Volume 22 — Iowa Reports

<p> Appeal from Polls District Court. </p> <p>This case was before this court at the December Term, 1864, upon plaintiffs’ demurrer to one division of defendants’ answer. The order of the court below, overruling the demurrer, was affirmed; and the.case has since been tried upon its merits. During the progress of the trial, various questions were raised by plaintiffs (appellants), all of which they now urge upon our consideration. An opinion was announced at the June Term, 1865, adverse to appellants, and a rehearing granted upon their application. The case has been again very fully and ably argued upon the questions heretofore raised, as well as some new ones, all of which will sufficiently appear in'the opinion.</p>

<p> Appeal from Poll District Gourt. </p> <p>Stamps : fraud : elements and essentials of, etc.— This action is brought upon the following written contract, entered into by the parties, viz.:</p> <p>“Article of agreement made and entered into this 25th day of August, 1864, between A. C. Bondurant and George Crawford, both of Polk county, Iowa, witnésseth: That the said Bondurant agrees to sell to the said Crawford one hundred acres of the corn now on the farm of the said Bondurant, seventy acres of the com to be put into shocks, in good condition, and thirty acres standing on the stalks, and give the use of two feed lots, wells and one pump, and three trough^ also board his hands while feeding said corn. For which corn the said Crawford agrees to pay to the said Bondurant the highest price that any stock feeder may pay for that quality of corn in Polk county, between this date and the first day of January, 1865, and return the lots, pumps and troughs in as good condition as when received; also pay a fair price for boarding said hands ; each party to be responsible for all damages that their stock may do to each other’s property; sixteen cents per bushel of said corn to be paid in hand, and the remainder as soon as the price is determined. The corn to be measured as soon as commenced feeding, or by the 1st of October, 1864.</p> <p>“ A. O. BONDUEANT.</p> <p>“ GEOEGE CEAWEOED.</p> <p>“ By J. McConnell.”</p> <p>Plaintiff alleges that the defendant, under this contract, entered upon and occupied the feed lots, wells and troughs mentioned in the agreement; that plaintiff delivered and defendant accepted the one hundred acres of corn, which measured 5,273 bushels; that, at the contract price, it was worth seventy-five or eighty cents per bushel, and that there is due the plaintiff thereon, after deducting payments, about the sum of $1,700 and interest.</p> <p>The answer denies any indebtedness; alleges that the agent, McConnell, had no authority from the defendant to execute the contract; that defendant refused to ratify the contract, without a further understanding as to the meaning of the words,“ any stock feeder,” as they occurred in connection with the price to be paid for the corn; that on the 25th of September, 1864, the parties had a personal interview in regard to said contract, and it was then expressly understood that the term “any stock feeder,” etc., should mean, not farmers, but only those feeders who should feed at least forty head of cattle anf purchase the corn for them; that defendant or his agent was induced to make said contract, and to pay the price therein mentioned for corn, because of the false representations of the plaintiff, to the effect that he had good feed-yards and wells, and plenty of water in them for supplying from two hundred to six hundred head of cattle, and the water proved to be insufficient; that there was only one well that had a regular supply of water, and this was wholly inadequate to water the cattle; that in consequence of the want of water, the cattle did not thrive, but grew poor, and some twenty of the hogs died.</p> <p>It is alleged that the representations, as to water and other accommodations for feeding stock, were false, and that defendant (who was a stock buyer and feeder, and who resided in Des Moines some twelve miles from plaintiff’s farm) relied upon these representations; and that these were the controlling considerations in inducing McConnell to make and defendant to ratify the written contract upon which the action is brought.</p> <p>For these alleged fraudulent representations and for the damages alleged to have resulted to his stock from the want of water, etc., the defendant claims, by way of cross action, damages to a large amount.</p> <p>Upon these issues the cause was tried by a jury. The taking of the testimony on the trial, consumed nearly four days, and it is all in the record, occupying three hundred and ninety closely written pages.</p> <p>A large number of instructions to the jury was given, modified, and refused.</p> <p>The jury returned a verdict for the plaintiff, which is based upon an allowance of seventy-five cents per bushel for corn, and no allowance of any damages to the defendant, in respect of his cross action.</p> <p>Defendant appeals.</p>

<p>1. Instructions: error without prejupice. A judgment of the District Court will not be disturbed, on account of an instruction to the jury claimed to be erroneous, when the judgment is more favorable to the party complaining than a fair construction of the evidence justifies.</p> <p>2. Damages: interest on. Interest is a common and legitimate element of damages, and in the absence of proof to the contrary it will be presumed, in an action for the purchase-money of certain lands upon which interest was computed by the jury from the date of purchase, that interest was also allowed by them on a counter claim for damages resulting to defendant by reason of the fraudulent representations of plaintiff relative to the quality and location of the lands.</p>

The defendant was indicted, tried and convicted of the crime of robbery. In bringing the case into this court, he complains that the court below erred in refusing him a new trial, on a m'otion made therefor, based upon the single ground that the verdict of the jury was against the weight of evidence.

Rowland brought his law action against Hoag, the tenant of Hunt, claiming the title to, and to recover possession of, certain real estate.

This controversy relates to the legal ownership of lots 1, 2 and 4 in block 6, of the Oakland addition to the town of Fairfield. In November,, ,1860, these lots were sold for the delinquent taxes of 1858 and 1859, being the property of Jesse Williams, and purchased by defendants, who, on the 14th of December, 1863, received a deed therefor from the treasurer of Jefferson county, the same being unredeemed at that date.

This proceeding was originally commenced before tbe County Court of Des Moines county, sitting as a probate court, for the allowance of the claim made in the petition, as a claim against the estate of Richard E. Barrett, deceased, to be paid as the same should thereafter by its terms become due. There was a demurrer to the petition, which was sustained by the County Court, and the plaintiff appealed therefrom to the District Court.

