisition of the homestead) the defendant, Mary, filed her petition for a divorce, for what cause or when such cause arose, does not appear.

The plaintiffs purchased of the defendant a part of a lot in Marshalltown for fifteen hundred dollars. They paid one hundred down, and gave their note for the balance, payable on the first day of April following the purchase, and took from defendant his bond for title, by good and sufficient deed with covenants of general warranty, on the payment of the note.

Practice: jurisdiction oe equity courts, &o. — This cause was before this court in 1862. 14 Iowa, 425. The general nature of it is there'stated. When the cause was remanded a decree was entered setting aside the deed from the defendant Lee, to. his wife, and allowing the defendant to amend his answer and set up, by way of cross-bill, his advances, &c., as the agent- and trustee of the plaintiff.

On the 12th day of April, 1858, plaintiff sold to defendant about two hundred acres of land, executed a bond for a deed, conditioned to make a conveyance upon the payment of some $6,600 — $2,000 within five days thereafter, and the balance in installments as therein recited. Lyon paid on this contract, say $1,100, and Keeney took possession because of the non-payment of the balance.

Tnis is a suit in equity to compel the delivery of a deed for certain, lands included in the grant to the Dubuque and Pacific Railroad Company.

This suit was brought upon three promissory notes and an account. Two of the notes were made by the defendant to plaintiffs or bearer, and payable in wheat or corn at the market price; and the other one was made by another and the defendant jointly, payable in the same manner to the plaintiffs or bearer. The action, so. far as this last note was concerned, was dismissed before the cause was submitted to the jury, and no question is made in relation thereto.

<p> Appeal from Scott District Cowrt. </p>

Dependant and his son-in-law, Coman, were in partnership, as boot and shoe merchants in Iowa City, under the style of Buell and Coman, prior and until November 17, 1862. At the time of the dissolution, they were indebted on balance of account, to plaintiffs, in about the sum of $680. By agreement Coman. was to pay all debts, and took tbe property. Plaintiffs were advised of tbe dissolution, and tbe terms thereof within a few days there-, after.

Action of replevin for a Johnson county bounty fund warrant' of one hundred dollars. Trial to a jury; verdict and judgment for defendant, and plaintiff appeals. The further necessary facts will be found stated in the opinion.

ApPEAL - FROM COUNTY COURT : WHEN TT LIES.-In October, .1861, the County Court of Cerro Gordo county appointed the defendant Shorick, guardian of the plaintiff Wilson. This appointment was made upon the alleged ground that Wilson was of unsound mind.

, This action was commenced before a justice of the peace for forcible entry and detainer. The cause was tried before-the justice and resulted, in a judgment for the plaintiff. .The defendant appealed to the District Court, where his appeal was dismissed, and he has now appealed to this court. The further facts will be found stated in the opinion.

<p> Appeal from Jones Pist/riot Oov/rt. </p>

Plaintiff, as guardian for William T. Wilson, sues for the work and labor of his ward, and his petition contains the following averments: “ That on and between the first day of February, 1858, and the first day of December, 1859, said Wilson did nine months’ labor for defendant, at, &c., for which work and labor defendant verbally contracted with said Wilson, on or about said first of February, 1858, he would pay him the sum of ten dollars per month; that on and between the…

In March, 1863, Dickerson, as administrator of the estate of Henry Courtney, brought his suit against “ widow Caroline I. Journey,” for medical services, amounting to something over eighteen dollars.

In June, 1863, defendant was indicted for the crime of “having in his possession at the same time five or more pieces of false and counterfeit money, &c.,” as defined by section 4261 of the Revision. At the October Term of that year he failed to appear, and his recognizance was declared forfeited.

The plaintiffs claim in their petition that they advanced to the defendant certain money to buy for them, and as their agent, a lot of cattle recommended by the defendant to them, and belonging to a neighbor; and that the defendant bought the cattle at one price and represented to plaintiffs that he had paid another and greater price.

