Volume 23 — Iowa Reports

Libel : construction' of writing : how justified : QUANTUM OF PROOF: PRACTICE: CHALLENGING JURY: ONUS probandi, etc. — The petition charges that the defendants wrote and published, concerning the plaintiff, the following writing, alleged to he false and libelous: “ To J. Y. Fountain: Sir: We, whose names are hereto affixed, have good reason to believe from circumstantial evidence and from threats that have been made to certain individuals, that you are the man that poisoned…

Fraudulent use oe notes, indorsed in blank, etc. : demurrer to petition. — In order to understand the points ruled by the court,, it is only necessary to state that the plaintiff avers that, in 1860, he owned four notes made by Payne, and secured by mortgage upon certain lands; that he indorsed three of these in blank to Jewett, an attorney at law, for collection in plaintiff’s name; that Jewett paid no consideration therefor, and had no authority to sue them in his own…

<p> Appeal from, Boone District Court. </p> <p>For facts, see opinion. Defendants appeal.</p>

Delivery bonds : when binding as common law obligations, etc.- — The present action is upon the following bond: “Know all men, etc., that we Jacob Reeder, as principal, and Joseph Reeder and Hiram Jones, as sureties, are held and firmly bound unto W. T. Spearman,-¡in the sum of $800, for the payment of which, etc.; whereas, said Spearman, as sheriff of Henry county, by virtue of a certain attachment, issued by the clerk of the District Court of Henry county, Iowa, against…

<p>Practice. Bulings of the court below to which no exceptions were ' taken, will not be passed upon by the Supreme Court.</p>

<p> Appeal from Marion District Court. </p> <p>Indictment for keeping a gambling-house. The defendant was convicted, and appeals.</p>

<p> Appeal from Wappello District Court. </p> <p>For statement, see opinion. Plaintiff appeals.</p>

<p>Practice: failure to except. A decision of the District Court upon a demurrer, will not be reviewed unless exceptions were taken thereto by the party complaining. Whether an exception to a decree in a chancery cause is necessary in order to have it reviewed on appeal, quere.</p>

The plaintiff was the second wife and is the widow of Morrison Cain deceased; and the defendants are his children and heirs at law, by a former wife. He died in April, 1865, aged sixty-five years, and his will was duly probated in the June following. This suit was commenced in October of that year. It appears that the real estate mentioned in his will was all of which he died seized. The plaintiff avers her right to dower, and in addition to the devise to her by the will.

This action was originally brought against appellant, Brown, and his co-defendant Webster, for the recovery of real property — a lot and appurtenances in Cedar Falls. The answer of defendant Brown set up an equitable defense, Webster’s answer did not. The plaintiff then amended his petition,» and set forth a cause of action in equity, and asked a transfer to the equity docket. The cause was transferred accordingly. The' defendant Brown then filed an amended answer, in equity.

Action against tlie firm of C. P. Squires & Co., upon the following instrument: “ Burlington, Iowa, March 13, 1865. “ Beceived this day of Capt. B. B. Butledge, three hundred dollars on deposit. C. P. Squires & Co.” The petition simply alleges plaintiff’s ownership of the instrument, demand and non-payment. Two answers were filed.

This action was commenced in August, 1864, and’ the petition claims one thousand dollars for services as an attorney in the cases therein named. In April, 1866, it appeared by the affidavit of his attorney, that plaintiff was in the actual military service of the United States, as paymaster in the United States army, and that he had been in such position since November, 1862.

Action upon a note dated August 21,1866, due three months after date, payable to Yanservens or bearer, brought by plaintiff as the holder.

William Pitkin, James McFee and Orlando Wertz, on the 12th day of March, 1857, executed to plaintiff their joint and several notes — each due within one year, and amounting in all to the sum of $4,400. April 15, 1858, suit was commenced on said notes, in the District Court of Jefferson county, and on the 20th day of October following, judgment was rendered against the makers of said notes for the sum of $3,339.42. On the 6th day of October, 1858, Win.

The notice in this case required the defendant to “ appear and answer on oT before noon of tbe 15tb day of May, 1866.” There was due service; defendant made default, which was duly entered, June 6, 1866, and on the 11th, plaintiff had judgment for something over $150.

The facts of this case are as follows: January 5, 1856, plaintiff sold to defendant, and by Ms bond agreed to convey to Mm, certain parcels of real estate. The consideration was $600; one hundred dollars paid at the time ; for the balance three notes given, due the 1st of April and June, 1856, and June, 1857. The conveyance was to be made upon the payment of the two notes due in 1856, and the bond said nothing about the third.

The petition contains two counts, one upon a note, and the other upon a judgment recovered in the same (Marion) District Court; which recovery was upon the same note mentioned in the first count. The pleader- not knowing whether the so-called judgment operated to displace or merge his right of action on the note, so states, and seeks to recover for but one of such causes.

<p> Appeal from, Tama District Court. </p> <p>Action on a policy of insurance. Trial to the Court. Judgment for defendant, and plaintiffs appeal.</p>

In this case the legal sufficiency of the petition is challenged by demurrer, which the court sustained, and the plaintiff, abiding the decision, appeals. A ferryman carrying on a public ferry for hire, is a common carrier. Angelí on Common Carriers, §§ 82, 130, 165; Whitmore v. Bowman, 4 Greene, 148. Where a person owns and runs a public ferry under a license, such ferry owner is bound by the conditions of his license, and also by the rules of the common law.

Defendant was indicted under section 4293 of tbe Revision, for aiding and assisting his brother, William Bates, to escape from the custody of one Elliott, a constable. Trial and verdict of guilty; new trial refused; judgment that defendant pay a fine of twenty-five dollars and costs, from which he appeals.