General municipal incorporation act: mayor oe CITIES NO RIGHT TO PRESIDE IN COUNCIL: RIGHT OE PRESIDENT PRO TEM. TO PRESIDE : QUO WARRANTO : NATURE AND extent oe remedy: injnuotion — when.—Defendant is admitted to be the duly elected, qualified and acting mayor of Iowa City, a city of the second class, organized under the general incorporation act. Chap. 51 of the Revision. This appeal presents these questions : 1.

Appeals from Fremont and Mills District Court. These cases, being identical in principle, and but little variant in their facts, will be jointly considered and determined. They-are applications in chancery, in which the plaintiffs set tip a paramount claim- to certain swamp, and overflowed lands therein described; with which it is charged the defendant is unlawfully interfering, and they ask that their title to and enjoyment of the same may. be quieted.

Plaintiff appeals from an order refusing to grant an injunction, his petition making the following case: On the third day of May, 1858, the State conveyed to the Des Moines Navigation and Bailroad Company many tracts of land, including that which plaintiff in his petition claims as exempt from taxation for 1859, and all subsequent years. In October, 1859, the company, by deed of general warranty, conveyed tbe same lands to the petitioner.

Plaintiffs recovered judgment against J. H. and Q-. M. Humphrey, and on the 19th of May, 1865, issued execution thereon, claiming that the defendant, [Robert Humphrey, was indebted to the execution defendant. They duly notified him on May 30, 1865, to appear and answer as garnishee.

Assault and battery. — The parties appeared before tbe justice outlie 12th of dune, 1866, and the ease was set for bearing on tbe 15th of tbe same month. On the 13th tbe defendants appeared, waived an arraignment, and plead guilty. They were fined five dollars each, with costs. The whole amount was paid on the same day, and the justice paid it at once to the county treasurer.

This is a proceeding in equity to enjoin the city of Dubuque from collecting taxes upon certain real estate owned by the plaintiff and situated within the extended but without the original limits of the city. J. K. Graves, who had purchased the property at a city tax sale, was also made defendant. The District Oourt enjoined the city from collecting any taxes thereon, except for road and school purposes, and also set aside the tax sale. The city of Dubuque appeals.

<p>Acknowledgment. The certificate of acknowledgment to a deed of conveyance read as follows: “This day personally appeared before me, etc., who are to me known to be the identical persons whose, etc.” Held, that the omission of the word “personally" before the word “known" did not- render the acknowledgment ineffectual, as the words used, necessarily implied personal knowledge, unless negatived by a further statement that such knowledge came from information.</p>

Jeremiah McMenomy, now deceased, and Catharine McMenomy, the plaintiff, intermarried in 1842. The only issue of this marriage was a son, John B. McMenomy, born in 1843, and who died in 1852, in his ninth year. In 1857, the District Court for Muscatine county, at the suit of the husband, granted a decree of divorce between the said Jeremiah and the said Catharine, the decree allowing her a life interest in certain real estate in the city of Muscatine, by way of alimony.

Appeal-from Lee District Oov/rt: ■ Beynolds and others obtained. several judgments against -John Stannus. Executions issued thereon were levied on a stock of goods, which was afterward taken from the sheriff, under a writ of replevin, issued at the suit of Sarah Stannus, who claimed the same in her own right. The replevin bond was signed by the present plaintiffs, Hershler, Jackson and Delashmutt as sureties for said Sarah.

Indictment for entering a building in which valuable things were kept for us§, with intent, to commit a felony. There was a jury trial, which resulted in a verdict of ' guilty. The defendant moved in arrest of judgment. The court overruled the motion, and the defendant excepted and appeals.

Action in trespass for breaking into plaintiff’s inclosure and removing two gates. Defense: That one of the gates was the property of defendant, and that the other had been erected by plaintiff across a private right of way. At the hearing, a judgment of one dollar was given for plaintiff, and defendant appeals.

Surr in equity by the mortgagee, against the mortgagor and subsequent purchasers, to foreclose a mortgage. The defense consists, mainly, in want of consideration for the mortgage. There was a decree in the District Court for the defendants. The plaintiff appeals.

Plaintiff, in bis petition before a justice of tbe peace, claims ninety dollars, and, for cause, states that on, etc., be became a passenger on defendant’s road, and paid bis fare from Ottumwa to Fairfield ; that lie fiad in bis possession a trunk containing the following articles (giving each item and value); that tbis was received by tbe company at Ottumwa, to be delivered at Fairfield, and a cheek given therefor; that, when it was delivered to petitioner at Fair-field, it…

Plaintiff, a judgment creditor of J. K. Rickey, Sr., by this proceeding seeks to subject certain real estate (40 acres) to tbe payment of bis debt. Tbe claim is tbat it was purchased (in part at least) with the means of tbe debtor, and tbe title taken in tbe name of bis wife, to defraud creditors.

Tms is a suit in equity to enforce a specific performance of a contract for exchange of lands. There was a decree for the .plaintiff in the District Court, and the defendant appeals.

Sureties: effect of giving time. — Plaintiffs were sureties in a replevin bond, in which one Ladue was the principal. This bond was executed for tbe benefit of Root,. Guiger & Bro. In tbe present proceeding, tbe plaintiffs, as such sureties, claim that they are released because of a valid agreement on the part of Boot, Giger & Bro., to extend the time of payment to Ladue without the knowledge of plaintiffs.

<p> Ajppeal from Muscatine District Court. </p> <p>For facts, see opinion.</p>

This cause presents the question of the equitable rights of the parties in cases where the State university has forfeited, for the non-payment of interest, contracts for the sale of university lands.