On the first day of February, 1856, Louden Mullen loaned to O. M. Steinberger five hundred dollars, and took therefor the joint note of said Steinberger, O. E. Stone, and A. S. Bryant (the last 'two being in fact only sureties) for six hundred dollars (being forty per cent interest), payable six months after date. The sum of four hundred and fifty dollars was afterward paid on said note.

This is an application by petition to the District Court for the allowance of an appeal, after the expiration of thirty days, from an order of the County Court appointing the defendant a guardian of the person and property of the plaintiff as a person of unsound mind.

This action is brought on a note made by Green, Thomas & Co. as principals, and the defendants, Tallant and Kendall, as sureties, dated September 12, 1857, due in sixty days, for one thousand dollars. The principals set up payment on the 31st of March, 1858, by the transfer to plaintiffs of a note on Stuart & Gaddis, of date May 7, 1857, due twenty-one months after date, for $2,313.75.

Payment under protest : when money thus paid may be recovered back.' — -The petition seeks to recover $180, “ which ” (it is alleged) “ the defendants wrongfully and oppressively had and received of plaintiff on the 12th day of May, 1865.” It is also alleged “ that defendants falsely and fraudulently represented that plaintiff was indebted to them in that sum, well knowing that plaintiff owed them nothing; that defendants, in Chicago, May 12, 1865, by necessity and by…

Tms controversy relates to the N. E. J, sec. 9, T. 86, R. 8. S. M. Brice was the owner of a land warrant issued to one Frazier, and on the 21st July, 1854, entered therewithj in the name of said Frazier, this tract of land. March 9, 1857, Brice and wife, by warranty deed, conveyed this land, with other real estate, to his mother Margaret, the said sale being without consideration, and intended to defraud creditors. This deed was filed for record the day of its execution.

— This action was brought by the plaintiff in the District Court of Linn county, in this State. The plaintiffs are husband and wife, who join to recover for an injury to the wife caused, as alleged, by the defendant’s negligence.

In April, 1856, Price owned the land in controversy and conveyed it to Smith, the purchaser executing a trust deed to Dillon to secure a part of the purchase-money, which was to become due in April, 1857 and 1858. In November, 1859, the trustee advertised the property and sold it to Cook, who, in five days afterward, conveyed to Le Claire, and he, in April, 1860, conveyed to plaintiff.. This is plaintiff’s title.

Appeal from Linn District Court: Action on a judgment rendered by the Circuit Court of Greene county, .in the State of Indiana; the plaintiff succeeded in the District Court, and the defendant appeals.

<p> Appeal from Jefferson District Court. </p> <p>This suit is brought to recover double the value of plaintiff’s stock, killed by the defendant on its track, notice of the claim having been given thirty days before suit brought, as provided by section six, chapter 169 of Laws of 1862. There was a jury trial; and verdict for plaintiff. The defendant appeals.</p>

This suit is brought on the official bond of the defendant, A. S. Alexander, who was the duly elected treasurer and collector of the county of Keokuk, for the years 1862 and 1863. In its petition, the plaintiff specifies certain items of tax paid to the defendant, as collector, by several individual tax payers, designated by name, which had not in any wise been accounted for, or paid over according to law. .

Action for an assault aud battery, trial to a jury. Yer-dict of three thousand -six hundred and twenty-five dollars for plaintiff.

Tax reed : sale in lump : practice, etc. — The land in controversy was originally school land. The plaintiff claims the same by virtue of tax sales and a tax deed. The defendant holds a patent from the Governor.

<p>1. Rew.trial: veedict: finding: against evidence. The Supreme Court will not disturb the finding of facts by the court below, where the evidence is conflicting and there is not a clear and manifest preponderance against such finding.</p>

, This is a suit in equity, to enjoin the defendant from mining lead ore upon certain premises known as the north part of mineral lot number thirty-one in Dubuque county, and to settle and determine the plaintiffs’ right to mine thereon. A temporary injunction was grantedi on the filing of the petition. The testimony was all taken in writing, and the cause tried as by the first method of trying equitable issues. .