Plaintiff, before a justice of the peace, claimed forty-seven dollars and five cents, on account.- The answer contained three divisions duly numbered. The second claims a set-off of ten dollars for the rent of a slaughterhouse, fifteen dollars, one-half of the sum collected by plaintiff, -of several persons • (named), on j, partnership accounts due the firm of Push & Zapple. -unid ten dollars for damages to said slaughter-house while used by plaintiff.

<p>Appeal from Wapello District Court.</p> <p>Petition in equity for a specific performance. There was a decree for plaintiff and defendant appeals.</p>

Jurisdiction over attached property : sale oe judgments on execution. — Osborn and Hubbell appeal from an order of the District Court setting aside, on defendant’s motion, the levy and sale of a certain judgment held by defendant Cloud against one McTighe.

Plaintiff sues for a balance due him for his services as pilot, from September 25, to the 10th of November, 1865. The answer claims, that the boat belonged to the “Northern Illinois Railroad company,” and, that said company had fully paid plaintiff’s claim. Upon the issue thus joined, there was a trial to a jury, verdict for plaintiff, judgment thereon, defendant excepted and appeals.

Suit before a justice of the peace, in replevin, for a hog, judgment for the defendant, and plaintiff appealed to the District Court, where the defendant moved to dismiss the appeal, because there was no United States revenue stamp on the appeal bond or other paper in the appeal.

Action for slander. Tbe petition contains three counts. The defendant demurred to each count, and also filed a motion for a more specific statement in, and to require the plaintiff to separate and divide the third count. The court sustained the demurrer as to the first and second counts, overruled it as to the third, and sustained the motion foi a more specific statement.

A suit in replevin to recover the possession of a wagon and a cow. The defendant Doty was not served with notice, nor did he appear and plead to the action. The wagon was replevied from the possession of the defendant Messenger, the cow from Henderson.

Petition eor new trial : records : how ear verities, etc. — The plaintiff appeals from an order of the District Court made at the November Term, 1865, denying his petition for a new trial. The only facts necessary to be stated are the following: June 29, 1861, plaintiff commenced a proceeding in chancery to have his alleged title to certain lands confirmed. Many persons were made defendants. Cole, Pierce, Ault, Skiff and Slaughter answered.

Appeals from Johnson, Scott and Mahasha District Gowrts. Held: “ would in fact be a double taxation — once to the corporation itself, and again to the corporators, which would be unjust, oppressive, and unconstitutional.” These eases, with others, are stated in Angelí & Ames on Corporations, and it is observed by the learned authors (§ 460) that they “ are of importance, as recognizing the rule…

Manslaughter : sele-deeense : death by accident : when justifiable, etc. — The indictment charges the defendant with the murder, on the 11th day of October, 1866, of one Z. T. Shepard. Plea — not guilty. Yerdict — guilty of manslaughter. Judgment — fine, and four years imprisonment in the penitentiary. The case is somewhat peculiar, and is so largely influenced in its determination by its special circumstances that it is necessary briefly to state thesé.

■ Appeal from Marshall District Court. This is an application in equity to redeem lot 5, in block 21, in Marshalltown, from a tax sale made in 1862, for the delinquent taxes of 1861, and also to remove a cloud, etc. The defendant, holding the title as well as the possession under said sale, is made a party; and upon his motion, a certain portion of the petition was stricken out as containing irrelevant and redundant matter. From this action of the court the appeal comes.

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

Plaintiff declares upon the following instrument: “ I hereby order of J. L. Hunt the following bill of fruit-trees, etc., for which I promise .to pay J. L. Hunt or bearer seventy-two xVo dollars, on their delivery at Marshalltown during the spring of 1866.- “C. BBATT. “P. O. Marshalltown, Marshall Co., Iowa, Nov. 15, 1865.” Defendant, showing that he was at the time the suit was commenced, and still was, a resident of Tama county, and never had been of Marshall county, moved…

Arnold, tbe treasurer of Henry county, appeals from an order perpetually enjoining the collection of certain taxes, assessed and levied upon lands owned by Murray, but which plaintiff has contracted to sell under a power of attorney, to meet certain demands against said Murray.

Howard was sheriff of Johnson county, in 1857. The other defendants (three firms) were creditors of one Darwin ; they obtained attachment, and the sheriff levied the same upon certain goods. Plaintiff, claiming to be the owner of said goods, brought this action of trespass, laying his damages at $10,000. Trial, verdict and judgment for plaintiff, in the sum of $8,425.26, and defendants (the creditors) appeal.

Plaintiff claims $3,000 and interest from March 13, 1865, as a balance due on a bill of exchange of that date, for $7,430.55, due in sixty days, drawn by Owen on Daniel Andrews, payable to Isaac R. Andrews, or bearer, duly accepted, and payable at plaintiff’s counter. The action' waS' against the drawer, and the administrators of the acceptor.

Mandamus. — Upon tbe issues joined, tbe court found the following facts: 1. At their June session, 1866, the board of supervisors of Mahaska county selected the “ Oskaloosa .Herald,” the only newspaper then published in the county, as the paper in which should be published the laws and proceedings of the board, as required by chapter 118 of the Acts of the 11th General Assembly, and said laws and proceedings were accordingly so published. 2.

Wilson commenced his action of replevin before a justice of the peace, to recover the possession of a horse, against the appellant, Littleton, the appellee, Crites, being his surety on the replevin bond. Before the justice, Wilson failed to appear and prosecute his action, and judgment was rendered against him and the said Crites, for the value of the horse-.

On the second trial it appeared that plaintiffs claim under an execution sale; that their judgment was rendered September 14, 1858, ■ upon a note made November 3, 1856; that the sale was made March 26, 1860, and that defendant’s husband, now deceased, obtained title October 8, 1856.