<p> Appeal from Iowa District Cov/rt. </p> <p>A sufficient statement of facts will be found in tbe opinion of the court.</p>

Mortgage foreclosure, trial according to the secónd method. Plaintiff is a resident of Massachusetts, defendant of Iowa. The real estate is situated in Lee county. The mortgage (or trust deed) was acknowledged by defendant in Massachusetts, and by his wife in this State. Love, the trustee, resides in this State, and here accepted the trust.

Judgments, foreign and Domestic, conolusiveness of, etc. — The District Court sustained a demurrer to the answer, from which defendant appeals. The further necessary facts will be found stated in the opinion.

Suit in equity by a junior judgment creditor, to enjoin a sale of certain real estate under special execution upon a judgment for a prior lien. The plaintiff’s claim is based upon an alleged payment of the prior lien, and a fraudulent assignment thereof to one of the defendants. The District Court rendered judgment for defendant, and the .plaintiff appeals.

The plaintiff owned a ten acre lot and a forty acre lot of ground, situated within the original corporate limits of the city of Lyons, which he used for farming purposes. The ten acres at one time had been platted and laid off as an addition to the town of Lyons, but afterward, by a proceeding before tbe Probate Court of Clinton county, under an act of the legislature authorizing the same, it was vacated.

The record develops the following state of'case: On the 21st of December, 1857, Hotz & Englert gave their note for $215 to M. Nathan, payable in six months. In May, 1859, the makers confessed a judgment on this note.

Soi. fa. : conolusiveness of judgment. — This is a pro-ceding by soi. fa., under the statute, by plaintiff, a judgment creditor of “A. 13. Burr & Bro.,” to subject the individual property of the partners to tbe payment of his judgment. Tbe adversary parties in tbis preceding are tbe plaintiff and A. B. Burr. Tbe latter rests bis defense ujaon a denial of tbe existence of a firm of “A. B. Burr & Bro.,” and upon a denial of bis being a member of any such firm.

Suit in equity to establish and enforce a parol release of real estate from a judgment lien. Judgment for defendant, and plaintiffs appeal.

Sun? on a bail bond, tried to tbe court, wliicb found tbe following facts: That on the 13th of February, 1866, the defendant Tucker was arrested on a charge of incest, and held to appear by the examing magistrate at the succeeding term of the District Court, in the penal sum of five hundred dollars; that he executed a bond in that sum with his wife as security, who justified as required by law, which bond was accepted by the magistrate, and the prisoner discharged from…

The record presents the case of a malicious prosecution, in which the plaintiff, by the verdict of the jury, recovered fifty dollars damages against the defendant. When the court overruled a motion for a new trial, based upon the ground that the verdict was against the law and evidence, the defendant appealed, assigning such ruling as error.

Practice : continuance : change oe tenue, etc. — ■ Action, to foreclose mortgage, defense, usury, part payment and set-off, decree for plaintiff, and defendant appeals. Questions made and decided are stated in the opinion.

This is an action in equity to declare an absolute deed to be but a mortgage, , that the mortgage debt is paid, and to compel a conveyance of title to the plaintiff Charlotte. There was a decree in the District Court for the plaintiff, and defendant appeals.

Plaintiff, Alvin Lathrop, declares upon a promissory note made by defendant in May, 1857, payable to II. W. Lathrop or bearer, and due one year after date. On the trial plaintiff introduced the note, and rested. Defendant, in his own behalf, testified that he had paid said note to II. W. Lathrop (this was probably in May, 1859), before he knew of the transfer; that H. W. Lathrop then told him the note was in - the bank, and he would get it and deliver it to him.

Plaintiff brought her action before a justice of the peace, claiming $85 as balance due on a lease, and for damages for storing grain in the house. Defendant appeared and claimed $90 damages for removing fences, whereby crop was injured, and $10 for taking down stable and shed, all of which plaintiff denied. Plaintiff recovered $63.55, and defendant appealed to the District Court.

<p>I. District Court: bulb op practice : A rule of practice of the District Court, providing that “if an appeal is not filed before noon of the first day of the term, the appellee may file it, and have the judgment below affirmed,” does not authorize the dismissal of the appeal whore the appellee has not filed a transcript.</p>

Tlie defendants stand indicted for stealing a certain quantity of horseshoes, from the blacksmith shop of one Jacob Ludwig. The record shows that the defendant Gordon was alone put upon trial, against whom the jury returned a verdict of guilty. The overruling of a motion for a new trial, filed because the verdict was not sustained by the evidence, is the error assigned.

Action foi’ slander; verdict and judgment for plaintiff for fifty dollars. The defendant appeals. The necessary facts are stated in the opinion.

Municipal corporations : power to make assessments, etc. — This cause involves questions concerning the validity of certain macadamizing assessments, levied by the city of Keokuk upon the lots of the appellants, Estes and ITulburt, and concerning the regularity'and correctness of certain proceedings and rulings of the District Court prior to and on the trial.

Action to recover damages for the alleged billing of a mare by defendant. This suit is brought for double the value, under chapter 169 of the acts of the ninth General Assembly, p. 197. The cause was tried by the court; judgment for double the value of the animal killed; the defendant appeals.

On the 9th day of September, 1865, the plaintiff recovered judgment against the defendant, Isaac Van Kuran, in the Clinton District Court, for the sum of $2,633.08 and costs, and, on the 23d, he caused execution to issue thereon.