The petition claims that in August and September, 1863, plaintiff undertook to keep and feed one hundred and seventy-six head of cattle for said defendants until the then next May, at and for a stipulated price or sum, in their said agreements set forth and contained; that the cattle were furnished; that they were fed until ábout the 10th of December, when it was agreed that they were to be delivered to defendants, and they were to pay him for the grain, &c., fed to said…

UnSAEE BRIDGES WITHIN CITY LIMITS : WTO LIABLE.Action against the county of Black Hawk for the value of a team of horses drowned, and damages to wagon and harness, caused as alleged, by “ the insufficiency of a bridge over a stream known as Dry Run, situate on the public highway between Waterloo and Cedar Ralls in said county, which bridge, by reason of its insufficiency, fell while plaintiff’s team was passing over, precipitating the same into the stream,” &c. Answer:'…

This action was brought by tlie plaintiff to reform a mortgage made to liim by tlie defendant Rebman, and which had been foreclosed by suit in equity, and sale under the decree to the plaintiff.

ACTTO'N. ^¡¡5 EORECÍ0SE' TITLl?' BOND'^SPE'diAL PROVISIONS construed. — This action was instituted in 1863, upon an agreement or instrument in writing, dated April 23, 1856, entered into between the defendant and Richard F. Barrett, of whose estate the plaintiff is the administrator.' This agreement is as follows : This agreement, made and entered into this 23d day of April, A. D. 1856, by and between Richard F. Barrett, of the city of St. Lduis, and of' St. Louis county,…

Appeal from Marion District Court. Grim. Con. — Trial and verdict for plaintiff in tbe sum of eight hundred dollars, and defendant appeals.

The indictment charges the defendant with feloniously stealing from the person of George ~W. Archer, certain Hnited States treasury notes, of the value and denomination, &c., on the 21st of October, 1866, at, &e., the same being the property of the said Archer. Plea, not guilty. On the trial there was testimony quite conclusively establishing the larceny, but it also appeared that the money beJonged to said George W. and his brother Thomas J., as partners.

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

Tax deed : when void on its face : practice : exceptions. — Tbis is an action to recover tbe possession of the north-east quarter of the south-east quarter, and south-east quarter of the north-east quarter, section 10, township 78, range 12, west. The pleadings are in the usual form, each party claiming title in himself. Trial' to court in 1865, a jury being waived.

These parties bave been three times before this court in controversies growing out of the same general subject-matter as that whereon this action is based. The reports of those controversies may be found in 9 Iowa, 65, 14 Id., 326, and 16 Id., 528; and they are referred to as affording much light and aid in the full understanding of the. facts involved in this case, and the discusión of the questions made.

Sureties : when they may join : - when judgment CREDITOR MUST ACCOUNT FOR MONEY IMPROPERLY RECEIVED. —The plaintiffs are the sureties in the official bond of one Hull, former sheriff of Jasper county. The questions made on this appeal arise on demurrer to the petition. The petition alleges, in substance, the following facts: That in March,, 1859, the present defendant (Cross) recovered judgment, in the Jasper county District Court, against one John, W. Hosier for $3,000.

<p> Appeal from Marion District Court. </p> <p>Suit in equity to quiet title to certain real estate.</p>

The prisoners were indicted, tried and convicted for stealing two horses, the property of Elizabeth Etherage, in Lucas county, on the 20th of July, 1866, and to reverse this conviction prosecute this appeal. '

Action upon a judgment against tbe defendant, purporting to bave been rendered by tbe Supreme Court in and for the county of Niagara in the State of New York.

Occupying 'claimant: color oe title, &c. In January, 1866, Jones recovered in'an action of right against Graves, lot 3, block 5, Holcomb’s addition to Des Moines. • On the same day Graves filed his petition to be allowed for certain improvements as an occupying claimant, and it is upon this petition that the present appeal ¿rises.

Suit in equity to compel the conveyance of the legal title of certain real estate by the defendant to the plaintiffs. Judgment for plaintiffs and defendant appeals. The further necessary facts are stated in the opinion.