Plaintiff brought his action before a justice of the peace, asking an-attachment- upon a note not due. Defendant moved to dissolve, which was sustained, and because of alleged errors in such ruling, plaintiff prosecuted *his writ of error to the District Court.' On the hearing there, the order of the- justice was reversed, and judgment rendered against defendant for the amount of plaintiff’s claim .and costs. Defendant appeals.

’The petition claims $160 of defendant as an innkeeper, for the loss of a trunk and contents.- From the testimony the court found the following facts: 1. Defendant was an innkeeper in the city of Council Bluffs, in the latter part of August, 1866. 2. At that time plaintiff stopped at said inn as a guest, Having with him his trunk and the contents substantially as Claimed in the. petition. 3.

September 1, 1859, plaintiff -made to defendants a deed, containing covenants “ that we are lawfully seized of said premises ; that they are free from incumbrances; that we have good right and lawful… Held: that prior general covenants for good title and right to convey were qualified by subsequent ones for quiet enjoyment and freedom from incumbrances restricted to the seller and persons claiming under him.

Suit in equity to compel the issuance by the defendant Davis, as clerk, etc., of a certificate of purchase of certain school lands to the plaintiff, and to quiet his title thereto as against the other defendants.

This is a controversy between the same parties, and growing ont of the same subject-matter (though with parties inverted and in another phase), as reported in, 21 ■ Iowa. While that case ivas pending in this court, or rather after it was decided in the court below, this case, to recover pay for improvements under the occupying claimant law, was brought, tried and determined in the District Court. The plaintiffs claim under Edward Keas ; the defendants under Margaret Keas.

<p> Appeal from, Decatur District Court. </p> <p>The case is one in equity to rescind a contract for the sale and conveyance of some eighty-four acres of land made by the plaintiff to the defendant, on the ground of gross inadequacy of price (the consideration being thirty dollars), and the incompetency of the plaintiff, at the time, to contract, from great mental disturbance, which partially affected her reason, and rendered her unfit for business. The defendant admitted the purchase for the consideration named and the payment of a certain mortgage due the county, but denied all the other allegations. On hearing the cause, the court granted the prayer of the bill and the defendant appeals.</p>

The defendant sued these plaintiffs before a justice of the peace upon a note, and recovered judgment thereon. These plaintiffs commenced this proceeding for a writ of error to the justice. The affidavit for the writ sets out the errors complained of, as shown in the opinion. The District Court reversed the judgment of the justice and dismissed the cause. The defendant herein, who was the plaintiff before the justice, appeals.

Mortgage : rights of junior mortgagee to assignment OF PRIOR MORTGAGE Í PRACTICE, ETC. I DEMURRER TO PETITION.— The plaintiffs rest their right to a recovery upon section 3665 of the Revision. A demurrer to the original petition was sustained and no question arises thereon.' The second count of amended petition was dismissed before judgment, and there is no question upon it.

Dedication of streets : ownership of minerals, etc.— Trespass to recover damages' from the defendant, for entering upon and taking from the public street known as Grand.View avenue, in Union Addition to the city of Dubuque, large quantities of lead ore, claimed to be the property pi the plaintiff.

Suit on a negotiable promissory note, by the indorsee against the maker. Judgment for plaintiff, and defendant appeals. •

Action on a bond of indemnity. Johnson and Stevens sued Butler in the District Court of Dubuque county, and obtained an attachment, which was levied upon certain horses, part of a circus establishment.

Action for damages on a sale of flour. Jury trial; verdict and judgment thereon for plaintiff. The defendants appeal. , ' '

- Plaintiffs filed their petition, duly verified, claiming about six hundred dollars upon a promissory note made by defendants to plaintiffs, dated April 4, 186T, due one day after date..

<p>Acknowledgment ¡ certification of identity. The omission of the word “personally ” before the word “ known ” in a certificate of acknowledgment, is not necessarily fatal to its validity. Following Todd v. Jones & Jones, S3 Iowa, 146.</p>

<p>1.' Trust-deed.! inadequacy OP PRICE. The objection that the premises included in a deed of trust were sold for only one-third of their value, will not avail where the original purchaser was a stranger to the transaction, and the premises have in good faith! been by him sold to another.</p> <p>2. —— sale in parcels. Nor is the objection that the trustee should, under the circumstances of the case, have sold the property en masse instead of in parcels, available against such purchaser.</p> <p>3.'-adjournment. The same is said of the objection that the trustee should, in view of the small attendance at the sale and the inadequate price bid, have adjourned the sale.</p> <p>4.-notice OP sale. So, too, the objection that the notice of sale stated that “the whole amount mentioned in'the deed of trust, with interest, was unpaid,” when in fact all of the interest was not unpaid, is not available, when it is not shown that the statement was fraudulently made or that it worked any prejudice.</p>

The plaintiffs, as indorsees, sue defendant on a note of $175, dated January 8, 1850, and payable at six months. They allege the same to be unpaid, that their cause of action thereon still subsists, as they can and will make appear by defendant’s, testimony at the trial of the suit.

The defendant was tried upon the following indictment : “ The grand jury of the county of Alamakee, in the name and by the authority of the State of Iowa, accuse Charles O’Niel of the crime of murder of the first degree, committed as follows: First count: The said Charles O’Niel, on the 12th day of August, A. D. 1866, in the county aforesaid upon Barney Leavy then and there being, willfully, deliberately, with premeditation and malice' aforethought, did make an assault, and…

Petition in equity, averring, that plaintiff received from Geo. S. Hampton a deed of trust on certain real estate,made in July, 1855 ; that Hampton derived title through, one James McDonald, deceased; that this deed of trust was foreclosed, and the premises in controversy consisted of 120 aeres, was sold thereunder and bought in by the plaintiff.