<p>1. Judicial sale: rights or purchaser: intervention. A purchaser of real estate under a mortgage foreclosure succeeds to the rights of the mortgagee therein; and accordingly has the right subsequently to intervene and be joined with the plaintiff in the foreclosure proceeding, which, after foreclosure and decree against the mortgagor, has been continued as to a defendant who purchased a portion of the premises after the execution of the mortgage, and who contests the claim of plaintiff.</p>

Action by wire against husband : charge or court.— Action at law by wife against husband, during coverture, to recover the sum of $1,600, the value of certain 7-30 United States bonds.

On the 11th day of November, 1861, Adda Lucas and Mavor Sanders sold to defendant all the down and standing timber on N. E. J, Sec. 14, T. 80, II. 6 W., except such as should be eight inches in circumference at the base of the tree; also excepting therefrom the timber standing upon certain portions of said tract therein described ; they' further sold a stearn saw-mill and the fixtures connected therewith for convenience and use, all for the consideration of $1,500 — the…

Intervention: nature op the right. — The question in this case relates to the right of Goff to intervene. The original action was brought by A. N. Taylor, the payee of two promissory notes, in the usual form, made by William Adair and George W. Adair, each dated May, 13th, 1863; one for $100 at one year, the other for $21 at three months from date.. The petition was in the usual form. The Adairs were served, but made no defense.

<p>1. Criminal law: rebutting evidence. The State, in a criminal prosecution, may introduce, as rebutting evidence, the testimony of witnesses who were not before the grand jury, whose names are not indorsed upon the indictment, and of whose introduction the defendant has received no notice.</p> <p>2.-what is rebutting. But that is not rebutting testimony which seeks by another witness, after the defense has closed, to sustain the character of the prosecuting witness whose testimony has been impeached, by showing that the statements of the prosecutor, as he gave them in his examination, were in accordance with the facts of the case.</p>

<p>1- Garnishment; liability of garnishee. To charge a garnishee, his liability must be affirmatively shown.</p> <p>2. - answer. A garnishee will not be charged on his answer alone, unless it contains a clear admission of a debt due to, or the possession of money or attachable property of, the defendant.</p> <p>3. - doubt. And if it be left in reasonable doubt whether he is chargeable or not, he is entitled to a judgment in his favor.</p>

<p> Appeal from JaDcson District Gourt. </p> <p>This is a motion by the defendants to set aside a sheriff’s sale of, four different subdivisions of land, containing forty acres each, one of which is claimed by the defendants as a homestead. The sale was made under execution issued upon a judgment in favor of plaintiff and against defendants. The debt was contracted after tbe enactment of the appraisement' law. The District Court overruled the motion as to three of the tracts, and sustained it as to the homestead tract. The defendants appeal. The farther facts are stated in the opinion.</p>

<p>1. Appeal to Supreme Court: imperfect transcript. The Supreme Court will not review the action of the court below on the facts, where it does not appear that all of the evidence on which the cause was heard is contained in the transcript; and the statement of the clerk that he has certified 11 all of the evidence appearing on file'' does not sufficiently establish that the evidence thus certified was aXl that was used in the court below.</p>

Dependant was indicted for maliciously shooting and killing a mare, the property of, etc., tried, found guilty, sentenced to one year’s imprisonment in the county jail, and appeals.

This action was brought at the January term of the District Court of Bremer county, Iowa, against the executors and heirs of W. P. ITarmon, deceased, to foreclose a certain mortgage given by said Harmon in his life-time, to secure the payment of his two certain promissory notes given to the plaintiffs, and due respectively May 13, 1865, and May 13, 1866.

Plaintiff was the collector of internal revenue in tbe third collection district of this State, and appointed tbe defendant, Calkins, bis deputy for the county of Clayton, in said district. The deputy, on tbe 25th of November, 1862, executed bis bond in due form with tbe other defendants, as bis sureties; took the oatli of office, and entered upon the ■discharge of his duties.

<p>1. Instructions: considered together. Instructions must be regarded as a whole, and a specific objection cannot prevail against one, if the instructions taken together cover the point objected to.</p> <p>2- Pleading and practice: usury: replication. In an action against defendant, who was a banking corporation, for the sale and conversion of some United States bonds which plaintiff claimed he had merely pledged to defendant as security for overdrafts or advances that might be made to him, the defenses pleaded were: First, prior authority from the plaintiff to sell the bonds. Second, a sale of the bonds and a credit for the proceeds on the bank account of plaintiff, who acquiesced in the same with full knowledge of the sale, and checked out the balance due him on such account. Held, that neither of these defenses could be defeated by plea or proof of usury in the back account.</p> <p>-- aliter, if the bank had set up, by way of sei-off, its account against the plaintiff, with a view to defeat his recovery or reduce its amount.</p> <p>3. Pledge: private sale. Where property pledged as security is sold by the pledgee at private sale, by the direction or with the consent of the pledgor, the pledgor cannot afterward object that the sale was not made in accordance with the requirements of the law regulating sales of pledged property.</p>

An action of right to recover possession of lot nine, in block eighteen, in the town of Lyons, this State, in which defendant, Crew, proved the successful party by an equitable defense set up in his cross-bill. Warren appeals

Petition in trespass. The District Court discontinued the action, and struck the cause from the docket. The plaintiff appeals. The farther facts are stated in the opinion.

Foreign judgment : how ear conclusive, eto. — Action on a judgment, purporting to have been rendered in favor' of the plaintiff and against the defendant, on the 13th day of January, 1865, by the Circuit Court of Greene county, Missouri. Two defenses were pleaded: 1.

The plaintiff obtained judgment against Martin Bumgardner, and under execution thereon caused the defendant, W. C. Stanberry, to be garnished. The garnishee made answer, upon which plaintiffs took issue. The cause was tried to the court, and judgment rendered for plaintiffs. The garnishee appeals. The farther facts are stated in the opinion.