<p>1. Evidence! deposition: by whom taken. That a deposition was written by the attorney of the party by whom it was taken instead of the commissioner designated in the notice, the adverse party not being present, was sufficient ground for suppressing the same.</p>

The defendant wás indicted on the 12th day of February, 1866, for a willful trespass committed by “cutting down and destroying eight trees, the same then and there being timber and wood standing and growing upon the land of another, to wit, S. M. Beason, there situate.” The defendant demurred to the indictment, because the court had no jurisdiction of the offense charged, for that the statute under which the indictment was found had been repealed and the offense was now…

’ — The first suit above entitled tvas commenced October, 1865, under the fourth clause of section 3499 of the Revision, to set aside, on the ground of fraud, a decree' of foreclosure obtained by defendants against the plaintiff, at the May Term, 1864, of the Monroe District Court. .

Petition in equity to set aside a sheriff’s sale of rea estate, and tbe deed made pursuant to it, and to quiet plaintiff’s title, &c. Tbe defendants, G. Buckingham & Co., in October, 1857, brought suit in tbe District Court of Monroe county, against Andrew K. Myers & Henry ^Markham, a mercantile firm, trading under the name and style of Myers & Markham, upon a promissory note, made to plaintiff and signed Myers & Markham.

In December, 1858, plaintiff sued the defendant, Robison, in attachment, under which $1,000 worth of personal property was seized and taken into possession by the sheriff. On the same day Robison and his co-defendants executed a replevin bond for the delivery of said property or its estimated value to the sheriff within twenty days from the rendition of any judgment which might be rendered against the said Robison. The bond is the foundation of this action.

Attorney’s lien: set-ofe-: priority between. — The original petition in this case was by Hurst against Sheets, ■and Trussell assignee of Sheets, to compel defendant ■Sheets, and his said assignee, who held a judgment against plaintiff, to allow as a set-off thereon a judgment -which plaintiff held against Sheets prior to the assignment by the latter to Trussell. It was adjudged in this court that the plaintiff was entitled to have this set-off allowed.

Action upon a parol contract for the sale of cattle. The plaintiff claims that in October, 1865, he had twenty-eight head of cattle, and that he then sold them to defendant at six cents per pound, ten dollars being then paid him, to be delivered, weighed and paid for at Wilton, on the 1st day of March following; that he wanted the defendant to go and see them before they concluded their contract, but he refused; that he told defendant, at the time of sale, that another stock…

Action on note : ownership : practice on appeal, &c.— Action before a justice of tbe peace. No petition was filed. Tbe notice informed defendants “ that John King, Geo.

Plaintiff is tlie owner of a lot fronting on Main street in tlie village of North McGregor, with the improvements thereon, and by his petition charges that defendants have so obstructed said street that it cannot be used by him for access and egress to his lot and improvements, wherefore he claims damages.

PLAiNTnrFS seek to recover damages resulting, as they allege, from the purchase by them of defendants, of a certain lot of sheep. In one count it is alleged that the sheep were warranted sound, in the other that they were represented to be free from any disease, and especially such as “ foot-rot” and “ scab” — that this was false, &c. . Upon issue joined, there was a trial; verdict for plaintiff, judgment thereon, and defendant appeals.

Attorneys’ fees : action for : construction of contract, pleading, &o. — This action is brought by the plaintiffs, who are attorneys at law, to recover for professional service alleged to have been rendered by them for the defendant. The record shows that, at the April Term, 1865, of the Boone District Court, Wilson recovered a judgment against the Cedar Rapids and Missouri River Railroad company, the plaintiffs acting as his attorneys.

A chancery proceeding to remove a cloud from the title of lot one, in block forty, of the town of Nevada, founded upon the following facts, clearly proven or admitted, and therefore, no longer open to controversy, namely: That in the year 1855, -one J. P. Eobinson (now deceased) was the legal owner of said lot; that in the following year he conveyed by deed the same lot to Isaac H. Hayne, which deed of conveyance is not and never was recorded.