Evidence: handwriting: fraud: defrauded vendor entitled to lien in equity. — Plaintiff exchanged with defendants (husband and wife) certain property in Iowa, for certain property in Wisconsin, owned by the defendants, the title to which was in Eliza Purdy, wife of George Purdy.

Action of replevin for a sledge hammer. The plaintiff advertised in large and attractive bills a “ great sale of farm, farm stock, farming implements and household goods,” enumerating work horses, stallions, brood mares, colts, oxen, cows, young cattle, hogs, wagons, buggy, reaper, mower, harness, grain, hay, etc. At the sale, which, began about ten o’clock, the plaintiff only offered articles of very small value, and those hot in lots, but separately, such as a brace by…

Plaintier, near sixty years of age and tbe father of the defendant Eliza Pichards, by his petition in equity seeks to set aside a deed made to her of about one hundred acres of land on the 1st of October, 1864. The daughter, with her husband and co-defendant, resided in Illinois, but removed to her father’s home a short time before the deed was made. It included all his real property, and upon it was his residence and some improvements.

<p>1. Former adjudication! division or cause or action. A party cannot divide and recover in- parts, by different actions, a claim which in its legal nature, is indivisible.</p> <p>2.-where claim is legally divisible. But a claim which is not in its legal nature single and entire, does not fall within the meaning of the rule. And where the owner of several and distinct pieces of property places the same in the hands of an agent, who disposes of and receives the money for the same, and it does not appear but that he sold the different pieces to different persons, and at different times, the owner in an action against such agent to recover the ■ money received by him for certain items of such property, will not be barred by a former recovery against defendant for money received by him from the sale of other items of such property not included in the last action; especially when it does not appear that plaintiff knew when he brought the former action that the articles sued for in the last one had been sold and the money received therefor by defendant.</p>

Plaintiffs claim damages in the sum of $1,500, for the non-delivery of cattle under a contract made with defendants, March 18, 1865. Trial and verdict for plaintiffs, in the sum of $1,381.36. Motion for new trial over ruled, judgment on the verdict, and defendants appeal.

Suit in equity to set aside a conveyance to defendant’s ancestor, and to quiet plaintiff’s title to lots two and three, section fifteen, township ninety-five, north of range three west, in Clayton county, Iowa. The land in controversy is a part of what was formerly a military reservation for the use of Fort Crawford at Prairie du Chien. The land was never subject to private entry.

Criminal law : section 4296 not applicable to oebtcers without a warrant. — Indictment founded upon section 4296 of the Eevision. Demurrer thereto sustained. The State appeals.

Thomas Dodds died intestate, in Henry county, on the 2'lst of February, 1865, without issue, leaving surviving him his. widow, the plaintiff herein, his mother, Sarah, and five brothers and sisters, the present defendants and appellants. In October, 1866, the mother released and transferred to defendants all her interest in the personal estate of the said. decedent.

Plaintiees in their petition claim $3000, and make this case. They were on the 30th of April, 1866, the owners of two flat boats of the value of $1200 each, built for the purpose of transporting ice .from lake Pepin to a market on the lower Mississippi, and not valuable for any other purpose.

<p>Continuance ¡ in prisoner’s absence. A continuance of a criminal case to a special term, at which a neighboring judge was to preride by interchange, When the prisoner was not present in court, though his counsel was, and consented thereto, is not regarded a sufficient error to reverse the judgment, when it appears that such continuance would have occurred by operation of law on account of the previous connection of the presiding judge with the case.</p>

An information was filed before a justice of the peace, accusing the defendant of the crime of selling intoxicating liquor by the drink at a public saloon, contrary to law. There was a jury trial before the justice, and the defendant was found guilty and sentenced to pay a fine of twenty dollars, and costs of prosecution, and to stand committed till fine and costs were paid. The defendant appealed to the District Court, where he was again tried by a jury and found guilty.

Misdemeanor: joint and several trial: verdict in •WILLFUL TRESPASS : NEED NOT FIX VALUE \ ONE CO-DEFENDANT MAY ON JOINT TRIAL TESTIFY FOR THE OTHER.-The defendants were jointly indicted under section 4324 of the Revision “ for carrying away timber and wood from the land of another.” Plea — not guilty. Verdict— guilty. Judgment. Defendants appeal.