Plaintiff recovered judgment against the defendant before a justice, April 23, 1866, and defendant appealed, filing an appeal bond which was duly approved, May 4, 1866, hut there was no revenue stamp affixed to the same, nor to any part of the transcript or record.

An equitable proceeding, in which the plaintiff seeks to have her title to a certain tract of land therein described made clear and perfect by the removal of a cloud cast upon the same by the conduct of defendants. The prayer of her petition was granted, a decree in her favor entered; and the defendants appeal. The facts of the case will appear in the opinion of the court.

This is a suit for mandamus, and grew out of an effort to re-locate the county seat of Alamakee county. It was originally brought in that county by L. O. Hatch, Esq., against the defendants, but was afterward taken by change of venue to Delaware county, and, by order of court, the State of Iowa was substituted as plaintiff. Upon the final trial a peremptory mandamus was awarded, and from that judgment both parties appeal.

The plaintiff states in his petition that, in the year 1840, himself, Elijah Buell, and Beal Randall, being the owners in fee of the land where the city of Lyons now is, laid it out as a town; made a plat of the same which was recorded; that on the said plat was a dedication by them of a “ public square,” which was marked as such on said map, at the intersection of Fifth and Main streets.

Indorser’s liability : presentment to joint maker.— Action by indorsee against indorsers of a negotiable promissory note. The note was executed in Iowa by Daniel Van Patte^ and W. Y'. Harding as joint makers, but not as partners. It was made payable to the order of the defendant, who, before maturity, indorsed it to the plaintiff.

<p>1. Official bond! liability op sureties. The sureties in a substituted official bond are not liable for moneys coming into the hands of their principal before its execution, and during the existence of a prior bond, in place of which the substituted one was given.</p>

Suit in equity to compel a conveyance of real estate, in accordance with an alleged parol agreement or trust. The answer controverts the agreement and trust. The District Court found for the defendant, and the plaintiff appeals.

<p> Appeal from Mitchell District Court. </p> <p>Adultery : proof of marriage : construction of statute.— The indictment avers that Mary Wilson, an unmarried woman, did, on the 30th day of October, 1865, commit the crime of adultery with one Thomas Hawthorne, the lawful husband of one Hannah Hawthorne. The indictment further avers that the prosecution wa3 commenced and the bill found on the complaint of tho said Hannah. The indictment was against Marv Wilson alone. Plea, not guilty. Trial and verdict of guilty, upon which, after denying a motion for a new trial, the court rendered judgment. Defendant appeals. • -</p>

<p> Appeal from Jasper District Court. </p> <p>This is an action of right brought by the plaintiff to recover the possession of fifty-four and forty-five one-hundredths acres of land. The defendant interposed an equitable defense, and the cause was tried by the court upon depositions and other evidence. The judgment of the court below being in'favor of the plaintiff, the defendant, by appeal, brings the cause to this court.</p>

<p>1. Pleading and practice: in action por personal property. A petition . in an action for. the possession or value of personal property, which does not affirmatively show that the plaintiff is entitled to such property, is demurrable.</p> <p>2. Will: surplus money : residuary leqatee. A testator, after bequeathing the most of his personal property to his wife and daughter M., bequeathed, in addition, to his said daughter M., “all surplus money possessed by him at his death." to be loaned out'until she ottaiued a certain age. Held, that said bequest of “surplus money," etc., had reference to money only, and did not make her the residuary legatee of the surplus property on hand at the time of the testator’s death, and not included in the specific legacies.</p> <p>3. Executor: property set apart to the widow. An heir cannot claim the exclusive right to property set apart to the widow, by the executor, under section 2361, Revision 1860, even though the widow is not entitled to it because there is no longer a family within the meaning of said section.</p> <p>Argu. 1. When the property act apart for the use of the widow and family (Rev., § 23fil) is no longer needed for that purpose, it falla into the general personal estate, and becomes assets in the hands of the executor, to he by him disposed of and accounted for according to law.</p> <p>A. -case explained. Tile case of Gaskell v. Case (18 Iowa, lit), as to right to and course of such property, explained and approved.</p>

<p>Vendóí and vendee: specific vebfobmance : 'pubOhaseb' witii notice. ' Where-the vendee accepts tlie-proposition of -the vendor for the sale of- . real- estate, and -pays thereon a sum to bind the- bargain, the contract thereby becomes complete, and the vendor cannot afterward impose new terms or conditions; and upon his refusal to convey, a court of equity will decree a specific performance of the contract against him, and a :subsequent purchaser with, notice. ■.=• - -</p>

<p>1. Mortgages effect OF foreclosure and sale: dower. The foreclosure of a mortgage in which the wife did not join, and sale thereunder, docs not bar her right of dower in the mortgaged premises, although she is made a party defendant in the foreclosure proceeding, but in which her right of dower is not put in issue.</p> <p>2. -aliter, if the wife had joined in the mortgage, or her right to dower had been put in issue by allegations in the petition.</p> <p>3. Jurisdiction! defective return. A purely technical defect in the return of service of notice in a foreclosure proceeding, upon the minor heirs of the deceased mortgagor, which might, on appeal, have been held defective, cannot, in a collateral proceeding, instituted by such heirs to redeem the mortgaged premises, avail to invalidate the foreclosure decree and sale thereunder; especially when several years have elapsed since the sale, and there are no supporting equities in the case.</p> <p>4. Judicial sale: after death of execution. Where an execution is levied before its expiration, upon real estate, the sale may be made after the return day. Stein v. CJumbles, 18 Iowa, 414; Childs v. McChesney, 20 Id., 431.</p>

Rueus H. Lucore died in December, 1863, intestate; in January thereafter letters of administration were granted to his widow, Sarah A. Lucore, who, as administratrix, in March, 1865, sued the defendant on a note of $130.30, executed by him to the decedent, April 2,1855, and drawing interest at the rate of ten per cent per annum.