Appeal from Story District Court. Right. — Trial and judgment for defendant, and plaintiffs appeal. For the other material facts see the opinion.

This is a contest between creditors of the firm of E. 3L Gibbon & Co., which firm was composed of E. K. Gibbon, John B. Custer and Win. H. Gibbon. Both parties were alike creditors of the said firm. Martin & Bro. obtained a judgment upon their claim on the 7th day of March, 1862, by confession made'by E. X. Gibbon and John B. Custer, against whom alone the judgment was rendered.

This action originated in the County Court of Lee county. The plaintiff filed in said court his petition, claiming one-lialf of the personal estate, amounting to thirteen hundred dollars (after the payment of the debts and expenses of administration), of Robert Stanforth, deceased, of which estate the defendant, Morrison, is executor.

This is a controversy submitted, without action, upon an agreed statement of facts, under chapter 131 of tbe Revision. The plaintiff claims to recover an installment of interest, due upon a promissory note given for real estate.

Appeal front Warren District Court. The plaintiff’s case is tbis: In May, 186é, the defendant conveyed to Mm by deed witb covenants of warranty, for a valuable consideration, a tract of land therein described, on wMck the taxes for the year 1857, amounting, with interest thereon, to $20.58, were unpaid, and-which the plaintiff was required and did pay, to recover which this Ms suit is brought upon the covenant of warranty in Ms deed and a subsequent verbal promise to pay the…

Petition in ordinary, upon seventy written obligations, signed by the mayor and recorder of defendant and sealed with its seal. The obligations (except the date, signatures and seals) were executed in lithograph with vignettes, and in appearance not unlike common bank-bills.

A suit to recover of the defendants the cost of constructing certain sidewalks in front of their lots, which they had refused and neglected to do, after due notice, within the time prescribed, agreeably to the provisions of an ordinance of the.city passed for that purpose on the 13th day of June, 1861, and duly published, according to law, as is 'alleged. The defense consists in a denial of the complaint. The trial resulted in a judgment for plaintiff.

This is a suit to recover damages from fire, alleged to have been wrongfully, carelessly and negligently set out by the servants or employees of the defendant. The cause was tried to a jury, and a verdict returned for plaintiff for .three hundred and thirty dollars.

<p>1. Practice: record: evidence. The Supreme Court will not disturb a ruling of the court below which rests upon the evidence, when it does not affirmatively appear that all of the evidence is in the record.</p>

<p>1. Husband aud wife: separate property: puopits. Where a wife has separate property she may use it in trading for real or personal property, without subjecting the profits to seizure for the payment of the husband's debts.</p>

Suit in equity to avoid a conveyance of real estate made by an infant, in exchange for other real estate. There was a judgment for the defendants, and the plaintiff appeals. The further necessary facts are stated in the opinion.

Measure of damages in actions for rent. — Action by landlord against tenant. Defendant leased a farm of plaintiffs. The contract- was verbal. Plaintiffs claimed that defendant was to pay as rent twelve bushels of corn per acre for the use of new and ten bushels per acre for the use of old land. Defendant claimed that he was to pay as rent one-third of the corn raised, the same as other kinds of grain.

On tlie 4th day of November, I860, plaintiff entered into an agreement witlr the director of sub-district No. 1, of the district township of Eapids, to teach a public school for a term of fourteen weeks, for which she was to receive $35 per month.

Action for partition. The plaintiff alleges that he is tlie owner of one undivided half of certain lands' in Lee county (describing the same); that the defendant is the owner of the other undivided half thereof; that plaintiff and defendant acquired their respective titles to said property by descent, as the only heirs of Bobert Stanforth, a naturalized citizen, deceased, intestate; that Bobert Stánforth, deceased, left no wife or children, and had no blood relation in the…

An action to recover $700, money loaned, with twelve years interest thereon at six per cent. The statute of limitations is plead in bar of the recovery. At the trial it was agreed that the jury might return a verdict under the evidence without regard to this defense, leaving it for the determination of the court as a question of law, under the facts on a motion for a new trial. The verdict was for the plaintiff.