<p> Appeal from, Mitchell District Court. </p> <p>Injunction. — The original petition was filed October 16, 1865, the order of the judge allowing the writ, bearing date September 22, 1865. The writ issued on the day the petition was filed and service was accepted, January 1, 1866. Its command restrained the defendants therein named, from removing their offices, records, etc., as will be more fully understood as we proceed with the case. An original notice issued, was placed in the hands of one not an officer, November, 30, 1866, and was served on most of the defendants on the. same date. This notice is directed to the defendants,- informs them of the filing of the petition, the substance of the prayer, and- names the day and term at which they were required to answer. May 25, 1867, two of the defendants moved to dissolve the injunction for reasons stated. July 15,1867, plaintiff moved to strike this motion, which latter motion was sustained. Plaintiff had leave to file an amended petition, which was accordingly filed July 24, 1867. On the 29th, a second motion to dissolve the injunction by-one of the sanie defendants, was filed, considered and overruled, and both the defendants thus appearing, prosecute this appeal.</p> <p>1. Defendant’s motion, so far as it sought to dismiss the bill, was rightly overruled. The bill could not be dismissed on motion, on any ground set up by defendants. They should have either demurred or answered.</p> <p>2. The granting, continuing or dissolving of a preliminary injunction is peculiarly in the discretion of the court, and. will not be reviewed by an appellate court, except in very special and clear- eases. Cox v. Mayor, etc., 18 Geo. 728; Semmes v. Mayor,, etc., 19 Id. 471; Fleischman v. Youmg, 1 Stockt. 620.</p> <p>3. In this case, where it appears that .there is a controversy pending as to' which of two places is the legal county seat, which it is the object of this suit to settle, and where defendants have failed to answer or otherwise controvert the petition on the merits, though two years-have elapsed since the suit was commenced, an injunction restraining the actual removal of the county seat will not be dissolved, on merely technical grounds, until the final determination of the controversy. Rice v. Smith, Co., Judge, etc., 9 Iowa, 570.</p> <p>4. Defendants have filed neither answer, affidavits, nor any proof, controverting the petition; which, on its face, shows a state of facts clearly entitling plaintiff to the relief sought. Collins v. Ripley, Co. Judge, 8 Iowa, 129; State v. Oo. Judge, etc., 7 Id. 186; State v. Bcdley, Go. Judge, Id. 390.</p> <p>5. An original notice was issued. and served before defendants filed their motion to dissolve, or took any steps in the cause; after which a motion to dissolve for-want of such notice is too late. And under our statute, an appearance in the cause, for any purpose, dispenses with the necessity of notice. Seeber v. Hess, 5 Paige, 85; Parher v. WilUams, 4 Id. 439; Rev. 1860, § 2840, subd. 3.</p> <p>■ 6. Defendants are too late in moving for a dissolution more than eighteen months after the injunction was issued and served. They will not be heard after such laches, but must abide the final determination of the suit. 2 Waterman’s Eden on Injunc. 372, 374, note; Bell v. Hull dt Selby Badkoay Go., 1 Railway Cas. 616.</p> <p>7. The defense of the statute of limitations does not arise on the face of the petition, and must be set up by answer, if at all. It cannot be made available by motion. And neither the statute of limitations, nor any other new affirmative matter, set up by answer or plea, is a ground for dissolving an injunction, on motion. Hutchins v. Hope, 12 Grill. '& Johns. 244; White v. Flannigan, 1 Md. 525; Hilliál’d on Injunc. § 55, p. 100.</p> <p>8. An injunction suit is a “special proceeding,” under the Iowa practice, and no original notice is necessary. It is the duty of defendant when served with the writ of injunction, to appear and move to dissolve, or answer, without other or further process to bring him before the court. Rev. ch. 154, passim’, Id. § 3555.</p> <p>9. The suit is commenced, so as to stop the running of the time of limitation, by filing the petition; at all events, by issuing and serving the injunction. Section 2744 of the Revision is not exclusive, and applies more particularly to cases where the notice is the first proceeding in the suit, the petition not being filed till afterward. The rule was the samé at common law, as to commencing actions by writ, which always preceded the filing of the declaration. Angelí on Limit, ch. 28, §§ 312, 315; Id. § 330 and note 1, 2; 2 Greenl. on Ev. § 131.</p> <p>10. If the suit had not been commenced till the original notice was issued, it would not have been barred by limitation. The “ cause of action ” is, that Mitchell is. the legal county seat, and the defendants threaten and intend to remove the county offices, etc., to Osage, illegally and to the plaintiff’s prejudice. The election set forth in the petition does not constitute the cause of action, nor any constituent element therein. It is not by virtue of that election that Mitchell claims to be the county seat, and it was unnecessary to set forth the election in the petition. It does not matter what were the grounds or color of right relied on or set up by defendants as a justification for their alleged wrongful intention of removing the county offices, nor how far back in the past those grounds originated. The case would stand precisely in the same attitude as respects limitation, if there never had been any election, and if defendants were proceeding wholly without color of right. Just so long-as the danger of the threatened wrong exists, so long there is a right to apply to a court to restrain it. It is a continuously aoorui-ng cause of action.</p> <p>11. Plaintiff is not chargeable with laches in the prosecution of the suit. Defendants were bound to come in and answer or move to dissolve, on being served with the writ. Besides, the county officers, who were the sole original defendants, were not the real parties in interest, and merely s* offioio, had no interest in resisting the suit, and plaintiff was not bound to proceed actively against them (they- taking no steps to defend), as judgment against them would settle nothing conclusively against other parties. See State v. Orners et at, 22 Iowa, 343. It was not until July 15, 1867, that defendant Foreman intervened in his private capacity, alleging a personal interest, and was as such made a defendant; down to' which time, nobody interested in the defense had appeared in the case.</p> <p>12. It was not necessary to file the petition before applying to the judge for the injunction. And that this was not done, is no ground for dissolution. Hilliard on Injunc. p. 52, § 125 ; Davis v. Reed, 14 Md. 152.</p>

The record makes this case. On the 25th day of June, 1861, the plaintiff .executed and delivered his note to the order of defendant, for $900, payable in one year, in specie, with ten per cent interest, secured by mortgage on certain premises therein described.

Measure oe damages : attorney’s eees : insanity as a deeense : action on injunction bonds. — McKenzie commeuced a suit against Behrens in equity, and obtained an order for a temporary injunction on the filing of a bond. A bond was made by the defendant’ as principal, and others as sureties, in the usual form.

Action in equity to set aside a tax deed. The plaintiff is a married woman, and the original petition was filed in her name, by her husband as next friend, and her husband was also joined as co-plaintiff. To this petition the defendant demurred on the ground of improper joinder of parties and for various other causes. This demurrer was sustained, and the plaintiff had leave to and did amend her petition, making herself sole plaintiff, and in other particulars.

This will, when offered for probate, was attested by but one witness. The County Court, for this reason, held that it was not executed as required by law, and refused, to allow it to be admitted to probate. . In tbe District- Court, on appeal, tbe same order was made, and tbe legatees appeal to this court.

I. Dower and homestead: nature and extent op RIGHTS : EXEMPT PROPERTY, ETC.: PACTS RELATING TO THE homestead. — John Meyer died in February, 1866, leaving a widow and children. . He disposed of his property by a will, which has been duly probated. By this will, he bequeathed a certain sum of money to his wife in lieu of dower and of homestead rights, and devised all his real estate to certain of his sons, defendants herein. He also made a disposition of his personal property.