Note given eor real estate : when tender oe deed not necessary. — Action by payee against makers of a promissory note. As amended, the petition is an ordinary action at law, asking for- judgment upon the note.

This action is brought under sections 3275, 3276, of the Revision, charging the defendants, who compose the city council of the city of Dubuque, with the failure to levy a special tax to pay a judgment in plaintiff’s favor, after being duly requested, etc. Yerdict for plaintiff. Motion for a new trial sustained, and the plaintiff appeals.

<p> Appeal from PolJc District Court. </p> <p>The necessary facts will be found stated in the opinion.</p>

Promissory note : fictitious payee : fraud : onus probandi. — Action by tbe bolder against tbe maker of tbe following note: (Signed.) ■ JACOB KREKLE.” On tbe note are these indorsements: “Pay George 1:1. Lane and William O. Holcomb, or order, June 21,1866. William Henry, agent for Y. L. Yanservens.” “Pay George H. Lane, or order, October 1, 1866.

Plaintiff claims over one thousand dollars, with interest, alleging that defendant, in 1856, having so much of plaintiff’s money in his hands, converted the same to his own use, etc. Answer in denial; trial and verdict for plaintiff; motion for new trial; order sustaining the same, unless plaintiff would remit a certain amount; the remittitur was entered within the time fixed; motion then overruled, and defendant appeals.

Action in equity to bar right of redemption as against a junior incumbrancer. The material facts, in their chronological order, are as follows: William P; Doty was the owner of lot six in block eighty-four, of Iowa City, and, together with his wife, Harriet Doty, was in the actual occupancy thereof as their homestead, -at the date first hereinafter mentioned.

On the 1st of February, 1858, A. G-. Ege made his note of $227 to Henry C. Thorp, payable on the 1st of May following. This note has upon it a guarantee of the following purport: “ I guarantee the collection of the within note.” (Signed) HENET C. THOEP.” In the month of March, 1860, the plaintiff sued Ege, the maker, on this note, in Doniphan county, Kansas Territory, which resulted in a judgment for the defendant.

S. and Jane A. Pobinson. Theiv mothev was the danghtev and one of the heivs of William Woods. The grandfather died in 1854, the mothev in 1852, and the fathev in 1858. The defendant, M. W. Pobinson, is the administrate!’ of the estate of A. S. Pobinson. Ilis co-dcfendant, Sterritt, recovered a judgment against said administrator, in October, 1862, for near $2,900, upon a debt contracted before the purchase of the land as hereinafter stated.

Evidence in criminal cases : affidavit for continHANCE : EFFECT OF ADMITTING IT: IMPEACHING WITNESS, etc. — Tbe indictment charges tbe defendant witb tbe crime of manslaughter, alleging, in due form, the unlawful killing by him of one Jobn Sbanneban. At tbe February Term, 1866, tbe defendant made a motion for a continuance, supported by affidavit, on account of tbe absence of one Dr. H. Huston, then in the military service of tbe Hnited States.

Parties: when attorney a proper party: surety: WHEN MAY BRING BILL TO CANCEL JUDGMENT. — This agpeal is from the decision of the District Court, overruling a demurrer to the substituted petition. Defendants appeal. Graff alone assigns error. He makes two points: First, that, being the attorney or agent of the other defendants, he is not properly a party to the action, being liable, if at all, to his principals and not to the plaintiff.

<p> Appeal from Johnson District Court. </p> <p>For facts see opinion.</p>

Suit in equity by plaintiffs, wbo are the owners of a certain eighty acres of land lying in Dallas county, to set aside a tax deed thereof, held by the defendants.

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

The prayer of the petition is, that a decree of foreclosure be granted on the two notes now due, as also a decree of foreclosure on the third or last note when the same shall become due. At the November term, 1866, of the District Court of Mills county, a decree of foreclosure was rendered, by default, on the two first notes above described, and a special execution awarded thereon, and it was ordered that the cause stand continued as to the third note not due.

In equity. Demurrer to petition sustained, and plaintiff appeals. According to the averments of the petition, we have this case : On the 9th of October, 1865, one Allen 'owned the undivided half of about one hundred and six acres of land. March 9, 1859, Tyler recovered judgment against Allen for $106.20. September 19, 1860, Daniels & Co. recovered judgment for $-. September 20, 1860, Crow obtained judgment for $-. An execution issued on the Tyler judgment.

Highways : how established : dedication : prescription. — Tlie question in this case is whether a certain alleged public highway has a legal existence. The action was trespass, brought before a justice of the peace. The alleged trespass consists in entering upon lands in the possession of the plaintiffs and throwing down certain fences.

Parties : real party in interest : statute construed. — The plaintiff appeals from an order of the District Court sustaining a demurrer to his petition. Held: where A loaned money, to the defendant upon his promise to pay it to the plaintiff, to whom A stated that he owed and had promised to pay a like sum, there being no other evidence of the fact, than such declaration. Lawrence v. Fox, 20 N. Y., 268; see Abbott’s Digest, vol. 4, page 260, §§ 421, 423, 425, 428, 450. 1.

Suit against one partner upon a partnership note, signed by the defendant in the firm name. The District Court held that no action could be maintained on a firm note against one member of the firm when sued alone; and refused to permit tbe note to be introduced in evidence. The plaintiff excepted and appeals from tbis ruling.

On the 7th day of August, 1865, defendant executed, in his own name, a written contract or order to the plaintiffs, which she sent to them, requesting that they would manufacture and ship to one Lester, at Eddyville, Iowa, for her use, by the 20th of the same month, one of their latest improved, light, two-wheeled mowers, to he paid for on the 1st day of August, 1866, at the price whieh such a mower would he selling for at that date.

This is a suit in equity by Starr-& Eand, and other citizens and tax payers of Des Moines county, to enjoin the board of supervisors of said county from executing an alleged contract for the purchase of property known as “Mozart Hall,” for a court-house for said county; and also to compel the specific performance of an alleged contract for the purchase of property known as “Marion Hall,” for the same purpose.

Evidence : age of witness : general moral character : PROOF OF MARRIAGE, ETC. : CRIMINAL CONVERSATION. — Trial to jury, verdict for plaintiff for $5,000. Motion for new trial overruled, and defendant appeals. Tlie questions made and the further necessary facts appear in the. opinion.

The petition claims a balance of over seven hundred dollars for ninety-six head of steers sold and delivered to defendant, and for feed and care of the same. The contract (in writing) was made in March, 1863, and the steers were to be delivered July 1 of the same year.

Sun on a promissory note made by defendants to plaintiff. Defense, payment in the note of a third party. The plaintiff claims that such note was received as collateral only. Jury trial; verdict and judgment for defendants. The plaintiff appeals. The same cause has been once before in this court. 21 Iowa, 335.

This is a suit in equity to set aside, as fraudulent, a conveyance of - real estate, made by the defendant, Christopher Smith, to his co-defendant, Thomas Boach. The cause was tried before a referee, who reported the evidence, together with his conclusions of fact and law thereon, to the court. This report was for the plaintiffs. The defendants filed exceptions thereto, which were overruled, and judgment entered upon the report. The defendants excepted, and appeal.

Evidence: primary and secondary: when records MAY BE USED '. TAX CERTIFICATE : NATURE AND RIGHTS CONFERRED thereby, etc. — Action at law, to recover possession of certain real property. The same canse was before this court under the name of Furguson v. Heath (Dec. Term, 1866, 21 Iowa). When the cause was remanded, Williams was made plaintiff in the place of Eurguson. Plaintiff claimed title by virtue of a regular chain of conveyances from the United States down to him.

<p>1. Contract ¡ false representations as to land : mistake. Plaintiff was -induced to enter into contract for tlie exchange of land belonging to defendant, lying in a distant county, by reason of the false representations of defendant as to its quality, which representations were, however, at the time they were made believed to be true by defendant, who had never seen the land and so informed plaintiff. Held, that on account of the misapprehension and mistake of the parties as to the character of said land, plaintiff was entitled to have the contract rescinded.</p>

This case was tried by the court without a jury, and judgment rendered for the defendant upon the following agreed facts: In 1860, plaintiff granted to the company the right of way through his land, the deed obligating the grantee to make farm crossings, cattle guards, and to fence the road within six months.

Estates of decedents: contracts of administrator, etc. — The court sustained a demurrer to the petition, from which ruling plaintiff appeals. The petition, filed in April, 1866, in substance, alleges, that in 1859 one Wain, deceased, executed a note for over $400 of which plaintiff is the owner. That Wain died in June, 1860, and the defendant Burge, in July, 1860, was appointed his administrator.

This is au action against the defendant to recover damages for alleged fraudulent representations made to the plaintiff. The com’t sustained a demurrer to the petition.

<p>1. Practice: failure to except. Objections not made below, will not be considüed in the Supreme Court.</p> <p>2. -- waiver. A party, by going to trial, waives his right to have reviewed, the decision of the court in overriding a demurrer to the answer.</p> <p>3. - replication. A replication is not allowable except when the answer alleges a counter claim, set-off, or cross demand.</p> <p>4. Tax sale: duplicate deeds. It is not erroneous, in an action of right, for the court to admit in evidence of defendant’s title, two tax deeds for the same property, one of which the treasurer had executed subsequent to, and to cure an informality in, the other.</p> <p>5. -non-resident owner. The fact that the owner of land sold for taxes was, at the time they accrued as well as at the time of the sale and during the period of redemption, a resident of one of the States then in rebellion, does not excuse him for the non-payment of the taxes, nor entitle him to redeem.</p>

Suit in equity to foreclose a mortgage given by the decedent, J. P. Chapman, to the plaintiff. Defense, that decedent conveyed by deed absolute on its face, other lands to the plaintiff' in security for the same debt, and that plaintiff had sold and conveyed such other lands and received therefor ‘more than the mortgage debt, whereby it was satisfied. The cause was tried to the court and judgment rendered for the cancellation of the mortgage, and against plaintiff, for costs.

In July, 1860, plaintiffs recovered judgment against defendant, by confession, for nearly nineteen hundred dollars. In February last, this bill was filed seeking to restrain defendant from cutting and carrying away the timber on certain lands upon which said judgment was a lien, and which it is alleged were essential to the security of plaintiff’s debt.

The plaintiff, in his amended petition, makes this ease . for himself, namely, that on the seventh of March, 1861, defendant pretended to be the legal owner of the follow- ' ing tract of land, with the improvements thereon, to wit: Lands in S. E. corner of the N. E. J of the S. E. J of sec. 19, T. 72 N., range 21, being a tract of land adjoining the town of Chariton in -Lucas county, and extending from a parallel with Harrison street on the east, to a parallel with Polk…

Shit on an account; defense, set-off and counter claim. Trial to a jury and verdict for defendants upon their set-off, etc. The plaintiffs appeal.

Contract: keeping sheep on shares: construction of, etc. — -Action by plaintiff (originally commenced in December, 1865, before a justice of the peace), upon a contract in these words: “Bloomfield, Oct. 3d, 1863. “ This is to certify that D. Doyle delivered, on the 3d day of October, 1863, fifty head of sheep to T. B. Butledge to keep on shares.