This cause was heard and determined by the judge below, without a jury, upon the following agreed facts: Plaintiff’s cow, of the value of fifty dollars, was hilled, May 31, 1866, by the engine running on the track of the railway company. The other defendant, Kilbourne, was at the time “ individually the lessee, and in the possession of and running said road.” The road was not fenced. Due notice was given as required by the statute, of the killing, on the company and lessee.

In equity. — This cause, on a former appeal, was before tbis court, and its decision reported in 12 Iowa, 172. For tbe general nature of tbe controversy, reference is made to tbe statement and opinion there given. Tbe date of tbe contract between tbe parties is misprinted.

The value of the services is admitted as claimed, and the testimony’as to the retainer was as follows: D. G-. Myers, the son of the appellant, and residing with her prior to 1860, brought replevin against one Bink for a horse, giving a bond, with his mother as his surety. The case was appealed to the District Court, and plaintiff was employed by the son to assist in the trial. Judgment was there rendered against the principal and surety on the bond.

This is the case of a tenant suing his landlord for damages sustained by the trespassing animals of the latter. A recovery of $177,43 was had, and the defendant brings the cause here to have certain rulings of the court trying the same, reviewed.

Yoluntary conveyance by wife: when valid, etc. This cause was before this court at tbe June Term, 1865. See 19 Iowa, 131. Afterward the cause was, by tbe District Court, referred to a referee.

Action on a bail bond. About the first of October, 1866, one Peter Ryan was arrested upon a charge of an assault with intent to commit a robbery, and upon a preliminary examination thereon before a justice of the peace, an order was made that he be held to appear at the next term of the District Court, to answer said charge. His bail was fixed at five hundred dollars, and in default of giving such bail, he was committed to jail.

. The substance of the plaintiffs’ case is soon stated. They seek to restrain the defendant by injunction, from changing the site of the school-house in sub-district No. 5, where it is now built, to another location in the same district.

<p> Appeal from Des Moines District Court. </p> <p>Municipal corporations : grant op power to collect TAXES CONSTRUED 1 DEMURRER TO PETITION.-The petition, in substance, alleges, that defendant was and is the owner of iot 461 in Burlington. That the city of Burlington (acting under section 25 of its charter; act of June 10, 1845), “ all conditions precedent having been complied with” (Bev. § 2922), ordered the grading and macadamizing of Division street in front of lot 461; that said improvement cost the city $184 T\\; which sum was levied as a special tax upon said lot; that remaining unpaid the lot was, under an ordinance of the city, sold to pay said special tax, on the 19th day of June, A. D. 1860, to this plaintiff, who received a deed therefor from the city ; that, in consideration of said sale and deed, plaintiff paid the city the above mentioned sum of $184 nyu; and the prayer is, that this sum, with interest, be declared a lien upon the lot, and that it be ordered to be sold to pay it.</p> <p>'It is further averred, that the city did this work at the special instance and request of the defendant, who promised to pay for the said improvement. Defendant demurred, upon the ground, “ that the said city has no legal right or power to assign, transfer, delegate or farm out its taxing power or its right to collect its taxes; ” also, upon the ground, that, as the petition admitted that the sale of the lot to plaintiff was null and void, he could not, by reason of such sale, be the assignee of the city.</p> <p>This demurrer being sustained, the plaintiff appeals.</p>

<p> Appeal from ’Jefferson District Court. </p>

Plaintiff and appellant seeks to enjoin the collection of a judgment against him for costs, rendered December, 1864. The petition was filed in September, 1866. Prom the petition and answer it appears that Wills, for the use of Kyder, obtained a decree foreclosing four mortgages against Horton and wife and said Davis.

On the 18th of April, 1861, plaintiff brought his action against James F. Paul, asking an attachment. The writ issued and was served upon the officers of the Burlington branch of the State bank, as garnishees.

The canse of action set forth in the petition may be briefly stated as follows : Plaintiff had a contract with the post-office department, to carry the mail on route 9364, twice a week, from Dubuque to Port Atkinson, running through New Wine, Colesburg and Elkader, for the term of four years, ending 30th day of June, 1858.

Evidence: effect of attempts to escape or evade justice. — The defendant was indicted for having counterfeit coin in his possession, knowing it to be false, and with intent to pass. A former appeal was before this court at the December Term, 1866. See State v. Arthur, 21 Iowa, 322. After the taking of that appeal, at a Term of the Fayette District Court, the defendant was tried, convicted and sentenced; and from this judgment he now prosecutes the present appeal.

The wife, Martha T., claims a divorce, alleging as a cause, “inhuman¡treatment endangering her life.” She also asks alimony and the care and custody of their only child, a son, now aged about thirteen years. The issue joined was submitted to a jury; verdict for plaintiff, and a judgment followed granting the divorce, awarding alimony and the custody of the child._ Defendant appeals.

Practice: evidence: instructions: exceptions. — Action for assault and battery, false imprisonment and trespass. Defense — First, in denial. Second, justification, under an order or orders issued by the governor, Win. M. Stone, by N. B. Baker, adjutant-general of Iowa, .directed to Captain W. It.

<p>1. Attachment: custody of property: notice of levy: return. Where an officer in the levy of a writ of special attachment not having indorsed upon it the direction of the court or judge, as required by section 8230, of the Revision, did not take the attached property into his custody, nor give notice of the levy, nor make such a return of service as required fiy the statute, the levy was held invalid.</p> <p>2.- officer must take possession. To constitute a valid attachment levy, the officer should do that which would amount to a change of possession, or something that would he equivalent to a claim of dominion, coupled with a power to exercise it.</p>

This is an application for a divorce based upon the alleged ground of habitual drunkenness, in which it was adjudged, that the plaintiff’s case was not sustained by the testimony, and his bill was dismissed.