In April, 1862, the plaintiff’s wife and child took passage in the defendant’s line of coaches at Bes Moines, for Fort Bodge, and were drowned in crossing Boone river, in consequence of the alleged carelessness of the di’iver and employees of the defendant, and the insufficiency of their ferry-boat. To recover damages for this bereavement, in March, 1866, this action was commenced.

County roads, establishment oe: damages to land: owner : costs, etc. — A county road was applied for, and established, through the plaintiff’s land. In proper time, the plaintiff applied to the board of supervisors, to have assessed the damages he would sustain in consequence of the establishment of the road. Appraisers were appointed, as provided by statute (Rev., § 813), who assessed the plaintiff’s damages at thirty-seven dollars.

Joint and several obligations : effect of judgment ON : SATISFACTION OF JUDGMENT SET ASIDE, AND EFFECT thereof, eto. — Plaintiffs’ action is at law upon a promissory note, as follows: “ Belvidere, 111., Sept. 2, 1857. “$600. Sixty days after date, for value received, I promise to pay Gilman, Bentley & Co., or order, six lmndred dollars, with interest at ten per cent, being for borrowed money.

The plaintiff, having a judgment against the defendant, B. E. St. John, issued an execution thereon, under which the-sheriff summoned the defendant and appellant, Wm. Skidmore, as garnishee. The - garnishee answered; issue was taken upon the answer, and tried to the court; the judgment of the court was for the plaintiff, and the garnishee appeals.

Plaintiff sued defendant before a justice of the peace. The petition contains five counts. The defendant demurred to the last, and answered the others. The justice overruled the demurrer; to which ruling the defendant excepted, and stood thereon. The cause was then tried to a jury, and resulted in a verdict and judgment for plaintiff. The defendant prosecuted a writ of error to the District Court, upon the ruling of the justice on his demurrer.

The defendants are sued by attachment for the price of eighty-two head of fat hogs, valued at $695.76; also on an open account for sundries amounting to $79.52. Before the defendants answered, the parties entered into a written agreement to arbitrate all matters of differences between them, naming the arbitrators, and making their award a rule of court.

Partition eences : construction op chapter 61: notice, etc. — Action by plaintiff to recover tbe value of a partition fence. Upon proper issues, tbe cause was submitted to tbe court, without a jury. Tbe court beliw found from tbe evidence the following facts : 1.

This is a suit in equity by the plaintiff, to quiet bis title to certain real estate, and to enjoin .the defendants from cutting and removing wood and timber therefrom. The plaintiff claims title to the locus in quo, as matrryp land, under and by virtue of a conveyance by Clinton county to him, in 1863. The defendants claim title in severalty to portions of the land in controversy.

<p> Appeal from Marshall District Court. </p> <p>Practice : defective transcript. For facts, see opinion. Defendant appeals.</p>

Suit against defendant, a drayman, as common carrier. There was a demurrer to the petition, which was sustained. Plaintiff appeals.

<p> Appeal from Pollc PisMct Court. </p> <p>Municipal corporations : change of grade : pleadings : APPEALS TO SUPREME COURT: EVIDENCE, WHEN TO BE CERTIFIED under act of 1866. — Action to recover damages for injury to plaintiff’s property, caused by a change in the grade of the street on which it is situated. Certain questions arise on defendant’s demurrer to the petition.</p> <p>The petition, among other things, alleges “ that prior to March, 1857, the town of Fort Des Moines (to which defendant succeeded), a corporation,' etc., fixed and established certain grades for certain streets in' said town, and, among others, of Second street, along and adjacent to plaintiff’s said lot, which said corporation was lawfully authorized to do; that plaintiff, desiring to erect a costly brick building on his said lot, did, on the 4th of March, 1857, procure a survey of said lot by the city engineer of defendant, and the fixing of a certain point, as the established grade of said defendant, along said Second street, adjacent to plaintiff’s said lot, and received a certificate thereof from said engineer, who was thereto legally authorized by defendant.” The petition then avers that the law in force when the grade was so established, specially made the corporation liable for damages caused by a change of grade.</p> <p>It also avers that plaintiff built pursuant to said grade; that the city afterward (but the time is not averred) changed such grade, and filled up the street, whereby plaintiff was damaged in the sum of $1,000, for which judgment is prayed.</p> <p>The defendant demurred to the petition for the following reasons:</p> <p>1. That the said petition does not state facts sufficient to constitute a cause of action.</p> <p>2. That 'the said petition does not aver any facts showing that a grade to Second street was lawfully established adjacent to the lot mentioned in said petition.</p> <p>3. The said petition states no facts showing that the town engineer had authority to make surveys and establish grades to streets.</p> <p>4. That the alleged ■ giving of a certificate by said engineer to said Luse, which, with the acts of said engineer, is relied on, as shown in said petition, as establishing a legal grade to and on said 'Second street, were void and without authority; and no power or authority is shown and alleged by the facts pleaded whereby the said engineer could bind this defendant or the said town of Fort Des Moines.</p> <p>This demurrer was overruled. The defendant refused to answer over, but, excepting to the ruling, stood on his demurrer. This is the first error assigned on this appeal.</p> <p>Defendant thus refusing to answer over, his default was entered, and the court, upon “hearing the evidence,” found for the plaintiff, in the sum of $1,000, to which the defendant excepted.</p> <p>It is claimed by defendant, that the evidence did not warrant the judgment. The further facts in relation to the evidence are stated in the opinion.</p>

Sued on a school order by an assignee thereof. Defense: absence of authority to execute the order; want of consideration and fraud; trial to the court with finding of facts, and judgment thereon for the plaintiff. The defendant appeals.