<p>1. Bails discharge oe sureties. A defendant in a criminal prosecution, on bail, failed to appear, and a forfeiture was thereupon taken against the hail, and a bench warrant issued against th'e accused, who was, on the twenty-second day of the month arrested, and on the twenty-third brought into court. On the twenty-fourth the for feiture before taken against the hail, was set aside. It appearing that the accused “ was in the custody of the court and its officers, he so remained until the twenty-fifth,” when he was discharged to appear on the twenty-seventh. Failing to appear, on the thirtieth a second forfeiture of the recognizance was taken against the accused, and his bail. Held, in action thereupon against the hail, that the bail hav ing been discharged by order of court from the first forfeiture, it was not competent for the court, having assumed the custody of the prisoner, to order a second forfeiture.</p> <p>Argu. 1. Effect of forfeiture. When the prisoner failed to appear, he not only forfeited his bond, hut his liberty, and his re-arrest by the State was authorized by section 4995 of the Revision.</p> <p>Argu. 2. Bail deprived of custodv. When the court re-possessed itself of the custody of the accused, he could neither claim to bo set at liberty or remitted to the hands of his bail, nor had they, on the other hand, any right to demand his liberty, or their control or lteepcrship of Mm.</p> <p>% -basis OR opinion. The opinion herein is based upon the theory that the custody of the accused by the State was not merely constructive, but actual in the sense of its assuming to keep and control him in such a manner as to legally deprive the bail of the right and power to do so.</p>

The petition claims of botb defendants a judgment for $155.60, and a mechanic's lien upon certain lots in the town of Janesville, and the house situated thereon; and for cause of such claim states: That on or about the 12th of May, 1866, plaintiff furnished to the defendants, materials in the erection of said house, to the value of, etc., a bill of which is annexed, etc., at the request of W. L. Wilson, the husband, as agent for the other defendant, his wife, for her use and…

Inequity. — The petition filed February 13, 1867, alleges that in March, 1860, defendant being indebted to plaintiff in the sum of $700, represented that he had a tract of land in Jasper county, in this State; that it was of a certain quality, etc.; that plaintiff was ignorant of the quality and location of the land, relied upon defendant’s representations, was induced thereby to take the same in payment of said indebtedness, and that defendant made him a deed, etc. It is…

This is an action upon an account or claim for 186f cords of wood, which plaintiff alleges he sold and delivered to the defendant. The testimony is all before us, and consists of plaintiff’s own evidence, two witnesses for him and one for defendant. The plaintiff’s evidence shows that prior, up to, and including the month of January, 1865, the plaintiff had been engaged in getting out wood himself and buying wood of others and selling the same to defendant.

Ajppeal from, Lee District Court. Homestead : devise and abandonment oe, etc. — The petition seeks to foreclose two mortgages made to the plaintiff, by J. C. Brand, and Mattie, his wife, upon lot 8, B. 21, in West Point. The first mortgage is dated, in January, 1862; the second in November, 1862. .The defendant (Samuel Brand), is the father of the said J. C. Brand, the mortgagor of the plaintiff.

Sun in equity by tbe vendee against tbe vendor for a specific performance. On tbe 12th of April, 1866, defendant contracted in writing, bis wife not joining therein, to convey to plaintiff bis farm, of one hundred and sixty acres, for tbe sum of $2,200.

The petition, filed March 14, 186V, avers that on the 2d of June, 1864, plaintiff’s ox, of the value of $V5, was killed by a train of cars then run by the Chicago & Galena Railroad .company. That said road is now run by the defendant, and that, “ after the committing of the deed complained of, and before the commencement of this suit, the said C. & Gr.

Practice: appointment of referees. — Petition in equity to settle partnership accounts between the parties. The court appointed J. S. George, Esq., a referee,- “ t® take the proofs and report on the whole issue.” The entry recites that this was done by consent. This is denied by the uncontradicted affidavit of the defendant’s attorney, who states, that he never consented to the appointment, and did not know of the same until after the term had closed.

Jane King, the wife of John King, her co-defendant, executed and delivered to the plaintiff, a mortgage on certain premises therein described, to secure the payment of a $1200 note given by her husband to the plaintiff, who now seeks to foreclose the same. To the petition filed for this purpose, the defendants plead payment, and the possession of said note and mortgage as the evidence thereof.

Assault and battery : assault with intent, etc. —r Before a justice of the peace, the following complaint was filed: “ The defendant is accused of, the crime of an assault and battery. For that the defendant on, etc., at, etc., did then and there willfully and maliciously strike and beat C. D., with intent of doing her great bodily injury.” This information was duly signed and sworn to.

Action on a note against the mater and indorser. C. A. Barlow, the maker, and G. M. Ryerson, the indorser, had been partners in business. At the close of their partnership they had about seven hundred dollars on deposit with plaintiff. Barlow claimed the whole, but Ryerson was permitted by him to have three hundred dollars of it.

In January, 1865, Henry T. Morse and wife quit-claimed to the plaintiff all their right, title and interest to the particular tract of land described in the petition filed in this action. At that time the land and the legal ownership thereof was occupied and claimed by the defendant. This action of right was brought to dispossess him. The defense set up is two fold: 1.

Bill to redeem. — From the petition it appears, that in June, 1855, a deed of trust was executed by the then owner of the land to secure over $600, and authorizing the trustee, in default of payment, to advertise and sell the property, etc., concluding with the usual provisions and declarations.

es District Court. The defendant Schramm and one Leopold, were appointed by the county court of Des Moines county, executors of the estate of Charles Nettman, deceased, and executed a bond, joint and several in its terms, conditioned faithfully to discharge the duties imposed on them according to law. This was a proceeding originally commenced in the County Court to compel the executors to account. Leopold was not found.

Action to foreclose a mortgage. Ruth Hiatt executed a mortgage upon certain real estate in Lee county, to secure a note for $925, payable to E. P. Martin; : which note the plaintiffs own. Held: that the redemption was in time, and that it was well made by E. Semple. William Stewart excepted to this ruling, and now appeals and assigns the same for error.

Aj/peal from PoTk District Court. Highways : how established : power oe supervisors TO DELEGATE AUTHORITY TO CLERK: INDICTMENT EOR OBSTRUCTING a public highway. — The main question arising on tbe trial was, whether tlie road described in the indictment was a legal highway.

W. A. Lippincott and A. J. Kerr, respectively made application to the board of supervisors of Yan Burén county for license to keep a ferry across the Des Moines river, at Bentonsport. Lippencott, at-the time of making his application, and when final action was had thereon, held a license, then about to expire, and was operating a ferry at that point. At the September Term, 1866, the board granted the license to Kerr.

On the 28th day of February, 1866, plaintiff filed his petition at law, claiming of defendant $2,000, being the' purchase-money for certain lands sold by plaintiff to defendant.

Plaintiees declare upon a note made November 9, 1855, due presently, by defendant and Ms wife, M. A. Knowlton, now deceased. It was made to Osborne as guardian of plaintiffs, and on the back thereof had this indorsement: “ The within is the amount of my third of the Robey farm. M. A. Knowlton.” The note was made in New Hampshire, and the action was commenced in Hay, 1866.

Suit in equity, to redeem from a sale under a trust-deed, and also from a decree of mortgage foreclosure upon the same real estate. The facts are sufficiently stated in the opinion.

Actions ex delicto, survivor oe, etc.: seduction.— Mary Ellen Shafer in her life-time commenced this action, by attachment, in her own name to recover damages for her seduction. She died before trial,' and her administrator was substituted as plaintiff, and a verdict was rendered in his favor for one thousand dollars. Judgment passing upon the verdict, defendant appeals. The questions made appear in the opinion.

2. -principle applied. A person whose land had been sold for taxes, upon hearing of it, went to the clerk to redeem the same, who finding the record of a second sale that had been subsequently made,… Held: that these facts entitled the owner to redeem after the period of redemption had expired, upon his paying to the holder of the tax deed the redemption money with penalty and interest. Appeal from WmnesMelc District Court.

This is an action to recover damages for setting out fire, and negligently permitting it to escape from the grounds of defendant to those of plaintiff, where it burned timber, wood, etc. The petition alleges, that the defendant is an incorporation organized under the laws of this State for the purpose of constructing and operating a railroad from Burlington to the mouth of Platt river; that the State has granted to said company the right of way through the State; that said…

In 1841, a number of persons belonging to the religious denomination known as New School Presbyterians, and residing in Iowa City, organized a… Held: and the plan being finally settled upon, at a meeting of the officers (elders) of the church and its members, held on the 16th day of July, 1866, fifty, or about five-sixths of all the members, including four of the trustees and pastor, asked for letters of dismission from the said church for the purpose of uniting with the…

Bail bond : what it implies and proves : riling or, etc. — Action upon bail bond executed to the State by the defendants, whereby they undertook that one Benjamin Beed should appear at the next term of the Guthrie District Court to answer to a criminal offense therein specified. The bond in its recitals and conditions, is in literal compliance with the form provided in section 4968 of the Bevision, with the exception noticed in the opinion.

The petition claims $2,000 upon a bond, containing this condition: “Whereas the above bounden Jeremiah Hufford is arrested and now in custody of the sheriff of Monroe county, Iowa, by virtue of a warrant issued by Thomas E. Peters, a justice of the peace of Monroe county aforesaid, on an information filed before said justice by Pobert N. Pollock, accusing him, the said Jeremiah Hufford, of murder in the second degree, committed in Knox county, Illinois, of one T. L. Strager.

Trespass, for injury to plaintiff’s crops by defendant’s hogs. Defense, the want of a lawful fence. Held: that there was no lawful submission of the stock law, and that there was no regulation in force restraining hogs from running at large. Judgment for the defendant accordingly, and plaintiff appeals.

Private way : construction oe contract : specific performance : STAMP : IMPLIED GRANT OF EASEMENT OF WAY.This is a contest relating to a right of way over the north side of land used, occupied, and claimed by the defendant. One Gillespie owned forty acres of land, the S. W. corner of which touched the N. E. corner of the land of the defendant. Defendant’s title appears to be this: One Patton owned 160 acres and sold it to a person, who sold 40 acres of it to defendant.

Ordinary action by a tenant against his landlord for a failure to build and repair fences pursuant to agreement. Trial by jury; verdict and judgment for plaintiff. The defendant appeals. The further facts are stated in the opinion.

& Co., a note and a deed of trust on certain real estate to secure it. In 1858 the deed of trust was foreclosed by suit, special execution issued and the land was sold to Helmer; Helmer then sold the land hy contract to Peters. On motion, afterward hy Landis against Heed Bros. & Co., the sale was set aside, on condition of repayment, hy Landis to the clerk for the nse of the purchaser, within twenty days, of the amount for which the property sold. This payment was never made.

Plaintiff obtained a report of the referee in his favor, and the District Court rendered judgment thereon proforma. The defendants appeal.

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

<p>CORRECTION 03? INSTRUMENTS: AGREEMENT TO SUPPORT RELATIVES, ETC.</p>

, by force, etc., entered upon certain real property in the prior actual possession of plaintiff. It is alleged that at the time of such entry, plaintiff was, and, for more than a year prior, had been, in such possession. The answer admits possession of a portion of the premises claimed, but insists that defendants held in their own right, having the legal title.